Larry Downes has penned an op-ed for Forbes that examines the latest regulatory disagreement between wired and wireless broadband providers and the FCC. It involves “special access,” a complicated arrangement, which Downes describes as:

[A]rrangements between carriers and other businesses to carry traffic on a wholesale basis. Businesses use special access to manage internal communications. It’s also an essential component of mobile neworks, where special access among carriers is used to backhaul mobile voice and data traffic and reduce the strain on over-taxed wireless networks. Special access is the middle mile of the Internet.

Regulators have traditionally left such agreements to the power of the market, but as Downes reports, a new order making its way through the FCC — one that is not yet public — would “re-open the special access regulatory process and potentially start over.” That could easily chill the investment necessary to update middle-mile networks from copper to fiber, and according to Downes, open the doors for greater regulation of broadband by the FCC. As Downes writes:

Chairman Genachowski is to be praised for his persistent efforts to raise awareness of the value of broadband access and to encourage rapid adoption by American consumers. But re-regulating special access and using that authority to chip away at the unregulated Internet will slow the transformation to native IP networks and undermine the value consumers will realize from signing on to them. It would slow both broadband investment and adoption.

Rather than figuring out how to smother special access in its not-so-benign embrace, in other words, the FCC should heed the lessons of a deregulated broadband market, which has yielded profound value, economic as well as social. Obsolete phone regulations applied to that market would achieve just the opposite. Why fix a new and rapidly evolving system that’s working so well using tools that helped break the old one?