A funny thing happened to Congressman Ed Markey's attempts at network neutrality legislation over the last two years: The term "network neutrality" disappeared. The short title of the Massachusetts Democrat's first bill on the subject was the "Network Neutrality Act of 2006." The one he introduced on Feb. 12, however, is the "Internet Freedom Preservation Act of 2008." The change reflects a significant shift in the approach Markey is taking. That shift, along with changes in the political climate, could give his latest effort a lot better chance of succeeding than the earlier one.
The New Bill
On first glance, the new bill seems less aggressive than its predecessor. Notably missing, for example, is any mention of how the FCC (Federal Communications Commission) can or should enforce its provisions. And the provisions themselves are less detailed than before. The bill's approach is so mild, in fact, that some of its supporters have found themselves having to deny that it is toothless. But the apparent light-handedness of the measure may be the key to its effectiveness.
In reality, the main provision is quite far-reaching. It would insert net neutrality principles directly into the Telecommunications Act of 1934, the law that defines the telecom rules for the United States. Specifically, it would add nondiscrimination language to Title I of the Act, including: "It is the policy of the United States �" (1) to maintain the freedom to use for lawful purposes broadband telecommunications networks, including the Internet, without unreasonable discrimination by network operators, as has been the policy and history of the Internet and the basis of user expectations since its inception."
Title I covers information services; in 2005, the FCC decided that broadband Internet access is an information rather than a communication service. That meant the Internet was not subject to Title II's so-called common carrier rules, which require telephone and other communication companies to treat all traffic equally and without discrimination. Without that ruling, net neutrality would never have become an issue.
The bill's other two main provisions would open broadband providers' activities to government and public scrutiny and debate. One would require the FCC to begin hearings within 90 days to assess whether providers are in fact handling traffic without discrimination. The other would require the agency to hold at least eight public hearings within a year to assess competition, consumer protection and consumer-choice issues surrounding broadband Internet access and to report its findings to Congress within another 90 days. Fans of the law say such public activities would eliminate agency decision making that is based largely on back-room meetings with lobbyists.
What It All Means
The combined impact of the provisions could be powerful. The bill simply establishes the law and leaves it to the FCC to enforce it, letting the agency decide it if needs to come back later and ask Congress for more detailed laws to support it. If it does, the public assessments and hearings would in turn force legislators to pay attention. And because the bill contains so little explicit regulatory language, it defuses the argument that net neutrality is simply an attempt to regulate the Internet. That fact �" along with the total absence of the controversial network-neutrality term from the bill �" could be key in gaining bipartisan support. And indeed, Mississippi Republican Chip Pickering is the bill's co-sponsor.
Of course, leaving enforcement entirely to the FCC works best if the FCC generally agrees with the law in the first place. That's why a number of proponents of Markey's bill call it the right law at the right time. They assume that the coming change of administrations will bring a corresponding change of leadership at the FCC. And in fact, a Democratic-controlled FCC would need little encouragement in carrying out the new law. On the other hand, that might not be the case if the White House remains in Republican hands.
But the proposed law could play a role in that, too. Three of the four remaining presidential candidates have come out in favor of net neutrality. Only John McCain has voted against the principle, although it was in the form of a different law. Either way, the Democratic nominee could conceivably use that vote against McCain in a campaign, in which case pro-neutrality groups wouldn't hesitate to make their opinions known. Network neutrality obviously won't be as potent an issue in the current campaign as Iraq or the economy, but it might be important enough to make a telling difference.