Progress on Point

Volume 17, Issue 9 May 2010

The Constructive Alternative to Net Neutrality Regulation

and Title II Reclassification Wars
by Adam Thierer & Mike Wendy

The Federal Communications Commission (FCC) has embarked on what can only be described
as a “by any means necessary” effort to pigeonhole the Internet and broadband networks into
the regulatory regime of a bygone era. The ramifications of this crusade for the digital
economy will be profound, as it raises the likelihood of delayed or foregone investment,
discouraged innovation at both the core and edge of networks, and the increasing politicization
and bureaucratization of high-technology policy.
Luckily, there are constructive alternatives to such a destructive regulatory path. As explained
below, the better alternative would be based on: (1) a new legislative framework centered on a
Federal Trade Commission-like (FTC) enforcement model of ex post adjudication grounded in
antitrust law; (2) increased industry self-regulation, technical collaboration, and alternative
dispute resolution mechanisms; and (3) greater reliance on community policing and expert
third-party oversight.

The “Third Way” Is the Old Way in Drag

For the past year, FCC Chairman Julius Genachowski has been laying the groundwork for
imposing “Net Neutrality” regulations on broadband networks and has stepped up this crusade
in recent weeks.1 He has done this despite the D.C. Circuit’s recent decision in Comcast v. FCC,
which held that the agency lacked the authority to sanction Comcast for supposedly violating
Net Neutrality principles that did not have the force of law.2 The Court concluded that the

Adam Thierer is President of The Progress & Freedom Foundation. Mike Wendy is Vice President of Press and
External Affairs at PFF. The views expressed in this report are their own, and are not necessarily the views of
the PFF board, fellows or staff.
1
See Berin Szoka & Adam Thierer, The Progress & Freedom Foundation, Net Neutrality, Slippery Slopes & High-
Tech Mutually Assured Destruction, PROGRESS SNAPSHOT 5.11, Oct. 2009, www.pff.org/issues-
pubs/ps/2009/pdf/ps5.11-net-neutrality-MAD-policy.pdf.
2
Comcast Corp. v. FCC, No. 08-1291 (D.C. Cir. 2010),
http://pacer.cadc.uscourts.gov/common/opinions/201004/08-1291-1238302.pdf.

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Page 2 Progress on Point 17.9

FCC’s “ancillary jurisdiction” under Title I of the Communications Act was insufficient to allow
the FCC to regulate Comcast’s actions.3
Chairman Genachowski has now concocted an alternative regulatory blueprint that he
describes as a “Third Way.”4 He claims that, simply by reclassifying the transmission
component of broadband services under Title II of the Communications Act and adopting “a
restrained approach” to regulating it, America can have the best of both worlds: innovation and
investment, as well as (government-ensured) “openness.”
In reality, however, Genachowski’s “Third Way” is really nothing more than the old way the
agency did business for decades—and with disastrous results. The history of communications
under strict Title II regulation was not a pretty one: Stagnant markets, limited consumer
choices, and lackluster innovation were the hallmarks of the old regulatory era. In attempting
to protect consumers, federal and state regulations perversely harmed them by preserving
barriers to entry that thwarted robust (or even minimal) competition and innovation.
The Telecommunications Act of 1996 marked an important turning point in this miserable
history, as Congress finally acknowledged that facilities-based competition was possible and
preferable to the regulated monopoly era of the past. The purpose of the measure, as the first
six words of the Act made clear, was “To promote competition and reduce regulation.”5
Unfortunately, however, lawmakers were reluctant to completely cut ties with the past
regulatory regime, and open access rules were included in the Telecom Act that forced
incumbent telecommunications companies—but, importantly, not cable operators—to
unbundle and share with their rivals certain elements of their networks.6
Thankfully, between 2002 and 2004, the FCC gradually came back to the pro-deregulatory
intent of the Act and wisely began dismantling this “forced access” regime for incumbent-
provided broadband services. In doing so, it finally signaled to markets that the true era of all-
out facilities-based investment and competition was to begin. For wireline and cable
companies in particular, the gloves came off, unleashing a torrent of investment and growth
that continues to this day. Thus, it is frequently forgotten that America’s experiment with
facilities-based competition in the broadband world is really less than a decade old. Before
then, regulatory paralysis generally ruled the day; but since 2005, broadband providers have
been able to invest with greater confidence that they could recoup the cost of their significant
investments. This, in turn, has spurned heretofore unseen levels of digital innovation—at both
the core and edge of digital networks.

