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Network Neutrality Under Challenge
by
Posted On May 1, 2006


The U.S. Congress has network neutrality under scrutiny and perhaps under threat. Network neutrality is the concept that broadband carriers will neither interfere with nor inhibit the free flow of information over the Internet. A bill, the Communications Opportunity, Promotion, and Efficiency Act of 2006, or COPE (aka the Barton-Rush Act), is making its way through the House of Representatives. It could empower commercial broadband carriers like Sprint and AT&T to manipulate Internet transactions by prohibiting or slowing access to and transmission of specific sites. In effect, the buzz is that the House proposes to cede control of the Internet to the telecoms and cable companies. By contrast, there are bills being introduced in the Senate that seek to protect network neutrality. First among these is S. 2360, the proposed Internet Non-Discrimination Act of 2006. 1, 2

What's at stake? COPE could permit Internet carriers, the owners of the "pipes," to discriminate among different content providers, to give some preferential placement, or even to restrict some content. Detractors see this as both private sector content regulation (pay for placement) and perhaps even censorship. Proponents argue that it would be a case of the "unseen hand" at work. Proponents have argued that there is little evidence that private sector carriers discriminate against content providers. Detractors point to cases in Canada and the U.S. where Internet carriers have, in fact, acted to limit Internet free speech.

Proponents of the COPE legislation frame their arguments in a variety of ways. A Phoenix Center Policy Paper opposes network neutrality mandates that might commodify content and thereby limit competition. Such policies, they argue, would inhibit technological advances and increase end-user costs. 3 National Cable & Telecommunications Association members pledge that they will not block any lawful content or, as stated on page 2 of the Phoenix Center Policy Paper, "deteriorate or degrade the transmission of these third-party applications and services." 4 In the eyes of the Phoenix Center, network neutrality is anti-competitive.

Hearings continue for a bill that originated in the subcommittee of the House Energy and Commerce Committee to begin mark up of the proposed COPE. On April 4, 2006, Congressman Fred Upton, R-Mich., chair of the House Energy and Commerce Subcommittee on Telecommunications and the Internet and an important architect of the proposed legislation, favors an ad hoc approach to network neutrality:

Finally, I want to briefly mention the net neutrality provision in the Committee Print. While there is virtually no evidence of actual bad behavior in the marketplace, I believe that authorizing the FCC to enforce its Broadband Policy Statement—on a case-by-case adjudicatory basis—is a better framework to ensure that the public Internet remains open and dynamic versus alternatively adopting anticipatory regulation, which would have a dramatically chilling effect on broadband deployment and the development of exciting, new services. It's a lot like Goldilocks and the Three Bears: some say the provision is "too small," others say that it is "too big"—but, I believe it is just right—and will get even more right with some changes which I will be offering tomorrow in a Manager's Amendment. 5

COPE is one of several means to deregulate broadband and to provide greater latitude to private sector carriers. The Federal Communications Commission (FCC), for example, ruled as early as 2002 that broadband carriers could restrict competitor access to their lines; the FCC has also endorsed strong network neutrality provisions in an August 2005 statement by its chairman, Kevin Martin. At the same time, FCC Commissioner Martin has indicated support for a "tiered" Internet. In a tiered Internet, broadband carriers would be permitted to charge major content providers (perhaps Google, Yahoo!, and maybe even Wikipedia) a fee or even a higher fee to transmit their material.

Opposition to COPE is growing. Opinions are divided along essentially partisan lines. Democrats seek Congressional legislation to prohibit discriminatory activity whereas Republicans favor relying on the FCC's regulatory regime. Both Democrats and Republicans favor fines for network neutrality violators; they differ on what constitutes a violation and on the size of the fine.

Representative Ed Markey, D-Mass., offered a network neutrality protection amendment on April 25 (for text, see http://www.mydd.com/images/admin/Markey_Net_Neutrality_Amendment.pdf. In support of the Markey amendment, Minority Leader Nancy Pelosi, D-Calif., posted the following at her Web site in late April 2006 to solicit grass-roots support:

We, the undersigned, oppose the lack of Network Neutrality protections in the COPE Act, sponsored by Rep. Joe Barton (R-TX). We strongly urge passage of the Network Neutrality amendment sponsored by Rep. Ed Markey (D-MA), along with Representatives Rick Boucher (D-VA), Anna Eshoo (D-CA), and Jay Inslee (D-WA).

Whereas, the free and open nature of the Internet has fostered unprecedented innovation and economic growth;

Whereas, a fundamental part of the Internet's nature is the fact that no one owns it and it is open to all comers;

Whereas, the Barton Bill would block the FCC from restoring meaningful protections for Internet consumers and entrepreneurs, and from prohibiting the imposition of bottleneck taxes and other discriminatory actions on the part of broadband network operators, such as AT&T and Verizon;

Whereas, the imposition of additional fees for Internet content providers would unduly burden web-based small businesses, start-ups, as well as communications for non-commercial users, religious speech, civic involvement, and exercising our First Amendment freedoms;

Whereas, the Markey amendment will effectively thwart attempts by broadband behemoths to block, impair, or degrade a consumer's ability to access any lawful Internet content, application, or service; will protect my right to attach any device for use with a broadband connection,; will ensure that phone and cable companies cannot favor themselves or affiliated parties to the detriment of other broadband competitors, innovators, and independent entrepreneurs; and it will prohibit the broadband Internet providers from charging extra fees and warping the web in a multi-tiered network of bandwidth haves and have-nots.

