Political Nerves Derail Net Neutrality Bill

Congress is unlikely to pass legislation regulating the activities of broadband Internet service providers this year. And it’s not clear when — or if — such rules will be enacted.

Democratic California Congressman Henry Waxman, chairman of the House Committee on Energy and Commerce, pulled a bill that was supposed to enforce the concept of Net neutrality from consideration Wednesday, citing a lack of Republican support.

Joe Barton, a Texas Republican and ranking member of the Energy and Commerce Committee, issued a statement saying there wasn’t enough time to examine the bill’s potential impact on the broadband industry before the end of the current Congressional session. It appeared that other influential members of Congress, including some Democrats, also preferred not to act on the legislation this year.

Political Considerations

“Congress, in general, is sensitive to the notion of placing new regulations on business in a down economy,” Mike Jude, a senior analyst with Frost & Sullivan, told the E-Commerce Times. “If the Democrats had moved to pass this bill, they risked having it become a boat anchor around their necks in the upcoming elections, with Republicans using it to paint them as anti-business.”

Network traffic management is the central issue in the Net Neutrality debate. Those favoring immediate regulatory action argue that Internet service providers are able to block consumers from accessing certain content on their networks. The ISPs contend the only times they have blocked any traffic were when individual users clogged their networks by downloading massive files, and that such steps constitute sound network management.

Both Waxman and Barton said they would be open to revisiting the bill after the November midterm elections, but it will be difficult to move the measure through a lame duck Congress. Given those circumstances, some public interest groups — arguing that Net neutrality is essential to ensuring that consumers have free access to the broadband Internet — are calling for the FCC to step up and impose rules governing the industry.

Will the FCC Act?

The earliest the FCC could act would be at its next scheduled meeting at the end of November. FCC spokesperson Jen Howard told the E-Commerce Times the agency is not commenting on the bill.

It’s questionable whether the commission would issue any regulations, however, since its last attempt at policing the activities of broadband ISPs prompted a lawsuit and eventually spawned the bill that Waxman withdrew on Wednesday.

The lawsuit stemmed from an FCC order to stop Comcast from blocking certain transmissions from BitTorrent, a popular file-sharing site. Comcast argued that blocking those transmissions constituted good network management because they were hogging network space, slowing service for other customers.

The FCC said Comcast’s action amounted to discrimination against a certain type of content, and that such conduct could not be allowed if the country hoped to have a free and open Internet where users could expect to have access to any type of legal content.

Network Management a Small Issue

Following that ruling, the FCC, with support from public interest groups, considered classifying broadband Internet as a “common carrier service,” placing it in the same category as telephone service, which the FCC has clear authority to regulate. Before taking that action, the commission held discussions with several of the largest broadband providers and decided to let Congress try to pass a law regulating the industry.

Several provisions in Waxman’s bill, including one that would have prevented broadband from being classified as a common carrier service, mirrored proposals put forth by the broadband providers in their discussions with the FCC.

“Congress really should act on this, but since it won’t, the FCC has to,” Art Brodsky, communications director for the consumer advocacy group Public Knowledge, told the E-Commerce Times.

Providers Need Clarity

“Network traffic management is the smaller issue here,” Brodsky added. “The real issue is how can we move to a real broadband economy? If we don’t settle this small issue, we will never get issues like universal access and protecting public safety, which are more important.”

Frost & Sullivan’s Jude also called for quick FCC action, but for a slightly different reason. “The primary downside to the current situation is uncertainty,” Jude said. “Almost any type of regulatory framework would be a good thing, because the broadband providers would know what they could or could not do. They would then be more inclined to invest in new methods of delivering broadband service.

“Right now, we don’t know the optimum method of delivering broadband service,” Jude concluded. “If we had a clear regulatory framework, there’s a greater chance the carriers would explore new alternatives and finally answer that question.”