Rep. Markey Introduces Network Neutrality Bill
February 13, 2008. Rep. Ed Markey (D-MA) and Rep. Chip Pickering (R-MS) introduced HR 5353 [LOC | WW], the "Internet Freedom Preservation Act of 2008", a bill pertaining to network neutrality.
Introduction. Markey wrote in a statement that "The goal of this bipartisan legislation is to assure consumers, content providers, and high tech innovators that the historic, open architecture nature of the Internet will be preserved and fostered. H.R. 5353 is designed to assess and promote Internet freedom for consumers and content providers."
Markey (at right) continued that "Internet freedom generally embodies the notion that consumers and content providers should be free to send, receive, access and use the lawful applications, content, and services of their choice on broadband networks, possess the effective right to attach and use non-harmful devices to use in conjunction with their broadband services, and that content providers not be subjected to unreasonably discriminatory practices by broadband network providers."
The bill would do two things. First, it would amend the Communications Act of 1934 to state that "It is the policy of the United States" to maintain freedom to use broadband networks "without unreasonable interference from or discrimination by network operators", and to preserve and promote the open and interconnected nature of broadband networks. However, the bill does not set forth what the meaning or legal consequences of a policy statement is.
Second, the bill would require the FCC to conduct a study of broadband networks and services. While this is only a study, its findings might serve as the basis for future legislation. Also, it is notable that the bill would require the FCC go beyond its usual notice and comment procedure. The bill would require the five Commissioners to hold "summits" around the country.
Legislative History. Rep. Markey has been trying to get a network neutrality bill through the Congress for years. His previous proposals would have imposed mandates upon service providers. For example, he offered a network neutrality amendment during the Subcommittee markup of the telecommunications reform bill on April 5, 2006. It failed. He offered another amendment at the April 26 full Committee mark up. It failed. He offered an amendment during floor consideration. It failed by a vote of 152-269. See, Roll Call No. 239. Republicans voted 11-211. Democrats voted 140-58. The House passed a bill that summer, but without a network neutrality mandate. The Senate did not pass the bill, and it lapsed at the end of the 109th Congress.
On May 2, 2006, Rep. Markey introduced a stand alone bill, HR 5273 [LOC | PDF], the "Network Neutrality Act of 2006". The HCC took no action on the bill. See also, story titled "Rep. Markey Introduces Network Neutrality Bill" in TLJ Daily E-Mail Alert No. 1,363, May 3, 2006.
TLJ published an article at the beginning of the 110th Congress arguing, based upon an analysis of the membership of the House, the House Commerce Committee (HCC), and its Subcommittee on Telecommunications and the Internet, that "it is unlikely that a hard network neutrality mandate, such as those voted upon in the 109th Congress, and the recently introduced S 215, the ``Internet Freedom Preservation Act´´, could be approved by either the HCC or by the House, despite the change of party control and new members." See, story titled "Analysis of Support for a Network Neutrality Mandate in the House and Senate" in TLJ Daily E-Mail Alert No. 1,532, February 5, 2007.
Perhaps it is Rep. Markey's hope that by introducing a bill with a policy statement, rather than hard mandates for broadband service providers, his bill can win enough support for passage.
Bill Summary. Section 1 of the bill only provides its title.
Section 2 is a short and insignificant recitation of findings. That is, the Congress finds that the internet has "profound benefits" and is "vital to the economy", and that therefore, broadband markets should be studied.
Section 3 contains the policy statement. It begins: "Title I of the Communications Act of 1934 (47 U.S.C. 151 et seq.) is amended by adding at the end the following new section ..."
47 U.S.C. § 151 merely creates the FCC, and contains a very short and broad statement of the "purpose" in creating the FCC, namely, "to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communications".
Section 151 and other sections make up Title I of the Communications Act. For example, there are also sections containing definitions, the composition and qualifications requirements for the Commission, duties of Commissioners, FCC staff, and related matters.
Title I does not pertain to any industry sector in the manner that, for example, Title II pertains to telecommunications. Nevertheless, the FCC acts as though Title I is a regulatory category that covers, among other things, information services. It also asserts an authority, arising under Title I, which is titles "ancillary jurisdiction".
The FCC has declared that broadband internet access services provided via cable modem, DSL, fiber optic cable, broadband wireless, and other platforms are Title I information services. Hence, they are not subject to Title II telecommunications regulations. However, the FCC has applied some components of the Title II telecommunications regime, such as 911/E911 and CALEA, to certain services that it has classified at Title I services, sometimes but not always under an ancillary jurisdiction argument.