3
Barbara Esbin, The Progress & Freedom Foundation Blog, The Nobles Must Follow the Law, April 6, 2010,
http://blog.pff.org/archives/2010/04/the_nobles_must_follow_the_law.html.
4
Julius Genachowski, Federal Communications Commission, The Third Way: A Narrowly Tailored Broadband
Framework, May 6, 2010, www.broadband.gov/the-third-way-narrowly-tailored-broadband-framework-
chairman-julius-genachowski.html.
5
Telecommunications Act of 1996, Public Law 104-104, 104th Congress.
6
See generally Adam Thierer & Clyde Wayne Crews, WHAT’S YOURS IS MINE: OPEN ACCESS AND THE RISE OF
INFRASTRUCTURE SOCIALISM (2003).
Progress on Point 17.9 Page 3

Why “Just Trust Us” Isn’t Good Enough

That’s what makes the FCC’s new approach so troubling. It represents a preemptive surrender
on America’s experiment with facilities-based competition and the beginning what Scott
Cleland has correctly labeled a “de-competition policy.”7 To return to Title II regulation would
be to transport the broadband business back to the era of rotary dial telephony, when
government had more control over communications networks but, as noted, competition was
non-existent and consumers and subsequent product and service innovation suffered.
Chairman Genachowski promises to exercise “restraint” and use a “light touch” by only
applying certain provisions of Title II. Such promises are meaningless in the highly politicized
world of communications policy. Regulators exist to regulate. That is their job, and where their
institutional incentives direct them. As Craig Moffett of Bernstein Research predicts, the FCC’s
move,
very specifically opens the door to price regulation, and it makes other
regulation materially more likely in the future. The FCC has voted itself a loaded
gun, pointed it at the Carriers (cable and telco alike) and then promised not to
shoot. The world doesn’t seem like a safer place.8
Of the six powers the Commission claims it will use only sparsely, Sections 2019 and 20210 seem
most ominous. Section 201 places a duty on carriers to extend services upon “reasonable
request.” It also allows the Commission to compel interconnection with other facilities where
deemed by the Agency to be in the “public interest.” Finally, Section 201 props open the door
to full-on rate regulation, instructing carriers that only “just and reasonable” charges, practices,
and classifications will be considered lawful. Section 202 goes further by, among other means,
proscribing common carriers from “unreasonable discrimination in charges, practices,
classifications, regulations, facilities, or services…”
Similar language can be found in the six Net Neutrality principles proposed by the FCC as part of
its Open Internet / Net Neutrality Proceeding.11 The Court of Appeals in Comcast v. FCC said
the Commission lacked the requisite authority to enact such regulations in that context, so it
remains a delicate tightrope walk—if it can be accomplished at all—to do so with a Title II
“sleight of hand.” Moreover, it’s important to recall that this regulatory regime was never
applied to the cable sector as it now apparently will be. This raises additional grounds for a

7
Scott Cleland, The Harms of a Potential New FCC De-Competition Policy, PRECURSOR BLOG, April 5, 2010,
http://precursorblog.com/content/press-release-new-fcc-de-competition-policy-netcompetitions-fcc-nprm-
reply-comments.
8
Craig Moffett, Bernstein Research, U.S. Cable: Pulling the Plug... Regulatory Uncertainty Clouds Terminal
Growth Rates, May 10, 2010, at 3.
9
47 U.S.C. § 201.
10
47 U.S.C. § 202.
11
Federal Communications Commission, In the Matter of Preserving the Open Internet, Broadband Industry
Practices, Notice of Proposed Rulemaking, Notice of Proposed Rulemaking, GN Docket No. 09-191, 07-52 (rel.
Oct. 22, 2009) (“Open Internet NPRM”), at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-
93A1.pdf.
Page 4 Progress on Point 17.9

