Winning would mean giving up much more important rights—historical rights that were in place in the US as recently as 1995 and remain in place in most of Europe even today.

We shouldn’t settle for network neutrality. It’s a poor substitute for what we had and much less than what we need. Let me explain. There are two topics to discuss. The first is “common carriage,” a centuries old legal concept that applied to the US telecom industry throughout most of the 20th century. The second involves communications protocols. Both topics are complex, so I will cover only what’s needed to understand why we shouldn’t accept network neutrality and why, at a minimum, we should fight for enforcement of existing common carriage rules.

Network neutrality is about allowing any Internet application to run over an Internet connection, i.e. over a connection that uses Internet Protocol (IP). But under common carriage as it applied prior to the late 1990s, we had a more powerful right—the right to run any kind of network protocol, IP or otherwise, over a lower, simpler service which today we call a “bit stream*.” Why does this matter? Because real innovation is also possible at these lower layers and that innovation continues to be important. But today, such lower layer innovation is restricted to inside one building or one campus. Yes, we can tunnel some lower level innovations over IP, but not all of them and only at a cost.

IP telephony (VoIP) is one place where problems arise. Most enterprises use IP PBXs internally, yet calls between enterprises use the PSTN. Many companies have attempted to address this gap, but progress is slow and expensive. Within an enterprise, IP telephony packets are given priority, but that priority is not supported on Internet access links and network neutrality doesn’t help. As a result, to interconnect VoIP calls, enterprises must lease separate dedicated access circuits—circuits usually based on bit stream access—to support “SIP trunks.” Up until the late 1990s, these circuits were regulated under common carriage. Today they are an unregulated monopoly, with prices derived from the cost of voice circuits 15-20 years ago, i.e. abnormally expensive for today.

Common carriage is the legal concept that, in exchange for government granted monopoly access to rights-of-way, the monopolist must carry anyone’s traffic over the resulting infrastructure, at regulated rates. For centuries this has applied, to canals, to roads, to railroads, to telegraph lines and, until nearly the end of the 20th century, to telecommunications lines. But during the legal battles after the Telecom Act of 1996, the FCC basically gave up on common carriage.

If we accept Network Neutrality instead of common carriage, we guarantee future innovations happen only above the IP layer. Innovation at lower layers will be restricted to enterprise or campus applications. That’s too bad as it was the existence of common carriage that allowed the Internet to develop in the first place. Do we want to eliminate that kind of innovation in the future?

If anything, we should be fighting to extend the ideas of common carriage to lower layers, e.g. dark fiber. Installing dark fiber is expensive and requires access to rights-of-way that are limited. The installed fiber is capital expensive infrastructure that lasts for decades. Such conditions justify granting monopoly access, in exchange for common carriage and regulated rates of return. But when you light up a dark fiber, you use (relatively) low cost gear with a short life (even if it can survive for ten years, Moore’s Law renders it functionally obsolete within 2-3 years). What’s more, there’s rapid innovation in opto-electronics gear. Just look at the order of magnitude difference in cost between enterprise and carrier fiber-optic gear.

Today, the US is loosing leadership in all things Internet. Network Neutrality will just put a nail in our coffin. To stop our decline, fight for restoration of the common carriage principals that existed through most of the 20th century and still exist in law. To regain world leadership, fight to extent those principals to include access to dark fiber at regulated rates.

* Bit stream access. In the 20th century two regulated services provided what the 21st century calls bit stream access. These were voice telephony and T1 circuits. T1 circuits directly carry a stream of digital bits. Modems allowed voice connections to carry digital bits, for example, for bulletin board services and other purposes long before the Internet became popular.