User:PuerExMachina/NetNeutralityLegislative

Context

Network neutrality did not catch Congress's eye on its own. Instead, it was considered as part of a broad suite of telecommunications issues. Both Representative Joe Barton (R – Texas) and Senator Ted Stevens (R – Alaska), chairs of the House Committee on Energy and Commerce and Senate Committee on Commerce, Science, and Transportation respectively, were intent on the 109th Congress passing a major reform of the Telecommunications Acts of 1934 and 1996. In March and April of 2005, Rep. Barton held four hearings in the Subcommittee on Telecommunications and the Internet entitled "How Internet Protocol-Enabled Services Are Changing the Face of Communications." These hearings mainly featured testimony from telecommunications and technology company representatives. Topics discussed ranged from the best regulatory approach for Voice over Internet Protocol to the desirability of video franchise reform. Stevens held a series of similar hearings, including one on February 7, 2006 specifically aimed at network neutrality.

This hearing laid out the divisions and arguments that would continue for the entirety of the network neutrality debate. In his opening statement, Sen. Stevens stressed the need for telecommunications firms to “generate the revenue needed to justify billions of dollars in investment to deploy fiber and upgrade existing broadband networks.” In contrast, co-chairman Senator Daniel K. Inouye (D - Hawaii) emphasized the threat of “unfair discrimination... breaking the Internet.” Panelists mainly consisted of academics and company representatives, with the content provider representatives strongly in favor of network neutrality, the telecommunications representatives strongly opposed, and the academics evenly split. Each side stressed that their position was the key to continued investment in broadband and growth in electronic commerce (Net Neutrality, 2006).

The House Proposals

After the hearings, Rep. Barton's staff began drafting a telecommunications reform bill that became known as the Communications Opportunity, Promotion, and Enhancement Act of 2006, or COPE. Section II of this bill addressed network neutrality, but only in a limited matter. The FCC was given “authority to adjudicate any complaint alleging a violation of [it's 2005] broadband policy statement”, but it was not allowed to “adopt or implement rules or regulations regarding enforcement of the broadband policy statement.” The bill also directed the FCC to complete a study on whether the principles of the broadband policy statement were being realized (HR.5252, 2006). Hearings on the drafts were held in the Subcommittee on Telecommunications and the Internet on November 9th, 2005 and March 20, 2006. Telecommunications companies decried the inclusion of network neutrality language, while other panelists criticized the draft language as too weak. Representatives of media reform and public interest, and local government groups such as the Alliance for Community Media, Consumers Union, and US Conference of Mayors joined those promoting stronger network neutrality enforcement (Staff discussion, 2006; To consider, 2006a).

As COPE moved through markup, Representative Ed Markey (D – MA) repeatedly tried to amend it with stronger network neutrality provisions. Rep. Markey's preferred language disallowed any network provider from interfering with their customers ability to access or offer any “lawful content, applications, or services.” Rep. Markey's proposal did allow network providers to prioritize certain types of data, but only if it was done “to all data of that type (regardless of the origin of such data) without imposing a surcharge;” it also included an exception for network security. Rep. Markey required the FCC to use cease-and-desist orders, arbitration, “or other means” to resolve complaints (HR.5273, 2006). In the subcommittee markup session on April 5, 2006, Rep. Markey's amendment failed in an 8-23 vote, and the bill was sent to the full committee by a 27-4 vote (Telecommunications, 2006). Three weeks later during the full committee markup, Rep. Markey offered his amendment again and was defeated 22-34. The committee voted to report the bill to the House 42-12 (To consider, 2006b). COPE was introduced May 1st and received the number HR.5252. A day later, Rep. Markey introduced a modified version of his amendment as HR.5273, the Network Neutrality Act of 2006. This bill was referred to the Energy and Commerce Committee, where it saw no further action. COPE had a major hurdle to overcome before it could be placed on the calendar. Representative James Sensenbrenner (R – WI), chair of the House Judiciary Committee, had been conducting his own hearings into telecommunications competition and network neutrality (Competition, 2006; Network Neutrality Competition, 2006). The Judiciary Committee had been granted review of the 1996 telecommunications act, and in early May Rep. Sensenbrenner sent House Speaker Dennis Hastert (R - IL) a letter demanding the same for COPE (Clark, 2006). This request was opposed by AT&T and Verizon, who viewed Rep. Sensenbrenner as unfavorably disposed towards them, and by Rep. Barton, who felt it threatened to prevent passage of COPE during the 109th Congress. When the House Parliamentarian denied his request on March 17, Rep. Sensenbrenner introduced HR.5417, the Internet Freedom and Nondiscrimination Act of 2006 (Hatch, 2006a).

