Bill Herman at the Public Knowledge blog has an interesting response to my net neutrality paper. As he notes, my paper was mostly about the technical details surrounding neutrality, with a short policy recommendation at the end. Here’s the last paragraph of my paper:

There is a good policy argument in favor of doing nothing and letting the situation develop further. The present situation, with the network neutrality issue on the table in Washington but no rules yet adopted, is in many ways ideal. ISPs, knowing that discriminating now would make regulation seem more necessary, are on their best behavior; and with no rules yet adopted we don’t have to face the difficult issues of line-drawing and enforcement. Enacting strong regulation now would risk side-effects, and passing toothless regulation now would remove the threat of regulation. If it is possible to maintain the threat of regulation while leaving the issue unresolved, time will teach us more about what regulation, if any, is needed.

Herman argues that waiting is a mistake, because the neutrality issue is in play now and that can’t continue for long. Normally, issues like these are controlled by a small group of legislative committee members, staffers, interest groups and lobbyists, but rarely an issue will open up for wider debate, giving broader constituencies influence over what happens. That’s when most of the important policy changes happen. Herman argues that the net neutrality issue is open now, and if we don’t act it will close again and we (the public) will lose our influence on the issue.

He makes a good point: the issue won’t stay in the public eye forever, and when it leaves the public eye change will be more difficult. But I don’t think it follows that we should enact strong neutrality regulation now. There are several reasons for this.

Tim Lee offers one reason in his response to Herman. Here’s Tim:

So let’s say Herman is right and the good guys have limited resources with which to wage this fight. What happens once network neutrality is the law of the land, Public Knowledge has moved onto its next legislative issue, and the only guys in the room at FCC hearings on network neutrality implementation are telco lawyers and lobbyists? The FCC will interpret the statute in a way that’s friendly to the telecom industry, for precisely the reasons Herman identifies. Over time, “network neutrality” will be redefined and reinterpreted to mean something the telcos can live with.

But it’s worse than that, because the telcos aren’t likely to stop at rendering the law toothless. They’re likely to continue lobbying for additional changes to the rules—by the FCC or Congress—that helps them exclude new competitors and cement their monopoly power? Don’t believe me? Look at the history of cable franchising. Look at the way the CAB helped cartelize the airline industry, and the ICC cartelized surface transportation. Look at FCC regulation of telephone service and the broadcast spectrum. All of those regulatory regimes were initially designed to control oligopolistic industries too, and each of them ended up becoming part of the problem.

I’m wary of Herman’s argument for other reasons too. Most of all, I’m not sure we know how to write neutrality regulations that will have the effects we want. I’m all in favor of neutrality as a principle, but it’s one thing to have a goal and another thing entirely to know how to write rules that will achieve that goal in practice. I worry that we’ll adopt well-intentioned neutrality regulations that we’ll regret later – and if the issue is frozen later it will be even harder to undo our mistakes. Waiting will help us learn more about the problem and how to fix it.

Finally, I worry that Congress will enact toothless rules or vague statements of principle, and then declare that the issue has been taken care of. That’s not what I’m advocating; but I’m afraid it’s what we’ll get if insist that Congress pass a net neutrality bill this year.

In any case, odds are good that the issue will be stalemated, and we’ll have to wait for the new Congress, next year, before anything happens.