According to the February 7 edition of TR Daily, speaking to reporters after the recent Net Neutrality hearing, Senator Stevens said, "I think net neutrality should be the basis of any legislation" developed by the Senate Commerce Committee. Then he added, when asked to define it: "It's not easy to do." TR Daily says he compared it to "defining a vacuum."

There in a nutshell you have the reason why net neutrality emphatically should not be the basis for new telecom legislation, or even included in new telecom legislation as a subject warranting special treatment. There will only be lots of trouble down the road--and not very far down--if Congress tries to write an anticipatory law prohibiting something that is like defining a vacuum. This time, perhaps unlike with respect to the 1996 Act, we definitely know enough to know that the marketplace and the technology is changing so rapidly that any static prohibition that purports to enforce "neutrality" and "nondiscrimination" throughout the vast network of networks that comprises the Internet is likely to end up stifling in unforeseen ways investments and innovations from all quarters--in infrastructure, applications, and content.

It would be far better for Congress to adopt the approach that is embodied in S. 2113, Sen. DeMint's Digital Age Communications Act. Under this approach, consumers or competitors would file net neutrality-like complaints under the act's "unfair competition" standard. Then the FCC would adjudicate the complaint in a specific fact-based context that would take into account the dynamics of the market structure, the number of competitors, the impact on consumer welfare from the claimed abuse or from proposed remedies, and the like. In this way, if a determination is made, in light of marketplace conditions relief is warranted to remedy the claimed abuse (say, a some modest preferential arrangement between Google and you-name the-provider-that-makes-the-deal) then the agency can tailor the relief and revisit it as conditions warrant.)

Hopefully, Sen. Stevens will follow where his logic leads. Rather than writing into law broad prohibitions for something that is like defining a vacuum, why not write a law that prohibits unfair competition and then let the agency proceed on a case-by-case basis.