legal challenge, since the FCC would be unilaterally, without specific congressional authority,
upending the regulatory standard (and its underlying investment assumptions) that the cable
industry has operated under ever since it got into the broadband business.
Along these lines, reclassification efforts would likely end up with the imposition of common
carrier status on other entities that are not operating as common carriers today.12
Consequently, the question of “Who gets the regulatory tar and feathers?” will now be asked
about a broader array of actors, well beyond the “usual suspects.” What about wireless
providers of broadband? Or Broadband over Powerline (BPL) offerings (where they still exist)?
And do online service providers—search and application providers such as Google, Yahoo,
Microsoft, Apple, etc.— get brought into the ambit of regulation, too? For isn’t anything
connected to the network actually the network itself? And, if this is so, would it be so
implausible, given the nature of regulatory creep, to see these neutrality / reclassification rules
expanded to cover “port neutrality,” “search neutrality,” “device neutrality,” or “software code
neutrality,” among other proscriptions to keep the Internet “open” and “free”? And then there
are the services yet to be developed.
This is hardly a conjectural concern. Witness the fact that Rep. Cliff Stearns (R-FL) recently
introduced legislation calling for “neutral network neutrality” rules such that the FCC would be
required to enforce regulation “on a nondiscriminatory basis between and among broadband
network providers, service providers, application providers, and content providers.”13 And
despite Chairman Genachowski’s promise that “we’re not going to regulate the Internet,”14 the
reality is that, during his brief tenure, the FCC has been engaged in multiple efforts to extend
the reach of its regulatory tentacles to cover the Internet and online activity.15 The slippery
slope and regulatory creep thus becomes a very legitimate concern going forward.16 It could
become, as the title of a recent CNN Money column put it, “Armageddon, Brought to You by the
FCC.”17

12
Barbara Esbin, The Progress & Freedom Foundation, The Comcast Decision, the FCC's Third Way and the Next
Communications Act, PFF BLOG, May 7, 2010,
http://blog.pff.org/archives/2010/05/the_comcast_decision_the_fccs_third_way_and_the_ne.html; Barbara
Esbin, The Progress & Freedom Foundation, R.I.P. Ancillary Jurisdiction; Hello Common Carriage, PFF BLOG, Jan.
15, 2010, http://blog.pff.org/archives/2010/01/rip_ancillary_jurisdiction_hello_common_carriage.html.
13
Internet Investment, Innovation, and Competition Preservation Act of 2010,
http://stearnsforms.house.gov/UploadedFiles/Net_Neutrality_Bill.pdf.
14
Quoted in Amy Schatz, FCC Chairman on What It Means to Regulate the Internet, WALL STREET JOURNAL, Feb. 9,
2010, http://blogs.wsj.com/digits/2010/02/09/fcc-chairman-on-what-it-means-to-regulate-the-internet.
15
Berin Szoka & Adam Thierer, The Progress & Freedom Foundation, FCC’s Genachowski Promises He’s Not Out
to Regulate Net, New Media, PFF BLOG, Feb. 10, 2010,
http://blog.pff.org/archives/2010/02/fccs_genachowski_promises_hes_not_out_to_regulate.html.
16
Berin Szoka & Adam Thierer, The Progress & Freedom Foundation, Net Neutrality, Slippery Slopes & High-Tech
Mutually Assured Destruction, PROGRESS SNAPSHOT 5.11, Oct. 2009, www.pff.org/issues-pubs/ps/2009/ps5.11-
net-neutrality-MAD-policy.html.
17
David Goldman, Armageddon, Brought to You By the FCC, CNN MONEY, March 13, 2010,
http://money.cnn.com/2010/05/13/technology/net_neutrality/index.htm.
Progress on Point 17.9 Page 5

