Dueling approaches to net neutrality clash in US House

Should the FCC be the final authority deciding just what constitutes "net neutrality," and how ISPs should be punished if they fail to provide it? Or would you rather the matter be resolved in the federal court system?

What congresspeople are mostly in agreement with is the notion that there should be a level playing field with regard to government's treatment of Internet Service Providers. What they've been arguing about over the last several years is where that field should be situated, who gets to pay for it, and who gets to do the nasty job of leveling it. That argument entered a new phase yesterday on Capitol Hill with the re-introduction of net neutrality legislation that failed in the last Congress.

That new introduction will pit two powerful house committees, Energy and Judiciary, in contention with one another, as the Judiciary Committee chairman, John Conyers (D - Mich.) squares off with the head of Energy's principal Internet subcommittee, Ed Markey (D - Mass.). The debate is over the meaning of net neutrality itself, and who gets to regulate it. In a bill introduced last February, Markey proposed that the Federal Communications Commission be enlisted to come up with a way to set itself up as a net neutrality authority.

The Conyers bill, on the other hand, would simply declare discriminatory access illegal under antitrust law, specifically by amending the Clayton Act -- the very heart of the matter.

Though a new draft of the Conyers bill has not yet been made available through the Library of Congress, it's likely to have the same name and much of the same text as the former would-be Internet Freedom and Nondiscrimination Act. One of its key provisions was to render illegal any service provider giving any content or other service provider privileged access that isn't available to others.

"It shall be unlawful for any broadband network provider...to fail to provide its broadband network services on reasonable and nondiscriminatory terms and conditions such that any person can offer or provide content, applications, or services to or over the network in a manner that is at least equal to the manner in which the provider or its affiliates offer content, applications, and services, free of any surcharge on the basis of the content, application, or service," read the 2006 version of the bill.

Antitrust law is regulated by the US courts, not by the FCC. The difference here is, should net neutrality challenges be considered business disputes? Or trials?

In a statement yesterday, Rep. Conyers said, "Americans have come to expect the Internet to be open to everyone. The Internet was designed without centralized control, without gatekeepers for content and services. If we allow companies with monopoly or duopoly power to control how the Internet operates, network providers could have the power to choose what content is available. Many of the innovations and products we use every day, such as search engines, music download services and online video, likely would never have developed in such a restricted environment."

Essentially, Rep. Markey would agree with that argument; what he disagrees with is the notion that "big" service providers on the Internet are necessarily more prone to "evil," or that they're deserving of greater regulation than entrepreneurs. In a speech earlier this week, Markey suggested that the "big boys" couldn't have been big anyway had they not been given the opportunity.

As Markey said, "Some people might ask, 'Well, at $500 a share, why can't Google pay for special treatment?' The reality is that at $500 a share Google can afford to pay. Yet the reality is that this is precisely the wrong question to ask. Instead, the question is whether Larry Page and Sergei Brin -- the two young founders of Google -- could have paid when they were mere grad students launching their idea. Same question for Jerry Yang of Yahoo back in the late 1990s, or Jeff Bezos of Amazon.com, or Marc Andreessen, who invented the Mosaic browser -- which later became Netscape -- when he was at the University of Illinois at Urbana-Champaign in the early '90s. That's the question to ask. And the answer, of course, is 'no' -- those inventors and entrepreneurs could not have created the companies that have become part of Internet lore if they had had to pay cable or phone companies large sums of money up front just to get access to consumers."

Another portion of the Conyers bill, as it was introduced two years ago, would prohibit an ISP's ability to throttle or disable users' service on account of service types. Specifically, it would become illegal under antitrust law, "to block, to impair, to discriminate against, or to interfere with the ability of any person to use a broadband network service to access, to use, to send, to receive, or to offer lawful content, applications or services over the Internet."

The common definition of "net neutrality" in general discussion implies that ISPs would not be able to divide their service into tiers, such that multiple bandwidths, and the ability to allow or disallow access to certain services, would not be possible -- in other words, that what the advocacy group Public Knowledge calls "the guise of innovative business models" would not be feasible.

But in a loophole that may have doomed the original form of the Conyers bill two years ago, it actually would enable service providers to implement quality of service restrictions if they did so for everyone, and if those tiers are horizontal enough to include all traffic of a designated type.

As the 2006 bill read, "If a broadband network provider prioritizes or offers enhanced quality of service to data of a particular type, it must prioritize or offer enhanced quality of service to all data of that type (regardless of the origin or ownership of such data) without imposing a surcharge or other consideration for such prioritization or enhanced quality of service."

That loophole sent up a red flag for George Ou, the former ZDNet blogger and now a private consultant. In his personal blog this morning, Ou wrote, "The reality is that some people only surf the Internet, download movies, send some emails and they don't need enhanced QoS because QoS is all about providing low latency and consistency and not about increasing data throughput. Other people who use VoIP services like Skype, Vonage, Lingo (I am a customer), online First Person Shooter gaming, or video conferencing don't care much for increased data throughput but they want lower latency and data consistency. If QoS is given to everyone because of government mandate, why should the first group of people who don't care about low latency subsidize the second group of people? If QoS is not offered to anyone because of government mandate, why should the second group of people be denied the ability to buy enhanced QoS?"