Although the neutrality requirements it imposed were similar to Rep. Markey's, HR.5417 took a very different approach to enforcement. Rather than deal with the FCC, it amended the Clayton Antitrust Act of 1914 to make network neutrality enforceable through the courts. On March 25, the committee decided to report the bill to the House by a 20-13 vote, but many members expressed that they voted for it in spite of reservations in order to protect their turf (McCullagh & Broache, 2006a). HR.5417 was not actually reported to the House until June 29, and although it was placed on the calendar no further action was taken.

Once the Judiciary Committee was denied review, COPE was placed on the calendar. On June 7, 2006 in HR.850 the Rules Committee alloted an hour for debate. This debate began on June 8. Representative Lamar Smith (R – TX) offered an amendment to placate Rep. Sensenbrenner that added language stating that nothing “shall be construed to modify... the applicability of the antitrust laws;” this passed 353-68 (;Clerk, 2006a). Rep. Markey again presented the amendment HR.5273 had been based on; this was defeated 269-152 (Clerk, 2006b). Finally, COPE was passed by the House 321-101 (Clerk, 2006c).

The Senate Proposals

First to address network neutrality with legislation was Senator Ron Wyden (D – Oregon). Wyden has a reputation as a trendsetter in technology policy and previously led successful efforts for antispam legislation and a ban on Internet taxes. He introduced S.2360, the Internet Non-Discrimination Act of 2006, to the Senate on March 2nd. This bill proposed a comprehensive set of network neutrality obligations for network operators, centered around the concept that they could “not interfere with, block, degrade, alter, modify, impair, or change any bits, content, application or service” except to “block nefarious application[s] or service[s] that harms the Internet experience of subscribers.” If network operators violated these obligations, Wyden's bill specified a process by which their customers could file complaints with the FCC. The FCC was instructed to investigate these claims and if necessary issue cease-and-desist orders and fines. Sen. Wyden's endorsement of such a strong form of network neutrality made his bill unlikely to be adopted, but it also sent a clear signal that any telecommunications reform must address the issue. After being referred to the Committee on Commerce, Science, and Transportation, S.2360 remained off the agenda and was eventually superseded by another Democratic proposal. On April 3, 2006, Sen. Stevens introduced S.2686, the Communications, Consumer's Choice, and Broadband Deployment Act. The only mention of network neutrality in the bill simply commissioned an FCC study of the matter. The Committee on Commerce, Science, and Transportation began hearings on this bill on March 18. In a response the next day, Senator Olympia Snowe (R – Maine) and Senator Byron Dorgan (D - ND) introduced S.2917, the Internet Freedom Preservation Act. The language in in this bill largely duplicated Rep. Markey's HR.5273, and it suffered the same fate of no committee action.

Although officially he was a cosponsor, Sen. Inouye remained critical of S.2686, and it went through a number of drafts. On June 16 a new version, based on the recently passed HR.5252, was introduced that included an “Internet consumer Bill of Rights.” Although this section promised the ability “access and run any other application, software, or service of that subscriber's choosing,” it did not address tiers of service or added charges, and like HR.5252 it granted only adjudicatory, not new regulatory, authority. During markup on June 28th, Democrats and Sen. Snowe tried to amend S.2686 to include language from S.2917, but they failed in an 11-11 vote. The committee then voted 15-7 to report the bill to the Senate (McCullagh & Broache, 2006b).

