A Five-Sixths Solution


Washington — Top
House members were trying
to hammer out a consensus
bill last week — with mixed
results, according to people
close to the situation.

“[W]e are working hard
on legislation to protect the
open Internet and are actively
working to develop a bipartisan
consensus,” House
communications subcommittee
spokesperson Karen
Lightfoot said.

One person on the Internet-
service provider side of
the discussion was pessimistic,
describing the Hill effort
as being “on life support.”

With only a handful of legislative
weeks left before lawmakers
leave to campaign, the talks
centered on a bill to codify the Federal
Communications Commission’s
existing Internet guidelines, plus a measure
requiring network operators to inform
customers about how they are
managing their networks.


That outcome likely would be fine
with network providers. The FCC
said two weeks ago there was
“narrowed disagreement” among
stakeholders on those issues.

The FCC also proposed adding
a nondiscrimination principle to
the mix. But the bill being developed
last week would have a twoyear
time limit — and it would
steer clear of the contentious issues
of managed services and
nondiscrimination. It would also
likely exclude wireless broadband.

Without the nondiscrimination
requirement, the bill would
represent five-sixths of the FCC’s
own original network-neutrality
proposal, launched a year ago last
week. The remaining sixth is the
key for open-access groups such
as Free Press.

FCC chairman Julius Genachowski
has said he would favor a
legislative compromise in which
Congress would explicitly weigh
in with whatever regulatory power
the FCC has, including by hosting
stakeholder talks about language
the parties involved could support.

“[T]he chairman of the FCC
would like nothing more than
to have Congress come and rescue
him,” the open-access lobbyist

In a rulemaking launched last
fall, the FCC proposed codifying
the four openness guidelines and
adding the transparency principle
and a nondiscrimination principle.

After a federal court threw out
the commission’s sanction against
Comcast for blocking BitTorrent
peer-to-peer file uploads, the commission
separately proposed clarifying
its ability to enforce those
guidelines by reclassifying broadband
access as a Title II service
and applying a handful of relevant
common-carrier regulations.

The bill effort is seen as a way
to resolve the uncertainty created
by that decision without extending
the FCC’s authority, aside
from adding the noncontroversial
principle of disclosing more information
to customers.

Stakeholders — such as cable
operators, phone companies and
technology providers, including
Dell and Cisco Systems — have
been meeting privately to try to
come up with narrow legislative
language that would
head off the FCC’s proposal
to reclassify.

According to the FCC,
those talks and earlier negotiations
at the agency have
produced “narrowed disagreement”
on codifying
the four principles, as well
as adding the transparency
and nondiscrimination

Managed services and
applying openness principles
to wireless broadband
continue to be the sticking

It is unclear if simply codifying
the four principles
would be sufficient FCC
power for some top Democrats,
and there would
clearly be no cheering from
net neutrality advocates. For
instance, Rep. Ed Markey (DMass.),
former chair of the House
Communications Subcommittee,
said if a legislative fix was not
introduced this month, the FCC
should proceed with Title II. But
he also suggested that not dealing
with the managed-services issue
could create “discriminatory fast
lanes” on the Internet.


Free Press was in a fighting mood
last week, publicly calling Genachowski
out for “dithering,” rather
than pushing ahead with his proposal
to reclassify. The politics
surrounding that so-called third
way proposal became tougher after
a majority of House Democrats
and Republicans signaled they
did not support the Title II option.

“I remain firmly committed to
preserving the free and open Internet,”
Genachowski said in an
e-mail to Multichannel News.

In August 2005, the FCC adopted four guidelines, billed
as an effort to “encourage broadband deployment and
preserve and promote the open and interconnected
nature of the public Internet”:
1. Consumers are entitled to access the lawful Internet content of their choice.

2. Consumers are entitled to run applications and use services of their
choice, subject to the needs of law enforcement.

3. Consumers are entitled to connect their choice of legal devices that do
not harm the network.

4. Consumers are entitled to competition among network providers,
application and service providers and content providers.

SOURCE: Federal Communications Commission