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Downes: Waxman’s Net Neutrality Proposal Less Dangerous Than Genachowki’s

Net neutrality advocates have argued for years that without immediate government intervention, Internet access providers are certain to “smother the open Internet” by blocking access to websites they either don’t like or which won’t pay premium fees to reach consumers.

[IMGCAP(1)]”The end of the Internet as we know it,” as net neutrality supporters put it, is always just around the corner.

But nothing of the kind has happened. As consumers themselves acknowledge in survey after survey, the Internet is working just fine. The handful of instances of ISP interference with consumer web traffic have had little to do with profits and mostly with curbing the bandwidth-hogging habits of file sharers.

At the same time, a rush to regulate the rapidly evolving Internet economy is much more likely to create harmful unintended consequences. The Internet as we know it would not so much be preserved as petrified, entombed like an insect in solid amber. Real innovation — think Amazon’s Kindle network, next-generation game consoles and cloud computing — would be unnecessarily constrained, funneled into a needlessly regulated Jurassic Business Park.

So, why the urgency?

Ironically, the excessive rhetoric of some net neutrality supporters seems to be a response to the possibility of a legislative compromise. A recent joint proposal from Google and Verizon, for example, formed the basis for a bill that circulated in Rep. Henry Waxman’s Committee on Energy and Commerce in the final weeks of the legislative session. Though the bill has not been introduced, the process demonstrated just how close to agreement most of the parties really are.

With access providers, content companies and regulators moving closer to a middle ground, political elements in the pro-regulation camp have become apoplectic about the need for radical agency action. “FCC Chairman [Julius] Genachowski must act now, before it is too late,” the Media Access Project wrote last month. “The time has passed for compromise on net neutrality,” The Seattle Times said. “It’s put-up or shut-up time for the FCC’s net-neutrality advocates,” according to The Washington Post.

Is it? Everyone in the net neutrality debate agrees that preserving the open Internet has been the priority all along. Rather, the chance for a pre-election compromise was upended in part when groups such as Free Press threatened to quit the Open Internet Coalition for supporting the effort. And Waxman hasn’t given up on hopes for a legislative solution, noting that “cooler heads may prevail after the elections.”

So far, at least, those cooler heads include Chairman Genachowski. More than a year ago, he introduced a proposal for the FCC to enforce specific and largely workable net neutrality rules, following up on a campaign promise made by President Barack Obama.

But the regulatory momentum stalled after a federal court of appeals held this spring that the FCC doesn’t have the sweeping authority over broadband Internet access the agency claimed for itself. The pending rulemaking has been left hanging.

Waxman’s proposal to end the stalemate was far less dangerous than the ill-advised gambit Genachowski proposed in May. To overcome the court decision, Genachowski threatened to unilaterally reclassify broadband access as a telephone service under Title II of the 1996 Telecommunications Act.

That move would treat Internet access as if it were old-style phone service, subject to a crazy quilt of rules last dusted off before the 1984 breakup of the old telephone monopoly.

Legal scholars, unions and a bipartisan majority of Congress unequivocally counseled Genachowski not to move forward with reclassification. The proposal went quiet. But now, panicky net neutrality extremists want him to finish the job.

In the unlikely event reclassification survived a court challenge, the move to Title II would surely prove to be a Pyrrhic victory. Absent FCC oversight, the Internet economy has expanded into a wonderland over the past 10 years. But under Title II, broadband access would be hopelessly mired in regulation. Deployments of new technologies would be skewed, slowed or just plain stopped. State and local regulators could at last get the chance they’ve been waiting for to slice off their pound of flesh.

This is a critical moment for net neutrality. Chairman Genachowski can pull the Title II trigger and spend the rest of his tenure fighting in court. Or he can continue to let the Internet economy flourish while industry and Congress work on their own approaches to preserving open and transparent access — just as his predecessors have sensibly done for the past 10 years, despite a rising chorus predicting doom and gloom.

The choice should be obvious.

Larry Downes is the author of “Unleashing the Killer App” and, most recently, “The Laws of Disruption: Harnessing the New Forces that Govern Life and Business in the Digital Age.” He is a nonresident fellow at the Stanford Law School Center for Internet and Society.

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