A surfeit of US network neutrality legislation

Largely due to the continued dumb statements and actions of a few apparently PR-challenged carriers, the network neutrality issue is alive and well in the US

Largely due to the continued dumb statements and actions of a few apparently PR-challenged carriers, the network neutrality issue is alive and well in the United States. Since any issue like this seems to create a legislative void that must be filled, we now have at least two network neutrality related bills for Congress to consider. If one liked legislation-based solutions, merging these bills and tossing out a bit of Federal Communications Commission make-work would not be too bad, but there would still be some questions left unanswered.

Historically, it has been uncommon that legislation resulted in just what the supporters professed to intend. Even under ideal situations, legislation is a far from ideal tool to ensure reasonable behavior in the real world. Furthermore, it is unlikely that discussion about any legislation affecting companies that spend as much on lobbyists as the telcos and cable companies do will result in an ideal situation.

Representatives John Conyers, Jr. (D-Mich.) and Zoe Lofgren (D-Calif.) introduced the Internet Freedom and Nondiscrimination Act of 2008 on May 8. This bill joined the Internet Freedom Preservation Act of 2008, which was introduced by Representatives Ed Markey (D-Mass.) and Chip Pickering (R-Miss.) on Feb. 12, in attempting to deal with the network neutrality issue made so prominent by carrier actions.

It is likely that legislation (or regulations) about network neutrality would not be needed if there were real competition in the US broadband business (See "The elusive third wire for Internet service.")

Regulations requiring full and easy-to-understand disclosure of ISP service offerings and prices is likely necessary in any case, but in an ideal world there would be no need to tell a carrier to treat its customers fairly. In this world we may get legislation, so we might as well look at the proposals on the table.

The Conyers/Lofgren bill is recycled from 2006, when it did not make a lot of progress. It would expand the Clayton Antitrust Act to outlaw some types of discrimination by broadband ISPs. It basically requires that ISPs not treat data from different service providers or customers in different ways. An ISP could provide better quality for VoIP service but would have to for all VoIP service, not just the service it sells. It is possible to read the current text to require that ISPs let their customers run servers, such as Web servers, which many do not currently permit.

The Markey/Pickering bill takes a very different approach. It defines four high-level broadband policies, then gives the FCC a bunch of mostly useless things to do. The policies are a variant of some issued by the FCC a few years ago. (See also "Broadband regulation: Why wait for Congress?"), but which do not have the force of law. The policies do include open access to lawful content and applications and protection against "unreasonable discriminatory favoritism" based on the source, ownership or destination of traffic on the Internet (I'm not quite sure what reasonable discriminatory favoritism would be.).

In looking at it again it's not clear to me that the Markey/Pickering bill brings much to the table over the Conyers/Lofgren bill. Among other things, the FCC thinks it has too much to do already.

We may not need new regulations since the carriers may decide to not live up to the things their bosses were saying a few years ago -- it would be nice if this were the case. But if we do need new rules, the Conyers/Lofgren bill is a good start.

Disclaimer: Harvard alums write this kind of legislation but I know of no university opinion on this topic, so the above review of proposed legislation is mine alone.

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Scott Bradner

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