Net Neutrality Debate Explodes Onto Telecom Reform Stage

The factions are rising against Bell interests this week, nearly seven days after the House Energy and Commerce Committee stripped net neutrality provisions from the most likely proposal so far for telecom reform.

On Tuesday, Rep. Ed Markey, D-Mass., introduced the Network Neutrality Act of 2006 in the House, more as a means to draw attention to the matter than with expectations for its actual success, said his colleague Rick Boucher, D-Va. At the same time, Boucher, a member of the House Commerce Committee and the House Judiciary Committee, was planning to take his fight for net neutrality to the judiciary arm, which can impose antitrust regulations on telecom legislation.

Markeys move comes a day after Sen. Ted Stevens, R-Alaska, introduced the Communications, Consumers Choice, and Broadband Deployment Act of 2006. That bill a sweeping attempt to rewrite key clauses of telecom law addresses net neutrality only in that it calls on the FCC to oversee any abuses of the Internet.

With the support of Boucher, Rep. Anna Eshoo, D-Calif., and Rep. Jay Inslee, D-Wash., Markey on Tuesday said he was speaking for the openness of the Internet, which he said has been jeopardized by the FCC and court interpretations.

Broadband network owners should not be able to determine who can and who cannot offer services over broadband networks or over the Internet, Markey said on the House floor. The detrimental effect to the digital economy would be quite severe if such conduct were permitted and became widespread. The deterioration of significant policies of nondiscrimination by the imposition of artificial bottlenecks by broadband network owners imperil economic growth, innovation, job creation, and First Amendment freedom of expression on such networks.

To that end, Markey crafted three sections in his net neutrality bill. The first spells out broadband deployment goals for the country (President Bush has called for ubiquitous broadband availability by 2007); the second defines net neutrality; the third contains an expedited complaint process, requiring the FCC to deal with grievances and violations within 30 days.

One of the sticking points in the net neutrality debate has been that no one can agree on a definition of the concept. In the Network Neutrality Act, Markey offers a series of classifications. Similar to the Four Internet Freedoms principles set forth by the FCC last year, before the agency deregulated DSL, Markeys bill clarifies that broadband users can access all lawful content and applications; that providers cannot block, impair, degrade, discriminate against, or interfere with users ability to access their service; that users may send and receive lawful content, applications, and services; and that users may attach any device to the network that does not damage the network or degrade service for other users.

Yet, Markey goes further than the FCC in his requirements for net neutrality. For example, his bill requires providers to clearly disclose accurate information about the speed of and any limitations to a users service. It also states that if a provider prioritizes data or offers enhanced QoS, it cannot charge bottleneck fees for those considerations. This stipulation comes in response to industry fears that carriers such as AT&T Inc. will charge applications providers such as eBay Inc. and Google Inc. extra to carry their content.

Markeys bill does say providers still are able to maintain the functionality of their networks, as well as offer varying transmission speeds and bandwidth.

On the whole, he said, the act gives Congressional members a choice between favoring the broadband designs of a small handful of very large companies, and safeguarding the dreams of thousands of inventors, entrepreneurs, and small businesses. This legislation is designed to save the Internet and thwart those who seek to fundamentally and detrimentally alter the Internet as we know it.

Competitive carrier association COMPTEL agreed. The proposed legislation outlines a fair and economically sound framework for protecting consumers from discriminatory and anticompetitive practices by network owners, said Earl Comstock, president and CEO in a statement. This bill is essential if Congress wants to preserve the open Internet that has made America the global leader in technology and innovation.

Boucher Hones in on Judiciary

While the Markey bill could be the best news net neutrality advocates have received so far, Congressional supporters of the principle still suffered a blow on April 26 when the House Commerce Committee slashed such protections from another proposed rewrite of the 1996 Telecommunications Act. That setback spurred Virginias Boucher to pursue even more aggressively his agenda of ensuring an open Internet, even though he already was working on such provisions, he told PHONE+.

We have been considering an approach in the House Judiciary Committee in the event that the House Energy and Commerce Committee did not [approve net neutrality legislation, Boucher explained on Monday. the principle is highly important and if one committee decides not to pursue it, then we will try to pursue it through the other committee.

The Judiciary Committee the same body that oversees the occasional presidential impeachment proceedings maintains jurisdiction over administration of justice in federal courts, administrative bodies and law enforcement agencies. F. James Sensenbrenner, R-Wis., chairs the committee. He recently established a task force on telecommunications and antitrust issues and already has held a hearing on net neutrality.

“I want to ensure consolidation receives the … scrutiny it deserves, Sensenbrenner told COMPTEL attendees in March.

Boucher said he had not yet spoken with Sensenbrenner about introducing a net neutrality bill of his own. However, he has been working with Zoe Lofgren, D-Calif., to draw up an antitrust bill that would penalize broadband providers trying to charge companies such as Google and Yahoo Inc. for priority treatment of their services. The bill likely will authorize large fines for civil offenses, and possibly prison time for criminal violations.

The Energy and Commerce Committee had its opportunity to act on the network neutrality principle, Boucher said, adding that because the concept was not welcomed in that body, he will not continue to push for it in that committee. I mean, we know the will of that committee at this point and it is not favorably disposed toward us. So know, there are two strategies. One is to have the debate on the House floor when that bill comes to the House floor, and we will do that. But, were developing another alternative, another track, and that other track is to use the antitrust laws to address the issue and to do this through the House Judiciary Committee. And before Judiciary I think well get a different result.

Whats Next?

It is unclear how matters of process will affect movement on any of the telecom bills floating around the Hill, particularly if House and Senate judiciary committees get involved. With so many cooks in the kitchen, so many matters for policymakers to work though, telecom reform might take a backseat to other pressing matters Congress must deal with before it recesses for mid-term elections, according to various industry reports.

The House parliamentarian the person responsible for ensuring proper procedure in the Congress next will decide whether to send the COPE/Barton-Rush bill to the House Judiciary Committee. Boucher does not expect that to happen. Instead, he predicted the act will be debated on the House floor, in which case Markey likely will introduce his freestanding bill as an amendment for everyone to consider.

The fact that Ed introduced a freestanding bill was done primarily for the purpose of drawing additional attention to the issue, Boucher told PHONE+ on Tuesday. Theres no thought that Ed Markeys freestanding bill is going to be taken up in a Republican Congress and passed by itself. Thats not the goal. The goal is to draw more attention to the issue.

When the Barton bill is debated, Boucher anticipates Markeys amendment will be up for consideration as well. As for the Senate side, since Stevens bill contains no provisions for net neutrality, Boucher said he will continue networking with his colleagues in the Senate, encouraging them to push for net neutrality as well.

The Barton bill is expected to reach the House floor within the next week or two.

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