Therefore, I join as a citizen co-sponsor of the Markey Amendment to save the Internet as we know it. (http://www.democraticleader.house.gov/issues/net_neutrality_/index.cfm)

The Markey Amendment, however, failed in votes, first in the subcommittee and then on April 26 in the full committee.

An interesting coalition in opposition to the COPE network neutrality provisions has been formed. It includes in its membership such voices as Lawrence Lessig, Timothy Wu, Common Cause, the American Library Association (ALA), and Gun Owners of America (see http://savetheinternet.com/=coalition). Vinton Cerf, father of the Internet and also a member, is outspoken in his opposition. Cerf is already on record in his Feb. 7, 2006, testimony before the Senate Committee on Commerce, Science, and Technology. He explained his and Google's philosophy on and support for network neutrality (http://commerce.senate.gov/pdf/cerf-020706.pdf).

The ALA position on network neutrality is based on insuring access to information resources for libraries large and small:

The Internet developed as a network of wide-open spaces with little regulation and so libraries can easily access and provide digital information, traditional library materials, web sites, and other digital tools to better serve library users. Thus far, ‘net neutrality' has prevented ISP-gatekeepers from blocking or discriminating against smaller, less popular or less lucrative providers. ALA asks for this neutrality to be maintained. Diverse sources of Internet content should not be marginalized by allowing ISPs to create a tiered system. 6

The Gun Owners of America argue along the lines of service, competition, and intellectual freedom:

It would be a shame if a handful of major telecoms were free to pick and choose which individuals and associations were the recipients of quality service—and which were left out in the cold. Without even ascribing a political motive to their actions, greed alone will skew the Internet marketplace if companies can deny superior quality of service to those who choose to use the products of competitors. 7

In testimony before Congress on Feb. 7, 2006, Lessig asserted: "It is my view that Congress should ratify [former FCC chairman Michael] Powell's "Internet Freedoms," making them a part of the FCC's basic law." 8 Chairman Powell enumerated his four freedoms in a talk at the University of Colorado School of Law on Feb. 8, 2004: 9

Freedom to Access Content. First, consumers should have access to their choice of legal content.

Freedom to Use Applications. Second, consumers should be able to run applications of their choice.

Freedom to Attach Personal Devices. Third, consumers should be permitted to attach any devices they choose to the connection in their homes, and

Freedom to Obtain Service Plan Information. Fourth, consumers should receive meaningful information regarding their service plans.

Common Cause constructs its argument along intellectual freedom lines: 10

Tell them to keep their hands off our Internet!

If successful in Congress, these companies would open the door to violate what techies call ‘net neutrality.' It is the principle that Internet users should be able to access any web content they want, post their own content, and use any applications they choose, without restrictions or limitations imposed by their Internet service providers (ISPs).

Net neutrality is the reason this democratic medium has grown exponentially, fueled innovation, and altered how we communicate. We must make certain that for-profit interests do not destroy the democratic culture of the Web. 

The continuity of network neutrality, by my lights, is an important resource for information professionals. A "tiered" Internet perhaps threatens access by establishing differential fees for information providers. Network anti-neutrality provisions permit broadband carriers to provide barriers of access by discriminating against information providers for whatever reason, economic, political, or content. Perhaps there have been but limited examples of network neutrality by private sector actors so far. But, we do know that a privilege granted is a privilege abused. And we know that some governments, among them China, have sought to limit access for their citizens. In the final analysis, censorship is censorship. For information professionals, censorship in any form is sacrilege.

As we all know from high school civics, a committee report or even passage in one house of the legislature does not a law make. The proposed COPE legislation and other bills will work their way through the legislative process. For good or ill, the Internet as we know it is at stake. It may seem trite to suggest it, but now is the time to make your views known to your representatives in the House and the Senate.

Resources

Don't Mess With the Net
http://www.dontmesswiththenet.com

Markey Net Neutrality Amendment
http://www.mydd.com/images/admin/Markey_Net_Neutrality_Amendment.pdf

Save the Internet Coalition
http://savetheinternet.com

US Congress drafting bill that may affect Internet freedoms
http://en.wikinews.org/wiki/US_Congress_drafting_bill_that_may_affect_Internet_freedoms

 

Endnotes

1. http://wyden.senate.gov/media/2006/03022006_net_neutrality_bill.html

2. http://news.zdnet.com/2300-1035_22-6045311-1.html

3. George S. Ford, Thomas M. Koutsky, and Lawrence J. Spiwak, Network Neutrality and Industry Structure . Phoenix Center Policy Paper No. 24 (April 2006). http://www.phoenix-center.org/pcpp/PCPP24Final.pdf

4. National Cable & Telecommunications Association: http://www.ncta.com/IssueBrief.aspx?contentId=2715

5. http://www.house.gov/upton/press/press-04-04-06.html

6. http://www.ala.org/ala/washoff/washevents/nlld/NetNeutral.doc

7. Gun Owners of America, A Free Internet Requires Network Neutrality, April 2006: http://www.gunowners.org/hs0601.htm

8. Lawrence Lessig: http://www.lessig.org/blog/archives/Lessig_Testimony_2.pdf
Educasuse: http://www.educause.edu/content.asp?PAGE_ID=645&PARENT_ID=807&bhcp=1

9. Michael K. Powell, "The Digital Broadband Migration: Toward a Regulatory Regime for the Internet Age." http://www.cdt.org/speech/net-neutrality/20040208powell.pdf

10. Common Cause, "Hands Off Our Internet!" http://www.commoncause.org/site/pp.asp?c=dkLNK1MQIwG&b=1386967


Wallace Koehler is director/professor in the MLIS Program at Valdosta State University.

Email Wallace Koehler
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