Today's Senate hearing on net neutrality was more than a talking-point recitation.  The witnesses (most of them, anyway) knew what they were talking about and scored strong points.  Here's the key idea we should take away from the hearing:

Don't let Sen. Stevens mash ten people representing "stakeholders" in a room and command that they emerge with a bill in a week.

It's clear that the issues raised by the proponents of net neutrality are real and difficult and that momentum is building to "do something" about this issue.  (The House Judiciary Committee also passed the Sensenbrenner bill today.)  It's also clear that Sen. Stevens is frustrated and wants to get a bill passed right away.  He's looking for a "consensus" that will provide a "fertile investment climate for network operators."  In other words, he'd like to give these operators some assurance that they can recoup their investments.  Sen. Stevens is inadequately aware of the risks to the future of the internet that this approach poses. 

The risk that a hand-picked group of lobbyists will compromise away this future is too great, in my view.  The only standard that will keep the architecture of the internet optimized on innovation (instead of billing) is to ensure that all broadband pipe providers (cable as well as telco) are required to unbundle their facilities so as to promote competition.  That's a huge step from where we are now, and it will take work.  But my hope is that we'll get there eventually.  We shouldn't be rushed.

The telcos' central argument, which came across very clearly from Tom Tauke of Verizon, is that their investments in fiber needed to provide new communications services must be paid back, and that the only way to do that is to allow them to price-discriminate.  These new communications services won't be the internet, he assures us.  They'll be private networks that are controlled, end-to-end, by Verizon.  Internet access will still be available, and won't be blocked or degraded.  "We should be able to offer new services that don't affect internet access over that same fiber connection," he says.  Again and again, he said that regulating "access generally" shouldn't happen (by which he means access to the new "communications network" that-is-not-the-internet).

Tauke's argument is that in an "old world" of limited capacity, you need to require nondiscrimination.  But his new fiber has unlimited capacity.  He'll provide 30Mbps of internet access (not upload, but download), but he wants to provide "things beyond internet access."  And he thinks that's different.  He claims we've had a "real change in the paradigm."

(If these communications services aren't the internet, how will this help us in the much-ballyhooed global "broadband penetration" debate?)

(And if a newspaper spends an enormous amount building a new color printing plant, should it expect to have legislation passed that will enable it to recoup its investment?)

Timothy Regan, of Corning, made the point that the legislators are trying to solve a problem that hasn't been clearly defined.  He and Tauke both claim that there is ample competition for broadband access in the U.S. 

Ben Scott, of FreePress, noted that an extraordinary grassroots coalition has arisen in connection with this issue that spans the political spectrum, and that getting rid of nondiscrimination principles would undermine the primary reason for the internet's success.

Earl Comstock, of CompTel, pointed out that we have lots of experience with the cable industry.  They don't let competitors use their facilities, and they don't let consumers pick what they want.  (Sen. McCain, it's good to know, has had some bad experiences with his cable company.)  Comstock noted that Verizon essentially wants to say:  here is a line into your home.  "You can buy a second line if you want to -- but for that second line we're going to control what you can do with it and what you'll see.  You can't buy a second uncontrolled line."  Comstock made the key distinctions (and I hope the Senators were listening):  "This fight is about regulation of transmission, not content.  No one wants content regulation.  What we're worried about is having providers of broadband access leverage their market power over transmission into content."

Tauke responded, strongly, that Verizon has no interest in discriminating against internet content.  His point is that he wants to discriminate in providing other, "new" services over fiber.  He frequently used the example of medical operations -- hospitals should be allowed to choose a VPN that one provider controls to assure that they can monitor heart patients.  "When we talk about these special arrangements, they're not being delivered over the internet."  At one point, Tauke said passionately that [paraphrasing] "We're being forced not to differentiate.  If you can't differentiate you can't innovate.  You become a commodity.  There is no business case for fiber to the home under those circumstances.  The key to getting competitive markets moving is to be able to differentiate.  Those new networks need to differentiate.  Nondiscrimination means commoditization and no innovation for consumers."

Comstock's response on this point is a very strong one:  There are many VPNs out there.  Why should Verizon be allowed to use its privileged position to be a gatekeeper for a single VPN that all of use will have to use? 

He points out that we know how difficult it is to negotiate with an incumbent who doesn't want to sell to you.  We need help to have competition for broadband services.  We need more networks -- but we're facing entrenched incumbents.  So we need to force them to share their networks for now.  Network providers should be doing just that -- selling us transmission.  They're not prevented from selling other content to us.  Comstock notes that what the network providers want to do would un-do the internet.  They will impose different protocols ("not the internet") to protect their own material.

Comstock's key point was that what the network providers want to do is turn the internet into a cable system.  Ben Scott also made this point well.  Comstock noted that the network providers are [paraphrasing] "trying to reserve capacity for their exclusive use.  They'll make deals. They'll always provide some capacity that's unrestricted -- like leaving one lane of an eight-lane highway open."  Comstock said that the network providers should be required to make whatever capacity they have available on a nondiscriminatory basis."  "My companies provide VPNs every day, but we can only do that if we can resell to consumers."

Sens. McCain, Snowe, Dorgan, Boxer are all very concerned about concentration in the market for broadband access.  Sen. Inouye called the testimony "extraordinary" and seemed very appreciative (and very frail).  Sen. Boxer, in particular, asked good questions about what Verizon should be paid for.  She understands that Verizon has gotten public rights of way, and notes that they come with certain obligations.  She thinks that Verizon should be paid for transferring information -- and wonders why they should get more than that. 

Regan, finally, said that this new service of Verizon's won't be an "internet connection."  Instead, it will be a "communications connection."  Sen. Boxer, to her credit, thinks that the network providers are making up this distinction.

It was a good day -- and we shouldn't be pushed to speed along a bill.  We need to get this right.