"27. Intuitively, the case-by-case approach may seem reasonable. However, this approach creates substantial social costs as noted by Barbara Van Schewick in "Network Neutrality and Quality of Service: What a Non-Discrimination Rule Should Look Like," Stanford Law Review, 2015. First, a case-by-case regime will fail to provide much-needed certainty to industry participants. In the absence of a clear rule setting out the permissible and impermissible business practices, service providers may refrain from deploying network technology.
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