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Net neutrality returns to Congress, but it's unlikely to go anywhere soon

Net Neutrality legislation, stymied for years by lobbying efforts, returns to Congress' agenda. Barring a major shift in political ends, however, it's unlikely to go far in the next year.

New net neutrality legislation, stymied by industry lobbyists and an election cycle, remains unlikely to go anywhere before next January.

The "Internet Freedom Preservation Act of 2008," introduced by Rep. Edward Markey (D-MA) and currently co-sponsored by Rep. Charles Pickering (R-MS), would amend Title I of the Communications Act of 1934 to bar "unreasonable discriminatory favoritism for, or degradation of, content by network operators based upon its source, ownership, or destination on the Internet."

The bill also mandates that the Federal Communications Commission (FCC) hold a series of at least eight public summits around the country to examine broadband competition and consumer protection issues.

The possibility of the bill's passage has telecoms up in arms – and armed with lobbyists. While net neutrality has plenty of corporate supporters, such as Google, Amazon and Craig's List, these younger Web players are not investing as much in lobbying the issue, Politico reported. The telecom industry, meanwhile, has turned Capitol Hill lobbying into something close to an art form, with a recentSenate win for retroactive wiretapping telecom immunity and past victories on the network neutrality front.

Meanwhile, voices on both sides of the issue say that innovation will suffer if Congress doesn't listen to them. Service providers have warned that forcing government-mandated net neutrality could curb innovation and needed infrastructure upgrades, while their opponents charge that not enforcing net neutrality will hurt innovation by pushing out smaller players and putting telecom-provided services in an unfair position.

It enshrines the principles of net neutrality into the law, which I don't think is a small thing
Jessica Schafer
Communications DirectorRep. Eward Markey

The arguments have gone back and forth for years now, but net neutrality has developed into a much more mainstream issue.

Jessica Schafer, communications director for Markey's office, said the political landscape has changed as well since the failure of Markey's 2006 attempt at passing net neutrality legislation.

"The congressman is chairman of the Telecommunications Committee now, so that brings things to a different light," Schafer said. "We've also been able to raise a lot of awareness with the help of grassroots groups."

Awareness has certainly grown, but several obstacles remain: A strong telecom lobbying firm set against its passage, an election cycle well under way, and the probability of a presidential veto even if it does pass.

Still, the prospects for the bill's House passage have improved dramatically over the past few years, thanks in no small part to grassroots movements brought together by the Internet.

"Network neutrality" was once jargon parsable only to the digital elite, but it has become a hot-button issue -- pressed forward by numerous blogs and social media sites -- which has taken on a life of its own, often through graphic examples that make up in wit what they lack in subtlety.

Service providers, the loudest voices against net neutrality, have not exactly made themselves sympathetic victims in the fight. Public backlash has hit Comcast particularly hard after the Associated Press confirmed the company slowed BitTorrent downloads, which some critics charged was done to make its own video offerings more compelling than other competing services delivered over IP, such as Vuze and BitTorrent.

The FCC has since opened an investigation into Comcast's traffic-shaping policies, while the company has continued to equivocate on disclosing its practices publicly.

Although sentiment for net neutrality has improved, at least a few opinions have not changed: The telecom giants still stand united in opposition to net neutrality, a rare point of agreement in a highly competitive industry.

Even if Markey's bill passes in the House, its chances in the Senate are even more uncertain.

"The Senate is a different world … they operate in a separate universe," said Art Brodsky, communications director of Public Knowledge, a lobbying group that favors the bill. "They haven't been real active over there [regarding net neutrality]."

Markey's strategy might account for this. He is introducing the bill now in the House to gather support and hammer out compromises while hoping that the tide turns even more in favor of net neutrality after the next election.

"We've introduced this now because we think it's important to discuss now, and we'll do what we can [this year]," Schafer said. "We've clearly introduced it this session because we want to make progress this session."

Telecom consultant Ike Elliott said that the upcoming election might mean that a delayed strategy makes more sense.

"The presidential candidates are talking about national broadband strategies ... and this bill pre-empts some aspects of that before the election, which will provide a mandate for somebody to proceed with a national broadband strategy," Elliot said.