The policy statement of this bill builds upon the Title I regulatory regime. Perhaps it is Rep. Markey's intent that this policy statement is a Congressional equivalent of an FCC declaratory ruling regarding regulation of Title I broadband services. Perhaps it is Rep. Markey's intent to clarify that the FCC possesses ancillary jurisdiction to regulate Title I broadband services, and to specify the parameters of that regulatory regime.
Nevertheless, the bill does not expressly require the FCC to conduct a rulemaking proceeding.
Specifically, the bill states that
"It is the policy of the United States--
(1) to maintain the freedom to use for lawful purposes broadband telecommunications networks, including the Internet, without unreasonable interference from or discrimination by network operators, as has been the policy and history of the Internet and the basis of user expectations since its inception;
(2) to ensure that the Internet remains a vital force in the United States economy, thereby enabling the Nation to preserve its global leadership in online commerce and technological innovation;
(3) to preserve and promote the open and interconnected nature of broadband networks that enable consumers to reach, and service providers to offer, lawful content, applications, and services of their choosing, using their selection of devices, as long as such devices do not harm the network; and
(4) to safeguard the open marketplace of ideas on the Internet by adopting and enforcing baseline protections to guard against unreasonable discriminatory favoritism for, or degradation of, content by network operators based upon its source, ownership, or destination on the Internet."
The bill then directs that the FCC "shall" begin a report writing proceeding within 90 days "on broadband services and consumer rights".
The bill provides that in this proceeding, the FCC "shall assess ... whether broadband network providers adhere to the Commission’s Broadband Policy Statement of August, 2005".
The FCC adopted this Policy Statement [3 pages in PDF] on August 5, 2005. See, story titled "FCC Adopts a Policy Statement Regarding Network Neutrality" in TLJ Daily E-Mail Alert No. 1,190, August 8, 2005. The FCC released the text of the Policy Statement on September 23, 2005. See, story titled "FCC Releases Policy Statement Regarding Internet Regulation" in TLJ Daily E-Mail Alert No. 1,221, September 26, 2005.
The 2005 FCC policy statement provides that "consumers are entitled to access the lawful Internet content of their choice ... consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement ... consumers are entitled to connect their choice of legal devices that do not harm the network ... consumers are entitled to competition among network providers, application and service providers, and content providers."
While there are similarities between the bill's policy statement and the 2005 policy statement, there are also differences. The fourth item from the 2005 policy statement is entirely missing from Rep. Markey's bill. Also, Rep. Markey's bill would go further in regulating service providers' management of their networks, and impose a nondiscrimination requirement.
In conducting this study, the bill further specifies that the FCC shall consider "whether, consistent with the needs of law enforcement, such providers refrain from blocking, thwarting, or unreasonably interfering with the ability of consumers to -- (i) access, use, send, receive, or offer lawful content, applications, or services over broadband networks, including the Internet; (ii) use lawful applications and services of their choice; and (iii) attach or connect their choice of legal devices to use in conjunction with their broadband telecommunications or information services, provided such devices do not harm the network".
It also requires that the FCC consider "whether broadband network providers add charges for quality of service, or other similar additional fees or surcharges, to certain Internet applications and service providers, and whether such pricing conflicts with the policies" set forth in the bill.
It also requires that the FCC consider "whether broadband network providers offer to consumers parental control protection tools, services to combat unsolicited commercial electronic mail, and other similar consumer services ..."
It also requires that the FCC consider "practices by which network providers manage or prioritize network traffic, including prioritization for emergency communications, and whether and in what instances such practices" are consistent with the policies set forth in the bill.
It also requires that the FCC consider "with respect to content, applications, and services ... the historic economic benefits of an open platform" and "the relationship between competition in the broadband Internet access market and an open platform ..."
It also requires the FCC to examine the "need for enforceable rules".
Next, the bill requires the "Commission" to conduct "a minimum of 8 public broadband summits, in geographically diverse locations". The "Commission", within the meaning of 47 U.S.C. § 155, is the five members appointed by the President and confirmed by the Senate. That is, the Commission cannot delegate this function to FCC staff.
While the FCC and many other federal commissions and agencies hold workshops or summits in some of their proceedings, and commissioners and agency heads sometimes attend part or all of these events, this is discretionary, and not pursuant to statutory mandate.
