Congressional Quarterly Today
February 8, 2008 Friday
BYLINE: By Adrianne Kroepsch, CQ Staff
The debate over “net neutrality” is set to re-emerge as early as this week, with Rep. Edward J. Markey preparing to unveil long-awaited legislation on the controversial topic.
The major U.S. broadband providers — telephone companies and cable operators — have been lobbying against it for months, even though they say they haven’t seen the bill yet. They do know this: Markey’s legislation will propose new rules on how they manage their networks. At the very least, it could bring fresh attention to their business practices.
Markey, chairman of the Energy and Commerce panel’s Telecommunications and the Internet Subcommittee, is a staunch advocate of setting rules to keep networks “neutral” — that is, to explicitly prevent broadband providers from blocking certain traffic or establishing tiered pathways for Internet content.
To Markey and his allies, it boils down to a free speech issue. To telecom carriers and cable providers, it looks more like unneeded Internet regulation.
Markey’s office has kept the legislation largely under wraps while he personally marshals support from likely allies, such as Democrats Ana G. Eshoo of California, Jay Inslee of Washington and Rick Boucher of Virginia. He is also trying to woo the opposition, sources said, by looking for a Republican cosponsor.
The debate last played out during the 109th Congress, when lawmakers attempted to update the 1996 Telecommunications Act (PL 104-104). Markey lost both a House floor vote and a committee vote on a net neutrality amendment. In the Senate, a net neutrality amendment fell in committee by an 11-11 tie.
The issue has been on the back burner since, but its re-emergence is seen as inevitable. Advocates for strong net neutrality regulations have been waiting for more ammunition, and now they say they have it in several instances of censored traffic.
Both sides of the divide are preparing to re-launch the pitched lobbying battle that the issue instigated in 2006. Net neutrality brought a regular flow of cash to lobbying shops that year and also fed “astroturf” groups like NetCompetition, Hands Off The Internet, and The Future Faster. Those organizations presented themselves as grassroots groups, but were funded by the baby Bell and cable companies.
The issue did not fall entirely along party lines in 2006, but it was close. Republicans were almost uniformly against Markey’s efforts, while Democrats were largely supportive.
A Different Battle
Last time around, net neutrality advocates did not appear to have enough evidence of network discrimination to buoy their calls for action. Now they say they have evidence of enough broadband bungles to support legislative action.
Last year, AT&T censored part of an Internet broadcast of a Pearl Jam concert, muting lyrics critical of President Bush; Verizon initially rejected a request from NARAL Pro-Choice America to send text messages to NARAL supporters over the Verizon Wireless network, reversing course after negative publicity; and Comcast said it delayed Internet traffic in response to heavy peer-to-peer file sharing by some users.
“During the last Congress, the argument was that this is an imaginary problem. That’s clearly not the case now. We have numerous examples of network discrimination, and these are just the ones we know about,” said a Democratic aide. “Now that we know these things have happened, it’s going to be tougher for opponents to argue that it isn’t an issue.”
Many Democratic lawmakers agree. “Now that we have seen various kinds of blocking practices, that, I think, creates a stronger argument for passing a bill,” said Boucher, who said he has not seen Markey’s legislation.
Advocates also cite key support in House Speaker Nancy Pelosi, who hails from a technology heavy California district. The Democratic aide said Pelosi has not whipped the caucus on the issue yet, but she views it as important.
On the other side of the debate — and often the other side of the aisle — net neutrality opponents say that the topic still is not politically viable, even with a Democratic majority. Markey’s net neutrality amendment to the telecom overhaul bill fell 152-269, his opponents note. Moreover, President Bush would veto any net neutrality legislation and the Republican chief of the Federal Communications Commission (FCC), Kevin J. Martin, would oppose it as well.
Markey’s opponents also argue that people are starting to better understand the need for allowing broadband companies to decide for themselves how to manage their networks.
“All bits aren’t equal, and they never have been. Some bits are a higher priority and need to be able to go through,” such as Internet phone calls or video feeds, said Sena Fitzmaurice, a Comcast spokeswoman. If a packet of a phone call or a piece of video is dropped, the communication is staggered or interrupted.
“Network management is necessary and has been going on in broadband networks since their inception,” Fitzmaurice said. For example, Comcast filters 500 million spam messages per day, she said.
A Debate for Carriers’ Sake?
Even the most vocal net neutrality advocates agree that not all network management is bad. In fact, the debate needs to recur for the carriers’ sake, said another House telecom aide. “They might be on the right side of some of these issues, but you have to talk out the problems in a transparent way. It’s like any family squabble,” the aide said.
Markey may seek the middle ground with his bill, by using it to prod broadband providers to determine what kind of network management is acceptable and what clearly is not, said telecom aides.
A review of what kind of management may be appropriate is under way at the FCC. In January, the agency launched a formal examination in response to network discrimination complaints.
Consumer groups, including Free Press and Public Knowledge, petitioned the FCC in November for clarification of the regulator’s Internet non-discrimination policy — and its enforceability. The first round of public comments on the subject is due to the FCC on Wednesday.
Real action on net neutrality would have to come from Congress, however, most Democrats said. “We aren’t putting a lot of stock in the FCC’s work,” said one aide.
But the issue is clearly a sticky one on Capitol Hill.
“Our process is more complicated and always takes longer, plus the outcome is considerably less certain,” said Boucher. “It never hurts to have two tracks toward the same goal. But it would be advisable to have a legislative track in addition to the FCC’s.”
