Dial-up rules for the broadband age?

Scott Cleland Contributor
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Eventually the truth comes out.

The call for net neutrality is really a call for a return to monopoly common carrier regulation for broadband networks.

At Wired, Marvin Ammori, a leading Save-The-Internet voice, has again called for the net neutrality movement to mobilize.

In his latest piece, “We’re about to Lose Net Neutrality and the Internet as We Know It,” Ammori warns of the end of the Internet world if the D.C. Court of Appeals finds the FCC’s net neutrality order illegal.

Specifically, he concludes: “if the court throws out the non-discrimination rule, permission-less innovation on the Internet as we know it is done.”

To grasp how desperate these calls for net neutrality have become, consider how many times net neutrality has been re-packaged and re-branded to try and gain mainstream traction, credibility and support.

In 1999, Harvard Law Professor Larry Lessig popularized the notion of the Internet as a “commons” with “neutral” access. In 2002, his student, now Columbia Law Professor Tim Wu, coined the new term “net neutrality.”

In 2006, Free Press organized SaveTheInternet.com and redefined net neutrality as “the First Amendment of the Internet” guaranteeing freedom of speech, while simultaneously accusing ISPs of discrimination and being gatekeepers, censors, and toll-booth collectors.

It is noteworthy that after both the House and Senate rejected calls to legislate net neutrality into law, every single one of the 95 House and Senate candidates that Free Press got to publicly support net neutrality lost their election in the 2010 midterms.

After those defeats, net neutrality was repackaged yet again in late 2010 as the FCC “open Internet” order.

In it, three unelected commissioners effectively self-legislated new purposes for the FCC: to “preserve the Internet as an open platform enabling consumer choice, freedom of expression, end-user control, competition, and the freedom to innovate without permission.”

This brings us back to the end of “the Internet as we know it” hyperbole from Mr. Ammori – that if the court overturns the FCC’s common carrier regulation of broadband, “permission-less innovation on the Internet as we know it is done.”

Now let’s fact-check this Chicken-Little analysis of the D.C. Court of Appeals review of Verizon’s challenge of the FCC’s Open Internet order.

Mr. Ammori is wrong on the facts and the sky isn’t falling. The broadband Internet has never been the neutral common carrier utopia Mr. Ammori imagines, where all bits are treated equally. Internet bits often need to be treated differently for a wide variety of legitimate and necessary network management and other reasons.

Over the last decade, net neutrality proponents incorrectly have warned of a parade of alleged ISP horribles that simply has not happened: censoring free speech, discrimination, blocking of websites, toll-booths, “dirt-road” Internet access, etc.

In fact the exact opposite has occurred in America. Over the last decade, over a thousand broadband providers have handled literally quadrillions of Internet actions with virtually no incidents of the alleged litany of abuses listed above.

Moreover, U.S. broadband providers have invested over a trillion dollars in Internet infrastructure, enabling more facilities-based broadband competition than anywhere in the world.

Furthermore, exceptional U.S. broadband competition enabled the amazing innovation and mass adoption of smart-phones and tablets, and all the mobile apps and streaming that come with them.

If the D.C. Court of Appeals rules that the law prohibits the FCC from imposing monopoly common carrier regulations on unregulated information services providers, the Internet will be just fine. The Internet was open and vibrant before and during the FCC’s Open Internet order, just like it will remain if it is partially or completely vacated.

If net neutrality violations are a real modern problem, and net neutrality is truly a modern concept, then those who believe in it should ask Congress to modernize communications law and FCC authority to address it for the 21st century.

How productive is it for the FCC to continue to push an illegal policy in opposition to Congress?

A big problem that net neutrality proponents have is that they are trying to dress up obsolete common carrier regulation as a modern policy.

Why do people who claim to support “innovation without permission” not want the government to innovate like it did in deciding to auction spectrum, replace monopoly with competition, and make broadband an unregulated information service?

Those modern government innovations have lain bare how obsolete net neutrality proponents’ ideas are.

In sum, have net neutrality proponents thought about how silly it is to call for a policy to promote innovation by imposing a policy proven to kill any government policy innovation?

We need to remember that in the so-called good old dial-up days of common carrier regulation, the government thought nothing was wrong with screeching modems and eternal online waits.

Scott Cleland is Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests and President of Precursor LLC, a research consultancy for Fortune 500 companies. Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration.