Thursday, May 15, 2008

New Legislation and Debate on Net Neutrality

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By Christopher Kuttruff

Last week, lawmakers proposed legislation on network neutrality that would open up the possibility for antitrust lawsuits against companies that violate the bill's regulations. The bill has fueled the ongoing debate about the implications of network regulation.

On Thursday, May 8, House Judiciary Chairman John Conyers (D-Michigan) and Rep. Zoe Lofgren (D-California) introduced the "Internet Freedom and Nondiscrimination Act of 2008" (H.R. 5994) which seeks to prevent anti-competitive and discriminatory activity by broadband Internet service providers.

The legislation mirrors previous efforts undertaken in 2006 to amend The Clayton Antitrust Act (15 U.S.C. 12 et seq.) by making unlawful the failure to provide "broadband network services on reasonable and nondiscriminatory terms and conditions." The 2006 bill, which passed the House Judiciary Committee by an overwhelming majority, was never brought before the House floor.

The 2008 "Internet Freedom and Nondiscrimination Act" would require Internet service providers (ISPs) "to clearly and conspicuously disclose to users, in plain language, accurate information concerning any terms, conditions, or limitations on the broadband network service."

Chairman Conyers and Representative Lofgren have revived their efforts to pass legislation amidst tumultuous debate on the topic of network neutrality.

The debate on net neutrality has received more attention and has become more charged since reports surfaced in late 2007 that Comcast was selectively slowing the BitTorrent protocol, a peer-to-peer downloading tool. BitTorrent, like other peer-to-peer services, allows Internet users to download and upload small pieces of files quickly, with many different individuals. The reports immediately struck a nerve for many Internet users who take advantage of BitTorrent's speed and reliability.

While peer-to-peer (p2p) services can be used for legal, legitimate content, frequently, BitTorrent and other such tools are utilized to share pirated content (copyrighted music, movies, applications etc.).

Critics of the Conyers-Lofgren legislation assert that many of the elements of the bill would be an unfair burden for ISPs, who are left to deal with bandwidth demands and are limited in how they deal with abuse of network services.

ISPs (both large companies like Comcast, Verizon and others, as well as smaller independent companies) argue that the unmitigated use of such Internet services is "bandwidth hogging" and detracts from other customers' Internet use.

Brett Glass, founder of - a local ISP based in Wyoming, presented his perspective on net neutrality to the FCC on April 17, 2008 at Stanford University. Glass, who is a smaller ISP, stressed: "... we are unqualified advocates of network neutrality as it was originally defined: namely, the principle that Internet providers should refrain from leveraging their control of the pipes to engage in anti-competitive behavior. It is inexcusable for the cable company to throttle or block video because it competes with their own services, or for a telephone company to block Voice over IP because it's another way of making a telephone call."

A student at Stanford during the early years of the Internet, Glass went on to say that he advocates a responsible balance concerning Internet activity ... one that doesn't allow for discrimination, but also doesn't permit bandwidth abuse (e.g: from p2p services) that leaves excess costs to the ISP (costs that he is acutely sensitive to as a smaller, independent ISP).

Glass spoke to Truthout about his concerns regarding the Conyers bill. "They would require ISPs to do very expensive things. They're trying to dictate how we do business, and not being in the business, they don't know what to mandate," he said. "The big guys have ways to recover ... they can cross-subsidize and compensate for losses. But [for us], they are limiting how we innovate and do business; and we suffer."

Fully cognizant of Comcast's mistakes and the public relations chaos that followed, Glass emphasized in his remarks to the FCC, "[The FCC] should make strong rules prohibiting anti-competitive behavior, since this is something nearly everyone agrees on. It should [also] ensure that all ISPs have access to the Internet backbone at a fair and reasonable cost. And finally, the Commission should require full disclosure from all parties - not only ISPs but also content and service providers ..."

The legislation proposed by Conyers and Lofgren (H.R. 5994) seeks to address certain concerns of ISPs by permitting network providers to "manage the functioning of its network, on a system-wide basis, provided that any such management function does not result in discrimination between content, applications, or services offered by the provider and unaffiliated provider." But many critics argue that the wording of (H.R 5994) is vague and that the ultimate application of the bill would be untenable.

Chairman Conyers stated, "Americans have come to expect the Internet to be open to everyone. The Internet was designed without centralized control, without gatekeepers for content and services. If we allow companies with monopoly or duopoly power to control how the Internet operates, network providers could have the power to choose what content is available."

The debate continues, however, on the true definition of network neutrality and how best to maintain it.

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