According to sources familiar with the
process, the House Energy & Commerce Committee is hard at work on
compromise language for a targeted network neutrality bill that could be
introduced this week or next, though any action
before the midterm elections is highly unlikely.
The bill would clarify that the FCC can enforce its four network openness guidelines (http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-151A1.pdf),
but it would have a two-year sunset and steer clear of the contentious
issues of managed services, nondiscrimination, and likely wireless
broadband.
The bill would essentially be giving
the FCC two years to adopt rules under clarified, but limited, Internet
access regulatory authority, though it would not mandate any action by
the FCC one way or the other.
Those guidelines are that consumers
are entitled to: 1) "access the lawful Internet content of their
choice"; 2) "run applications and use services of their choice, subject
to the needs of law enforcement"; 3) "connect their
choice of legal devices that do not harm the network"; and 4)
"competition among network providers, application and service providers,
and content providers."
The bill would also likely include a transparency principle, since there has been little pushback from industry on giving consumers more information about network management practices.
FCC Chairman Julius Genachowski has
signaled that he would welcome a legislative compromise solution in which
Congress would explicitly weigh in with what regulatory power the FCC
has, including by hosting stakeholder talks about
language they could support.
In a rulemaking launched last fall, the FCC proposed codifying the four openness guidelines and adding the
transparency principle as well as a
nondiscrimination principle. But after a federal court threw out the Commission's sanction against Comcast for blocking BitTorrent
peer-to-peer file uploads, the Commission separately proposed
clarifying its ability to enforce those guidelines by reclassify
broadband access as a Title II service and a applying a handful of
relevant common carrier regs.
The bill is seen by its backers as a
way to resolve the uncertainty created by that decision, but without
extending the FCC's authority beyond the principle of disclosing more
information to customers.
Stakeholders including cable operators, phone companies and computer companies, have been meeting privately
to try to come up with narrow
legislative language that would head off the FCC's proposal to
reclassify. According to the FCC, those, and earlier negotiations at the
FCC, have produced "narrowed disagreement" on codifying the
four principles, as well as adding the transparency and
nondiscrimination principles, but that the issue of managed services and
applying openness principles to wireless broadband continue to be the
sticking points.
But a lobbyist favoring tougher
network neutrality protection who asked not to be identified said that
network operators had not narrowed their disagreement on a
nondiscrimination principle and that it was nowhere to be seen
in the compromise bill being worked on. "A law that doesn't say
anything about nondiscrimination," he said, "is like saying we'll have a
new criminal code, but it won't say anything about stealing." Network
operators would be happy to have a bill, so long
as its is toothless, he says.
It is unclear whether simply codifying
the four principles would be sufficient powers for some top Democrats,
and there would clearly be no cheering from network neutrality
advocates. Ed Markey (D-Mass.), former chair of the
Communications Subcommittee, for example, said that if a legislative
fix was not introduced this month, the FCC should proceed with Title II,
but also suggested that not dealing with the managed services issue
could create "discriminatory fast lanes" on the
Internet.
"This is a bona fide bipartisan
effort," said the lobbyist, "but the open Internet community is being
told: 'Take this, this is the best shot you'll ever have. You don't take
it when it is a losing proposition. You fight.'"
