shouting loudly

Art Brodsky of Public Knowledge has a great post discussing the two House bills that would mandate network neutrality–or at least discourage broadband discrimination.

In the Judiciary Committee, Representatives John Conyers (D-MI) and Zoe Lofgren (D-CA) introduced HR 5994, the “Internet Freedom and Nondiscrimination Act of 2008” (pdf). It authorizes the Department of Justice, under antitrust law, to require all broadband services to be offered on neutral, nondiscriminatory terms.

In the Commerce Committee, Reps Ed Markey (D-MA) and Chip Pickering (R-MS) are pushing HR 5353, the “Internet Freedom Preservation Act of 2008.” This is a far weaker act. It gives the FCC something of a hook on which to hang an argument for net neutrality regulations, declaring that it is US policy that the internet shall remain open and neutral. But it does so under Title I authority, which (to radically oversimplify) means the FCC’s hook is not very strong.

Instead of a strong regulatory regime, the bill mandates an FCC study and report to Congress. In debate, we referred to this strategy as a “studies counterplan.” Don’t do anything, just study the problem further.

In competitive debate and in Congress, “study the problem” is not the strongest rhetorical position, and it’s an even more tepid first move (in debate, a studies counterplan is a strategy for the team that’s assigned to defend the status quo). But even a weak regulatory hook (the first part of the bill) might be enough to discourage Comcast-like monkey business.

In the political world, the bill might also serve a noble purpose as a trial balloon. If its backers (including myself) can’t even get vague statutory authority and a studies counterplan passed, maybe we need to think about another strategy.

In any case, Art is right: it would be best to pass both bills and provide both FCC and DoJ with enforcement authority. It’s an area regulated by the FCC on a day-to-day basis, but it was the DoJ that broke up Ma Bell.