The second of a seven-part series of a discussion between Chairman Powell, Larry Lessig and others last summer has been posted over at AlwaysOn. (Part one, loosely described, discussed why the government shouldn't build out a fat pipe for all Americans just because we are not currently in what equates to the BCS rankings for broadband deployment.) In this part, Powell discusses the rationale behind his four principles for 'Net Freedom. In answering Lessig's question on whether there is full FCC support to keep the Internet how it "really was," Powell states:
Well, it's an interesting question. As best as I can read it now, the Commission has pretty much bought into that subscription. The real test is going to come the day that somebody gets caught doing something nasty. That's going to be a real test of the policy.
In a recent article in Regulation magazine, Lessig writes that those "network owners who interfere with 'net neutrality' or compromise 'Internet Freedom' face a significant threat of subsequent regulation." I would agree that the threat of regulation is the middle course that the Chairman seems to be steering here through a policy statement. Lessig goes farther, however, in asserting that Powell has "clearly signaled to broadband providers that violating the four freedoms would lead the FCC to regulate broadband provision. Neutrality is thus the rule, at least so long as Powell gets to direct the rules."
The question boils down to what constitutes "nasty" behavior. One can imagine a host of activities that would render the orthodox wing of the end-to-end constituency apoplectic. Nevertheless, some actions that might facially violate "'Net' Freedom" - say a broadband provider limiting 'net accessibility for children or access preferences through some sort of affinity marketing program - might be beneficial to consumers and broadband penetration as a whole. The problem with 'Net Freedom, or net neutrality, or whatever you call it, is that it is an abstract policy in the name of an abstract goal. The proper answer to such calls is: "Maybe."