Many folks are surprised that I don't reflexively support the concept of net neutrality and, instead, have tended to plant myself in the undecided column. Increasingly, however, I've determined that I ultimately have more faith in the market to work out this particular issue than I do regulators.
One issue has to do with jurisdiction, a notion I'm glad to see that the courts support. The FCC—a creaky relic of a long-gone, vacuum-tubed, spectrum-constrained era—simply does not have the mandate to regulate the Internet or ISPs any more than the DMV has the power to regulate the highway system. Every day, infrastructure and equipment providers figure out ways to deliver more bandwidth more cheaply, continuing to humiliate the digital Malthusians out there.
The other issue is one of seriousness. I'll let Reason take it from here:
Clearly defined regulations are probably unnecessary, but at least they would provide innovators a sense of stability. But [FCC chief Julius] Genachowski's case-specific approach to judging violations—essentially we'll know it when we see it—doesn't even give them that. Now, whenever a telecom company wants to implement a new service or product that works by manipulating traffic flow on the Web, it will have to worry about whether or not its innovation might set off Genochowski's sense of... well, whatever it is that he and the rest of the regulators at the FCC don't like.
Personally, I don't think the FCC is serious enough, mandated enough, or capable enough to regulate the Internet. That said, with Howard Stern off the public airwaves and Janet Jackson's right breast now well-concealed from TV cameras, perhaps they're desperate for something to do.
One thing is for sure, though: ISPs that throttle traffic in ways that degrade service for the reasonable customer will find their business drop that fast. And it's not like there isn't competition. Reason also points us to the FCC's own data, which shows that 98.3% of ZIP codes had three or more broadband providers in 2008 (PDF, page 21).