CDT strongly believes that the Internet’s extraordinary success in facilitating independent innovation and speech is directly linked to the fact that any Internet user can provide content and
services to any other willing Internet user, without getting permission from any “gatekeeper.” There is currently an active debate about whether and to what extent there is a risk that network
operators could engage in behaviors that would undermine this characteristic openness.
Current practices in the marketplace, however, may provide limited evidence one way or another as to the extent of this risk. The present legal framework is still only recently settled,
and merger conditions and the political environment serve as significant but potentially temporary constraints on behavior. Meanwhile, the market for broadband is concentrated; there
is evidence that network operators can sometimes be tempted to seek to exert more control over their users’ activities than the Internet has typically afforded; and unraveling the effects of
discriminatory deals on a purely after-the-fact basis could prove extremely difficult.
CDT believes it may be useful, therefore, to consider a range of possible behaviors and attempt to determine whether there are some that seem worth focusing on as likely sources of concern. The Appendix to these Comments sets forth CDT’s effort to outline possible categories of behavior without expressing any judgments about them.
Taking the next step and actually evaluating these practices leads CDT to a number of conclusions. Among possible packet management practices: