A look at the new Net Neutrality Bill

by Harold Feld, Tales From the Sausage Factory

Senator Snowe (R-ME) and Senator Dorgan (D-ND) have introduced the Internet Freedom Preservation Act. Interestingly, although neither is on the relevant Committee, both Barack Obama and Hilary Clinton are co-sponsors. While not exactly pandering (both co-sponsored the Snowe-Dorgan network neutrality bill last year when it was a lot riskier to do so), does anyone doubt that their decision to come out strongly in favor of NN this early was influenced by the popularity of this issue with the netroots?

Meanwhile, where the heck did Inouye go? And has anyone talked to the new members yet?

Some reflections on the new bill, and on the new politics network neutrality, below . . . .

I have not done a point-by-point comparison with last year's bill. Taking the new bill on its merits, my quick read gives it good marks.

Analysis of the Bill

The bill amends the Communication Act to include a new Section 12 in Title I for broadband services (thus keeping it out of the existing common carrier (Title II) and cable (Title VI) sections. What it does (section numbers refer to the new Section 12):

Section 12(a) imposes non-discrimination while addressing previous complaints that a rigid network neutrality condition would prevent necessary network management. It does this by requiring that a provider treat services the same regardless of affiliation, and that any prioritization it provides must come free to the non-affiliated content or service provider. So, as I read Section 12(a)(4) and 12(a)(5), a provider can prioritize VOIP packets, as long as they prioritize all VOIP packets regardless of source and in exactly the same way. You can charge a user for more bandwidth, or even for a boost for a service like VOIP to ensure security. But Comcast cannot charge a user extra to prioritize Sun Rocket's VOIP while Comcast VOIP gets automatic prioritization. Nor can Comcast charge Sun Rocket for premium treatment of VOIP. 12(a)(6) prevents network providers from deliberately constructing networks to make it impossible to comply.

Section 12(b) attempts to take away the argument raised last time that non-discrimination would prevent a broadband service provider (BSP) from offering certain kinds of services. So a network provider can offer users various parental protection and anti-spam options, can offer different prices based on throughput (what I call “customer tiering” as opposed to “Whitacre tiering”), can take appropriate security measures, and can address breaches of terms of service.

Section 12(c) addresses the “IPTV Loophol” that convinced some folks the AT&T/BS merger condition sucked rocks. In what I suppose is an excellent example of open source law making, Section 12(c) distinguishes any service available here from any service “regulated under Title VI” (which addresses cable).

In other words, if you want to claim all the rights and priviliges of being a cable service (such as access to programming under the “program access rules”), then you cannot also claim you are simultaneously a “broadband service” and avoid the franchise fees and other obligations of a cable service. Chose one or the other.

Section 12(d) requires a provider to offer stand alone broadband service and prohibits a BSP from requiring a subscriber to take additional services (such as cable video or voice). This does not explicitly prevent a BSP from offering bundled services with price “discounts” for taking additional services. OTOH, nothing prevents an FCC interested in such things from treating such an offering as a de facto violation. Section 12(f) explicitly permits the FCC to issue any order needed to enforce the obligations of Section 12, so all it would take is political will. (Yeah, I know. But you can't draft for everything and you have to leave some discretion to the expert agency or the system becomes so rigid it gets all unenforceable.)

Section 12(e) sets a 180-day deadline for the FCC to issue rules implementing this provision. The rules must include a process for aggrieved individuals to file a complaint, and sets a 90-day deadline for the FCC to resolve the complaint.

Section 12(f) provides that enforcement is primarily through Title V (the section dealing with fines and other punishments by adjudication), but Section 12(f)(2) gives the Commission authority to issue “any appropriate order” to enforce the provisions of Section 12.

It is an open question to my mind whether Section 12(e) & (f) taken together limit the FCC's general rulemaking power with regard to broadband services under Title I. As a general principle, an explicit grant of authority (especially one designed to compell agency action) does not preempt an agency's general powers by implication. But I expect that,if this became law, folks opposing any supplemental rulemakings of BSPs under Title I would make the argument. Be nice if the statute had a savings clause which explicitly stated that, “except as specifically provided, nothing in this statute shall be interpreted as altering any other authority the Commission may possess under the Communications Act or any other statute.”

Section 12(g) is the definitional section. Section 12(g)(2) imports the current definition of “broadband” (which is good here, since it means the service will apply to any crap that meets the current “broadband” definition as well as anything faster). Section 12(g)(4) defines “IP-enabled voice service”. Section 12(g)(5) defines user to include business as well as residential subscribers, eliminating the “enterprise customer” loophole in the AT&T/BS merger conditions.