Having a bill ready to go for a neutral network-friendly president might also mean a quick win on the heels of the next inauguration. Senator Barack Obama (D-IL) in particular has said that passing network neutrality legislation would be a "first year" priority.

But what if it passes?

But what would the bill's passage mean for consumer broadband access? Again, it will depend largely on who wins the next presidential election. The president appoints the five commissioners of the FCC who would be charged with carrying out the new mandate. Most Democratic candidates are in favor of some form of net neutrality, while most Republican candidates oppose it, according to a TechCrunch candidate factsheet.

The bill does not specify enforcement provisions or punishments, and it could potentially leave loopholes for a lenient FCC commission, such as the inclusion of the word "unreasonable" as a qualifier on what counts as impermissible network tampering.

When asked about the lack of specifics in Markey's bill, Schafer said it was a big step forward on two fronts.

"It enshrines the principles of net neutrality into the law, which I don't think is a small thing," she said. "This becomes part of the communications law the FCC carries out."

She also said the public dialogues and the drafting of a consumer bill of rights were important parts of developing a broadband policy.

Notably lacking from those written principles is one of the most high-profile aspects of net neutrality: filtering based on protocol. The bill specifically condemns filtering based on source, ownership or destination on the Internet, but ignores the protocol filtering that Comcast is currently engaged in. This further obfuscates the precise effects that the bill might have. (Another notable omission from the bill, perhaps for political reasons, is the phrase "network neutrality" or any of its derivatives. Instead, the bill euphemistically refers to these principles as "Internet freedom preservation.")

Brodsky said the importance of moving network neutrality principles into the FCC's Title I provisions should not be underestimated.

"If someone wanted to bring a complaint to the FCC, it would give that person a stronger case," he said. Consumer groups would have firmer ground to protest anti-competitive behaviors, such as blocking or targeting third-party VoIP solutions like Skype or video solutions like Vuze, which uses the peer-to-peer BitTorrent protocol.

There is some question, though, whether or not the FCC is needed for this type of enforcement.

"The FCC believes it's in their bailiwick," Elliott said, referring to the possibility of access providers' preventing third-party services from offering competing features. "But it really sounds more like an FTC [Federal Trade Commission] issue, if you're talking about anti-competitiveness."

Historically, anti-competitive oversight has fallen under the auspices of the FTC, which polices monopolies and other unfair trade practices.

There is also the possible effect such legislation might have on the deployment of broadband infrastructure, already lagging in America by comparison with many other countries.

Forcing providers to place their best revenue drivers – voice, high-definition television, and other lucrative add-ons – at the same speeds and priorities as services from Google, Skype and other companies that have not invested billions in infrastructure costs could make providers rethink their strategies.

At the very least, revenues would have to be found some other way, perhaps by higher monthly costs or a tiered pricing scheme based on monthly usage, as is common in Australia. A starker possibility exists as well.

"If a bill like this passes, it does have a chance ... depending on what changes are made, of dampening enthusiasm for major broadband deployments," Elliott said. "If they don't have the freedom to do the kinds of [service] bundling they anticipate … doing, they might not be as enthusiastic [about] spending all the money on fiber optic deployments."

Elliott also warned that such provisions could cut off the possibility of new models of access, while not necessarily extinguishing all opportunities for abuse.

He pointed to Amazon's Kindle e-book platform as one innovation that might not exist with the enforcement of network neutrality.

The Kindle uses leased Internet connectivity from Sprint to download books, newspapers and blogs, but such a deal may violate almost every pillar of Markey's net neutrality bill -- users can access material online only if it is Amazon-approved; they can use only the Kindle (and not other devices) to access Amazon's Whispernet wireless network; and competing vendors, such as Barnes & Noble, cannot use that network to sell their own services.

"We paint with a really broad brush when we talk about net neutrality," Elliott said, "although it's very important to have safeguards against anti-competitive behavior by large telecom companies." He said that kind of behavior should not be acceptable, but too much legislation could hurt both broadband deployments and innovative usage models. He offered a simpler solution.

"Just pass a law that says we're going to require network service providers to disclose whether they're going to do any traffic shaping to consumers, so that consumers know what they're getting," he said.

Truth in advertising might be a hard pill for some telecoms to swallow, but the alternatives – a highly regulated, federally mandated opening of their network to competitive services – could end up costing them much more dearly.

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