If the FCC interprets the national broadband plan it sent to Congress today as an invitation to impose heavy burdens on the Internet, it will be against the better judgment of Commissioners Robert McDowell and Meredith Attwell Baker. Both of them admonished the agency to tread lightly as it works to achieve the goals of the plan.

All five commissioners voted for a joint statement that outlined broad ideas such as this: “Every American should have a meaningful opportunity to benefit from the broadband communications era — regardless of geography, race, economic status, disability, residence on tribal land, or degree of digital literacy.” But the statement also acknowledged the “differing opinions” that were apparent as FCC members discussed the plan in an open meeting.

McDowell and Baker reminded the commission that the Internet has reshaped American business and society precisely because it has been allowed to thrive without interference from the government, and reversing course now would undermine the mission of the broadband plan.

“As the commission and Congress move to consider the ideas offered up by the Office of Broadband Initiative,” McDowell said, “we should make sure that we first and foremost do no harm.”

McDowell cited a series of relevant facts: 1) Two-thirds of Americans have some form of broadband access at home, up from 15 percent in 2003, and some form of broadband is available to about 95 percent of the population; 2) virtually unheard of in 2002, mobile broadband is now part of the lives of some 100 million Americans; 3) a majority of Americans have a choice of five wireless providers, and almost can choose from four; 4) Americans downloaded more than 837 million applications onto their mobile devices last year, the most in the world; and 5) broadband infrastructure investments in the United States exceeded more than $60 billion in 2009.

“As a direct result of adopting policies that ensured the Net would be regulated only with a light touch, the Internet environment is growing and evolving faster than any individual, company or government can measure,” he said. “The Net operates in an open and free marketplace where innovation and investment are thriving.”

McDowell added that “unless the government provides disincentives to investment,” the cable market already is well on its way to achieving one of the broadband plan’s central goals — speeds of 100 megabytes per second in 100 million homes by 2020. Among other things, he voiced concerns that the plan:

• “Opens the door to classifying broadband services as old-fashioned monopoly era, circuit-switched, voice telephone services under Title II of the Communications Act of 1934. Broadband deployment and adoption have flourished in the absence of such regulations”;
• “Implies that the commission should mandate the unbundling of fiber and other network elements that have been deployed since the agency deregulated some of these components,” and doing so could stall capital investment.
• Raises the specter of a network neutrality proceeding;
• Suggests new federal funding for online digital platforms when “our government is spending record amounts by taking on monumental levels of debt”‘;
• May have given new life to ideas that could result in the imposition of new taxes on the Internet”;
• And may lead to overly broad changes to “fair use” provisions of copyright law. He said strong intellectual property laws “will encourage the creation of more compelling content that could help spur broadband adoption.”

Baker joined McDowell in touting broadband as a private-sector success story, noting that “in difficult economic time, approximately two-thirds of Americans now subscribe to a roughly $40-per-month service.” She praised the “light-touch targeted regulatory regime” during the Clinton and Bush administrations and warned against “prescriptive government requirements” like net neutrality and regulating broadband as a “telecommunications service” under Title II.

“This is not the time to throw away the playbook and start fresh,” Baker said. The commission should “avoid re-opening settled regulatory battles or changing our market-based regulatory framework mid-course in a manner that could chill the private investment we so desperately need in our broadband infrastructure.”