Uncertainty: An Investment and Innovation-Killing Machine

It is unclear whether the D.C. Circuit (or any other court) will accept the FCC’s expansionist
reading of its existing statutory reclassification authority if and when all this is tested in court.
Regardless, in the interim, “all of this could lead to a long period of regulatory uncertainty,
which is one of the things that businesses of all stripes fear the most,” notes Brad Reed of
Network World.18 That uncertainty will translate into delayed or forgone investment and
innovation as the ensuing litigation nightmare takes years to wind its way through the courts.
“Markets abhor uncertainty,” Moffett notes, and yet, with the FCC’s recent Title II
announcement, “we got uncertainty in spades.”19 Like other market analysts, Moffett fears “an
extended period of profound regulatory uncertainty—some might say chaos—potentially for
years, until the matter is finally adjudicated by the Supreme Court.”20 He doesn’t mince words
about the impact of all this on markets:
We would expect a profoundly negative impact on capital investment. To the
extent that reduced network investment increases network congestion
(particularly if these regulations apply to wireless networks), then the
implications for downstream equipment and applications providers are also
negative, inasmuch as the user experience can be anticipated to degrade. This
development is an unequivocal negative development for almost all of our
coverage universe, most significantly for the cable operators and Verizon (which
is nearing completion of a $23 billion investment in a new FiOS network that
might conceivably now be subject to Open Access for competitors).21
Put more simply, instead of working to promote market confidence and facilities-based
broadband investments, fewer players will be incentivized to take the enormous risk of
investing in new infrastructure. Capital markets and investors are rightly tightfisted when the
threat—even the whiff—of government-created scarcity through regulation rears its ugly
head.22 The long-term impact could be even worse.23 Over twenty respected communications
economists and experts recently submitted a statement to the FCC arguing that, “To the extent

18
Brad Reed, What You Need to Know about the FCC’s Broadband Plan, NETWORK WORLD, May 7, 2010,
www.networkworld.com/news/2010/050710-fcc-broadband-plan.html.
19
Craig Moffett, Bernstein Research, Quick Take - U.S. Telecommunications, U.S. Cable & Satellite Broadcasting:
The FCC Goes Nuclear, May 5, 2010, at 1.
20
Id. at 2. Similarly, Anna-Maria Kovacs argues, “What is inevitable is a lengthy period of uncertainty, first about
the precise shape of the order, then about its fate in court, and then about the ways it will be implemented,
and then about the fate of the implementation orders in court…” Anna-Maria Kovacs, Regulatory Source
Associates, Telecom Regulatory Note, May 6, 2010.
21
Id. (emphasis original).
22
Early stock market reaction to the FCC’s new “Third Way” plan hasn’t been encouraging. “Since announcing
that the FCC will reclassify broadband as a Title II… service a week or so ago, Genachowski has placed a cloud
over cable stocks. Cablevision, Comcast, and Time Warner Cable are down anywhere from 6%-11% as the
government’s heavy hand of regulation moves closer to reality.” Bob Faulkner, The Cloud Hanging Over Cable
Stocks, MINYANVILLE, May 17, 2010, www.minyanville.com/businessmarkets/articles/cable-stocks-networks-fcc-
fcc-chairman/5/17/2010/id/28324?page=1.
23
Cable Companies: Bargains or FCC Targets? May 11, 2010, SEEKING ALPHA,
http://seekingalpha.com/article/204415-cable-companies-bargains-or-fcc-targets.
Page 6 Progress on Point 17.9

regulatory uncertainty prevents parties from engaging in efficiency-enhancing conduct … firms

are less likely to engage in the investment or innovation that such conduct and contracts would
otherwise have enabled.”24 And a new study by economist Coleman Bazelon of The Brattle
Group reveals that, “New network neutrality regulations proposed by the FCC could slow the
growth of the broadband sector, potentially affecting as many as 1.5 million jobs, both union
and non-union, by the end of the decade.”25 Moreover, “The possibility that such losses would
be offset by gains in other parts of the Internet economy is remote,” he concludes.26
The damage will not be contained to primary markets; the regulatory spill-over effect also
means less innovation at the edges due to fewer, and less sophisticated, platforms upon which
to build new edge-based services. As Daniel Brenner of Georgetown University Law Center
correctly argues:
[T]here is significant loss to innovation if the layer approach disallows those who
provide the physical layer from providing services higher up the chain.
Opportunity for innovation is lost if the physical layer can adopt only one form of
operation as a nondiscriminatory common carrier. And a dumb-pipe mantra runs
counter to the innovation-rich policy concerns of layer advocates, even while it is
believed to protect innovation of the Internet’s edge.27
Sadly, on the whole, the only ones who seem to win are the regulators themselves, a strange
outcome indeed, when their ostensible duty is to promote broadband ubiquity and up-take “so
far as possible, to all the people of the United States...”28
In essence, therefore, the FCC’s “Third Way” proposal represents a call for the forced
commoditization of broadband networks and would necessitate a return to the rate-of-return
regulatory methods of the past. It would freeze network innovation in place and stop the clock
on facilities-based competition—one of the great American economic success stories of the
past quarter-century. Reclassification of broadband will mean a quick death for the Telecom
Act’s goal, “to promote competition and reduce regulation.” For these reasons, this “de-
competition” approach should be rejected in favor of an alternative approach that does not
discourage investment, innovation, or competition.

