Net Neutrality Comes Around on the Ferris Wheel Again

Published: February 21, 2008

by Timothy Prickett Morgan

If at first, second, third, or fourth you don't succeed, try, try again. Representative Ed Markey, the Democratic Congressman who hails from the 7th District of Massachusetts tech corridor around Boston, has introduced yet another bill that seeks to give some clarity about how traffic will be shaped--or not shaped--by the telecommunications companies and services providers that are the backbone of the Internet.

In a bill called the Internet Freedom Preservation Act of 2008 (HR5353), Markey and co-sponsor Republican Congressman Chip Pickering of the Third District of Mississippi, propose adding a new section to the Communications Act of 1934, which regulates the telecommunications and media industries and which was amended with the Telecom Act of 1996, to regulate broadband Internet communications. (You can read a summary of the bill here if you don't want to plow through the whole thing.) In a nutshell, the bill proposes to enact a form of net neutrality, which allows consumers and businesses "to send, receive, access, and use the lawful applications, content, and services of their choice on broadband networks" and which assures "that content providers not be subjected to new, discriminatory charges by broadband network providers."

"The global leadership in high technology the United States provides stems directly from historic policies that have ensured that telecommunications networks are open to all lawful uses and to all users," Markey said in a statement introducing the bill. "In addition, because of the vital role that broadband networks and the Internet fulfill in exercising our First Amendment rights to speak, it is important that the United States adopt a policy endorsing the open nature of broadband networks."

As you might expect, Markey is saying that the bill is not proposing to regulate the Internet, but rather to keep it deregulated and open. This is a bit of an oxymoron, because a bill that tells broadband providers, through the actions of the Federal Communications Commission, what they can and cannot do is nonetheless regulation. And regulation is not a bad thing. Having clear rules about how traffic may move around the network is necessary for all of our protection, and knowing what rights we all have as users of the Internet, which was in part created by public funding after all, and what responsibilities telecoms and service providers have as our means of using the Internet service that they get to charge money for, is not just giving some clarity, it is good law.

Of course, the Markey-Pickering bill has no penalties if telecom and service provider companies violate the law proposed, which is somewhat curious, and once the law is passed--if it ever will be--it will be exceedingly difficult to get penalties imposed. Then again, putting penalties into the bill on the front end will get the telecoms and service providers lobbying Washington like crazy, and that will kill the bill before it gets onto the floor of the House of Representatives, where HR5353 will meet a fate similar to other bills proposed in the House and Senate concerning net neutrality.

The ideas behind net neutrality are as old as the public forums of Greece and Rome or the council fires of prehistoric times. A precedent was set in America for the neutrality of communications before the Civil War in America, when the law ensured that telegraph traffic would be transmitted without delay or any other kind of prejudice in a national telegraph network, regardless of who owned the wires. The common good, in that case, was designed to rein in the corporate greed. Net neutrality advocates correctly see the potential for the powerful communications companies to shape traffic away from parts of the Internet, which has happened on a number of occasions already, and they want laws to ensure absolute neutrality, as in the telegraph a century and a half ago. Not everyone takes a hard stance on net neutrality, because it is also logical that a premium service should be able to command a premium price. A lot of people want to meet somewhere in the middle, and the Markey-Pickering bill is closer to the middle than prior attempts at regulation have been. This arguing about the way traffic moves within the Internet is far from over, though.

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