Narrow Net Neutrality Bill In Works

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According to sources familiar with the process, the House Energy & Commerce Committee is hard at work on compromise language for a targeted network neutrality bill that could be introduced this week or next, though any action before the midterm elections is highly unlikely.

The bill would clarify that the Federal Communications Commission can enforce its four network openness guidelines (http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-151A1.pdf), but it would have a two-year sunset and steer clear of the contentious issues of managed services, nondiscrimination, and likely wireless broadband.

The bill would essentially give the FCC two years to adopt rules under clarified, but limited, Internet access regulatory authority, though it would not mandate any action by the agency one way or the other.

Those guidelines indicate that consumers are entitled to: 1) "access the lawful Internet content of their choice"; 2) "run applications and use services of their choice, subject to the needs of law enforcement"; 3) "connect their choice of legal devices that do not harm the network"; and 4) "competition among network providers, application and service providers, and content providers."

The bill would also likely include a transparency principle, since there has been little pushback from industry on giving consumers more information about network management practices.

FCC chairman Julius Genachowski has signaled that he would welcome a legislative compromise solution in which Congress would explicitly weigh in with what regulatory power the FCC has, including by hosting stakeholder talks about language they could support.

In a rulemaking launched last fall, the FCC proposed codifying the four openness guidelines and adding the transparency principle as well as a nondiscrimination principle. But 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 reclassify broadband access as a Title II service and a applying a handful of relevant common carrier regs.

The bill is seen by its backers as a way to resolve the uncertainty created by that decision, but without extending the FCC's authority beyond the principle of disclosing more information to customers.

Stakeholders including cable operators, phone companies and computer companies, 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, and earlier negotiations at the commission, have produced "narrowed disagreement" on codifying the four principles, as well as adding the transparency and nondiscrimination principles, but that the issue of managed services and applying openness principles to wireless broadband continue to be the sticking points.
But a lobbyist favoring tougher network neutrality protection who asked not to be identified said that network operators had not narrowed their disagreement on a nondiscrimination principle and that it was nowhere to be seen in the compromise bill being worked on. "A law that doesn't say anything about nondiscrimination," he said, "is like saying we'll have a new criminal code, but it won't say anything about stealing." Network operators would be happy to have a bill, so long as its is toothless, he says.

It is unclear whether simply codifying the four principles would be sufficient powers for some top Democrats, and there would clearly be no cheering from network neutrality advocates. Ed Markey (D-Mass.), former chair of the Communications Subcommittee, for example, said that if a legislative fix was not introduced this month, the FCC should proceed with Title II, but also suggested that not dealing with the managed services issue could create "discriminatory fast lanes" on the Internet.

"This is a bona fide bipartisan effort," said the lobbyist, "but the open Internet community is being told: 'Take this, this is the best shot you'll ever have. You don't take it when it is a losing proposition. You fight.' "

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