A New Legislative Framework: DACA

There is an alternative to the “nuclear option” pursued by the FCC. In light of immense
technological advances and the convergence communications markets, many experts29 have

24
Net Neutrality Regulation: The Economic Evidence, April 12, 2010,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1587058.
25
Coleman Bazelon, The Brattle Group, The Employment and Economic Impacts of Network Neutrality
Regulation: An Empirical Analysis, April 23, 2010, at ii,
http://mobfut.3cdn.net/8f96484e2f356e7751_f4m6bxvvg.pdf.
26
Id.
27
Daniel L. Brenner, Creating Effective Broadband Network Regulation, 62 Federal Communications Law Journal
1, 45 (Jan. 2010), www.law.indiana.edu/fclj/pubs/v62/no1/8-BRENNER_FINAL.pdf.
28
47 U.S.C. § 151.
Progress on Point 17.9 Page 7

begun coalescing around the idea that the present “service-based” regulatory model—
exemplified by the Communications Act of 1934—cannot adapt to present day, let alone
evolving marketplace demands. Far from eschewing regulation entirely, though, there’s still a
role for regulators, albeit in a more limited manner, patterned to a large extent on notions of
competition theory and consumer harm instead of “title-based,” preemptive regulatory
meddling.
In 2005-06, The Progress & Freedom Foundation brought together over 50 scholars—a non-
partisan collection of lawyers, economists, engineers and other experts—with the ultimate aim
of crafting a new regulatory framework more appropriate for a frequently-changing
communications landscape. The resulting Digital Age Communications Act (DACA) project
proposed scraping the old regulatory “silos” (Title II for telecom, Title III for broadcast, Title VI
for cable) and replacing them all with a Federal Trade Commission-like “unfair competition”
standard. Under DACA, the FCC would retain some baseline regulatory authority to oversee the
marketplace, but this authority would be limited and based upon more settled principles of
competition law and economics—essentially, streamlined antitrust regulation. Serious
anticompetitive actions that lead to demonstrable consumer harm would still be policed and
punished under this model. But this would be done on a limited, case-by-case basis without
prejudging business models or practices or by imposing prophylactic regulatory regimes.
In essence, DACA stood for the proposition that an ex post approach to regulatory oversight
was preferable to ex ante forms of preemptive and prophylactic regulation by the FCC. Indeed,
the DACA model was based on a model we already have in place: antitrust laws and the
adjudicatory process administered by the Federal Trade Commission. The DACA experts,
therefore, advocated not that the FCC be abolished, but that an FTC-like enforcement model be
imported into the FCC.
To be clear, this is regulation. In fact, when the DACA working group released its initial
framework in June 2005, some critiqued the plan on the grounds that it did not do enough to
tie the hands of regulators. Others argued that there was no need to import a competition
policy regime into the FCC when the FTC and Department of Justice remain perfectly capable of
enforcing antitrust laws where anti-competitive conduct can be proven. While those concerns
are understandable, they’re also not very practical. Scrapping the FCC is untenable, especially
since the FCC still engages in some sector-specific forms of regulation (spectrum standards,
interconnection mandates, universal service administration, etc.) that Congress would likely
insist remain within the hands of a sector-specific regulator. Nonetheless, the DACA framework
would be vastly superior to the sort of heavy-handed regulatory approach currently on the
books, or the even stricter “Mother, may I?” approach that some Net Neutrality proponents
favor. DACA has the added advantage of not being as susceptible to the problems of regulatory
creep and regulatory capture.

