I attended the Future of Music Policy Day down in DC on Wednesday. My brain is frazzled with webcasting royalty rates and Section 114 regulations… but one thing that really stuck with me was the discussion on net neutrality.

I self-identify as an openness junkie, so when I learned about the issues behind the net neutrality debate, I was certain that being in favor of net neutrality was a good thing because it promoted openness. net neutrality supports the notion that networks shouldn’t discriminate based on the content of the packets that pass through its network. I support that notion too. Therefore, with some diligent thought, I supported net neutrality.

When I read David Cowan’s rebuttal to net neutrality advocates, I found some of the points he made quite interesting. For example:

ISPs are not public utilities; they are businesses whose owners–including individual investors and pension funds–have no legal obligation to amuse Eric [Schmidt] with whatever internet sites he craves. (Should AOL and the mobile environments of AT&T and Verizon be legally forced to provide access to outside content?) Having said both those things, the market will not reward ISPs who effectively block or even slow access to the full array of web sites.

I believe in the power of the free market. Government regulation has its appropriate place in society, but should only be used in extreme circumstances when a free market approach is fundamentally flawed. However, David also made some points I disagree with:

But the campaign for net neutrality has transcended logic, manuevering instead to prevail upon Congress with an emotional appeal to the voters. “If we are silent, if we don’t stand up for Internet Freedom,” warns Hollywood star Alyssa Milano, “corporations will take away our right to choose!” As always, it’s easy and popular to demonize corporations.

I don’t care what Alyssa Milano is paid to say, and I don’t care which side of the debate invokes her to make a statement. Alyssa Milano’s opinion is quite irrelevant to this debate. Just because the net neutrality advocates are engaging in bad rhetoric doesn’t mean that the point they are arguing is wrong. It just means they suck at arguing.

Getting back to the Future of Music Policy Day, Scott Cleland, a lobbyist for the Cable and Telcos, was there, and he was the only contrarian in the net neutrality debate. First of all, I’m impressed by his guts to swim in the shark tank. Scott made arguments very similar to David Cowan: the free market will determine whether or not crippled internet services can survive. Preemptive government regulation is not the answer.

Scott is right about the free market piece, but I also still agree with the fundamental purpose of the net neutrality movement: networks shouldn’t discriminate based on the content of the packets that pass through its network. Scott, as a lobbyist for the Cable and Telcos, would disagree with that latter point. Scott likely thinks networks should discriminate if there is a market for a discriminating service. So, how do I reconcile these two positions? As follows:

The net neutrality should throw all its lobbying efforts and money into the 700 Mhz auction debate. They should rally behind initiatives like:

• the Google-Ebay-Yahoo coalition to help shape the spectrum auction rules in order to foster new companies chances of acquiring spectrum compared to the chances of Cable and Telco incumbents. This coalition is trying to foster competition in the internet access market, which would be a win for openness and a win for consumers.
• Or, the Frontline Wireless initiative, which includes former FCC Chairman Reed Hundt, would create an open network for both public safety professionals (police and firemen) in addition to a platform for innovation by removing gatekeepers from network access. From the Frontline Wireless website:

The plan also will provide unprecedented freedom for consumers and public safety users in the devices and applications they can use. Through “open access” provisions, the plan promotes technological innovation and lets users connect any device to the network as long as “do no harm” safeguards are met. Much as the freedom to connect unleashed a wave of innovations in the landline telephone industry (including the fax machine, computer modem, and the first online data services), Frontline believes an open access network will create enormous economic value and growth in the wireless industry.

Hell yes. Imagine what kind of devices would be built for a wireless broadband network unfettered by gatekeepers.

Furthermore, imagine if an inexpensive, open, broadband connection was available all over America with the signal strength that 700 Mhz offers. Cable and Telcos would be forced to compete, not artificially by the government, but instead by the free market. Cable and Telcos could try offering crippled services that discriminated based on packet content if they thought there was a market for it, but I have faith that such an offering would fail in the free market if it had to compete with an open alternative.

In summary, I no longer support that trajectory of the net neutrality movement that is lobbying for government regulation in internet access. Instead, I think the net neutrality folks that value open networks should throw their efforts behind initiatives that seek to build a high-speed open network that will compete with any closed network. The 700 Mhz spectrum auction is the most important event in the near future regarding building a high-speed open network, so I think that should be the focus of all attention in the net neutrality community.