Analysis of the Politics

First, dropping this bill (as we DC folk call introducing legislation) this early signals that Snowe and Dorgan at least remain committed to pushing network neutrality. Although no one has submitted a companion bill on the House side, I attribute that primarily to the great “First 100 Hours Dog & Pony Show” going on at the moment to convince people that Dems know how to govern and have come to town ready to give 110%, roll up their sleeves and get to work, burn the midnight oil, and otherwise deserve to get reelected in 2008. Once the smoke clears and the Ds get down to actual work, I expect to see good legislation come out of the House as well.

Now lets look at the bill sponsors (at the top of the page). Lets address the notable folks present, then the notable absences. For reference, here's a link to the membership of the Senate Commerce Committee.

From the relevant Committee, we have Dorgan, Snowe, Kerry and Boxer. Next we have Harkin. Harkin is an old-style populist and progressive from well before it became fashionable (again).

The next name after Harkin is Leahy. I am pleased to see Leahy co-sponsor, as he chairs the other relevant committee, the Judiciary Committee. As some may recall, last time the House Judiciary Committee took great pains to assert its jurisdiction, and the Senate Judiciary Committee promised to do the same. So having Leahy Co-Sponsor is a good sign that the Dems on the relevant committees are talking to each other and working together.

Last, but most definitely not least, we have the Gentlewoman from New York, Mrs. Clinton, and the Gentleman from Illinois, Mr. Obama. This will surely grab much attention in the press that covers this sort of thing.

Back in November, I speculated on the trends in the new Congress. Among these, I observed the trend toward economic populism and the growing importance of Moveon and the “netroots” generally to the Democratic Party. As anyone following this knows, net neutrality has become a huge issue with us “netroots” types (not to the exclusion of other issues like Iraq, mind, but it's important).

Now both Hilary Clinton and Barak Obama supported net neutrality last year, when it was a lot riskier to do so. So it's not like they have suddenly undergone some unprincipled conversion to suck up to the base. OTOH, everyone who knows the score knows that getting out early to co-sponsor a network neutrality bill is smart politics — especially if the other one is going to sponsor it. Neither Hilary Clinton or Barak Obama had the chance to vote for network neutrality last Congress, so this lets them establish their bona fides to a needed and supremely skeptical constituency. On the side of the folks who lobbied to get the bill dropped (wave hi to my friends at Save The Internet, glad to see you all at work while our tech buddies are living the vida techa in Las Vegas and San Francisco), they all know that getting Clinton and Obama to co-sponsor gives the bill serious star power. So a win-win for everyone, and we can rejoice in being part of a constituency that deserves wooing. I can get used to this.

Now for the conspicuous absences. Absences are not telling at this point, since it is early in the game and many folks who might otherwise sign on may just not have had a chance to read the bill and commit themselves at this time. Nevertheless, I consider these absences “red flags” that need to get addressed, particularly by constituents calling and explaining why they want to see their elected Senator support The Internet Freedom Protection Act.

1) Inouye. He's Chair of the Committee. He voted for this last time, and included it in the alternative to the Stevens Bill he proposed last year. I gotta assume that he just didn't get a chance to sign on as a co-sponsor before Snowe and Dorgan dropped the bill. Or perhaps he did not want to risk stealing Dorgan and Snowe's thunder by making it his bill rather than their bill. Whatever, it would be nice to see co-sponsorship or expression of support soon.

2) I don't see any of the new Ds. That's troubling, because we have no way to know how they will vote. Claire McCaskill and Amy Klobuchar are both new to the Senate and the Committee. Given the narrow margin on the Committee (and the Senate), it would be very nice to know where they stand. Perhaps someone will send them my piece on why rural areas get screwed without network neutrality.

3) Snowe is still the only R. We gotta work on that. There is no particular reason why a pure econ issue like this should break down as a partisan issue. It doesn't happen in media reform, where Trent Lott is a supporter of ownership limits. But it takes Republicans a lot longer than Democrats to conclude that regulation is needed to protect a free market and enable competition. Heck, it took John McCain seven years to move from an enthusiastic supporter of the deregulation of cable and media companies in the 1996 Act to being “troubled” by media concentration (as he said at a hearing in 2003) and even longer to support “intrusive” regulation like cable a la carte to deal with cable monopoly power. And McCain is one of the moderates. Most Republicans worship the Gods of the Marketplace with fanatical devotion impervious to real economics.

So while we're off to a good start with a strong bill and some real star power support, we have a long haul and some serious work cut out for us. Next time you feel like talking to your Senator, be sure to tell him or her that their open support of the Internet Freedom Preservation Act (or lack thereof) will weigh heavily on your mind in Novemeber 2008.

Stay tuned . . . .

article originally published at http://www.wetmachine.com/item/697.

The media's job is to interest the public in the public interest. -John Dewey