Markey’s New Internet Neutrality Bill

Written by David Sohn

Rep. Ed Markey, (D-MA), Chairman of the House Telecommunications Subcommittee, introduced an Internet neutrality bill on Feb. 13th that would establish pro-neutrality principles as expressions of U.S. policy. It also calls on the FCC to do a detailed assessment of how current broadband providers’ practices are consistent or inconsistent with those principles. Unlike some previous bills, Markey’s bill would not establish a binding set of rules or prohibitions for broadband providers. Enacting this bill would be a good step forward in the neutrality debate. First, the bill makes a strong statement that U.S. policy should favor the continued maintenance of a free and open Internet, with users — rather than network operators — determining what content, applications, and devices will succeed in the marketplace. Second, it expressly writes the objective of a free and open Internet into the Communications Act, the core statute governing national communications policy. And third, in contrast to the “no regulatory action needed whatsoever” lobby, it expressly endorses the adoption of “baseline protections” to guard against the risk of network operators taking a new role as Internet gatekeepers. It would be important, however, to ensure that the broad assessment the bill assigns to the FCC not be interpreted as signaling Congress’s approval of an expanded FCC role in overseeing and regulating the Internet generally.

Ideally, language could be added clearly stating that the bill should not be read to justify any FCC action or authority over Internet matters, other than authority to conduct the specific assessment required by the bill. It also would be important for stakeholders and Congress to carefully monitor the FCC’s assessment process, and remind the agency that its assigned task under the bill is to analyze consistency with the bill’s core neutrality principles, not to conduct freelance policy assessments. Finally, there is some question about how far Congressman Markey intends the bill’s principles to reach. Right up front, the principles refer to “broadband telecommunications networks, including the Internet.” It’s not clear to me whether this indicates that the principles could apply to networks that aren’t the Internet, or precisely which networks those would be. But CDT’s position has been that while core Internet principles should apply to the Internet, network operators should be free to experiment with other models on the non-Internet portions of their networks. Cable television networks, for example, don’t carry the same openness expectations as the Internet. It’s unclear whether Markey really intends his bill to apply beyond the Internet, but CDT would caution against it.

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