U.S. Senate Committee Debates Proposed Internet Regulations

Published June 1, 2008

The U.S. Senate Committee on Commerce, Science, and Transportation has held a full hearing on “The Future of the Internet,” in consideration of proposed legislation to regulate network management activities by cable providers.

The discussion featured testimony from FCC Chairman Kevin Martin, actress Justine Bateman, Stanford Law School Professor Lawrence Lessig, Patric Verrone of the Writers Guild of America, Kyle McSlarrow of the National Cable and Telecommunication Association, Dr. Robert Hahn of the American Enterprise Institute, and Michele Combs from the Christian Coalition of America.

Martin stated at the April 22 hearing, “I don’t believe that any additional regulations are needed at this time” because of the U.S. Supreme Court’s decision in the Brand X case. That 2005 decision gave FCC “ancillary authority to impose regulations as necessary to protect broadband Internet access,” Martin said.

Martin noted, “on several occasions, the entire commission has reiterated that it has the authority and will enforce these current principles.”

Seeking Additional Regulations

Combs started her testimony by citing the powerful organizing tools content producers make available. She then remarked, “In the last six months, we have seen network operators block political speech, block content, and block the most popular applications on the Internet.”

Her testimony cited examples such as a webcast Pearl Jam concert blocked by AT&T in August 2007 and the October 2007 decision by Comcast to block file-sharing of the King James Bible.

Verrone brought an artistic perspective to the hearing, placing the issue of net neutrality in the context of the recently resolved writers’ strike.

“The Internet proved to be a powerful tool for communication,” Verrone testified. “E-mails, blogs, websites, podcasts, and video clips were passed along on the Net, giving our members updates and informing the world about our cause.”

Verrone concluded his testimony by saying, “We need to establish clear net neutrality rules to ensure that the Internet remains a level playing field for all.”

No New Regs Needed

Several members of the expert panel suggested alternative solutions to bills currently proposed in Congress.

Dr. Robert Hahn of the American Enterprise Institute offered two recommendations blending elements of regulatory oversight and market freedom.

Hahn’s first recommendation was, “firms should be allowed to experiment with different pricing schemes for providing Internet access,” which would potentially give service providers “pricing flexibility” and customers “lower subscription

prices.” Hahn’s other recommendation was that “Congress and federal regulators … promote policies that increase the opportunities for competition and foster Internet innovation,” including diversifying the available broadband spectrum.

McSlarrow implored committee members to avoid regulating broadband networks. He spent several minutes outlining the major investments made by cable companies in broadband creation that “have stimulated tremendous investment in the provision of Internet access by competing providers, first by telephone companies and now wireless and satellite companies.”

McSlarrow noted, “Cable modem service has never been subject to regulation” and said, “There has been no evidence of any practices that would … warrant government intervention generally.” His final comments cited the flourishing market for broadband services without government intervention, and the potential harm of the pending legislation.

Academics Divided

The academic debate over cyberlaw and network neutrality reflects similar divides.

Assistant Professor Derek Baumbauer of Wayne State University Law School said, “The real fight is over the definition of ‘network neutrality’,” with both sides of the debate likely to reach an “uneasy, de facto compromise.”

Baumbauer said, “telecom providers will take some steps to optimize network transport for content owners who are willing to pay for that privilege, but those efforts will be monitored and constrained by regulators and watchdogs.”

University of Colorado Professor Phil Weiser cites the importance of combining self-regulation and consumer education.

In testimony before the Federal Trade Commission in February 13, 2007, he proposed that “providers not be able to use the term ‘broadband’ without offering a sufficient level of best efforts connectivity and that tax incentives for broadband investment be linked to the provision of such a level.”

Weiser says consumer education akin to restaurant grading will allow broadband users to “make informed decisions about their broadband connections and available applications.”

Legislation Offered

The latest net neutrality legislation offered in Congress is HR 5353, the Internet Freedom Preservation Act of 2008. The sponsor of the bill, Rep. Edward Markey (D-MA), wants Congress to amend the Communications Act of 1934 to address the “freedom to use broadband telecommunications, including the Internet, without unreasonable interference from or discrimination by network operators.”

The bill has remained in the House Subcommittee on Telecommunications and the Internet since February 12, 2008.

Nicholas Katers ([email protected]) writes from Franklin, Wisconsin.