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Don't blow it, Congress

Public Knowledge President Gigi Sohn says the outcome of upcoming telecom legislation will dramatically affect the Internet landscape.

As Congress begins writing new telecom legislation, a big question is whether Internet users will have the same broad freedom to access applications and content as before, or whether their online experience will be controlled by companies supplying your Net access.

Those seeking to preserve this freedom are asking Congress to codify "Net neutrality." Those seeking to control the Internet dismiss it as unprecedented regulation of the Internet.

But the dirty little secret is that without regulation, the vital Internet we know today would never have developed. Most of the rhetoric over the past few years has painted a much different picture--that the lack of regulation was crucial to the Internet's development.

That may well have been true for the design of computers and software. But regulation was the key to the Internet's development; the telephone companies over whose lines Internet traffic was transmitted were required by the Federal Communications Commission to carry all dial-up calls and to bring the return data back.

Now, in the broadband era, the game has changed, and not totally for the better.

The basic telephone network was in those days, and remains now, what is called a "common carrier." The telephone companies couldn't refuse to handle a call to an online service, much as they couldn't refuse to send a voice call to its intended destination. As a result, users could go anywhere on the Internet they desired and have access to any Web site without the interference of gatekeepers.

That go-anywhere freedom is the best legacy of the dial-up era. Now, in the broadband era, the game has changed, and not totally for the better. It is certainly true that new services like cable-provided broadband, and the telephone companies' DSL (digital subscriber line) or fiber-based services, provide customers with the types of capabilities and services unheard of just a few years ago.

That's the good side. Then there's the potential for the not-so-good side. Unlike the basic telephone network, the broadband services are not common carriers. In fact, the new services are generally not regulated at all.

Among the potential consequences of the new wide-open regulatory regime is a shutdown of the user experience by network operators. A recent study from the Communications Futures Program at the Massachusetts Institute of Technology concluded that today's business models give broadband operators "the perverse incentive to throttle innovative, high-bandwidth uses of the Internet." New videoconferencing, collaborative gaming, and interactive TV and video could all be threatened.

Unlike the telecom debates of the late 1990s, these days there isn't a serious counterbalance to the power of the telephone companies, as the old AT&T and MCI tried to be back then.

We're not calling for a burdensome regulatory regime. What we would like to see, however, is for Congress to make certain that the broadband companies, primarily local cable operators and telephone companies, don't squeeze out the applications and services of others in favor of theirs, or make preferential deals with some service providers to the detriment of others and, ultimately, to the detriment of the consumer.

When the FCC deregulated cable modem service in 2002, the commission envisioned that the broadband market would expand and be much more competitive than it is now. Lucky residential customers have a choice of cable or telephone--a classic duopoly. Others are stuck with no choice at all. (Unfortunately, FCC statistics don't track broadband competition in the residential market.)

Trying to persuade Congress to enact these neutrality principles will take some doing, because the incumbents will try to protect their advantages in the market. It's only natural that they do so.

Unlike the telecom debates of the late 1990s, these days there isn't a serious counterbalance to the power of the telephone companies, as the old AT&T and MCI tried to be back then.

This is an opportunity for the highest levels of the tech industry to show what the future of the Internet means to them. To be sure, technologists cared about the development of the Internet, both as an experience for consumers and as a technological phenomenon. Some, like Vint Cerf, one of the "fathers" of the Internet, still do. There are many individuals who care as well.

But if the past few months of debate over Net neutrality are any indication, it is hard to know where tech companies really stand. Do any of them really care about those of us who use the Internet, or about the remarkable diversity of content and experience that has grown up around it? Or was the Internet from the start, and remains today, simply a market to sell software, routers, chips or books?

In Washington, the answer means a lot, particularly now as new telecommunications legislation could drastically change the character of the Internet as we know it. Now is the time for the tech industry to figure out if the Internet is to remain the open and innovative environment that has benefited everyone, companies included, over the years.

When ex-SBC (now AT&T) Chairman Ed Whitacre starts talking about drastic changes to the Internet, an answer from similar altitude is needed. It takes a Meg Whitman from eBay or Jeff Bezos from to respond. We know the big broadband providers will be in the fight to do what they want with their networks. What we don't yet know is whether the tech industry will stand up for itself and the public.