House Telecom Subcommittee Chairman Ed Markey’s new Net Neutrality bill is surprisingly deceptive. When most people see it, the legislation (HR 5353) looks like some general stuff at the beginning, then a requirement for some hearings and a study by the Federal Communications (FCC) at the end.
It would be a mistake to zip through the first part of the bill, however, because that’s where its significance lies. What Markey has done is cleverly and simply to transport the concepts from the Communications Act and from the FCC’s own Internet policy statement into a bill.
Until 2005, telecommunications traffic was subject to the parts of the law (Title II) governing what were quaintly known as common carriers – meaning that companies had to transmit everyone’s calls and data without “unreasonable discrimination.” That was the standard since the law was passed in 1934. But the FCC took first cable modem service and then telephone company digital subscriber line (DSL) service out from under Title II and put it the more nebulous and generic Title I of the Communications Act. The effect of those moves, made final in 2005 after the U.S. Supreme Court upheld the cable order, was to strip from high-speed Internet the protections that had existed against discrimination for 70 years.
As part of the wrangling over the DSL order, the Commission adopted a policy statement setting out four principles “to encourage broadband deployment and preserve and promote the open and interconnected nature of public Internet.” Markey’s bill mirrors the language of the FCC document, picking up the FCC’s pledge to preserve the “open and interconnected nature” of the Internet, although Markey uses the term “broadband networks,” instead of the more suspect “public Internet” to which the FCC refers. (That phrase was a construct of the telecom industry, principally Verizon, to try to distinguish their Internet services which they characterized as a “private network” from everyone else’s. No one bought it and the term has faded into well-deserved obscurity.)
The bill brings those principles into Title I of the Communications Act, so that they match up with the FCC’s 2005 decision to put broadband services into that part of the law.
But Markey’s legislation does much more. It also carries forward the spirit of non-discrimination from the Communications Act into the broadband era. The bill would make it official policy “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.”
Here is the Communications Act version (from Sec. 202): “It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.”
The Markey bill obviously isn’t as detailed in its prohibitions against network discrimination as are previous versions of Net Neutrality bills. If telephone and cable companies want to complain that the current bill is too general, the sponsors could make it more detailed – except that complaints in the past was that bills were too regulatory.
This bill strikes an elegant balance by preserving the consumer protection spirit of the past and combining it with the technology of the present and future.