Thanks for the thoughtful reply.

I guess for me the operative word in your comments is “could.” It’s certainly plausible that, given the lack of competition for broadband access in some parts of the world, some access providers (and I would add AT&T to your list of leading providers in the U.S.) might introduce–publicly or secretly–systemic restrictions on consumers that limit productive new uses and information product innovations. And it is also plausible that were that to happen, the market might fail to offer a corrective to this behavior, in which case the need for government intervention would become stronger. That intervention could take the form of new carrier regulations from the FCC, antitrust enforcement by the FTC, or other sanctions.

But in general I think it’s a bad idea to legislate ahead of a real problem (and I don’t consider the ham-fisted interference by Comcast with bit torrent applications to be real in the sense of systemic and uncorrectable by consumer demand). This is especially true with industries undergoing transformation in the face of disruptive technologies, a condition that certainly applies to Internet access (fiber optic access from AT&T and Verizon, for example, is just coming on-stream; ten years ago, a 4800 baud modem was state of the art!). I give several examples in the book of efforts to legislate in the middle of the storm that not only didn’t solve the problem but in fact made it worse. Legislating before the storm hits is even more dangerous. There may be a need for net neutrality laws in the future. And that’s when the crafting of minimal-impact solutions ought to begin.

Of course there are no guarantees, and no legislation will keep ideologues from offering ISP or other communications services (the First Amendment would clearly prohibit that). Rupert Murdoch already controls a great deal of Internet access, although no one seriously expects him to block access to content that competes either ideologically or financially with his content properties. Indeed, in some areas of the U.S. with limited cable/satellite television provisioning, users are often limited by the morality of the providers, who won’t offer channels they deem to be unfriendly to family values. The combination of market pressure and new technologies often solve such problems, but not always. The market isn’t perfect, and legislation is by definition imperfect. To me, it remains to be seen if the neutrality bugaboo is one of those problems or not. If it becomes so, crafting a legal solution will be a great challenge. The proposed legislation and proposed rulemaking do not begin to address the complex and changing needs of network management when new applications, infrastructure technology, and user demands are mutating rapidly.

I mention AT&T, which you left off your list, for an important reason. As I say in the original post, I think Comcast’s argument that the FCC cannot regulate their Internet access is a sound one. The FCC argued, and the Supreme Court accepted the argument, that AT&T and other traditional “phone” companies offering Internet access are common carriers under the 1996 Act, while cable, satellite and wireless providers of Internet access are not. (This was in the Brand X case.) The FCC has extensive power to regulate common carriers (“telecommunications” is the word in the 1996 law, a term and definition inherited from a 1980’s consent decree with AT&T in the course of its breakup) but not “information services” providers.

So as things stand (and I suspect the Chairman is being cynical and pandering in suggesting otherwise in his speech), even if the neutrality rules are adopted through the proposed rulemaking, it seems unlikely that the Commission will be able to apply them to anyone other than AT&T and Verizon (and then not to their wireless provisioning). Bringing cable, satellite, and wireless under their control would require a substantial revision of the 1996 Act, for which I sense no political will in Congress. (The 1996 Act took ten years to hammer out, and dozens of lawsuits challenging it were filed within days. The U.S. Supreme Court has heard over a dozen cases already, most dealing with just the definitions.)

Redefining common carrier to cover all Internet access providers, which many consumer groups advocate, would be disastrous. The Commission’s efforts to create competitive local exchanges under the 1996 Act, for example, led to an industry bubble whose explosion is still being felt. AT&T is a shadow of its former self. That is, the former AT&T, not the current entity, which is actually SBC, one of the RBOCs, who picked up the scraps of its former parent after the damage–some of it, unarguably self-inflicted, but much of it FCC-inflicted–had been done.

It seems that between the CIO article (just read it real fast) and this, you take a fairly skeptical view of what the benefits vs drawbacks of NN or the lack there of, and dont seem to draw on the negatives that could arise without it.

1) Regarding metered internet access, AOL was doing this 10 years ago, Cell Phone companies are doing it, and Usenet servers do it. This is nothing new, they count packets, not scan the data.

2) There are so few ISP’s across the country (until the ‘whitespace’ where old tv signals were, are auctioned off for internet access) that regulating Comcast, TimeWarner, Verizon and RoadRunner (and whatever other few companies I’m leaving out that are out there) shouldnt be too hard.

When 4chan access was deemed to be being blocked by the ISPs, a storm arose on twitter and tech blogs. (which could be an argument against NN, that the masses speak and bad press fixes things) But in the real world, eventually the companies could do this, and then eventually peoples access could be limited.

3) While the US will not be Iran, in that the internet is controlled by the state, if Murdoch or similar figure purchases up ISPs in major metropolitan areas and blocks access to say…. HuffPo, DKos, and other Liberal site, a good majority of people may never even know those places exist if they so choose to venture. Not to mention whatever other corporate PR could be shoved down throats while blocking access to opposing views.

This could essentially leave consumers needing to use proxies and other workarounds that would be a huge barrier for the masses.

So if you could figure out a way to get around the need for NN laws, with a guarantee that an ISP will not be owned by a political or corporate ideologue with the ability to block access to certain sites/content or charge a website owner a ransom for people to access their site (think comcast charging hulu exuberant fees to favor use of comcast’s ‘fancast’), id love to hear it.