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1997 and DSL in 1998, the small ISPs have disappeared. In the States, there has been significant debate about the intensity of competition in broadband access networks in the US. The competitive situation in the market for broadband Internet access in the U.S. is frequently referred to as a duopoly. This can be seen in Figure

1 in the next page. According to the FCC'

s National Broadband Plan, 96% of all households are served by two or fewer providers. The decline of competitive broadband alternatives for consumers was coincident with an aggressively deregulatory time period. Also coincident with this period, Network Neutrality appears on the U.S. scene. During this time, the FCC has effectively abandoned its historic procompetitive regulatory philosophy in favour of a deregulatory stance that is in effect pro-incumbent.1 Beginning in 2002, the FCC began to remove the unbundling requirements on the incumbent telecommunications carrier which allowed competitors to obtain the

1 Marcus, J. Scott (2005): Is the U.S. Dancing to a Different Drummer? in: Communications &

Strategies, Vol. 60, pp. 1-18, at: http://www.idate.fr/fic/revue_telech/132/CS60%20MARCUS.pdf. Also available in intermedia (the journal of the International Institute of Communications), vol. 34, no.3, July/August 2006.

5 necessary network elements to provide broadband Internet access. Similarly, prior to 2005, telecommunications firms in the U.S. were not permitted to discriminate. In 2005, this restriction was removed putting telecommunications firms on par with cable operators who were not restricted so. Further, U.S. regulators no longer have explicit power to regulate broadband Internet service, in general. The FCC rulings of the past few years have placed broadband Internet access into the category of an unregulated information service. Further, a series of court rulings in the U.S.2 have taken the position that matters covered by the Communications Act3 do not constitute a separate cause of action under antitrust (competition) law. Since this line of cases concluded that antitrust law is mutually exclusive with sector-specific communications regulation, they rendered competition law ineffective in areas subject to telecommunications regulation. Figure 1. Residential Fixed High-Speed Connections, Shares of Selected Technologies, 2005-2008 (source: FCC, High-Speed Services for Internet Access: Status as of December 31, 2008) 2.2. Approaches to addressing Network Neutrality Although the principles of common carriage, non-discrimination, device attachment, and

2 Notably Goldwasser v. Ameritech Corp.

222 F.3d

390 (7th Cir. 2000) and Law Offices of Curtis V. Trinko, L.L.P. v. Bell Atlantic Corp.,

294 F.3d

307 (2nd Cir. 2002) (holding that conduct subject to the Telecommunications Act of

1934 as amended cannot serve as a separate cause of action under antitrust).

3 The US Communications Act of 1934, as amended.

6 third-party neutrality have long been important areas of communications policy, Network Neutrality first appeared on the FCC'

s agenda in earnest in February 2004. In a speech at the Silicon Flatirons Symposium, then-FC........