Edward Norton and Paul Giamatti may be able to conjure something from nothing in the movies, but in real life it’s a bit harder. Not that it’s stopped supporters of Internet regulations from claiming that there will be problems if a “net neutrality” law hasn’t passed.

Luckily, our own Chris Wolf published an op-ed in the International Herald Tribune (that’s the overseas version of the New York Times) last week titled “The illusion of ‘net neutrality.’” Pointing out basic facts of court law, he makes it clear why it would be such a mistake to take them seriously:

[C]ourts regularly are confronted with theoretical conflicts that have not yet occurred and they regularly refrain from meddling. As a matter of prudence, the judicial branch of government will not rule on such cases as they are not “ripe” for review. Claims that rest upon future events that may never occur routinely are thrown out of court.

One reason courts refrain is that it is difficult, if not impossible, to fashion appropriate remedies in the abstract without harming the parties and the public interest.

In policymaking, too, in the absence of a real problem, there is a substantial risk of “solutions” harming the companies making the investment in - and responsible for - the Internet infrastructure, and of harming the public interest in the rapid build-out of the next-generation Internet.

Without knowing what constitutes a bull’s eye, it is difficult if not impossible to aim relief. The courts know this to be the case when they are presented with hypotheticals. In the case of regulated “Net neutrality,” policymakers would be wise to exercise similar restraint. To imagine a new department of Internet regulation is to glimpse the nightmare of unintended consequences.

When you have common sense on your side, you don’t need to be a magician. And unless you can see the future, a wait-and-see approach makes the most sense of all.

How neutral is the Internet right now? As we’ve pointed out on more than one occasion, the answer is: Not very. The Internet is a network of networks and technology tools at the input end of networks can result in a content owner getting priority over others on the Internet. It’s an expensive network of networks at that, funded by private investors and public agencies and requiring yet more investment for upkeep. In short, access may be equal, but the pipes aren’t. Illustrating the point last week, Nick Carr from the IT blog Rough Type, wrote a let’s-be-honest-with-ourselves post directed primarily at supporters of net neutrality:

Net neutrality exists in the abstract, in the realm of protocol. Because the content of any packet of data is invisible to the pipe carrying it, by protocological fiat, every packet is treated the same. If that was all there was to it - if theory and reality were one - then pro-neutrality would mean pro-competition. But it’s not all there is to it. In addition to the abstract realm of protocol, there’s the very real - very physical - realm of infrastructure. Regardless of protocol, superior infrastructure provides superior quality of service - ie, faster, more reliable transmission of data. … If net neutrality becomes law, it would prevent big companies from locking in an advantage at the protocological level - giving certain types of data privileged status - but it would allow big companies to lock in an advantage at the infrastructural level.

His chief examples are not new, either. Akamai is a company that operates servers around the world so the big companies that can afford their services can get their content delivered faster than the smaller companies that can’t afford this. When you consider that one of the main arguments in favor of net neutrality is to keep big companies from overpowering little companies, it’s clear that big companies already have this advantage. And yet new web companies succeed every day.

So what’s the real story behind yesterday’s FCC decision to open a “notice of inquiry” on broadband market practices?

Strip away the usual government-ese and this is pretty obviously a shrewd move by the commission because it calls the bluff of those lobbying for broad new regulations.

Google, Amazon and other pro-regulation companies now face a choice: Cither come up with an actual example of online discrimination or admit that existing laws protecting consumers’ Internet experience are working.

The first option is about as likely as Paris Hilton becoming a rabbi. That leaves the regulation agitators with no alternative but to admit that their rationale for ‘neutrality’ is just a transparent effort to shift build-out costs onto ordinary Net users.

Watch for their upcoming filings to have more twists and contortions than an Upper East Side yoga class.

Today, the Federal Communications Commissioned opened a “notice of inquiry” regarding the state of broadband and whether there is a need for new online “neutrality” regulation of broadband services.

The following comment may be attributed to Mike McCurry and Christopher Wolf, co-chairs of the Hands Off the Internet coalition (www.HandsOff.org):

“This is a shrewd move by the Commission because it calls the bluff of those lobbying for broad new regulations. Google, Amazon and other pro-regulation companies will have to admit that the existing laws protecting consumers’ Internet experience are working. But once they admit that consumers already have these important legal protections, their entire rationale for ‘neutrality’ regulation is unmasked as a transparent effort to shift Internet build-out costs away from companies and onto ordinary Net users.”

The Hands Off the Internet coalition is a Washington, DC-based coalition of companies and nonprofit organizations that believes the Internet has flourished because government has not tried to regulate it. Members include Alcatel, AT&T, 3M, the National Association of Manufacturers, FiberControl, and Cinergy Communications. Nonprofit members include Citizens Against Government Waste, the American Conservative Union and the National Black Chamber of Commerce.

The noise from the UK at the Westminster E-Forum? Yawn, snore, zzzzz…..What is all the fuss about? Is David Beckham back from LA??

There was a consensus among Britain’s regulatory gurus this week that the brouhaha in the States over net neutrality laws is a moot point because existing regulatory processes can address any inappropriate blocking or degrading practices by ISPs should they occur. This is something Hands Off has been arguing for quite a while now.

