Representatives Ed Markey (D-MA) and Chip Pickering (R-MS) introduced a new net neutrality bill before the U.S. House of Representatives yesterday. Net neutrality refers to the (surprisingly) controversial idea that all Internet traffic should be treated equally. If passed into law, the bill, H.R. 5353, would proclaim that it is the policy of the United States to, among other things, "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." Bravo.
In order to pursue this and other policy objectives, the bill would require the Federal Communications Commission (FCC) to undertake an investigation to determine whether broadband network providers are "blocking, thwarting, or unreasonably interfering" with the ability of consumers to "access, send, receive, or offer lawful content, applications, or services" over networks. It also would ask the FCC to determine whether broadband network providers are adding charges for quality of service, or applying other surcharges to certain Internet applications or services, and to decide whether those charges are lawful. The bill also would require the FCC to hold eight "public broadband summits" in different regions of the United States. The purposes of these summits would be to bring together a diverse group of stakeholders, including consumer advocates, small business owners, corporations, academics, and representatives of state and local government, to "assess competition, consumer protection, and consumer choice issues related to broadband Internet access services."
The issue of net neutrality is important for all Internet users, but online publishers and creators of citizen media have a special stake in the matter. The bottom-up, de-centralized model of citizen media creation requires healthy bandwidth in the hands of everyday users, and tiered pricing and content discrimination could stifle important avenues of creativity. As Dan Gillmor wrote nearly two years ago:
If the cable and phone companies are allowed to decide what goes up and down “their” data pipes — built atop government-sanctioned monopoly businesses — and in what order, they will use their power to favor certain content and services, and thereby disfavor others. The rise of citizen media has everything to do with network neutrality, and its loss will ultimately discourage a lot of the creativity we’re seeing in this arena.
Overall, H.R. 5353 seems like a step in the right direction, but one can't help observing that it's a modest proposal. After all, the bill doesn't address the conduct of network providers directly. It just sets out policy objectives and asks the FCC to investigate the matter, hold some public meetings, and report back.
Perhaps this has something to do with past failures (includng Rep. Markey's own) to push through more substantive bills in the past. The New York Times story on the bill gives a hint about what the bill is up against:
Markey, who introduced similar legislation in 2006, said the bill doesn't regulate the Internet, only makes sure the rules of online engagement are fair. His spokeswoman said he wanted to defuse critics' arguments that the bill amounts to regulation, which she called inaccurate.
I guess "regulation" creates a real political problem, so much so that a group of network providers, including AT&T and Qwest, have formed something called the "Hands Off the Internet" coalition in an effort to oppose net neutrality efforts.
It's a shame that Markey's campaign to preserve the familiar character of the Internet has to deal with (and apparently preemptively internalize) disingenous calls not to "regulate" the Internet. Despite the rhetoric of frontierists, free-marketers, and neoliberals, the Internet -- like the market -- is inevitably "regulated" whether the government acts or refrains from action. (And, even more obviously, the very existence of the network architecture "owned" by the broadband companies is thoroughly and inextricably intertwined with government action.)
As the American Legal Realists taught us in the early part of the 20th Century, Congress regulates just as significantly through inaction as it does through action. In either case, the state confers an advantage on some and simultaneously makes others vulnerable. For instance, if Congress refuses to pass a strong net neutrality bill, network providers will get to exercise their superior bargaining power in an unconstrained fashion and consumers will be vulnerable. If Congress passes a robust bill, then Internet users get increased bargaining power and network providers are more vulnerable. Either way, the law makes a choice in favor of somebody. It's just a different somebody depending on what the government does. I would think carefully about who is in the "Hands Off the Internet" coalition before getting carried away by any spirited arguments in favor of a "free" Internet, at least in this context.
(For another perspective on regulation and the Internet, see Jack Goldsmith and Timothy Wu's excellent article in Legal Affairs.)
Regardless of the prospects of the new bill, the FCC is holding a public hearing on February 26 at Harvard Law School to discuss "broadband network management practices." The hearing is open to the public. This press release has details.
(Note: Dan Gillmor is a co-founder of the Citizen Media Law Project and a member of its board of advisors.)
