Senate Hearing on Net Neutrality Raises New Piracy Concerns

Published July 1, 2008

The role of piracy in the net neutrality debate roiled a U.S. House of Representatives subcommittee hearing on May 6.

Lawmakers of the Subcommittee on Telecommunications and the Internet entertained arguments regarding Chairman Ed Markey’s bill (HR 5353) that would establish net neutrality as the Federal Communications Commission’s (FCC) governing principle, commence an official proceeding against broadband providers, and require “broadband summits” around the country.

RIAA Voices Piracy Worry

Written testimony from the Recording Industry Association of America (RIAA) cautioned against net neutrality legislation’s possible abetting of online piracy, introducing a new angle into an already-contentious matter. The RIAA is nonetheless broadly supportive of the bill.

“This whole idea that this legislation helps piracy is 100 percent wrong. It’s a red herring,” said Markey (D-MA).

The hearing was held in the shadow of recent controversy over Comcast’s methods of throttling traffic from BitTorrent, a file-sharing service. Testimony to the Senate Commerce Committee by FCC Chairman Kevin Martin called the method a “blunt means of reducing peer-to-peer traffic by blocking certain traffic completely.”

Members of the House subcommittee mostly lined up along party lines regarding Markey’s bill, with Democrats in favor and Republicans opposed. Reps. Charles Pickering (R-MS) and Gene Green (D-TX) were exceptions.

Innovation, Progress Imperiled

Although the bill is significantly watered down from a similar one passed by the House but killed in the Senate in the 109th Congress, opponents predicted it, too, would spur litigation and chill investment if it becomes law.

Rep. John Shimkus (R-IL) and a witness before the committee argued HR 5353 would stifle private-sector efforts to increase broadband penetration to rural areas. Several bills introduced in the 110th Congress would subsidize broadband infrastructure in rural areas, and broadband access has become an important issue for some interest groups.

Ambiguity Worrisome

Broadband providers and net neutrality opponents expressed concern about ambiguity regarding what constitutes “reasonable” network management under the bill.

“Nobody defines what ‘reasonable’ is. And what that’s ultimately going to mean is that some bureaucrat is going to have to define, at the very detailed level of the technology, what kinds of network management are acceptable,” said Daniel Ballon, Ph.D. of the Pacific Research Institute in San Francisco, California. “Everybody is immediately going to start lobbying the FCC.”

“The very fact that we’ve had this debate about whether or not our ability to manage peer-to-peer traffic is being called into question tells me everything I need to know,” said Kyle McSlarrow of the National Cable and Telecommunications Association.

FCC Authority Questioned

Well-worn debate themes resurfaced at the hearing, including whether network management techniques of broadband providers have been “content agnostic” and whether FCC has enforcement authority to implement its current broadband principles.

According to a Congressional Research Service report on net neutrality, “in 2005 two major actions … led to the classification of broadband Internet access services as Title I information services, thereby subjecting them to a less-rigorous regulatory framework than those services classified as telecommunications services.” However, “the FCC continues to have regulatory [authority] over information services” through other parts of the law.

Broadband providers have challenged FCC’s authority to regulate in the past. Martin has cited the Supreme Court decision in National Cable & Telecommunications Association v. Brand X Internet Services as vindicating its authority to regulate. HR 5353 would broaden the principles under which regulations are written.

Content Discrimination Alleged

Michelle Combs of the Christian Coalition offered strenuous testimony at the subcommittee hearing, accusing broadband providers of discriminating against some kinds of content.

“In October 2007 the news organization Associated Press reported that Comcast was blocking consumers’ ability to download the King James Bible using a popular file-sharing technology,” said Combs.

Ballon dismissed such claims. “It was a mistake,” he said. “What possible reason would a private company have to alienate a section of the customer base by censoring political speech?”

Ballon further noted “free speech” claims such as those furthered by the American Civil Liberties Union are tenuous because the First Amendment is intended to protect Americans from government, not from private entities such as broadband providers.

Dispute over Terms

Witnesses in favor of net neutrality mostly agreed to a definition offered by Ben Scott of Free Press, an institution supporting government-mandated net neutrality: prohibiting discrimination of content or an application “irrespective of the time of day, [and] irrespective of whether that user is a heavy user or light user.”

However, a recently updated Congressional Research Service report concludes “there is no single accepted definition of ‘net neutrality.'”

Law professor Christopher Yoo offered a spirited free-market defense against net neutrality regulation. He was interrupted towards the end of his testimony by a clearly irritated Markey.

J. Strong ([email protected]) writes from Washington, DC.