Net Neutrality - How To Avoid A Lose-Lose Outcome

It is ironic that Republican legislators who proclaim themselves to be the defenders of small businesses should object to potential rules that in theory are designed to protect, among other goals, the rights of small, innovative companies to deliver services and applications with minimum restraints to customers of broadband access networks. It is equally ironic that these very rules may have the opposite effect of what is intended, namely to impede open internet access. Their consequence may be to prevent operators from applying necessary traffic management schemes to ensure high quality and reliability of service for all customers at all times, i.e. even during periods of congestion.  A knotty problem is how to ensure that  traffic management  is only applied for legitimate purposes. There are numerous examples of the limitations of sluggish and/or underequipped regulators who are unable to police the initiatives of nimble and resourceful lawbreakers, especially if the incentives to break the law are large. Networks have finite capacity, and choke points can occur at any point in an end-to-end connection, from an in building Wi-Fi network, to a fixed or radio access network, to backhaul and long distance networks and the capacity of servers to handle requests for content. Continued investment is needed all along the way, and unless all parties involved can justify these investments in their business models they will not make them. If insufficient investments are made, rising traffic demands will cause congestion that becomes increasingly frequent and severe.  "Unlimited" access will become impossible and the need for techniques to manage traffic flows so that some reasonable level of service (quality and availability) can be provided to as many customers as possible will become more acute. In the real world blanket prohibition of all traffic management is not acceptable. But the question remains as to who decides and who monitors and enforces, and how, the actual implementation of traffic management, which is by the way much more critical for shared radio access networks (i.e.mobile networks) than for fixed access.  If net neutrality prohibits wireless and fixed operators and others such as ISPs from managing traffic on their networks efficiently it will be a disaster. But can you trust AT&T or Verizon or Comcast and other operators to do so in ways that are honest and fair with respect to customers and do not discriminate against other services providers who compete with their own business units or their preferred partners? One logical or possible consequence of a negative answer to this question lies in a strict and perhaps even structural separation of  these companies' network operations from their other businesses, in a manner similar to that which has occurred with BT in the U.K. and Telecom New Zealand, and is being considered in countries such as Australia and Sweden. This move might be accompanied by a "back to the future" return to operation of the network businesses as regulated utilities with agreed allowable returns on their capital. However, it seems unlikely politically and otherwise that this kind of approach will be adopted in the U.S. Instead it is to be hoped that a mix of mutually reinforcing solutions will be found (I cannot estimate the probability of such a happy outcome) that will involve: (a) Innovative and transparent, i.e. comprehensible to the average customer, pricing and services packages that allow for degradation of service to customers as a function of the service tier they pay for during periods of congestion; (b) Certification of  traffic management schemes that if applied by operators and ISPs will protect them from damages for alleged anticompetitive and consumer-hostile behavior that violates rules of network neutrality; (c) Severe and even daunting penalties for violations of these rules; (d) Monitoring of traffic management practices by independent technically competent organizations; and (d) incentives for operators to act in compliance with the rules such as preferential financial treatment of investments in certified traffic management systems, and preferential access to government contracts for operators that demonstrate prompt compliance. I am sure that there are better proposals than these to achieve the desirable goal of traffic management that is efficient and effective while balancing the needs, rights  and expectations of consumers, operators and competitive services providers in a reasonable manner. Thinking along these lines is needed if we are to avoid the Scylla of no traffic management ,and hence a decline in overall service quality and access, and the Charybdis of non-transparent traffic management that is left essentially only in the hands of a few major players. These players may then manage traffic in ways that are unfairly detrimental to consumers and other innovative services providers if the natural temptation to satisfy their own interests above those of all others, even where they conflict, is not subject to any external restraints.