Damian Kulash of the musical group, OK Go, recently shared his thoughts via The Washington Post on net neutrality. He joined the bandwagon of open network proponents that call broadband access communications and a civil right.

Are we really using the Internet to communicate in the way that communications is regulated by the Federal Communications Commission? Yes, we post our thoughts on Facebook and Twitter. We write blogs on everything from politics to grandma’s cookie recipe. We e-mail each other about business meetings and the feelings we have for a lover at the office. But currently, under the law, none of this is the communications that the FCC and its sister regulatory agencies on the state level regulates.

The communications that the FCC should be concerned about is the instantaneous, two-way communications that we employ via radio and telephone. The communications that the FCC should be concerned about is not the accessing of information posted on an electronic bulletin board for someone to access at their leisure. Rather, communications between a mother and the fire department that not only exchanges information immediately but also will call for some immediate action is at the center of communications that the FCC should be regulating.

Ask any fireman or cop in New York on 11 September 2001 what they would have considered to be true communications and they would have told you a telephone. E-mail just would not have cut it that day. Even if Facebook and Twitter were around in 2001, no public safety officer in their right mind would have considered those platforms as communications.

Broadband access services provide you access to information. These services provide you access to digital product, but to call them communications is a stretch. An example would be a grocery store. You enter the store via a door, but walking through the door is not communications. You look around the store and check out the items. The communications occurs when you instantaneously exchange your ideas about the products in the store with your friends and family. Merely walking into the store doesn‘t communicate anything.

What also has me concerned is this civil rights comparison. I have too much respect for my ancestors who fought, bled, and died for the right to access certain public accommodations and to enjoy the same privileges to vote as whites to liken their experience to a bunch of little electrons moving through space, whether on a wire or not.

Give me a break. Civil rights for bits of electronic data? it’s a sad commentary on our society when we equate the government’s abridgement of the right to access public accommodations with a private company’s business judgment regarding the management of networks that are not considered public accommodations. Broadband access providers are not common carriers. Any reading of the law within the context of civil rights would lead you to that conclusion.

The irony of the discussion is that with all the unimpeded access we have to information, why are we being willfully ignorant about what the law says? Why are we not studying the civil rights law and understanding what it really means before launching off into baseless comparisons?

Instead of screaming about civil rights, maybe we should be exercising our duty to be fully informed.

You pull up to the Chicago Hilton off of Balboa Drive after a grueling 12-hour drive. All you can think about is getting something to eat and some sleep. You go to the check-in desk and ask about the rates for a two-room suite and are quoted a rate of $250 per night. Upon hearing the quote you become indignant because you believe that you should pay a one-star hotel room rate for a five-star hotel room.

The check-in clerk explains that given the amenities of the room, the space it has, and the view, a rate of $250 is the market rate. You believe, however, that you have a right to the room at the lower rate because, after all, your need to sleep is just as important as Paris Hilton’s.

This is basically the argument that proponents of net neutrality have been raising. Content providers have a civil right to have their traffic treated equally by broadband access providers. A bit is a bit is a bit, they would argue.

Shouting the phrase “civil rights” from the rafters as a rallying cry is designed to invoke fear and guilt versus reason. Shouting civil rights is like giving libation with the expectations that upon channeling the spirits of Martin and Malcolm, anything in opposition to net neutrality will attract an evil taint and be thrown in the back of the bus where it belongs.

I never met Dr. King, but from what I know of him, he would have wanted us to approach this debate with reserve and reason. Reason requires that we properly clarify and define civil rights less we prefer stoke the flames of the Watts riots all over again.

The purpose of civil rights laws is to deter government and its agents from using their authority to deprive individuals of their federally guaranteed rights. Last time I checked, broadband access providers were not agents of the federal government. Broadband access providers, as much as the Federal Communications Commission would like them to be, are not even common carriers, like hotels or trains are. Congress wanted to provide for civil remedies where state action resulted in the violation of constitutional rights.

So, if government, federal, state, or local, ordered or allowed discrimination by broadband access providers against content providers, that would be a civil rights violation. If government provided broadband service directly but only allowed certain content providers to use it, then you would have a civil rights violation. If broadband access providers were common carriers (which they are not) and denied you access to service, then you would have a civil rights violation. None of these scenarios exist.

