In the wake of having his request for a referral of the Barton telecom bill rejected, House Judiciary Committee F. James Sensenbrenner Jr. (R., Wis.) has introduced a bill that would add specific net neutrality provisions to antitrust law. Meanwhile, several senators, including the ranking minority member of the Commerce, Science, and Transportation Committee, have introduced net neutrality legislation that goes far beyond the wait-and-see provisions in the telecom bill currently making its way through the committee.
Sen. Sensenbrenner's proposed Internet Freedom and Nondiscrimination Act (HR 5417) is cosponsored by Judiciary Committee ranking minority member John Conyers Jr. (D., Mich.) and committee members Rick Boucher (D., Va.) and Zoe Lofgren (D., Calif.), and is slated for a committee markup May 25, just after TR's news deadline. That would be in advance of an expected House floor vote on a bill sponsored by House Energy and Commerce Committee Chairman Joe Barton (R., Texas), increasing the chances for Chairman Sensenbrenner's bill to be offered as a floor amendment.
The Barton bill, known as the Communications Opportunity, Promotion, and Enhancement (COPE) Act (HR 5252), would authorize FCC enforcement of net neutrality principles the agency adopted last August but would preclude Commission rulemaking on the matter. Some net neutrality proponents view the principles as too weak, and at a hearing in April members of the Judiciary Committee expressed concern that the COPE bill might be interpreted as preempting antitrust law with respect to broadband communications. For that reason, Chairman Sensenbrenner had sought referral of the COPE bill to his committee, but the request was denied.
When introducing the bill, Chairman Sensenbrenner said HR 5417 "will provide an insurance policy for Internet users against being harmed by broadband network operators abusing their market power to discriminate against content and service providers." HR 5417 would add a section on discrimination by broadband network providers to the Clayton Act, a 1914 federal antitrust statute which prohibits certain activities as anticompetitive. Specifically, HR 5417 would make it unlawful for any network provider "to fail to provide its broadband network services on reasonable and nondiscriminatory terms and conditions"; "to refuse to interconnect its facilities with the facilities of another provider of broadband network services on reasonable and nondiscriminatory terms or conditions"; or "to block, to impair, to discriminate against, or to interfere with the ability of any person to use a broadband network service to access, to use, to send, to receive, or to offer lawful content, applications or services over the Internet." HR 5417 would also make it unlawful for a network provider to impose an additional charge so that a party can avoid facing any of the practices prohibited in the broadband network provider section. It would make it illegal for a network provider "to prohibit a user from attaching or using a device on the provider's network that does not physically damage or materially degrade other users' utilization of the network" or "to fail to clearly and conspicuously disclose to users, in plain language, accurate information concerning any terms, conditions, or limitations on the broadband network service."
The bill would require a broadband network provider to offer equal prioritization or enhanced service quality to all data of a given type, without imposing a surcharge. The bill preserves network providers' ability to manage their network in a nondiscriminatory manner, "to give priority to emergency communications," "to prevent a violation of a federal or state law," or "to comply with an order of a court to enforce such a law."
Competitive carrier trade association CompTel applauded the introduction of the bill. "This bill demonstrates that members of the House Judiciary understand the dangers posed by the reconsolidation of Ma Bell and the adverse impact that it could have on the open Internet," said CompTel President and Chief Executive Officer Earl Comstock. "This bill is a great step in the right direction toward establishing much needed safeguards, especially in light of the FCC's complete capitulation to those who would restrict access to the Internet," he added.
Incumbent telcos took a dimmer view of the bill.
Herschel Abbott, BellSouth Corp.'s vice president-governmental affairs, said, "This bill proposes to fix a problem that does not exist. It proposes to regulate the Internet that has developed in an atmosphere of freedom devoid of regulation. That is a bad idea." Mr. Abbott added, "The end result of this legislation is that consumers will be forced to bear the entire cost of the Internet. Moreover, if network service providers cannot offer customers a quality product, something the details of this legislation would all but prohibit, then the opportunity for a bigger, better, faster broadband will be something available only in other countries."
Referring to both HR 5417 and the network neutrality bill introduced in the Senate, Allison Remsen, a spokeswoman for the U.S. Telecom Association, said, "It's unfortunate that some members of Congress want to impose harmful, anticonsumer regulations on the Internet. If any of these bills were ever enacted into law, they would drive up the cost of broadband as well as deny Americans the new, competitive video services they have come to expect."
