One thing we don't want is something like the SEC's anti-insider-trading rules. Network neutrality rules won't have much practical use if the only way to get them enforced is to convince a bureaucrat at the FCC to raid AT&T's sales office, seize its files, and investigate your suspicions of wrongdoing. The entities who have the power to spur crack Commission Commandos into action are the powerful ones, already best equipped to fight the Bells on their home turf. Spunky startups aren't going to be the ones with real leet skillz at pushing paper on the Hill.
We don't want to encourage a situation in which in Bells spend ten years coming to detente with the YaGoogleSofts of the world, agreeing finally to shut everyone else out.
Now, there is an alternative, which is to set things up so that big companies can act as proxies for the little guys' interests. That's how it works sometimes in copyright. Home taping was made legal because Sony, a corporate giant, was willing to take on the Hollywood studios in the eight-year Betamax legal battle. Once they'd won that fight, all the little companies got to enjoy the precedent they'd set, and we got to enjoy the explosion of cheap and flexible home recording gear.
Once you answer all these questions, one more hangs in the balance: which agency should have regulatory authority?
The Federal Communications Commission seems like a natural. After all, they're already the people who oversee the telcos.
But the FCC may be the worst people to put in charge of the neutrality issue. They are notoriously credulous when it comes to serving the interests of the incumbents they supposedly regulate. These are the same brain surgeons and rocket-scientists who thought that the Broadcast Flag would actually work to contain piracy. And that was under Commissioner Michael Powell, who was a paragon of consumer advocacy next to his industry shill successor, Commissioner Kevin Martin.
Martin is the Commissioner who castrated Powell's "Four Freedoms" for Internet users, turning basics like "Freedom to obtain service plan information" into "consumers are entitled to competition among network providers, application and service providers, and content providers."
In other words, this is a Commissioner who doesn't even think that we lowly "consumers" deserve to know how much our Internet service costs us.
This man will not protect from the phone companies.
We need to fix this, though, and there may never be a better time to do it. The Bells are hunting at the FCC for the right to compete with cable TV providers. (They have the advantage of having deals in place with all the municipalities and may be able to trounce the cable companies.) They're in the mood to deal, and savvy K Street lobbyists might be able to scuttle the Bells' TV ambitions if they don't back off on the neutrality question.
The Bells' neutricide arguments are so flimsy that they can be debunked in seconds. We'll be able to get millions of Internet users to band together and put senators and representatives on notice that if they sell us out on this, we'll fire them in the 2006 midterm elections.
The trick, then, is figuring out what we should be asking for. Based on the above, any well-developed, plausible net neutrality regime should include: