Markey Opens 2nd Round of Net Neutrality Fight

Ding! The second round of the Net Neutrality battle officially started today, with Massachusetts Rep. Ed Markey’s introduction of H.R. 5353, a bill supporters are calling the “Internet Freedom Preservation Act of 2008.” Detractors, of course, will call it many other things, including a revival of 2006-era attempts to write Net Neutrality concepts into law. But a quick read-through of the official document shows a few twists, including some provisions for easing of video franchising laws, that may win some previous detractors over to the Net Neutrality side.

In addition to the video-franchising language, perhaps the most surprising thing about the bill is its timing — most telecom policy insiders doubt that any such legislation will pass until after the presidential election, since there doesn’t seem to be a wide consensus or support for the ideas it contains. But Markey’s somewhat expected bill — co-sponsored by Republican Chip Pickering of Mississippi — rolls the Net Neutrality ball back onto the court after basically being sidelined since the fall of 2006.

There have been many big changes since then, when the original Net Neutrality battle ended in a draw. (To recap, Net Neutrality proponents failed to get their ideas added to telecom reform bills; those bills went on to die in the Senate without every coming to a full vote.) Markey, who led the failed 2006 Net Neutrality efforts, is now the chair of the House Subcommittee on Telecommunication and the Internet, following the Dem’s takeover of Congress. With control of the Senate as well — and with Google now a very committed backer of Net Neutrality ideas — Markey and pro-Net Neutrality Dems have apparently guessed they now have the political strength to push their ideas into law.

The new Markey bill seems to attempt to preserve much of the Four Freedom ideas that make up the basis of the original Net Neutrality argument, which basically say that carriers should not block services and that consumers should be allowed to attach whatever devices they wish. But there seems to be some new language surrounding the question of preferential pricing and preferential treatment of traffic, including a caveat that asks “whether the need for enforceable rules governing openness, consumer rights, and consumer protections or prohibiting unreasonable discrimination is lessened if a broadband network provider provides significantly high bandwidth speeds to consumers.” In other words, if there are enough fat pipes built, the need for regulation may disappear.

There is also a section asking whether broadband providers are offering “parental control protection tools,” which, like the video-franchising language, looks like a bit of a sop to make such a law more palatable to right-leaning legislators. And there is a call for the FCC to conduct eight public regional broadband summits, which if nothing else should lead to good theater.

On the opposition side, expect AT&T and Verizon (as well as their paid mouthpieces) to renew their “don’t regulate the Internet” argument, which combines some very real concerns about return-on-investment for infrastructure buildouts with traditional telco attempts to protect their monopoly advantages. One new ally on the telco side of the argument is the Federal Trade Commission, which has been actively campaigning over the past two years for a seat at the telecom-regulation table, even though its jurisdiction in such matters is openly questioned (especially by those at the FCC, who see the FTC’s actions as nothing more than a turf war). Don’t forget there is also the specter of a presidential veto hanging over any Net Neutrality legislation, from a commander-in-chief who is more than ready to stick his neck out for his deep-pocketed telco supporters, like he did in the current debate over telecom immunity in FISA lawsuits.

With recent Net Neutrality-like incidents involving Verizon, AT&T and most recently Comcast, it might be harder this time around for the carriers to claim supervision isn’t necessary. Expect the biggest battle to revolve around the concept of whether or not it makes sense to protect against such actions pre-emptively — as in an FCC-enforced law — or instead rely on the courts or the FTC to punish transgressions after they occur, via existing antitrust or consumer protection laws.

Either way, game on. Again.

Paul Kapustka, former managing editor for GigaOM, now has his own blog at Sidecut Reports.