Presenter: Luo Binxin, Juris Master, Class of 2018, Renmin University of China Law School

      The two papers under discussion both examine U.S. broadband policies, centering on whether underlying internet service providers should abide by network neutrality. The author of the first paper coined and advocates the concept of network neutrality, whereas the second paper refutes network neutrality from an economic perspective.

References：

THE BROADBAND DEBATE, A USER‘S GUIDE（2004）, TIM WU, TELECOMM. & HIGH TECH. L.

BEYOND NETWORK NEUTRALITY, Christopher S. Yoo, Harvard Journal of Law & Technology

Free Discussion:

Wang Ying, Associate Professor, Renmin University of China Law School:

      In my view, further deliberation is needed on whether the theory of network neutrality can be applied to internet platforms. After all, this theory was born out of a distinct real-world context. Network neutrality originally applies to information infrastructure, yet China’s internet platforms can hardly be categorized as infrastructure providers equivalent to broadband carriers.

      Arguments raised by opponents of network neutrality mainly stem from economics. Economic models feature intricate structures and numerous variables, making it difficult to empirically prove via data whether an open market or regulatory control better facilitates internet development. Even so, economic analyses such as market share assessment carry substantial weight when judging the nature of infrastructure. On the other hand, network infrastructure is closely tied to citizens’ fundamental rights, including equal access to information, which fall within the purview of legal and sociological research. Furthermore, internet platforms are backed by high technical barriers. Consequently, determining whether a platform qualifies as infrastructure requires a comprehensive assessment integrating economic, technological and legal dimensions.

Ding Xiaodong, Associate Professor, Renmin University of China Law School:

      Advocates of network neutrality often use water pipelines and power grids as analogies. Such utilities will not selectively supply or withhold services to certain users based on differences in the prices users are willing to pay. Water and electricity are essential infrastructure relied upon by all markets and form the foundational framework that enables markets to function. They can be compared to the trunk of a tree: only when the trunk is managed fairly can every branch and leaf obtain nutrients on an equal footing. Translated to broadband networks, this means every end user is a potential innovator, which is the key to a prosperous market.

      Opponents of network neutrality argue that broadband provision should operate as a free-market activity. While the TCP/IP protocol appears neutral on the surface, it sets rigid uniform standards that are inherently non-neutral. They contend broadband infrastructure ought to function like "smart water pipelines" or adjustable pumping pipes, enabling operators to manage data delivery according to users’ varying demands. Uneven data transmission is inherent to the underlying network architecture: live streaming requires high-speed transmission, whereas emails prioritize packet integrity over fast delivery. Competing broadband providers will not engage in malicious network discrimination in practice; market competition compels them to act in a relatively rational manner. Even if seemingly unreasonable discriminatory practices emerge, they stem from sound economic competition. For instance, when communications carriers supply unequal tiered services, it is done to boost economic efficiency and cater to the needs of the broader user base. Additionally, network non-neutrality fosters vigorous competition at the "last mile" and motivates broadband operators to invest in and renovate underlying network infrastructure. As regards vertical monopolistic conduct that may arise under a non-neutral network environment, scholar Christopher S. Yoo advocates addressing such conduct individually through antitrust litigation on a case-by-case basis.

      Analyzing network neutrality from an economic versus a legal perspective yields disparate conclusions. Most legal scholars in the United States endorse network neutrality, while only a small number dissent, including Christopher S. Yoo from the University of Pennsylvania Carey Law School. Notably, his critical arguments are largely built upon economic reasoning. In contrast, Tim Wu, the advocate for network neutrality, maintains that broadband operators bear certain social responsibilities that cannot be evaluated solely by economic criteria.

      The situation in China differs from the context discussed by American academics. Broadband services in China are state-owned and supplied through planned arrangements. However, a new set of challenges has surfaced: as internet platforms operating on top of broadband networks have grown to enormous scale, their power has come to resemble that of broadband carriers in the United States. This raises the question of whether such platforms should likewise adhere to neutrality obligations, a debate that encompasses the widely discussed "choose-one-of-two-platforms" exclusive dealing practice. From Christopher S. Yoo’s market-oriented standpoint, exclusive dealing is entirely a product of market choice. Merchants and platforms enter such agreements voluntarily only when both sides stand to gain. For merchants, the benefits include exclusive privileges, abundant traffic, financial subsidies and other incentives. If a platform engages in unfair or discriminatory conduct, merchants will simply switch to rival platforms, making this practice a purely market-driven activity.

      There have been remarks from Jack Ma and Pony Ma regarding whether China’s internet platforms qualify as network infrastructure, yet this proposition lacks solid doctrinal justification. Three questions remain open for academic discussion: whether internet platforms should be classified as infrastructure, the scope to which they meet such a definition if the answer is affirmative, and the corresponding liabilities they ought to assume.

Liu Xiaocen:

      From my perspective, network neutrality is far more than a pure market outcome. As early as in Code Version 2.0, the book notes that the TCP/IP protocol was not a product of spontaneous market evolution. Instead, it took shape through multi-party coordination with regulatory involvement, and eventually developed into a universal protocol that allows tracking of cyberspace information including message sources, sending terminals and data packets at the protocol layer.

      While U.S. discussions on the network neutrality principle mainly revolve around telecommunications carriers, the framework is equally instructive when applied to other internet service providers. For instance, the core tension inherent to network neutrality can be analogized to the two mainstream operating systems widely used today: iOS and Android, which epitomize the divide between advocates of openness and proponents of deregulation. Apple adopts a closed-source proprietary system. All applications must access its ecosystem and abide by its standards and rules, with Apple conducting reviews of all apps. Its model places greater faith in innovation driven by large corporations. Android, by contrast, features an open-source architecture that invites broad participation from developers, who are permitted to modify both applications and underlying source code, with an emphasis on pursuing ecosystem diversity. To date, there is no definitive consensus on which operating system is superior, as each has its own merits and drawbacks. Apple emphasizes system security, unified standardization and robust privacy protection. Android prioritizes a diverse ecosystem yet has long faced doubts over its security performance (though it has gradually shifted toward Apple’s security-focused design philosophy in recent years).

