eWeek.com’s Wayne Rash made a point last weekend that competition may incentivize consumers to leave incumbent broadband providers and use the networks of new entrants.  This is important for at least three reasons.

First, while Congress is ultimately responsible for the regulation of commerce, regulation of commerce can be easily translated into promotion of commerce by avoiding onerous regulatory burdens that net neutrality can impose. Congress can do this by either not passing any new legislation, or pass legislation that reaffirms that the Internet is not subject to reclassification as telecommunications. In other words, allow the market to continue working as it has over the past three decades.

Second, the Federal Communications Commission has focused too much from the very outset on regulation as opposed to competition. If the FCC were serious about promoting innovation and market entry, as well as carrying out Congress’ mandate of light touch regulation, it would have either not pursued this “third way” course of action or proposed rules that would actually aid market entry. Such an approach would have been similar to the underlying legislative philosophy of the Telecommunications Act of 1996.

Finally, consumers in the minority community, who are grossly underserved, as well as minority-owned content and broadband providers, would benefit more from a broadband framework based on competition versus regulation. A framework that encourages competition would allow for the strategic partnerships that are integral to a minority-owned firm’s ability to navigate the technical and financial barriers to the broadband and content provider markets. Unfortunately, the FCC’s third way proposal does not support these necessary partnerships.

Declan McCullagh raises a very important point. There is a system in place to address consumer protection and antitrust issues. The Federal Trade Commission and the Department of Justice have addressed these issues for decades. The FTC even offered the Federal Communications Commission a hand in drafting consumer protection language for the FCC’s national broadband plan last year.

In addition to the federal consumer protection and antitrust statutes in place, the states also have consumer protection and antitrust laws in place. There are quite a few attorneys general who would like to bolster their resumes by taking on a few large broadband providers.

But as Mr. McCullagh rightly points out, broadband providers have been avoiding on their own the discriminatory practices Free Press and Public Knowledge continue to allude to.

Why recreate the wheel?

I guess House Speaker Nancy Pelosi, Democrat of California, needs to check the house hopper before she claims that movement against the concept of net neutrality will not be sustained “on her watch.”

During her watch as house speaker, and for at least a decade prior to that, the Congress has made it clear that a “hands off” policy towards the Internet is appropriate and necessary for its growth. It is probably for this reason that HR 3458, the Internet Freedom Preservation Act of 2009, has been sitting in the House energy and commerce committee since the summer of 2009.

HR 3458, sponsored by Ed Markey, Democrat of Massachusetts, would introduce the very net neutrality principles that Mrs. Pelosi allegedly supports. The question is, why support them now and not less than a year ago? What has changed?

If Mrs. Pelosi was serious about universal access to broadband, especially for minority, rural, unserved, and underserved areas, she would have thrown her support behind the more reasonable measures in Florida Democrat Representative Kendrick Meek’s HR 691, which would have provided a credit against income tax for businesses furnishing broadband services to rural and underserved areas.

Before worrying about what will not be sustained on her watch, maybe Mrs. Pelosi should worry about sustaining a consistent position.

Imagine Federal Communications Commission Chairman Julius Genachowski and Commissioner Mignon Clyburn as owners of a fast food chain. On their menu is a fish sandwich. They decide that they will only use one type of seasoning and will fry the fish.

Over time they decide that one type of seasoning is no longer enough. Instead, they decide to experiment by adding a new seasoning each time until they think they have it right.

Problem is that during all their experimenting, the certainty that consumers enjoyed from eating the fish with a particular taste is no longer there. The consumer would rather find a fish sandwich somewhere else; a sandwich that is simple and goes down well with a Coke Classic ( as opposed to New Coke). By the time chefs Genachowski and Clyburn have gotten the message, it’s too late. They have lost customers who more than likely will not come back.

The “third way” policy Commissioner Clyburn endorses runs the risk of too much seasoning being put in the broadband pot. It’s not in the DNA of a regulator to use only two rules when she has 48 rules available.

All the third way creates is another slippery slope. Just like too much sodium contributes to high blood pressure, the additional regulations that the FCC may decide not to forbear from will only add to the network congestion woes that broadband providers are trying to avoid.

The FCC should leave the cooking to the broadband market. Broadband providers and broadband consumers don’t need any additional hands in the kitchen.

Commentator Navarrow Wright’s recent column in The Huffington Post on net neutrality illuminates a value that net neutrality proponents purposefully overlook: net neutrality takes away choice. Taking away choice is un-American, anti-democratic, and uneconomic.

Broadband providers should be able to choose whether to expand or scale up the capacity to move video, text, and voice. If a content provider believes that, given the volume, bandwidth, and quality needs of its traffic, it should have the option of paying to avoid congestion, then allow that content provider that choice.

Why ride with the rest of the herd when I, as a content provider, can choose to buy my own HOV lane? Why should I delay launching my website when I can partner with an Internet access provider to have my traffic move to the head of the line? An economic non-discrimination policy takes away choice.