Net neutrality battle returns to the U.S. Senate

WASHINGTON--Net neutrality has returned to Capitol Hill.

The saga of Comcast's throttling of BitTorrent file-sharing traffic--and intense interest from the Federal Communications Commission, including a hearing at Stanford University last week--has appended the topic onto at least some politicians' to-do list.

At a Senate Commerce Committee hearing entitled "The Future of the Internet" on Tuesday, Democratic politicians argued for passage of a law designed to prohibit broadband operators from creating a "fast lane" for certain Internet content and applications. Their stance drew familiar criticism from the cable industry, their Republican counterparts, and FCC Chairman Kevin Martin, who said there's no demonstrated need for new rules, at this point.

Much of the discussion revolved around whether the FCC already has sufficient authority to take action against network operators found to be interfering unreasonably with their customers' Internet use. Comcast, for its part, has argued that the federal agency doesn't--and the Democrats present said their legislation is necessary to clarify the FCC's enforcement role.

"To whatever degree people were alleging that this was a solution in search of a problem, it has found its problem," said Sen. John Kerry (D-Mass.). "We have an obligation to try and guarantee that the same freedom and the same creativity that was able to bring us to where we are today continues, going forward."

Kerry is one of the backers of a bill called the Internet Freedom Preservation Act, chiefly sponsored by North Dakota Democrat Byron Dorgan and Maine Republican Olympia Snowe, which resurfaced at the beginning of 2007 but has gotten little attention since. A similar measure failed in a divided Commerce Committee and in the House of Representatives nearly two years ago.

Chairman Martin told the committee that he continues to believe that the FCC doesn't need to write new regulations because it already has the authority to enforce its existing broadband connectivity principles, which say consumers have the right to access the lawful Internet content and applications of their choice.

He acknowledged, however, that based on Comcast's interpretation, his agency could face litigation if it opts to act on a complaint against the cable operator's throttling of peer-to-peer file-sharing traffic, which he characterized on Tuesday as "a relatively inexpensive, blunt means to reduce peer-to-peer traffic by blocking certain traffic completely."

Martin said the agency hadn't yet reached a conclusion about whether those actions violated its principles. Comcast, for its part, reiterated in a statement Tuesday that it "does not, has not, and will not block any Web sites or online applications, including peer-to-peer services," and it repeated its plans to migrate to a "protocol-agnostic" way of managing data flows by the end of the year.

With the threat of litigation looming, a number of Democrats questioned why Martin isn't asking Congress to grant the FCC new authority (or, perhaps, to clarify its existing authority) by rewriting the law.

"I believe what you are saying is that you believe you need authority to take action on these areas, and one of the biggest content providers says you don't have that authority, so shouldn't you be asking us to do something, in the event this is unclear, and you spend the next three to four years in court?" Dorgan asked.

Martin said he wasn't deterred by Comcast's implicit legal threat. He repeatedly cited the U.S. Supreme Court's 2005 Brand X decision that, in his judgment, stated that the FCC has legal authority to "adopt any rules we deem necessary to adequately protect consumers' broadband rights."

"Almost every action the Commission takes, we get taken to court," he told the committee. "That's probably why I'm not as hesitant, in that sense."

Kyle McSlarrow, president of the National Cable & Telecommunications Association, argued against any new regulations, saying there's no evidence that any of his member companies have ever engaged in content blocking or "anticompetitive conduct." He added that the NCTA, which counts Comcast among its members, fully supports the FCC's broadband policy statement.

But as for whether the FCC can stop companies from violating those principles, "it's not even a close call; the answer is no," McSlarrow told the committee.

"You support (the principles) but don't think they should be enforceable?" Dorgan asked him.

McSlarrow said he believes that there are other rules on the books to combat any unfair or anticompetitive practices, should they arise.

Republican senators, for their part, said the public outcry over the Comcast-BitTorrent incident and the ongoing FCC probe further demonstrates that there's no need for Congress to intervene. Committee vice chairman Ted Stevens (R-Alaska) called new rules "entirely unwarranted," contending that the Comcast situation "showed the system will right itself, if someone really tries to interfere with the fair access and right treatment of everyone using Internet systems."

A prominent representative of the entertainment industry disputed those assertions. Writers Guild of America West President Patric Verrone told the committee that without Net neutrality laws, the Internet will be "be turned into a walled garden of content control," making it harder for new voices to emerge and distribute their creations openly.

Stanford Law School Professor Larry Lessig, who also flew to Washington for the event, said politicians must enact laws that are as "minimal and (as) clear as possible." Without such measures in place, he said, Silicon Valley investors will be discouraged from devising applications because they won't know what the network will look like in five years. On the other hand, a future Congress can rewrite laws too.