Jerry Brito and Jerry Ellig submitted a comment to the FCC on the Notice of Inquiry, In the Matter of Broadband Industry Practices, WC Docket No. 07-72. The public interest comment addresses whether there is a need for "net neutrality" regulations.

Specifically, the FCC asks whether it has the authority to enforce its Internet Policy Statement, as it presently exists, to address a specific case or particular market failure it might identify. The authors suggest that the Internet Policy Statement has no legal force, and legally binding rules would have to be adopted via a notice and comment process if the principles contained in the policy statement are to be made enforceable. Second, the FCC asks how, if it decided to promulgate such rules, it could do so in a manner that would reach only identified market failures or specific problem cases. The authors suggest a framework for analysis that should guide the Commission in determining whether rules are necessary and, if so, how they should be promulgated. The steps to this framework include defining specific outcomes that broadband policies are supposed to produce, assessing evidence of market failure, identifying the uniquely federal role, comparing the effectiveness of alternative policies, examining the costs of alternative policies, and comparing costs with outcomes.