This represents a departure from the FCC's Washington DC focused practices, that rely upon notice and comments, as well as non-transparent processes, including ex parte meetings and communications and closed FCBA meetings.
Reaction. Gigi Sohn, head of the Public Knowledge, stated in a release that this bill "properly captures the broad policy that would ensure that open, free and accessible Internet we have known for years will continue to be open to innovation, free from the control of telephone and cable companies and accessible to everyone. The studies and public meetings ... will be helpful tools in making certain the essential character of the Internet does not change."
In contrast, Steve Largent, head of the Cellular Telecommunications Industry Association (CTIA), stated in a release that this bill "is an attempt to cure a problem that simply does not exist. Overwhelming evidence collected by the Federal Communications Commission, the Federal Trade Commission, and independent research analysts proves that wireless broadband adoption is spreading like wildfire across this country. This wouldn't be happening if consumers weren't getting the service, value, and access to content they desire."
He argued that "government intervention is not necessary."
Walter McCormick, head of the U.S. Telecom Association, stated in a release that "This legislation is antithetical to the Congressional innovation agenda goals of extending broadband's reach, and speeding delivery of advanced applications that will improve the environment, personal security, education, and health care -- particularly in rural areas."
McCormick continued that this bill "would blindly legislate a new national broadband policy, without regard to its implications, and then require the FCC to spend the next year determining whether the Internet is being constructed, managed, and operated in conformance with this new government mandate. We urge Congress to remain focused on its innovation agenda goal of encouraging broadband deployment and refrain from federal micro-management of the most dynamic and technologically sensitive sector of our nation’s economy."
Rep. Markey attempted to minimize perceptions of the legal significance of a statutory statement of policy. He wrote in a release that "There are some who may wish to assert that this bill regulates the Internet. It does no such thing. The bill contains no requirements for regulations on the Internet whatsoever."
In contrast, one of the bill's leading backers, Markham Erickson of the Open Internet Coalition, stated in a release that this bill "will make Net Neutrality the law of the land, and will require the FCC to protect Internet freedom from the predatory efforts of the telco and cable gatekeepers."
Randy May, head of the Free State Foundation, and a longtime opponent of network neutrality mandates, wrote in an essay [4 pages in PDF] on the bill that "This policy declaration would reverse the Supreme Court's Brand X decision affirming the FCC's 2002 determination not to regulate broadband operators as common carriers."
May added that "By embracing the no-discrimination mandate, a core common carriage requirement, the Markey bill would declare it now to be the policy of the U.S. that broadband operators be regulated like public utility common carriers."
On June 27, 2005, the Supreme Court issued its opinion [59 pages in PDF] in NCTA v. Brand X, upholding the FCC's determination that cable broadband internet access service is an information service, and reversing the judgment of the U.S. Court of Appeals (9thCir).
The Supreme Court overturned the 2003 opinion [39 pages in PDF] of the 9th Circuit, which vacated the FCC's 2002 Declaratory Ruling [75 pages in PDF] which concluded that cable modem service is an information service, and that there is no separate offering as a telecommunications service.
Statement of Policy? This bill would provide that "It is the policy of the United States ...". It does not explain what this means.
Many bills contain recitations of findings. Sometimes these findings state what policy should be. These findings are then relegated to footnotes in codifications of law, and are often ignored by agencies and courts. But, this bill contains both a findings section, and a policy statement.
The bill does not state whether or not the FCC is either bound to adhere to, enforce, or implement a policy statement. The bill does not state what are the consequences if the FCC does not follow, enforce or implement any part of the statement of policy.
For example, if the FCC issues a final order, such as in granting or denying a petition for a declaratory ruling, and that order is challenged in court, would it be sufficient grounds for granting a petition for review that the order is inconsistent with the statutory policy?
If so, how would the statement of policy fit into Chevron analysis by the courts. Would it fit within Chevron's concept of "an agency's construction of the statute which it administers"? See, Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).
Also, the bill uses the language "policy of the United States", rather than "policy of the FCC". Thus, the bill is open to the interpretation that other federal agencies, when considering broadband related issues, are bound by the policy statement. The Federal Trade Commission (FTC) can be expected to address many broadband issues in the future. In addition, various sectoral regulatory agencies may have cause to impose regulatory restraints that affect broadband internet access, which access may be for lawful purposes. Could the policy statement of this bill be invoked to bar such efforts?