Commentary
6/15/2006
12:07 PM
Commentary
Commentary
Commentary

Desperately Seeking Neutrality

Last week, the U.S. House of Representatives passed a bill that would amend the Communications Act of 1934 (that's the law's original date; it's been amended and revised several times since then). Missing from the bill was any explicit requirement for what advocates and ideologues have come to call "net neutrality." You'd hardly know it from most of the coverage, but if you actually read the bill and associated regulations, such a mandate is shown to be entirely unnecessary.



Last week, the U.S. House of Representatives passed a bill that would amend the Communications Act of 1934 (that's the law's original date; it's been amended and revised several times since then). Missing from the bill was any explicit requirement for what advocates and ideologues have come to call "net neutrality." You'd hardly know it from most of the coverage, but if you actually read the bill and associated regulations, such a mandate is shown to be entirely unnecessary.The relevant section of HR 5252, as it was sent to the Senate for consideration, is SEC. 715, which includes the following provisions:

(a) Authority- The Commission shall have the authority to enforce the Commission's broadband policy statement and the principles incorporated therein.

(b) Enforcement-

(1) IN GENERAL- This section shall be enforced by the Commission under titles IV and V. A violation of the Commission's broadband policy statement or the principles incorporated therein shall be treated as a violation of this Act.

(2) MAXIMUM FORFEITURE PENALTY- For purposes of section 503, the maximum forfeiture penalty applicable to a violation described in paragraph (1) of this subsection shall be $500,000 for each violation.

(3) ADJUDICATORY AUTHORITY- The Commission shall have exclusive authority to adjudicate any complaint alleging a violation of the broadband policy statement and the principles incorporated therein. The Commission shall complete an adjudicatory proceeding under this subsection not later than 90 days after receipt of the complaint. If, upon completion of an adjudicatory proceeding pursuant to this section, the Commission determines that such a violation has occurred, the Commission shall have authority to adopt an order to require the entity subject to the complaint to comply with the broadband policy statement and the principles incorporated therein. Such authority shall be in addition to the authority specified in paragraph (1) to enforce this section under titles IV and V. In addition, the Commission shall have authority to adopt procedures for the adjudication of complaints alleging a violation of the broadband policy statement or principles incorporated therein.

So the House bill, as passed, 1) gives the FCC authority to enforce its broadband policy, 2) allows for a fine of half-a-million smackeroos if the policy is violated, and 3) allows the FCC to force compliance.

And what does the FCC broadband policy statement [PDF] say?

...to ensure that broadband networks are widely deployed, open, affordable, and accessible to all consumers, the Commission adopts the following principles:

  • To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of their choice.

  • To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.

  • To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to connect their choice of legal devices that do not harm the network.

  • To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to competition among network providers, application and service providers, and content providers.

Combined with the text from the House bill, this means the FCC would have absolute regulatory authority to guarantee that consumers can 1) access the content of their choice, 2) run applications and use services, and 3) connect their choice of legal devices. If the FCC deems that there has been a violation of these rights, they can impose the fines and penalties laid out above.

To me this seems like the best framework. It empowers the FCC with regulatory authority, but doesn't impose unreasonable requirements on the carriers, nor does it preclude any kind of arrangements that may allow carriers and providers to provide IMPROVED service over the best-effort Internet we currently have. Anything beyond that would be restrictive and limiting, and worst of all driven by the fear of potential abuses.

Now the ball is in the Senate's court, where the "neutrality" advocates are hoping to get what the House wouldn't give. Speaking for myself, I hope they get the same results--the House bill seems more than adequate to protect consumers from capricious abuse, and trying to limit carriers beyond that baseline level would be unnecessary and probably even harmful.

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