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A Neutral Net for 2009

Net-Neutrality Backers See Gains in 111th

A push to enact “net neutrality” — policies that ensure equal access to the Web for Internet surfers — is losing steam as the 110th Congress winds down. But the possibility of a Democratic-controlled White House and strong Democratic margins in Congress in 2009 would likely reignite the debate in the 111th Congress.

While the issue has attracted some bipartisan support, it has not been enough to win enactment, given the current narrow Democratic majorities.

Rep. Ed Markey (D-Mass.), chairman of the House Energy and Commerce Subcommittee on Telecommunications and the Internet, is keeping up hope for his bill, the Internet Freedom Preservation Act (H.R. 5353), which would establish a national broadband policy to promote what it calls Internet freedom for consumers and content providers.

Proponents say they want to guard against broadband providers acting as gatekeepers of the Internet.

The bill outlines the notion that “consumers and content providers should be free to send, receive, access and use the lawful applications, content, and services of their choice on broadband networks, possess the effective right to attach and use non-harmful devices to use in conjunction with their broadband services, and that content providers not be subjected to new, discriminatory charges by broadband network providers.”

The prospects for enactment are difficult to ascertain at this point — not just because of the uncertainty about which president would sign the legislation, but also because that president would be charged with appointing commissioners to the Federal Communications Commission, the agency charged with prescribing any formal rules.

Still, the prospect of having a Democrat in the White House would increase the appetite for such legislation.

“You’d have an administration that would be eager to see rules in this area and a clear articulation of Internet freedoms for consumers and for entrepreneurs,” a Markey aide said. “It would be a complete 180 from where we are today … so that dramatically changes the environment.”

Markey added, “It’s inevitable that we’d have to restate the principles of nondiscrimination.”

Markey’s bill, which has the support of Rep. Chip Pickering (Miss.), his Republican colleague on the Subcommittee on Telecommunications and the Internet, would get things moving at the FCC.

The bill would task the FCC with conducting an assessment of broadband practices and consumer rights. It would also require the FCC to hold eight broadband summits around the nation and report back to Congress on its findings and any recommendations for further action.

Meanwhile, Sens. Byron Dorgan (D-N.D.) and Olympia Snowe (R-Maine) are leading the push for net-neutrality efforts in the Senate. Together they introduced the Internet Freedom Preservation Act (S. 215), a companion bill to Markey’s.

House Judiciary Chairman John Conyers (D-Mich.) has introduced H.R. 5994, which takes a more punitive approach, authorizing possible injunctive relief and fines toward service providers if they do not follow guidelines.

The U.S. Telecom Association views Markey’s bill as premature, saying it could raise uncertainties that could chill investment in broadband deployment.

The National Cable & Telecommunications Association, a staunch opponent of legislating net-neutrality rules, isn’t letting up on efforts to resist setting openness rules they say would stifle network management.

“The real problem with these pieces of legislation is that no matter how carefully crafted, there are just a lot of unintended consequences,” Kyle McSlarrow, president and CEO of the National Cable & Telecommunications Association, said recently. “We should be very, very cautious.”

Markey’s counterpoint has been whether policymakers, in the name of network management, are permitting carriers to act in an unreasonable, anti-competitive fashion.

As the time left in the 110th Congress ticks away, all eyes are on the FCC to see what moves it may make to guard against anti-competitive and discriminatory practices by broadband Internet service providers.

In 2005, the FCC ruled that consumers are entitled to access lawful Internet content, run any applications and services and use legal devices.

But FCC Chairman Kevin Martin has also said that service providers should be allowed to take reasonable steps to make efficient use of their networks, although such management policies must be disclosed.

In April he told the Senate Commerce, Science and Transportation Committee the FCC should treat with “heightened scrutiny” any network-management techniques that appear to selectively target certain applications.

Public Knowledge, a consumer advocacy group for digital issues, supports the principles of an open Internet and wants to see the FCC take action against violators.

The group’s president, Gigi Sohn, said that while she is in favor of disclosure of network management principles, she wants to see adoption of a nondiscrimination policy first and foremost.

“If all we get out of the FCC is disclosure, then we’ve done nothing. It’s not going to be enough,” Sohn said. “What you don’t want is the public to have to play police and run to the FCC every time. …

Nondiscrimination needs to be the default so that [Internet service providers] know what the rules are.”

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