News this week that proponents of network neutrality regulation are redoubling their efforts in the Senate reminds us that this legislative battle is far from over [TRDaily subscription required]. Also ongoing is the insistence -- in (virtually) all neutrality proposals -- that regulators pretend consumers will never have a choice of providers using technology other than cable modems and DSL. Sadly, if those favoring this regulation of the broadband Internet emerge victorious, make believe may become real, as I discuss in a recent op-ed.

The nationwide debate regarding whether and how states and cities should help regulate digital age communications has evolved considerably in recent months. Thus, it is interesting to note how well areas of developing consensus were anticipated by a working group of university and other scholars back in autumn of last year.

Thoughtful policymaking requires, at a minimum, that participants offer concrete proposals for effecting their bright ideas. It is primarily in that spirit that this week's proposal to graft a network neutrality mandate onto the Communications Act can be commended [TRDaily subscription required]. The proposal also draws favor to the extent it acknowledges that consumers benefit not only from substantial flexibility in how they use Internet content, applications and devices, but also from escalating broadband transmission speeds and capabilities.

Beyond that, however, this latest attempt to regulate broadband providers -- for acts they might commit in the future, that might undermine consumer welfare and that might not be disciplined by market forces -- demonstrates the difficulty of turning bright ideas about how the Internet should evolve into legislative directives that answer more questions than they raise. And, indeed, proponents of network neutrality mandates should worry that consumers will raise questions.

Much can, and no doubt will, be said about recent efforts to address "network neutrality" concerns by granting the FCC authority to adjudicate disputes relating to its Policy Statement on this issue. Certainly, these efforts can be seen as an important step forward -- at least compared to proposals that Congress mandate network neutrality immediately and in all circumstances. But there are also clear downsides to this "adjudication authority" approach and, in the final analysis, one wonders whether this kind of legislation would change the FCC's behavior as a practical matter.

Recent reports suggest that "bundling" multiple communications services has not emerged as the "killer app" for attracting or retaining customers. Only a small percentage of subscribers buy bundled services and many of these subs eventually abandon their bundles. Moreover, very few customers have expressed interest in relying on one company to satisfy all of their communications needs, no matter how diverse companies' offerings become. So much for the notion that mergers and the bundling capabilities of the Internet Protocol will transform cable and telephone companies immediately into invincible competitors deserving of regulation.

But the idea that the competitive power of bundles -- if it ever manifests -- may do so only in the future provides another reason why policymakers should be reluctant to regulate service bundles.

As I mentioned in my testimony before the Senate Commerce Committee and again at an economics conference this week, addressing network neutrality concerns on a case-by-case basis can mitigate some of the potential risks associated with prophylactic rules in this area. But it's worth underscoring another benefit that would result if Congress adopted this approach in new legislation: it would clarify government's authority to address the concerns underlying proposed network neutrality mandates.

Reports in today's Washington Post of a new Macintosh computer virus do more than confront users of that operating system with the same vulnerability that the unwashed masses endure daily. These reports point out how quickly and unpredictably threats to the Internet experience can emerge and spread, and how little sense it makes to tie any of our hands in the collective effort to combat those threats.

Given the eminence of the other speakers on yesterday's ABA panel regarding antitrust in the broadband world, it is not surprising that the discussion went far beyond debating various interpretations of the Supreme Court's Trinko decision. We also explored -- the Court's opinion aside -- the extent to which antitrust should serve as a backstop to FCC regulation.

But taking FCC regulation largely as given and then considering the proper role for antitrust may not go far enough; our talk raised issues that made me wish we had considered the interplay between antitrust and regulation more holistically. Given the general agreement that competitive analysis will be a critical element of the government's involvement with broadband going forward, policymakers should begin to develop consensus regarding which arm of government should conduct that analysis and why.

Debate lingers regarding the impact of the Supreme Court's decision in Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP on the application of antitrust law to the highly-regulated communications industry. Some suggest Trinko virtually, if not categorically, displaces antitrust oversight of the industry, while others argue Trinko obviates antitrust oversight only where a court concludes that FCC and state regulators adequately police anticompetitive behavior.

Given this debate (and considerable dicta in Trinko), questions will remain regarding how the decision may affect government efforts to promote competition in communications, especially with respect to broadband services. Yet despite worries that most consumers will never enjoy competition much beyond cable and telephone company offerings, it seems unlikely that broadband providers will be found to violate antitrust laws in the near term, even if Trinko does nothing to curb the scope of such laws.

Like puppies chasing our tails, we telecom wonks can't resist chasing parties' arguments over whether the FCC should reconsider its decision to deregulate DSL and other phone company broadband offerings. Some of this results from the almost-metaphysical allure of revisiting the circular definition of "common carriage"; a company is a common carrier if it holds itself out as a common carrier, even if government requires it to act like a common carrier in the first place.

But competitive companies' arguments are intriguing for another reason: in certain respects they may be as risky for competitors as they are for incumbent phone companies.