Senate ponders policing of Net neutrality offenses

Another committee considers changes to antitrust law that would imperil business models built on "fast lane."

WASHINGTON--Taking cues from earlier proposals in the House of Representatives, key senators on Wednesday said they too are pondering legislation that would police violations of so-called Net neutrality under antitrust law.

The idea that network operators must grant equal treatment to all Internet content and applications that use their pipes is "very, very high on the agenda," Pennsylvania Republican Arlen Specter, chairman of the Senate Judiciary Committee, said at a hearing here.

Internet innovators are understandably "concerned their access could be cut off, degraded or become an expensive barrier to entry," said Specter, whose committee has jurisdiction over antitrust issues.

Specter said he was working with Sen. Ted Stevens, the Alaska Republican who leads the Senate Commerce Committee, on a "coordinated plan" to address the issue. He told reporters after the hearing that he had no clear time line for when a proposal would surface.

The Commerce Committee, for its part, has not yet finalized the Net neutrality provision contained in its sweeping communications bill, which is scheduled for a committee vote late next week.

One contingent--composed primarily of Democrats, consumer advocacy groups, and Internet companies like Google, eBay and Amazon.com--would like to see detailed regulations in the bill barring network operations from blocking, degrading and prioritizing Internet content. Another group, backed largely by Republicans and network operators, would prefer to see no new rules at all. Or, as a compromise, they propose further study--which the Senate bill currently contains--on the issue by federal regulators.

The House of Representatives' version of its communications bill, approved last week, addresses the Net neutrality issue by giving the Federal Communications Commission the power to enforce its broadband access principles (click here for PDF) and to slap steep fines on violators.

It was unclear precisely what approach the Judiciary Committee would take. Specter, for one, indicated that he would prefer looking at the issue on a "case-by-case" basis rather than issuing a "general rule" about what network operators can and cannot do--an approach favored by Internet companies. He said it may be more productive to negotiate less formal "standards" for network access with the players involved because writing new laws is "extraordinarily difficult, candidly, when you have the giants on both sides of these issues."

Judiciary Committee Co-chairman Patrick Leahy, a Vermont Democrat, said he would like to see a "strong bill" akin to a proposal offered by Republican Jim Sensenbrenner and Democrat John Conyers on the House side. Known as the "Internet Freedom and Nondiscrimination Act of 2006," that bill proposed, among other things, making it illegal under federal antitrust law for network operators to impose priority-access fees on content providers or to fail to provide service on "reasonable and nondiscriminatory terms."

In a brief appearance at Wednesday's hearing, Sensenbrenner urged renewed pursuit of his approach, which won by a 20-13 vote in committee but was not accepted as an addition to the broader House telecommunications bill.

There's "a clear risk that broadband providers will leverage dominant market power to discriminate against competitors, and preselect, favor or prioritize Internet content over their networks," Sensenbrenner told the senators.

Others on the committee questioned the need for "preemptive" action against a problem they're not convinced exists. If the discrimination that Net neutrality advocates fear does occur, such a public outcry will develop that "the chairman will be required to hold this meeting in this largest room in the Capitol, and there will be lines wandering all the way down to the White House," said Delaware Democrat Joseph Biden.

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