February 19, 2015  ·  Lessig

Imagine that when you plugged something into an electrical outlet, the outlet queried the device and demanded identification. Was it a Sony TV or Panasonic? Was it a Dell or an Apple? And then based on that identification, different levels of quality or reliability of electricity were served at different prices. No doubt such a regime would benefit utility companies. I’ve not yet met anyone who thinks it would benefit innovation. Thus, it would be something possibly good for network providers, but plainly bad for the market generally.

As I’ve watched the amazing progress that proponents of “network neutrality” have made, I’ve been astonished both by their success, and by how long this debate has been going on. I first drew the analogy to the electrical grid in testimony before John McCain’s subcommittee more than a dozen years ago. Mark Lemley and I tried to lay the issue out, as it applied to the then-raging battle over “open access,” almost 15 years ago. But now, thanks to the incredible work of many, including especially Marvin Ammori, Susan Crawford, Harold Feld (even from the old days), Barbara van Schewick, Kevin Werbach, and Tim Wu, the FCC has come around to recognize its crucial role in preserving the environment for innovation. If the order is as the order seems it will be, it will mark an extraordinary conversion by the chairman, and former industry lobbyist, of the FCC. Nixon went to China, Johnson passed the Civil Rights Acts, and Chairman Wheeler got us network neutrality.

Defenders of the status quo are now frantically filling the tubes with FUD about the FCC’s decision. But as you work through this FUD, keep one basic fact clear. Relative to practically every other comparable nation, America’s broadband sucks. Seriously, sucks. Even France beats us in cost and quality. And as the genius Yochai Benkler established in the monumental report by the Berkman Center commissioned by the FCC after Obama was elected, the single most important reason our broadband sucks is the sell-out regulatory strategy of the prior decade at least. Nations that imposed neutrality-like rules beat us, in cost and quality. They have more competition, faster growth, and better access. So for anyone remotely connected to reality-based policy making, it has been clear forever that America made a wrong turn in its regulatory strategy, and that we needed an about face.

The FCC’s likely action here is that about face. I’ve not seen the details. Those that have worry rightly that there are improvements that still need to be made. (Barbara van Schewick’s ex parte filing of yesterday raises some really important concerns.) But we’re in a place where the FCC has no incentives except to get it right. And if the community that has done the incredible work to carry this issue this far can focus on these final critical steps, we could well see a real victory here. Finally. (Though I still worry about the next step, as Susan Crawford has so terrifyingly described.)

The president deserves credit for pressing this issue again. Chairman Wheeler deserves real credit for looking carefully at the facts, and recognizing the truth in what the president was pressing. Title-II-light is the right regulatory home. Unlike the old days with utility regulation, the FCC will not regulate rates, or impose tariffs, or undue administrative burdens. A clear regulatory commitment will set the direction for investment and innovation — in fast, cheap broadband (something much of the world has had, but the U.S., not so much), and continued and renewed permission-free innovation.

For if the telephone companies that built the first broadband network (DSL) could discriminate, would Skype have happened? And if the cable companies that have built the second broadband network could discriminate, would YouTube have happened? The history in Internet innovation is the story of outsiders building a better mouse trap — kids, dropouts, and non-Americans, given a neutral platform to prove their ideas. It was neutral because it was built that way. If we’re to preserve that platform for innovation, we have to keep it that way, through whatever means possible.

Cross-posted from Lessig Blog.

(Original post on HuffPo)