Although it made it out of committee, the prospects for S.2686 appear bleak. Senator Wyden has promised to block further action on the bill unless it includes network neutrality protections (McCullagh & Broache, 2006b). Senator Stevens was unable to secure the 60 votes needed to limit floor debate before the midterm election because vulnerable senators including Rick Santorum (R – PA) did not want to energize their opposition by voting against a network neutrality amendment or lose donations from telecommunications companies by voting for one. Since Democrats will control the 110th Congress, they will likely stall any efforts to revive telecommunications reform and network neutrality with it until January 2007 (Hatch, 2006b).

References

• Communications, Consumer's Choice, and Broadband Deployment Act, S. 2686, 109th Cong., 2nd Sess. (2006).
• Communications Opportunity, Promotion, and Enhancement Act of 2006, HR. 5252, 109th Cong., 2nd Sess. (2006).
• Competition in the Telecom Industry Nine Years After the Telecommunications Act of 1996: Hearing before the Committee on the Judiciary, House, 109th Cong., (2006).
• Internet Freedom and Nondiscrimination Act of 2006, HR. 5417, 109th Cong., 2nd Sess. (2006).
• Internet Freedom Preservation Act, S. 2917, 109th Cong., 2nd Sess. (2006).
• Internet Non Discrimination Act of 2006, S. 2360, 109th Cong., 2nd Sess. (2006).
• Clark, D. (2006). House Judiciary Chairman Demands Review Of Telecom Bill. Technology Daily, Retrieved November 11, 2006, from http://www.njtelecomupdate.com/lenya/telco/live/tb-XPJI1146860374640.html.
• Hatch, D. (2006a). House Judiciary Panel Is Denied Jurisdiction Over Telecom Measure. Technology Daily, Retrieved November 11, 2006, from http://www.njtelecomupdate.com/lenya/telco/live/tb-SOXO1154546927002.html.
• Hatch, D. (2006b). Senators Locked In Tight Races Worried About 'Network Neutrality'. Technology Daily, Retrieved November 11, 2006, from http://www.njtelecomupdate.com/lenya/telco/live/tb-SOXO1154546927002.html.
• McCullagh, D & Broach A. (2006a). House panel votes for Net neutrality. CNET News, Retrieved November 11, 2006, from http://news.com.com/House+panel+votes+for+Net+neutrality/2100-1028_3-6077007.html
• McCullagh, D & Broach A. (2006b). Senate deals blow to Net neutrality. CNET News, Retrieved November 11, 2006, from http://m.news.com/Senate+deals+blow+to+Net+neutrality/2163-1028_3-6089197.html
• Net Neutrality: Hearing before the Committee on Commerce, Science, and Transportation, Senate, 109th Cong., (2006).
• Network Neutrality Act of 2006, HR. 5273, 109th Cong., 2nd Sess. (2006).
• Network Neutrality Competition, Innovation and Nondiscriminatory Access: Hearing before the Committee on the Judiciary, House, 109th Cong., (2006).
• Office of the Clerk. (2006a) FINAL VOTE RESULTS FOR ROLL CALL 238. Retrieved November 11, 2006, from http://clerk.house.gov/evs/2006/roll238.xml
• Office of the Clerk. (2006b) FINAL VOTE RESULTS FOR ROLL CALL 239. Retrieved November 11, 2006, from http://clerk.house.gov/evs/2006/roll239.xml
• Office of the Clerk. (2006c) FINAL VOTE RESULTS FOR ROLL CALL 241. Retrieved November 11, 2006, from http://clerk.house.gov/evs/2006/roll241.xml
• Staff discussion draft of legislation to create a statutory framework for Internet Protocol and Broadband Services: Hearing before the Committee on Energy and Commerce, House, 109th Cong., (2006).
• Telecommunications and the Internet Subcommittee Markup: Hearing before the Committee on Energy and Commerce, House, 109th Cong., (2006).
• To consider H.R. ____, a Committee Print on the Communications Opportunity, Promotion, and Enhancement Act of 2006: Hearing before the Committee on Energy and Commerce, House, 109th Cong., (2006a).
• To consider H.R. ____, a Committee Print on the Communications Opportunity, Promotion, and Enhancement Act of 2006: Hearing before the Committee on Energy and Commerce, House, 109th Cong., (2006b).