Regulating the Internet "Like a Utility" Won't Yield an Open Internet

Many of the millions of comments in the net neutrality proceeding, urge the FCC to impose net neutrality rules by regulating the Internet "like a utility." It won't work. Simply reclassifying ISPs as (Title II) common carriers will trigger a vast flood of litigation, but bring little relief to consumers who simply want unfettered access to the Internet. We can't find a way to write a net neutrality rule in a manageable number of words, and still leave only minimal discretion to the ISP. An ISP with a good lawyer - and they all have good lawyers - could plausibly argue that the rule allows almost any activity at all.

There is a way to solve this problem: a rule that requires the ISP to open its channels (cable or phone line or fiber) to competing ISPs. Under this approach, a consumer dissatisfied with the performance of one ISP could easily switch to another with no change to the household wiring - an impossibility in today's system. We know this approach works because it did work, very well, all through the Internet's dial-up days. A set of FCC rules called Computer III required just the kind of shared access to those lines that we propose here. That is the only practical way to bring about net neutrality.

In the early 2000s, following the advent of broadband, the FCC made a colossal two-part error. First, it declined to apply Title II and Computer III shared access requirements to cable broadband delivery. Second, a few years later, it removed those same existing requirements from telephone company DSL broadband. The result today is Internet monopolies, or duopolies at best, in nearly every U.S. market.

http://www.commlawblog.com/2014/10/articles/internet/regulating-the-internet-like-a-utility-wont-yield-an-open-internet-unless-/