NEWS ANALYSIS – FCC Chairman Julius Genachowski's unsurprising affirmation of support for network neutrality is a victory for the high-minded principle of open, unfettered internet access. Too bad it means the days of all-you-can-eat, flat-rate internet access are probably over.

Net neutrality sounds like a good idea. After all, it's the internet's openness to any and all users, applications and content that gave it such a resounding victory over closed networks like AOL, CompuServe and Prodigy. And there's no question that as a general business and networking principle, "anything goes" is both desirable and beneficial, to users and network operators alike. Over the long run, the most open networks attract the most customers and will be the most successful — and the most profitable.

But somewhere along the way, this principle of good network architecture turned into a political tenet that, according to some true believers, is almost equivalent to the Bill of Rights in importance.

The argument goes like this: Internet service providers have such strong motivations to restrict access to content or applications that they don't like that the government needs to step in to ensure a level playing field. For net neutrality's true believers, Comcast and Verizon no longer get to decide how best to configure the networks they spent billions building: Their networks are so ubiquitous, and so critical to the common good, that the government has a responsibility to ensure they are managed fairly.

It's easy to see the merits of the argument, and when we're talking about ISPs that are near-monopolies built in large part on the basis of government subsidy or exclusive federal licensing, it seems downright un-American to argue against net neutrality.

Unfortunately, there are at least three big problems with making net neutrality a federal mandate.

First is that bandwidth is not, in fact, unlimited, especially in the wireless world. One reason ISPs are averse to neutrality regulation, they say, is that they need the flexibility to ban or mitigate high-bandwidth uses of their network, like BitTorrent and Hulu.com, which would otherwise run amok. Take away their ability to prioritize traffic, the ISPs say, and overall service will suffer.

"As long as there have been networks, people have had to engineer them to ensure that congestion doesn't occur," Carnegie Mellon professor and telecom expert David Farber said Monday (he's the co-author of a cautious anti-net neutrality opinion piece published in 2007). Farber is especially concerned about the impact of the FCC's position on wireless networks, where bandwidth is already very limited. "When you're operating that close to capacity, you have to do a very tricky job of managing your spectrum. If you have unconstrained loads being dumped on you, something's going to have to give."

Case in point: AT&T has repeatedly stumbled in its ability to provide 3G wireless capacity, thanks to the unexpected popularity of the iPhone. Those difficulties lend credence to AT&T's (and Apple's) reluctance to allow apps like Skype and Slingplayer unfettered access to the 3G network: If the network can barely keep up with ordinary demand, just imagine what would happen if we were all live-streaming the Emmy Awards over our iPhones at the same time.

Take away ISPs' ability to shape or restrict traffic, and you'll see many carriers running into AT&T-like capacity problems. Their response will almost certainly be to make consumers pay for what they're actually using. Want to BitTorrent all 6.7GB of the uncompressed Beatles catalog via 3G? Fine, but you'll have to pay for the bandwidth you're taking away from your neighbor.

Second, enforcement of neutrality regulations is going to be difficult. Comcast may not be able to block Skype traffic altogether, but what's to prevent the company from slowing it down relative to other traffic it carries? Such preferential "packet shaping" is easy to turn off and on, as network demands ebb and flow. By contrast, proving such infractions of neutrality will be complex, slow and difficult. It sets up a classic "nimble, resourceful criminal versus slow-footed, underequipped cop" scenario.

Third, the new regulations create an additional layer of government bureaucracy where the free market has already proven its effectiveness. The reason you're not using AOL to read this right now isn't because the government mandated AOL's closed network out of existence: It's because free and open networks triumphed, and that's because they were good business.

Now the FCC is proposing taking a free market that works, and adding another layer of innovation-stifling regulations on top of that? This may please the net neutrality advocates who helped elect the current administration, but it doesn't add up.

Net neutrality regulations make sense in closed, monopolistic situations. But outside of small, rural markets, most of the U.S. offers a high level of competitive choice. Don't like Comcast cable internet? Switch to SpeakEasy, Astound or SBC, or look into satellite internet. Don't care for AT&T's spotty 3G wireless network? Try T-Mobile or Verizon. Need help finding an alternative? Check Broadband Reports' interactive ISP finder.

That's why the FCC should take a very cautious, careful approach to implementing its brave, new principles. Free, unfettered innovation has been the secret to the internet's explosive growth over the past two decades. Let's not let a well-meaning attempt to preserve that innovation wind up doing exactly the opposite.

As Farber says, "Whatever you do, you don't want to stifle innovation."

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