A draft telecommunications reform bill released this week by the House of Representatives Energy and Commerce Committee would endanger the neutrality of the Internet, leaving telephone and cable network operators free to discriminate against competing content and services leading, by default, to the creation of a second-class Internet. So say US pressure groups, including the public-interest advocacy and education organisation Public Knowledge, the Internet2 consortium led by 207 universities, and the EDUCAUSE higher education/IT association.

On the surface the draft bill, the bipartisan Communications Promotion and Enhancement Act of 2006, seems uncontroversial. According to the authoring Committee the proposed legislation is designed to provide US consumers with greater choice and lower prices for pay television. “This bill will produce an explosion of opportunity for American workers and American consumers will get an array of video services that were unimagined just a few years ago,” said Committee chairman Joe Barton. “Current law no longer reflects the technological and competitive reality. Congress has a responsibility to update our communications laws. The notion behind America ’s cable laws is that competition doesn’t exist, but with new competitors preparing to enter the ongoing race between cable and satellite, the law needs to change.”

The legislation is intended to rectify the circumstance that local US regulations designed for a cable monopoly are keeping the telephone carriers from rapidly rolling out new TV services. The bill will create a nationwide approval process for pay-TV services while still preserving the authority of cities over rights-of-way. Both traditional cable TV and new pay-TV services can participate in this approval process, commonly known as a “franchise.”

Specifically, the so-called Barton-Rush bill will:

·        create a nationwide approval process for pay-TV services;
·        require Internet-based telephone services to offer 9-1-1;
·        clarify the Federal Communications Commission’s authority to prevent Internet service providers from blocking or degrading any content or applications delivered over the public Internet;
·        preserve municipalities’ right to collect up to a 5% fee from pay-TV providers;
·        and allow cities and towns to develop their own broadband networks.

Despite the inclusion of the third proposal, the aforementioned interest groups warn that the bill does not contain strong enough protection to guarantee the preservation of network neutrality -the convention that there will be no or minimal discrimination between different Internet services, applications and content competing for network carriage.

“We are pleased that the Committee draft included language recognising the importance of keeping the Internet open to all consumers. However, we do not believe that the draft bill goes far enough. The provisions will not stop the cable and telephone companies from degrading Internet traffic and they do not contain strong enough penalties to discourage misbehavior,” argues Public Knowledge president Gigi B. Sohn. “Without stronger legislation, the cable and telephone companies will have the power to change the fundamental nature of the Internet. This bill needs significant improvement before it will preserve the open Internet that consumers and service providers expect and deserve.”

This is echoed by Internet2. “Without strong network neutrality enforcement, this bill gives the cable and phone companies a green light to violate the fundamental open access principles on which the Internet was built,” warns Gary Bachula, Internet2 vice president of external relations. “In doing so, they will not only create a second-class Internet, but in the long term, create a second-class economy struggling to compete with our forward-thinking international peers.”

“Unfortunately, the FCC's deregulation of broadband has put the survival of the Internet in the hands of the cable and telephone companies, who have already announced their intention to diminish the greatest innovation of our generation into just another TV delivery platform,” adds Mark Luker, vice president of EDUCAUSE.

Protesth too much?
You get a somewhat different take on network neutrality from the US Internet Industry Association (USIIA) trade body which, last week, styled the current debate a ‘tempest in a teapot’ aimed at disguising the real agenda of the true villains of the piece – the content companies.

“While these companies have been at the forefront, demanding ‘network neutrality,’ their representatives are in Geneva crafting a new treaty that would change the Internet to look like cable television,” comments USIIA president and ceo David P. McClure. “They are pushing the World Intellectual Properties Organization (WIPO) for passage of a WebCasting Rights Treaty that would force ISPs to pay for the right to give their subscribers access to content.”

According to the USIIA the Webcasting Rights Treaty would give content providers exclusive rights to their information and the right to demand compensation from carriers that wish to access that content – including search results, access to e-commerce sites and auction results – for 50 years. The trade association says ISPs would be required to pay for the ‘broadcast’ rights to this information in order for their subscribers to access the sites. The treaty language is not mandatory, which means countries may adopt the webcasting language without ratifying the treaty itself.  In addition, the broadcast rights could be adopted and enforced with no public hearings and no recourse for consumers.

“The ‘network neutrality’ movement that is fomented and funded by the content companies is little more than a red herring to divert attention away from the real agenda,” claims McClure. “The content companies have stirred up a tempest in a teapot over hypothetical ‘neutrality’ situations that technologists say are not even feasible in the real world, while at the same time quietly pushing for even more dangerous changes to international law.  It is a shameful effort to deceive the Congress, the media and the American public into giving them new rights to charge more for Internet content.”

Either way, we foresee very rich pickings here for all manner of lawyers, lobbyists and legislators.
John Williamson