      Yet people often overlook the fundamental difference in their business models: Apple bundles software with proprietary hardware for sales, whereas Android merely provides software services. The reason Apple opts for a closed, walled-garden ecosystem is that it delivers tangible hardware benefits to lock in consumers, which in turn attracts app developers. Since Android is not widely sold alongside self-owned hardware, cross-scenario compatibility and ecosystem diversity become its core priorities, leading it to welcome a vast array of applications to build up its digital ecosystem. Therefore, whether a platform chooses openness or closure is largely predetermined by its original business model. I hold that we cannot judge which platform is superior or more ethically sound merely based on whether it is open or closed. The choice of distinct commercial paths is jointly shaped by the underlying business logic and a host of multi-dimensional factors.

Li Jinhua, Juris Master, Renmin University of China Law School:

      I believe there are two preliminary questions we need to address before discussing platform neutrality. First, the nature of platforms: not all platforms are public utilities. A supermarket can be viewed as a platform, yet it does not operate neutrally. Suppliers that pay higher fees get better shelf placement for their goods. By contrast, state power grids are required to operate as public utilities. The classification of a platform as a public utility is closely tied to its inherent characteristics, and we cannot presume all platforms fall under this category. In my view, multiple key factors determine whether a platform qualifies as a public utility, with barriers to competition being a major one. Industries featuring high entry barriers that demand enormous social resource investment include state power grids and public telecommunications infrastructure. Once a complete power grid system is in place, building a duplicate grid for competitive purposes is impractical. Where a single monopolist exists and entry barriers remain prohibitively high, market competition is effectively blocked. Under such conditions, standardizing the network to deliver uniform power supply services becomes the rational approach. Second, when weighing whether to support or oppose platform neutrality and choose between open access or deregulation, we must clarify what kind of competition we intend to cultivate. Not all robust competition creates social value; sometimes market rivalry merely devolves into price wars that bring no tangible progress in innovation. Take competition over the "last mile" as an illustration. If our core objectives are advancing network technologies and expanding overall bandwidth capacity, network neutrality may exert little influence on innovation in these areas.

      Furthermore, we should adopt a dynamic perspective when judging whether an online platform constitutes infrastructure. In intellectual property law, there exists the phenomenon of trademark genericization, with the term “USB flash disk” serving as a typical example: it originated as a registered trademark before becoming a generic noun. By the same token, platforms such as WeChat and Taobao keep expanding dynamically, accumulating an ever-growing user base and erecting increasingly high market entry barriers. As a result, they may eventually qualify as essential infrastructure.

Zhao Lei, Juris Master, Renmin University of China Law School:

      Infrastructure such as power grids imposes restrictions only on one group of users through its control over electricity supply. By contrast, internet platforms exercise two-way restrictive power, targeting end users on one side and merchants on the other. A non-neutral platform not only undermines users’ freedom of choice and convenience but also indirectly manipulates merchants’ interests. I believe this constitutes a distinction between internet platforms and traditional physical infrastructure.

Hu Buwei, Undergraduate Student, Renmin University of China Law School:

      Whether internet platforms can be classified as infrastructure shall be judged in light of people’s modes of production and daily life. From a historical perspective, the scope of infrastructure has kept expanding alongside industrial and technological revolutions. The First Industrial Revolution replaced manual labor with machinery, turning petroleum energy facilities into infrastructure of the Steam Age. The Second Industrial Revolution introduced electric appliances to substitute mechanical equipment; electricity emerged as a new energy supplementing and replacing steam power, making power facilities the core infrastructure of the Electric Age. The Third Industrial Revolution brought computers and information technology to ordinary households, rendering network facilities vital infrastructure for social production and residents’ daily lives. Technological revolutions are still underway—artificial intelligence, virtual reality, biotechnology and more are driving rapid, drastic transformations in how people work and live, which continuously reshapes the boundary of infrastructure.

      In my view, two criteria determine whether a service or facility qualifies as infrastructure: the degree of dependence and necessity it bears for people’s production and life. If a service fundamentally transforms people’s way of work and daily routines, creates heavy reliance among the public, and lacks more convenient and low-cost alternatives, it can be categorized as infrastructure.

Jiang Wen, Juris Master, Renmin University of China Law School:

      First of all, I hold that debating whether online platforms qualify as infrastructure is a forward-looking issue. In my opinion, WeChat cannot yet be defined as infrastructure at present. Alternative instant messaging tools are readily available to users. Moreover, it is a subject of private law, so it is difficult to substantiate its qualification as infrastructure under public law (though it may satisfy the definition after years of development).

      Second, I tend to support light-touch regulation for internet platforms in their early development stage, including abstaining from rigid neutrality rules. During free market development, differentiated treatment of users and tiered service provision tailored to diverse demands can itself embody a form of fairness — analogous to how power grid infrastructure deployment and electricity allocation are adjusted according to regional power consumption levels. Reasonable tiered service systems align better with real-world operational conditions.

      Third, take Tencent as an example. Mandating absolute platform neutrality and equal treatment for all developers would force the platform to accept every mini-program applicant indiscriminately. This would impose immense technical burdens and consume massive internal corporate resources. Such heavy compliance costs ought not to fall entirely on a single private enterprise. After all, Tencent is neither public infrastructure nor a state-owned enterprise, so the government cannot share these costs.

Editor:Xu Liuya

Reviewer: Zhu Peiwen