Envisioning a world that could be under universal broadband access does not create a constitutional right. Net neutrality, however, may be the very source of civil rights violations that net neutrality proponents allegedly want us to avoid.

Establishing a rule where a broadband access provider is required to disclose network management information to the public, I would argue, violates that provider’s free speech. Corporations, much to the chagrin of the far left, do have the limited constitutional right of free speech. It would be ironic that we would trample on the existing constitutional rights of broadband access providers in order to protect a civil right for content providers that does not exist.

I did pretty well in philosophy but even that question of existentialism is a bit much for me to wrap my head around.

Dr. King preached a message of tolerance and equality but even he, after a long night on the road marching for our civil rights, would have found it a bit unconscionable to pay one-star room rates for a five-star room.

Wow. Talk about a double standard. Content providers, some of whom are very opposed to broadband access providers throttling and prioritizing their traffic, actually want broadband access providers to play post office by inspecting traffic for copyright infringement? Can we really have it both ways?

Well. Maybe. Depending on whether the Federal Communications Commission gets its way on net neutrality. If the three Democrats on the FCC can get Congress to amend the Communications Act so that broadband access providers are defined as telecommunications companies, the law may just lend that type of activity some support.

I base this conclusion on Sec. 222(d)(2) of the Communications Act. A telecommunications carrier can use, disclose, or permit access to customer proprietary network information obtained directly or indirectly from consumers to” protect the rights or property of the carrier, or to protect users of those services, and other carriers from fraudulent, abusive, or unlawful use of, or subscription to, such services.

We don’t want you to ration our traffic, content providers will say, but we want you to read everybody else’s content and we are willing to see you classified as a telecommunications carrier so that you can do it and protect our intellectual property.

So much for the net neutrality posse’s “concerns” for the civil rights of the masses.

A recent article in  The Hill.com brings to light two importantly opposing views on net neutrality. On one side we have concerns regarding infrastructure and jobs. On the other is a view held by a few large content providers and their disingenuous lackeys, namely Color of Change, Free Press, and Public Knowledge.

The civil rights groups that have signed off on this letter realize that the pursuit of civil rights lies in the pursuit of economic rights for the most people. Regulations built on the misguided concept of net neutrality will result in reduced deployment of facilities. The fewer facilities deployed, the fewer workers that are needed.

Regulations promulgated by any federal agency should have at its core the promotion of commerce. The promotion of commerce means increased employment, wages, and economic growth. Net neutrality proponents don’t get this because their interests are too narrowly construed.

If you want to stir emotions and pull heartstrings in a political debate, all one has to do is label an issue as a civil right and thereby set the stage for good versus evil. It’s a tactic that is currently being used by net neutrality proponents to cloud the real issue underlying the open network debate, namely that a number of content providers rather not pay their own cost for delivering their content over the Internet. Net neutrality proponents would rather the consumer pick up the additional costs in their bills so that content providers can receive equal treatment of their traffic.

In actuality, broadband access providers have an interest in making sure that consumers get on to the Internet. The more consumers accessing the Internet via a broadband provider’s facilities, the greater the value of the provider’s own network and service that it provides. This why broadband providers offer different packages based on usage to encourage as many purchasers of broadband as possible. In other words, it’s bad business to keep consumers from accessing the content they want to see.

If net neutrality proponents are really concerned about the violation of consumer liberties, they should be making consumers aware of S.3480, the Protecting Cyberspace as a National Asset Act of 2010. This bill would, in effect, call for a shut down of the Internet should a potential disruption be identified. The thing is that the term potential disruption is so ambiguous that anything could be described as a disruption, thus leaving all consumers in the dark in cyberspace.

If we, as consumers, are prepared to pay for service based on our budgets and projected amount of usage, why shouldn’t content providers pay to distribute their content via the Internet based on their budgets and projected usage? It makes sense to me.

The only thing that net neutrality will bring consumers is higher prices at best and no service at worse. Internet traffic is increasing and as more people access the Internet, the potential for congestion increases. If content providers are not going to pay for the congestion, then who will?

The NAACP knows this. Because they are aware of the potential negative price impact of net neutrality on the minority community, they have taken a position that net neutrality should be thoroughly scrutinized. The NAACP should continue taking this position.