Analysts at Medley Global Advisors said that opponents of the proposed Communications Opportunity, Promotion, and Enhancement (COPE) Act in the House "would have clearly preferred to see the Judiciary Committee win referral [of that bill] and reexamine many of the provisions in the text, yet the [House] leadership's decision to give Sensenbrenner his say [though a stand-alone bill] is still considered something of a limited victory. "At the very least, those advocating meaningful network neutrality rules ... will use this as an opportunity to continue lobbying, ... making the issue more vexing for members as the November elections draw closer. It will also further forestall floor action," they continued. The MGA analysts added that passage of the COPE bill "by the full House is largely expected to happen this summer, but the prospects for Senate floor action continue to appear less certain." They cited concerns expressed during a May 18 Senate Commerce, Science, and Transportation Committee hearing by several members regarding the need for stronger net neutrality provisions in the telecom bill introduced in early May by Commerce Committee Chairman Ted Stevens (R., Alaska) (see separate story).
Senate Bill Would Restrict Prioritizing
Meanwhile, a bill introduced by Sens. Olympia J. Snowe (R., Maine), Byron L. Dorgan (D., N.D.), and Daniel K. Inouye (D., Hawaii) garnered praise from consumer groups and competitive carriers that want to see statutory restrictions on broadband network providers' ability to charge third-party providers for enhanced access to end users. In addition to fairly widely accepted requirements that broadband network providers not block, impair, or degrade users' ability to access lawful content, applications, or services and that they allow users to attach nonharmful devices to the network, the proposed Internet Freedom Preservation Act (S 2917) would require them to enable the offering or provision of content, applications, and services in a reasonable and nondiscriminatory way, at speeds and with service quality at least equal to what they provide for the affiliated entities.
Under the bill, broadband service providers could not "impose a charge on the basis of the type of content, applications, or service, or services made available via the Internet into the network of such broadband service providers" and could "only prioritize content, applications, or services accessed by a user ... based on the type of content, applications, or services and the level of service purchased by the user, without charge for such prioritization."
The bill would preserve broadband service providers' abilities to engage in activities aimed at providing computer security for users and other consumer protection services such as parental controls, as well as handling subscribers' breaches of the terms of service. It would require broadband service providers to offer stand-alone service, unbundled from any cable, telecom, or Internet protocol (IP)-enabled voice service. It would not apply to services regulated under Title VI (cable services) of the 1934 Communications Act, as amended.
The bill would require the FCC to adopt rules for complaint and enforcement procedures and to report to Congress annually on the "(1) ability of providers of content, applications, or services to transmit and send such information into and over broadband networks; (2) ability of competing providers of transmission capability to transmit and send such information into and over broadband networks; (3) price, terms, and conditions for transmitting and sending such information into and over broadband networks; (4) number of entities that transmit and send information into and over broadband networks; and (5) state of competition among those entities that transmit and send information into and over broadband networks."
Sen. Inouye, the ranking minority member of the Commerce Committee, said, "Over a relatively short time frame, the Internet has become a robust engine for market innovation, economic growth, social discourse, and the free flow of ideas precisely because it has allowed consumer choice and control over the use of lawful content, applications and services." "Regrettably," he added, "without this legislation, that heritage may be at risk, as traditional rules that have required communications operators to follow principles of nondiscrimination no longer apply," in the wake of the FCC's classification of wireline broadband services as information services last summer, along with a Supreme Court ruling last year that upheld a similar regulatory classification for cable modem services.
Mr. Comstock of CompTel said, "The fact that there have been three bills introduced in the last few weeks to preserve Net neutrality indicates the growing bipartisan support for this important issue. Members are rightly concerned about how the consolidation of the industry and the lack of government oversight will adversely impact consumers and competition. This bill can form the basis for stronger provisions on Net neutrality that are needed to protect the Internet." Gigi B. Sohn, president and cofounder of Public Knowledge, said the legislation "will make certain that issue of Internet freedom will be front and center as the Senate Commerce Committee debates and reshapes its important telecommunications legislation." The legislation would "preserve the open, innovative and creative Internet, much as program access rules created new competition in video programming through targeted provisions without the heavy hand of government regulation," he said.
"As the Gun Owners of America and the Christian Coalition have recognized, the Internet benefits everyone," Ms. Sohn added. "There is no reason this should be a partisan issue. It is a shame that senators from the Republican party did not feel they were able to support this legislation, which brings the issue of Internet Freedom and nondiscrimination squarely into the Senate debate." Other groups praising the introduction of the Internet Freedom Preservation Act included Consumers Union, the Consumer Federation of America, Free Press, and U.S. PIRG. Microsoft Corp. also issued a statement in support of the bill.
Source: Telecommunications Reports, Aspen Publishers.