29
Barbara Esbin, The Progress & Freedom Foundation, Ancillariness, the Definition Wars, and the Next
Communications Act, Progress on Point 17.8, May 2010, http://www.pff.org/issues-pubs/pops/2010/pop17.8-
next_communications_act.pdf; Tom Tauke, Prepared Remarks of Verizon EVP Tom Tauke New Democrat
Network Keynote, Verizon Policy Blog, March 24, 2010,
http://policyblog.verizon.com/BlogPost/714/RemarksVerizonEVPTomTaukeatNewDemocratNetwork.aspx.
Page 8 Progress on Point 17.9

Because DACA allows regulators to operate with a truly light touch, it would be the best model
for the FCC to adopt going forward to ensure that consumer welfare was served and beneficial
innovation was not thwarted by a cumbersome, preemptive regulatory regime at the FCC.

Self-Regulation, Best Practices & “Norms” for Network Management

Buttressing the DACA model, while also keeping direct regulation to a minimum, is industry self-
regulation. Some will protest, “that’s like putting the fox in charge of the henhouse,” for the
Internet eco-system. But, the combination of self-regulation and industry norms / collaboration
already works quite effectively. Notes FCC Commissioner Robert McDowell in his Open Internet
proceeding statement, “the Internet is perhaps the greatest deregulatory success story of all
time. It became successful not by government fiat, but by all interested parties working
together toward a common goal.”30
An excellent example of diverse Internet companies with divergent interests working together
can be seen in Verizon and Google’s recent joint statement to the FCC, which outlines their
common-ground approach for an open Internet.31 While the two companies may sit at
opposite ends on the Net Neutrality debate, the two businesses acknowledge that they “rely on
each other,” and consequently feel a shared responsibility to discuss how they can ensure that
consumers get the services, products and information they want; network investment and
growth can be continually boosted; and how they can work together to keep the Internet
“open.”
Both companies agree that the Internet has thrived primarily via an absence of regulation.
Much of this growth has occurred through the cooperative efforts of many in the Internet eco-
system. To this end, they have articulated seven “core values” to guide the conduct of all
Internet “players,” including: (1) Preserving openness; (2) Encouraging investment and
innovation in broadband networks; (3) Providing users with control; (4) Providing users with
information; (5) Maintaining a balanced intellectual property policy; (6) Keeping Internet
applications, content, and services free from communications regulation; and (7) Providing a
leadership role for expert technical bodies. In their view, by hemming to these long-held
values—which have kept government regulation largely out of the picture—the Internet eco-
system can continue to innovate and grow as it has, virtually unabated, since its inception.

Community Policing, Independent Review & Dispute Resolution Processes/Fora

Disputes and other bumps in the road will inevitably arise. Growth, driven by fierce
competition, has a way of doing that. But government intervention and policing need not be
automatic. From the birth of the Internet, non-state-controlled governance bodies have guided
the medium’s expansion, all with the goal of keeping the Internet open and evolving with a
minimum of government meddling. As network engineer Richard Bennett explains:

30
Statement of Robert McDowell, Open Internet NPRM, supra note 11 at 96.
31
Google and Verizon Joint Submission on the Open Internet, GN Docket No. 09-191; WC Docket No. 07-52, Jan.
14, 2010, www.scribd.com/doc/25258470/Google-and-Verizon-Joint-Submission-on-the-Open-Internet.
Progress on Point 17.9 Page 9

