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[Commentary] Certainly there are those who would grumble that it's not equitable that some drivers can go much faster because they have paid for more expensive vehicles that can achieve higher speeds. But as a policy matter, it's difficult to imagine anyone advocating that Porsches or BMWs be prohibited by law from the Autobahn, or that a regulatory requirement be imposed so that they could not outperform a Volkswagen or Fiat.

Yet in a parallel setting in telecommunications, there appears to be active FCC consideration of undertaking a comparable task -- namely, subjecting some of the fast-lane Internet to common carrier regulation under Title II of the Communications Act. Since telecommunications, like automobile manufacturing, relies on innovation and investment, mandating a new set of restrictive rules actually could have the effect of slowing down broadband Internet development as an unintended consequence of putting too heavy a thumb on the scale of regulation.

[Brotman teaches at Harvard Law School]