Net Neutrality Redux: Markey Approaches the Issue from a New Angle

Rep. Ed Markey has a new take on how to approach net neutrality. The Massachusetts Democrat has proposed simply this: porting nondiscrimination philosophies from Title II of the 1934 Communications Act to Title I, where they would apply to broadband.

The four amendments in the Internet Freedom Preservation Act of 2008 echo the FCC’s broadband policy statement in their support of freedom to use networks lawfully. They go a few steps further, however, by underscoring broadband and the Internet as economically and democratically important.

This isn’t the first net neutrality bill Markey, chairman of the House Subcommittee on Telecommunication and the Internet, has sponsored. It is, however, the least regulatory. Markey says he wants to keep the Internet open for “future innovators,” such as the next Google Inc. or Yahoo!. To that end, he wants to add four new policy statements to the FCC’s current broadband guidelines, although he stopped short of including enforcement clauses or penalties.

“The goal of this bipartisan legislation is to assure consumers, content providers, and high-tech innovators that the historic, open-architecture nature of the Internet will be preserved and fostered,” Markey said in a prepared statement. Rep. Chip Pickering, R-Miss., co-sponsored Markey’s bill.

Markey said it’s important that the United States maintain its standing as a high-tech leader, and that net neutrality oversight will help ensure that.

"The global leadership in high technology the United States provides stems directly from historic policies that have ensured that telecommunications networks are open to all lawful uses and to all users,” he said.

Plus, he said, broadband fulfills First Amendment rights, so “it is important that the United States adopt a policy endorsing the open nature of broadband networks.”

A number of groups, from telecom associations to consumer groups, have come out against the bill, issuing the usual opposing arguments. But other organizations see Markey’s bill as a compromise in the long-simmering net neutrality debate.

“It’s layered onto what the commission did, rather than trying to reverse it,” says Andy Brodsky, communications director for the advocacy think tank Public Knowledge.

Congress has introduced several net neutrality bills over the past two years, but those have been “very prescriptive” and detailed, and didn’t get far, Brodsky explains. This time, Markey has taken a familiar, 74-year-old concept, and added it to Title I. It’s as though Markey is challenging net neutrality opponents to say they don’t like nondiscrimination, he says. Of course they don’t, he says, “but their argument’s a lot weaker because they can’t say, ‘‘Well, this act is too regulatory.’”

Indeed, several groups have come out against the Internet Freedom Preservation Act.

The legislation would be “antithetical” to Congressional goals of improving the environment, personal security, education, and health care, particularly in rural areas, says Walter McCormick, president and CEO USTelecom, which represents large carriers and suppliers.

Steve Largent, CTIA’s president and CEO, agrees. He says — as CTIA has emphasized all along — that Markey’s bill tries to fix a nonexistent problem. He cites evidence collected by the FCC, the Federal Trade Commission and independent researchers that “proves that wireless broadband adoption is spreading like wildfire across this country,” he says. “This wouldn't be happening if consumers weren't getting the service, value and access to content they desire.”

The Hands Off the Internet coalition, whose members include Alcatel-Lucent and Qwest Communications International Inc., concurs.

“The continued push by special interests groups to regulate Internet neutrality undercuts the best hope [Internet] users have for faster, more affordable broadband. Network innovation and deployment free from federal regulation are the keys to meet consumers’ rapidly growing bandwidth demands,” group leaders noted in a written statement.

“The last thing you need is onerous regulations, more commissions and more studies,” says David Williams, vice president of Consumers Against Government Waste (CAGW). CAGW’s primary complaint with the Markey bill is the requirement that the FCC hold at least eight hearings with citizens and businesses across the country about the state of broadband, then report to Congress on the findings.

The coalition couldn’t provide an estimate of how much the hearings and study might cost. And Brodsky brushes off the expense criticism. In fact, he’s not surprised one iota by the resistance to Markey’s bill.

“They don’t like it — they don’t like it one little bit,” he says. “They figure that most people could care less about Title I or Title II. They just see ‘Internet legislation’ and they want to wave a cross and garlic in front of it and chase people away.”

As for the costs?

“The commission has a budget” for such items, says Brodsky. Plus, the appropriations committee could throw in a couple million more dollars, he adds.

“It’s not that big a deal,” Brodsky says. “There’s lots more, bigger government waste out there than actually bringing an important issue to the public for input and explanation.”

It’s unknown whether Markey’s bill will become law. Even if it gets through the House, it could well whither away in the Senate Commerce Committee, which oversees telecom matters. Sources say that’s because Sen. Ted Stevens, R-Alaska, deliberately impedes progress now that he’s no longer chairman. He lost that designation when Democrats won the majority in Congress in 2006. So the prospects for passage are unquantifiable. But that doesn’t negate the importance or the revival of the net neutrality debate.

Net neutrality has been a hot topic for nearly three years, ignited by the testy comments of then-SBC CEO Ed Whitacre. The issue stayed on the front pages through 2006, then slowed in 2007. It reawakened late last year, though, when Vuze, which uses the BitTorrent network to distribute movie-studio, TV and game content, complained to the FCC that Comcast Corp. was slowing its content. Reply comments in the inquiry were due Feb. 28.

Markey’s Proposed Title I Amendments

(1) To maintain the freedom to use, for lawful purposes, broadband telecommunications networks, including the Internet, without unreasonable interference from or discrimination by network operators, as has been the policy and history of the Internet and the basis of user expectations since its inception;

(2) to ensure that the Internet remains a vital force in the United States economy, thereby enabling the Nation to preserve its global leadership in online commerce and technological innovation;

(3) to preserve and promote the open and interconnected nature of broadband networks that enable consumers to reach, and service providers to offer, lawful content, applications and services of their choosing, using their selection of devices as long as such devices do not harm the network; and

(4) to safeguard the open marketplace of ideas on the Internet by adopting and enforcing baseline protections to guard against unreasonable discriminatory favoritism for, or degradation of, content by network operators based upon its source, ownership, or destination on the Internet.'

— Source: Internet Freedom Preservation Act of 2008

Citizens Against Government Waste (CAGW) www.cagw.org

Comcast Corp. www.comcast.com

CTIA www.ctia.org

Hands Off the Internet www.handsoff.org

Public Knowledge www.publicknowledge.org

U.S. House www.house.gov

U.S. Senate www.senate.gov

USTelecom www.ustelecom.org

Vuze www.vuze.com

Yahoo! Inc. www.yahoo.com