Speakers repeatedly pointed out facts that support Hands Off’s case for keeping the Internet free of additional regulation in the form of legislated net neutrality laws. To name a few:

The Register reports that Ofcom’s director of policy development, Dougal Scott told the gathering: “’There is a very rapid increase of traffic on the internet,’ said Scott on Tuesday, pointing to a ‘change in the nature of applications that people are using on the internet’, particularly time-sensitive applications like voice over IP. He went on to characterise the ‘all bits are equal’ advocates as the ‘most extreme’ fringe of the net neutrality lobby, and insisted that there were ‘real advantages to consumers in treating certain types of applications differently to others’.”

Claire Hobson, head of UK telecommunications policy for the Department of Trade and Industry, stated, as has Hands Off, that the net is not currently neutral.

Andy May, Cable & Wireless’ director of regulatory affairs, “pointed to the rise of online video as a major reason for the introduction of discrimination.”

Ok, granted we fought them in the Revolution and again in 1812, but they did give us the political philosophy that formed the building blocks of our democracy (hat tip John Locke). Continuing the trend of good ideas coming from across the pond, Hands off’s analysis of the Westminster reaction to the net neutrality debate: well played!

As everybody knows by now, Andrew McLaughlin from Google said recently,

Cutting the FCC out the picture would probably be a smart move. It is much better to think of this as an FTC or unfair competition type of problem.

As others have said, this is an important and encouraging shift, and we’ll be watching Google as the conversation moves forward. But this brings strident net neutrality advocate David Isenberg to dust off a ditty he penned last year:

Google and Yahoo and Microsoft and Skype,
They’re already successful, they can make deals for those pipes.
But when I want to publish stuff in my blog
It will not be OK for you to once again pay.
We already pay for our Internet connection.
We don’t need to subsidize a dying industry’s obsession!
If looking at my blog cost you an extra dime
You’d probably find another way to spend your time.

Well, sure, if that was the issue. Isenberg looks a little silly compared to his usual ally, Kevin Werbach, who writes:

What Google’s global policy counsel (and in full disclosure, my friend and law school classmate) Andrew McLaughlin said to kick of the firestorm was that differentiated quality of service (QOS) is OK, as long as it’s available to anyone who will pay. This is no different than the current situation, where all major websites pay a content delivery network (CDN) such as Akamai, or pay to self-provision a CDN, in order to deliver popular content quickly and efficiently to their users. Those who don’t pay for CDNs are disadvantaged, just like those who don’t buy enough bandwidth for their network connections, but that’s their economic choice. … So, put aside all the conspiracy theories. If supporters of network neutrality don’t have room in their big tent for the view Andrew expressed, they are really in trouble.

Not a bad point. The argument over net neutrality has developed a lot over the past year, and anybody still afraid that an Internet provider is going to cut you off from your favorite blog is unable to keep up with the times.

One thing this means is that Dorgan-Snowe, the Senate bill kicked around since last year, is itself out-of-step with the current landscape. Will net neutrality supporters ask that it be withdrawn? Maybe not – but it would be in their best interest to do so.

If you haven’t heard of Robert Pepper, he is a former chief of policy development at the FCC, and a highly influential one at that. Today he’s a senior director at Cisco. And wouldn’t you know it — he’s just the latest respected Internet expert to question the wisdom of a far-reaching net neutrality law.

In a column for TechNewsWorld this week, he makes a compelling and consumer-centric case for letting the Internet develop without governmental interference:

Unfortunately, one key constituency often seems left out of this heated debate: the Internet consumer. This oversight is striking since it is end users who, each day, rely on the Internet to conduct their work and personal lives. What policies should be enacted to ensure their maximum choice and flexibility? Consumer empowerment is where the debate should begin — and end. … The supporters of net neutrality regulation believe that more rules are necessary. In their view, without greater regulation, service providers might parcel out bandwidth or services, creating a bifurcated world in which the wealthy enjoy first-class Internet access, while everyone else is left with slow connections and degraded content.

That scenario, however, is a false paradigm. Such an all-or-nothing world doesn’t exist today, nor will it exist in the future. Without additional regulation, service providers are likely to continue doing what they are doing. They will continue to offer a variety of broadband service plans at a variety of price points to suit every type of consumer.

In realty, the fears of those pushing for regulation have no real basis. Indeed, the regulation they seek could itself cause serious unintended consequences and harm to the Internet. Pepper explains:

Current policy further empowers consumers by encouraging maximum industry innovation in terms of service plans, packages, applications and other products. It does not set terms, price or conditions — or issue other dictates regarding services and devices connected to the Internet — which is a good thing. … In contrast, new net neutrality regulation could have the perverse effect of degrading all levels of service or freezing in place the current state of providers and services. Companies would find it more difficult to differentiate themselves, offer new services, and enter new markets, a situation that would be anti-competitive and counterproductive for consumers.

Like Hands Off the Internet, he endorses the four principles of the Internet as a “consumer bill of rights.” And he should, after all — he helped develop them.