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Leaked Net neutrality bill threads needle on mobile

Draft legislation by Congressman Henry Waxman largely tracks with the FCC proposal and the Google-Verizon framework, observes Stanford Law fellow Larry Downes. Will it break the logjam?

Editors' note: This is a guest column. See Larry Downes' bio below

California Congressman Henry Waxman, chairman of the House Energy and Commerce Committee, is preparing a limited Net neutrality law he may introduce as early as Tuesday, with hopes of passage before Congress adjourns for the election season.

Washington D.C. newspaper The Hill leaked a draft of the bill yesterday afternoon. The Waxman bill, in its current form, would include basic open-Internet principles in federal communications law, but would do so only until the end of 2012. At that time, the rules would expire, subject to re-examination and renewal by Congress.

The Waxman effort is widely seen as an attempt to break a longstanding legal and policy logjam that has distracted Congress, the Federal Communications Commission, and the White House for more than a year. President Obama included a campaign pledge to support Net neutrality and has been forced to reiterate that promise as the debate has grown increasingly contentious, even as some of the principal combatants appear closer to compromise.

Similarities with FCC proposal, Google-Verizon framework
The draft legislation tracks closely with provisions of rules proposed by the FCC itself nearly a year ago, as well as the the legislative framework jointly released in August by former Net neutrality adversaries Google and Verizon Communications.

Under the draft bill, for example, wireline broadband Internet providers would be subject to all the basic principles of the "open Internet" long advocated by Net neutrality supporters, including bans on the blocking of or unreasonable interference with lawful content, applications, services, or devices.

Access providers would also be prohibited from "unjustly or unreasonably" discriminating in favor of or against "lawful traffic," subject to exceptions necessary to optimize traffic and otherwise manage network behavior. Under that provision, providers who offer competing services, including voice and television programming, could not intentionally slow or block customer access to similar, perhaps free, services from Web providers.

The leaked draft legislation proposed a different approach [from those of the FCC and the Google-Verizon framework], which is to apply only a limited subset of the rules to wireless.

The bill also requires broadband access providers to disclose their network management practices in language understandable by consumers.

The language describing these basic Net neutrality provisions is nearly identical to rules proposed by the FCC last year, as well as to those described in the Google-Verizon proposal.

Another similarity has to do with how the rules would be enforced. The Waxman bill requires the FCC to investigate complaints on a case-by-case basis, rather than issue detailed rules and regulations. Case-by-case adjudication, it is generally believed, makes more sense when agencies are dealing with rapidly evolving technological and business environments, which certainly describes the Internet.

Although some Net neutrality advocates are already complaining about that provision in the draft legislation, it is worth noting that case-by-case enforcement was also proposed in the Google-Verizon framework and in the FCC's own proposed rulemaking.

What about wireless?
The draft legislation tries to thread the needle on one of the most controversial features of the Net neutrality debate, which is whether the rules ought to be applied to wireless broadband access. Given existing constraints on the wireless infrastructure and the likelihood that consumer demand will tax the wireless infrastructure even more severely in the near future, providers have argued strongly that open-Internet rules should not apply to wireless broadband.

Under the FCC's October 2009 proposal, however, the Net neutrality rules would apply with equal force to both wired and wireless Internet access, though both would be subject to the exclusion for reasonable network management. The Google-Verizon framework, on the other hand, proposed to exclude wireless from the rules until the technology and the market stabilize. (That change in position by Google led some of its former allies to accuse the Internet giant of Net neutrality treason.)

The leaked draft legislation proposed a different approach, which is to apply only a limited subset of the rules to wireless. The wireless rules, for example, ban providers from blocking "lawful applications that compete with the provider's voice or video communications services."

It is not clear from the draft, however, whether that provision applies only to competing voice and video applications offered by the provider on its wireless network, or whether it extends to applications that wireless providers such as Verizon or AT&T offer on their wired broadband network.

And application stores operated by wireless providers are excluded from that provision, meaning that wireless providers can continue to require preapproval of new apps before they are allowed on their wireless networks.

Finally, the FCC is left with the task of deciding to what extent any of the rules would be applied to broadband Internet offered on fixed wireless (including wireless LANs) or satellite technology.

