FCC Chairman Tom Wheeler’s explanation of why he will propose regulating the Internet under Title II is full of references to the past. Perhaps that makes sense considering his proposal would regulate the Internet under the 80-year-old Telecommunications Act. But his words speak volumes about his misunderstanding of how best to balance an open Internet with 21^st Century regs.

A large part of Chairman Wheeler’s argument rests on his own experience in the 1980s when he was president of a startup called NABU. The young company offered high-speed Internet service (at the time, 1.5 megabits per second) over cable television lines.

But NABU was thoroughly demolished by AOL. Wheeler claims that the sole reason AOL’s slower service won out over NABU was because AOL founder Steve Case was able to offer AOL over the open phone lines while NABU had to ask each cable company for permission to use their lines. Open vs. closed … an open and shut case.

But the real history of NABU is more nuanced than that. According to Scott Wallsten at the Technology  Policy Institute, NABU users not only had to pay a fee for the service, they also had to buy or lease a $299 NABU computer. But NABU couldn’t offer enough content to induce people to pay that kind of money.

Also the technology wasn’t quite there yet. According to Wallsten:

Cable TV systems were not built to handle much upstream traffic—an issue they still face today. Upgrading the cable infrastructure for two-way communication required significant investment.

The timing just wasn’t right for NABU and that had more to do with innovation than with regulation.  AOL out-innovated NABU.

We need our leaders to be looking forward, not back. By the time this gets litigated, President Obama and Chairman Wheeler will be out of office, and we have no idea how future leaders will apply these new rules. Wheeler’s post shows the need for legislation that modernizes our technology laws instead of trying to regulate a constantly evolving technology using outdated ideas.  As such, it’s time for Congress to step up and work together on a bipartisan basis to craft (and pass) legislation that will remove the uncertainty that comes from electoral musical chairs, because we’re looking at very different regulatory framework if, for example, Jeb Bush rather than Hillary Clinton becomes the next President of our great nation.

Believe it or not, the most frustrating aspect of living in California these days isn’t the traffic, it’s the water. We’re in the third year of a drought. And despite the #HellaStorm pounding the state with much-needed rain, politicians are constantly (and correctly) admonishing us to cut back on water use whenever we can, because these rains aren’t likely to continue.

And yet several times over the past few months, there have been giant water main breaks that dump millions of gallons of water onto the street, water that is completely wasted. Last summer, a pipe burst near UCLA dumping 75,000 gallons per minute onto the street until workers from the Los Angeles Department of Water and Power (LADWP) could shut it down. More recently, a water main break in Malibu shut down parts of the busy Pacific Coast Highway because the water pounding the street created a sink hole after spewing thousands of gallons down the drain.

It’s no secret that we’re dealing with antiquated pipes and a bureaucratic system that has been slow to make much-need upgrades and repairs.

Now imagine if the Internet was managed the same way. If instead of innovators constantly looking for better and faster ways to move data, we had the government overseeing the connections that form the backbone of the Internet.

We’re risking that reality. Last month President Obama put forward his vision for net neutrality — and it involved regulating the Internet as a public utility under Title II of the Telecommunications Act of 1934. Under this scenario, the Internet would be treated like electricity, gas – and yes, water. With these rules come burdensome regulations and bureaucratic oversight – the kind of red tape that can stop innovators cold and dry up the private sector investment dollars that are fueling our Internet-based world today.

I’m a firm believer in net neutrality. Innovators will struggle to excel if they have to deal with so-called “fast lanes” where Internet service providers charge certain users more to prioritize their data. It’s important that the playing field remains level. But that isn’t happening, and the Internet is working as it was designed to with consumers reaping the rewards.

With hypothetical harms as justification, treating the Internet like a utility is not the right path to net neutrality. Let’s take a look at the way the government manages the pipes that carry water. Martin Adams, the senior assistant general manager of LADWP water system recently defended LA’s average of three pipe leaks per day. In an interview with the KPCC radio show Take Two Adams said:

“The three a day turns out to be not that much. But in a city the size of LA where we have enough pipe that stretches from here to New York and back–about 7,000 miles of pipe in the street–having that amount of leaks per day is really a pretty good record.”

According to Adams, as much as 25% of all LA pipes are getting to the point where they need to be replaced. Many are almost 100 years old. The water department has ramped up to replacing 25 to 30 miles of pipe per year.

Now imagine that kind of performance and maintenance record applied to the Internet: aging infrastructure and wiring that breaks down regularly; a year-by-year replacement program that slowly addresses only the most severe failures.

If the government can’t efficiently and proactively protect and upgrade the pipes that carry our most-important resource, can we trust it with the Internet?

Private industry invests nearly $50 billion per year on tech infrastructure. Are we willing to risk that investment drying up if red tape discourages this private investment?

We need a better option than regulating the Internet under Title II. President Obama’s plan is not law. Rather it was a suggestion to FCC Chairman Tom Wheeler and his fellow commissioners who are now tasked with figuring out how to maintain net neutrality without impeding innovation and growth. That’s not easy, and given the toxic nature of the debate, it’s not an enviable task either.

The right solution is one that preserves net neutrality (no blocking, no discrimination, no paid prioritization, and full transparency) but also encourages massive build out of what venture capitalist Marc Andreessen calls “more/better/faster Internet to more people in new/different ways.” Busted water pipes today could be the equivalent of busted Internet pipes tomorrow.

Ask anyone in California and they’ll tell you: utilities do not inspire innovation.