The Internet is an adaptable system because its experimental character provides

it with a built-in learning function that enables engineers to make network and
protocol design decisions empirically. It’s fair to say that its design is dictated
more by a commitment to continual improvement than by obedience to hard
and fast rules: It was meant to be a system in which experiments would have the
consequence of improving the network.32
Today, a great variety of entities continue to labor to self-regulate core aspects of the Internet.
These largely self-funded, volunteer-staffed, non-profit groups collaborate daily, behind the
scenes, to promote abundance and competition over scarcity and regulation through “flat”
Internet governance mechanisms that work from the “bottom up” instead of through “top-
down” government mandates. Examples include the Internet Society (ISOC), the Internet
Engineering Task Force (IETF), the Internet Engineering Steering Group (IESG), the Internet
Research Task Force (IRTF), the Internet Research Steering Group (IRSG), the Internet
Architecture Board (IAB), the P4P Working Group, and, to some extent, the Internet
Corporation for Assigned Names and Numbers (ICANN).
The joint Verizon/Google statement builds upon the strength of this well-worn model. As they
suggest, self-governance should be the touchstone. To contain the occasional demand for
government prophylaxis, among other things, they suggest the creation technical advisory
groups to provide for quick, non-government-driven dispute resolution fora, best practices and
industry-led guidance. Similar to these efforts, groups like the Net Neutrality Squad, Computer
Professionals for Social Responsibility, and the Berkman Center for Internet & Society’s Herdict
project focus on Internet end-users “to help keep the Internet's operations fair and unhindered
from unreasonable restrictions.”33 They look to identify and address anticompetitive and
discriminatory behavior on the Internet, and provide a forum for “fostering cooperation and
mutually agreeable methodologies whenever possible—aimed at keeping the Internet a
maximally unhindered, useful, competitive, fair, and open environment for the broadest
possible range of applications and services.”34 Meanwhile, the Internet community itself will
provide millions of “watchdogs” who constantly monitor and report on carrier behavior. “The
Internet culture is full of feedback and referral mechanisms,” notes Brenner.35
The important take-away from this is: Efficient and effective self-governance models and tools
exist now to guide the expansion of the Internet. This is not to say government involvement is
never warranted, but clearly, the default setting is, and has always been, a minimum of direct
government regulation. Perhaps Commissioner McDowell put it more aptly:
Since [the Internet] was opened up for public use, as a free society we have worked
hard to ensure that the Internet remains robust, safe and open. Also, since its

32
Richard Bennett, The Information Technology & Innovation Foundation, Designed for Change: End-to-End
Arguments, Internet Innovation, and the Net Neutrality Debate, Sept. 25, 2009, at 2, www.itif.org/files/2009-
designed-for-change.pdf.
33
nnsquad.org.
34
Id.
35
Brenner, supra note at 67.
Page 10 Progress on Point 17.9

inception, uncounted dedicated souls have worked to ensure that the Internet works,
period. Since the early days of state-run ARPANET, network management and Internet
governance initiatives have migrated further way from government regulation, not
closer to it. This evolution away from government intervention has been the most
important ingredient in the Internet’s success.36
That is the sensible path to continue along. Preemptive, prophylactic regulation of the Internet
and broadband networks, by contrast, will smother experimentation and entrepreneurialism
while stifling continuous technological improvements and investments.37

Related PFF Publications

The FCC's Title II “Lite” (as a Lead Balloon!) & the Looming Broadband Tax, James
Dunstan, Progress Snapshot 6.9, May 11, 2010.
Ancillariness, the Definition Wars, and the Next Communications Act, Barbara Esbin,
Progress on Point 17.8, May 6, 2010.
FCC Comments of Barbara S. Esbin In the Matter of Preserving the Open Internet,
Broadband Industry Practices, Barbara Esbin, Jan. 14, 2010.
Net Neutrality, Slippery Slopes & High-Tech Mutually Assured Destruction, Berin Szoka &
Adam Thierer, Progress Snapshot 5.11, October 2009.
Net Neutrality: A Further Take on the Debate, Barbara Esbin, Progress on Point 16.26,
December 9, 2009.
FCC Reform: Scalpel or Steamroller? Barbara Esbin, Progress on Point 15.15, Sept. 2008.
Comments of Barbara S. Esbin In the Matter of Preserving the Open Internet Broadband
Industry Practices, Barbara Esbin, January 14, 2010.
A Skeptic’s Primer on Net Neutrality, Kyle Dixon, Raymond L. Gifford, Thomas M. Lenard,
Randolph J. May & Adam Thierer, Progress on Point 13.14, June 2006.
Report from the DACA Working Group on Regulatory Framework, March 2006.
Report from the DACA Working Group on Universal Service, December 2005.

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its
implications for public policy. Its mission is to educate policymakers, opinion leaders and the public about issues
associated with technological change, based on a philosophy of limited government, free markets and civil liberties.
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36
Statement of Robert McDowell, Open Internet NPRM at 96.
37
As Bennett notes, “Steady improvement, punctuated by brief periods of radical disruption, is the normal state
of affairs in evolving technical systems and should not be feared. It is likely that the only principle of the
Internet that should survive indefinitely is the principle of constant change.” Bennett, supra note 32.