"Reclassification" effort would be stopped cold
What is most surprising about the draft legislation, however, is not so much its take on Net neutrality as its view on the FCC's efforts to extend its own authority. The draft legislation includes an explicit prohibition on the FCC's moving forward with any activities that would "impose regulations on broadband Internet access service" under Title II of the Communications Act.

Until now, the extensive rules of Title II applied only to providers of local and long-distance telephone service, especially those in existence before the 1984 breakup of the former phone monopoly. On the other hand, the provisioning of additional or "enhanced" services on the same infrastructure, including broadband Internet access, was subject to only limited regulation by the FCC.

What is most surprising about the draft legislation, however, is not so much its take on Net neutrality as its view on the FCC's efforts to extend its own authority...Rep. Waxman now appears willing to give up the threat of Title II. That may prove to be the most important feature of the draft legislation. Waxman's shift may also portend a rocky road for the bill.

But the FCC's original effort to pass formal open-Internet rules last October was stalled in April of this year, when a federal court of appeals ruled that the agency failed to demonstrate its legal power to enforce its existing open-Internet policy statement, which covered most of the Net neutrality rules. (The case involved Comcast's throttling of large file transfers using the BitTorrent protocol.)

Rather than appeal the court ruling or request the needed authority from Congress, however, the agency moved in May to "reclassify" broadband access under Title II. That proposal is currently pending.

Reclassifying broadband Internet access under Title II, assuming it survived court challenges, was intended to give the agency the authority it otherwise lacked to proceed with its Net neutrality rulemaking, and do so without congressional intervention. The move was roundly criticized, however, as potentially dangerous overkill by legal scholars, think tanks, and a bipartisan majority of Congress.

Rep. Waxman, however, was not one of those calling on the FCC to walk away from Title II. Indeed, as recently as May 5, Waxman and Senate Commerce Committee Chairman Jay Rockefeller wrote jointly to FCC Chairman Julius Genachowski, urging him to keep Title II on the table as way to solve the jurisdictional problem created by the adverse court decision.

Rep. Waxman now appears willing to give up the threat of Title II. That may prove to be the most important feature of the draft legislation.

A rocky road and a short fuse
Waxman's shift may also portend a rocky road for the bill. Sen. Rockefeller, who continues to support the FCC's unilateral move to Title II, has indicated that he would oppose any legislation that blocks reclassification. Waxman's bill may not, consequently, receive a warm reception in the Senate, even from fellow Democrats.

It may not have an easy time in the House, either. When rumors first began circulating two weeks ago that Waxman's office was working on legislation that would break the FCC stalemate, it was widely reported that he hoped to introduce a narrow bill that had the full support of Democrats and Republicans on the Commerce Committee.

But now Waxman staffers and other insiders involved in the negotiations indicate that there are continued disagreements over key features of the legislation, not only from other members of his committee but also from broadband providers, content facilitators such as Google and Skype, and public-interest groups that have been involved in negotiations. The treatment of wireless broadband and the extent of the antidiscrimination provisions, as well as the ban on reclassification, are likely among the most controversial features.

Last week, perhaps in response to fears about what might be left out of Waxman's bill, Net neutrality advocates amped up pressure on the FCC to move quickly on its own initiatives. Supporters of media reform group Free Press, for example, issued a document outlining what "real" Net neutrality would look like (PDF), based on quotes over the last year from the FCC chairman. The group also greeted FCC staffers on Thursday morning by handing out waffles. (Thursday's meeting of the "waffling" commissioners notably did not include Net neutrality or Title II on the agenda.)

Indeed, Waxman's bill may be intended as a helpful effort to take pressure off the increasingly besieged FCC chairman, who appeared uncharacteristically somber at an education event in Mountain View, Calif., last week.

Asked about rumors of a Congressional fix to the Net neutrality mess, Genachowski told reporters that he was "pleased Chairman Waxman and the other members of Congress are making a real effort to make progress on these issues. Our job is to be a resource, and we will be. I appreciate the effort, and I hope it succeeds."

But without something approaching consensus within Congress and among key stakeholders in the Net neutrality debate, Waxman's bill may not get far, especially with midterm elections looming. Republicans expect to pick up several seats and perhaps even a majority in the House and, though less likely, the Senate. Under that scenario, any Net neutrality legislation appears unlikely.

The window for a Congressional solution for the FCC's troubles is closing fast. And while the Waxman bill may further delay the need for a final resolution to the conflict, it doesn't appear to be the silver bullet for which supporters initially hoped.