House Takes Up Net Neutrality Bill

Rep. Markey's legislation would enshrine FCC principles into law.

While the Senate seems content to let network neutrality slide for another two years, House members are pushing ahead with a hearing May 6 to turn the Federal Communications Commission's principles on the issue into law.

Introduced by Reps. Ed Markey, D-Mass., and Chip Pickering, R-Miss., the Internet Freedom Preservation Act of 2008 would also require the FCC to hold eight public "summits" about network neutrality and to report back to Congress with its findings and recommendations.

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In August 2005, the FCC ruled that consumers are entitled to access the lawful Internet content of their choice, run applications and services of their choice and plug in and run legal devices of their choice. The FCC also said consumers have a right to competition among network providers, application and service providers, and content providers.

However, as Comcast has repeatedly pointed out in defense of the cable broadband provider's throttling of some peer-to-peer applications, the FCC's principles are not likely to hold up in court.

"It is settled law that policy statements do not create binding legal obligations," Comcast Executive Vice President David L. Cohen wrote in a March filing with the FCC. "Indeed, the Internet Policy Statement expressly disclaimed any such intent."

Nevertheless, broadband providers such as Comcast, AT&T and Verizon have adamantly opposed congressional actions on network neutrality, contending that whatever issues arise are best sorted out by the FCC.

Markey's bill would change that.

"The bill contains no requirements for regulations on the Internet whatsoever," Markey said when he introduced the legislation in February. "It does, however, suggest that the principles which have guided the Internet's development and expansion are highly worthy of retention, and it seeks to enshrine such principles in the law as guide stars for U.S. broadband policy."

Comcast has been at the center of a network neutrality controversy since the Associated Press reported the cable company is "throttling" its broadband network traffic, which involves blocking or slowing the uploading and downloading speeds of lawful applications and content, particularly P2P applications such as BitTorrrent.

While Comcast admits to throttling traffic, the cable giant says its policy falls within the FCC's reasonable network management exception to the agency's network neutrality rules. Comcast also claims the throttling is "imperceptible to the customer."

The FCC has held two public hearings so far on the matter, and last month FCC Chairman Kevin Martin told a Senate committee the cable giant is throttling more traffic than it has previously admitted. Martin also told lawmakers it appears Comcast broadband customers are not free to access all content on the Internet, including the ability to fully use peer-to-peer networks.

"It does not appear that this technique [throttling] was used only to occasionally delay traffic at particular nodes suffering from network congestion at that time," Martin told the lawmakers April 22. According to Martin, the testimony so far presented to the FCC indicates Comcast's efforts at managing P2P traffic "is typically deployed over a wider geographic or system area and would therefore have impacted nodes within a system simultaneously."

Markey, who as a member of the then-minority Democrats unsuccessfully pushed for network neutrality in the 2006 telecom reform bill, has been a longtime proponent of net neutrality. Since the Democrats took over Congress last year, Markey has used his new chairmanship of the House Subcommittee on Telecommunications and the Internet to hold a series of hearings on network neutrality and other Internet-related issues.

Senators Byron Dorgan, D-N.D., and Olympia Snowe, R-Maine, introduced legislation in January 2007 to impose network neutrality conditions on broadband carriers. The bill, also known as the Internet Freedom Preservation Act, would prohibit broadband carriers from discriminatory practices such as pricing in handling traffic from Internet content, application and service providers.

The legislation would also require carriers to offer consumers individual broadband service that is not bundled with television or telephone service.

The Senate has yet to hold a hearing on the bill.