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Next Year's Net Neutrality Landscape

November 18, 2008 - by Donny Shaw

Ars Technica reports that there will be some jostling of House committees next year that could benefit net neutrality advocates wanting to pass strong legislation:

>When the new Congress reconvenes in January, every geek’s favorite subcommittee—the House Judiciary Committee’s Subcommittee on Courts, the Internet, and Intellectual Property—will be in the market for a new name. Judiciary Committee Chair John Conyers (D-MI) plans to strip the SCIIP of its authority over IP issues, which will henceforth be handled at the full committee level, and instead give it jurisdiction over antitrust questions.
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>Moving antitrust issues to the subcommittee aligns the House Judiciary structure more closely with that in the Senate, where there’s already a Subcommittee on Antitrust, Competition Policy and Consumer Rights. The scope of that authority should include net neutrality issues, creating a potential counterweight to Massachusetts Rep. Ed Markey’s Subcommittee on Telecommunications and the Internet.
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>Markey has been a neutrality proponent, but his subcommittee’s approach has thus far gone through the Federal Communications Commission, over which it has jurisdiction. The Internet Freedom Preservation Act, introduced in February, consisted of a general set of policy goals and a proposal to convene a series of “broadband summits” and solicit public comments. Neutrality legislation coming out of a Judiciary subcommittee might be more likely to bare the sharper teeth of the Justice Department’s antitrust litigators.

Conyers introduced net neutrality legislation earlier this session that addresses the issue from the antitrust standpoint. His bill, the Internet Freedom and Nondiscrimination Act of 2008, would amend the Clayton Antitrust Act of 1914, which prohibits charging different buyers different prices for the same thing, so that it specifically address discrimination by broadband network providers. It spells out what would be illegal, including discrimination on the terms and conditions of service, surcharges based on content or application, blocking access to legal content, and failing to disclose in plain language all terms and conditions of their service, among other things. Creating a Judiciary subcommittee to focus on antirust issues should give a boost to Conyers’ approach to net neutrality.

Some neutrality supporters, however, have concerns with the approach. Law Professor Susan Crawford, who was recently chosen to lead Obama’s FCC transition team, expressed her doubts in a blog post last May:

>At this point, I’m not confident this approach makes sense. The current proposed bill, H.R. 5994, would allow for discrimination (as long as the discrimination was equal) by network operators, and is subject to substantial exceptions (including permitting measures by network operators that are designed to “prevent a violation of a Federal or State law” or to “manage the functioning of its network”).
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>More importantly, case-by-case antitrust-like remedies don’t fit the network problems that the neutrality movement has identified. By the time we’ve managed to fight through the facts of a particular issue, the real battle – the battle for attention and user expectations – will have been lost.

Free Press has more thoughts on the net neutrality issue going forward in the new government here.

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