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A surfeit of network neutrality legislation

Largely due to the continued dumb statements and actions of a few apparently PR-challenged carriers the network neutrality issue is alive and well in the US. Since any issue like this seems to create a legislative void that must be filled we now have at least two network neutrality related bills for congress to consider. If one liked legislation-based solutions merging these two bills and tossing out a bit of FCC make work would not be too bad, but there would still be some real questions left unanswered.

Historically, it has been uncommon that legislation resulted in just what the supporters professed to intend. Even under ideal situations, legislation is a far from ideal tool to ensure reasonable behavior in the real world. Furthermore, it is unlikely that discussion about any legislation effecting companies which spend as much on lobbyists as the telecos and able companies do will result in an ideal situation.

Representatives Conyers and Lofgren introduced the "Internet Freedom and Nondiscrimination Act of 2008" (http://thomas.loc.gov/cgi-bin/query/z?c110:H.R.5994:) on May 8th. This bill joined the "Internet Freedom Preservation Act of 2008" (http://thomas.loc.gov/cgi-bin/query/z?c110:H.R.5353:) which had been introduced by Representatives Markey and Pickering on Feb. 12th in attempting to deal with the network neutrality issue made so prominent by carrier actions. (See, for example, http://www.networkworld.com/columnists/2007/103007-bradner.html)

It is likely that legislations (or regulations) about network neutrality would not be needed if there were real competition in the broadband business in the US. (See "The elusive third wire for Internet service" http://www.networkworld.com/columnists/2008/042908-bradner.html.) Regulations requiring full an easy to understand disclosure of ISP service offerings and prices is likely necessary in any case but in an ideal world there would be no need to tell a carrier to treat its customers fairly. In this world we may get legislation so we might as well look at the proposals on the table.

The Conyers and Lofgren bill is recycled from 2006 when it did not make a lot of progress. It would expand the Clayton antitrust act (http://www.law.cornell.edu/uscode/15/usc_sec_15_00000012----000-.html) to outlaw some types of discrimination by broadband ISPs. It basically requires that ISPs not treat data from different service providers or from different customers in different ways. An ISP could provide better quality for VoIP service but would have to for all VoIP service not just the VoIP service the ISP sells. It is possible to read the current text to require ISPs let their customers run servers, such as web servers, which many do not currently permit.

The Markey/Pickering bill takes a very different approach. It defines 4 high-level broadband policies and then gives the FCC a bunch of mostly useless things to do. The policies are a variant of some policies the FCC issued a few years ago (http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-151A1.pdf) (See also "Broadband regulation: Why wait for Congress?" http://www.sobco.com/nww/2005.edited/bradner-2005-08-15.html) but which do not have the force of law. The policies do include open access to lawful content and applications and protection against "unreasonable discriminatory favoritism" based on the source, ownership or destination of traffic on the Internet. (I'm not quite sure what reasonable discriminatory favoritism would be.)

In looking at it again it's not clear to me that the Markey/Pickering bill brings much to the table over the Conyers and Lofgren bill. Among other things the FCC thinks it has too much to do already.

We may not need new regulations since the carriers may decide to not live up to the things their bosses were saying a few years back (see, for example, http://www.washingtonpost.com/wp-dyn/content/article/2005/11/30/AR2005113002109.html) -- it would be nice if this were the case -- but if we do the Conyers and Lofgren bill is a good start.

disclaimer: Harvard alums write this kind of legislation but I know of no university opinion on this topic so the above review of proposed legislation is mine alone.