IP Democracy: House Judiciary Leaders Introduce Net Neutrality Bill
Stiffening its resolve to be heard as telecom reform legislation moves through the Congress, the House Judiciary Committee thumbed its nose at its rival, the Commerce Committee, today when two leaders introduced a bill that would mandate net neutrality regulations. House Judiciary Committee Chairman F. James Sensenbrenner, Jr. (R-WI) and senior Democrat John Conyers, Jr. (D-MI) today introduced legislation (HR 5417), or “The Internet Freedom and Non-Discrimination Act of 2006,” that would make certain kinds of discriminatory acts violations of the antitrust laws and that would further bar broadband providers from selectively “enhancing” content or applications they pass through their networks.
The bill amends the Clayton Act (which deals with anticompetitive and antitrust matters) by making it unlawful for a broadband provider to:
- fail to make its broadband services on reasonable and non-discriminatory terms;
- to refuse to interconnect its facilities with
the facilities of another provider of broadband network services on reasonable and nondiscriminatory terms or conditions;
- 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;
- 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;
The heart of the bill, however, is a provision that basically bars broadband discrimination in terms of service enhancements a network provider may offer. The bill says that if a broadband provider enhances a particular type of data (e.g. video), it must enhance that type of data across-the-board.
If a broadband network provider prioritizes or offers enhanced quality of service to data of a particular type, it must prioritize or offer enhanced quality of service to all data of that type (regardless of the origin or ownership of such data) without imposing a surcharge or other consideration for such prioritization or enhanced quality of service.
This latter provision, while aimed at eliminating everybody’s worst fears about a discriminatory Internet “fast lane,” seems, to me, unworkable. Although this if-you-give-it-to-one-you-must-give-it-to-all philosophy has appeared in other net neutrality legislative proposals, I don’t see how this would work practically. In essence this kind of requirement would result in no service getting a boost or improvement or enhancement because most broadband providers can’t take on all comers.
So, in essence, nobody gets prioritized because this legislation would ban such prioritization, if not in a de jure sense then in a de facto reality. That’s OK, if that’s the intent; but will the courts ever uphold something like this?
I wish that a more sophisticated proposal would surface that doesn’t bar broadband providers, even in a practical sense, from doing anything interesting while also limiting their ability to favor certain services over others. Maybe this is a pipe dream.
Clearly network neutrality proponents are pleased. Gigi Sohn, President of Public Knowledge, said in a statement:
“The bill squarely addresses the issue of the enormous market power of the telephone and cable companies as the providers of 98 percent of the broadband service in the country. The bill restores the principle of non-discrimination that allowed the Internet to flourish in the dial-up era, making certain that the same freedom and innovation will flourish in the broadband era without burdensome regulation.”
Posted by Cynthia Brumfield on May 18, 2006 4:07 PM to IP Democracy