05/27/2014 02:13 pm ET Updated Jul 27, 2014

The Compact With Capitalism: Wheeler's Net Neutrality Dodge

Rhetoric and reality sometimes diverge. Right now, the future of the Internet is hooked like a fish between two different paths.

On December 16, 2013, I met FCC chairman Tom Wheeler at an Oakland town hall meeting, and I used my two minutes to talk about reclassification, a term that means making whole the regulatory split that is going to create a two-tiered Internet. The chairman nodded, took notes, and at the end of the presentation mentioned the importance of a "network compact".

I had just finished reading "Net Effects; The Past, Present and Future Impact Of Our Networks" by FCC chairman Tom Wheeler. Perhaps surprisingly for someone so upset by Wheeler's proposals that if I lived closer to DC I'd have been camping in front of the FCC, I agreed with much of what Wheeler wrote.

Wheeler correctly identifies the disruption that occurs when new communication technologies change the landscape. The printing press, the railroad, the telegraph and the land-line telephone were all once portrayed by the luddites among us as the death of all civilization. They pushed aside established incumbent businesses in favor of insurgents poised to take advantage of new technologies. We've been living through a great disruption for the past 20 years as the Internet has become so central.

I feel some empathy for the wonderful (and grouchy) Henry David Thoreau ranting "we do not ride on the railroad, it rides on us".

Continuing to dig for the "network compact" language Wheeler used to answered my question months ago, I hit pay dirt. A pillar of communication policy;"The network compact is between those who provide the pathways and those who use them. This civil bond between networks and users has always had three components: access, interconnection, and the encouragement and the enablement of the public purpose benefits of our networks".

The crux seemed to be whether this civil bond was a promise, an opportunity for the providers of pathways to exhibit their seal of good corporate citizenship. Or was the civil bond a law, enforced by the government on behalf of users, who otherwise probably have little recourse for corporate broken promises but to resort to the likes of

Were chairman Wheeler and the FCC going to give us a hand?

The article so promises; suggesting "Broadband for the sake of broadband is an empty goal. As we have seen, the importance of networks is not the technology itself, but what the technology enables" (including diversity, localism and free speech).

While I've been an FCC-watcher for too long to get too easily bowled over by constant references to diversity, localism and free speech, the next paragraph won my heart. "The Communications Act is quite specific that the role of the FCC is to protect the public interest, convenience and necessity. For more than 90 years, this instruction has remained the alpha and the omega of the government's responsibility and authority. As technologies have changed and markets have evolved, it has remained inviolate".

Inviolate responsibility and authority. The alpha and the omega. Sounds pretty good. The government is on my side. Broken promises will be punished with all the force my puny taxpayer dollars can muster. But wait just a second. Didn't the government just chop off their own left hand?

The Federal Communications Commission, after springing to the defense of network neutrality in the wake of Robb Toplosky's revelations about unannounced throttling in 2008, had its head handed to it in the DC Court. The court made it clear that without invoking the authority of common carriage regulation over the Internet and reclassifying broadband, the FCC couldn't do much.

In a legal decision verging on a how-to guide, the court said relying on 706 authority (without reclassification), the FCC's hands were tied, even to address such a simple matter as throttling or blocking, much less preventing the carving up of the Internet by paid content prioritization into fast and slow lanes. But if the FCC reclassified, then it had the authority to do what it wished i.e. to ensure equal access to every bit and byte without discrimination.

If the network compact is really between users and providers, then my recourse as a user if promises are broken, is Wheeler's FCC. But how can it help me with one hand (if not both) tied behind its back?

It's time to untie the self-imposed knot and make a real network compact between Internet providers and Internet users. A civil bond that can be enforced by the regulatory agency I pay for.

Otherwise, the compact is only between the providers of the pathways and an inept and paralyzed federal agency that can't do much but lose in court again.

There is no network compact without reclassification. There is no Internet without digital equality. Real net neutrality now.