There were several developments on the Congressional front this week. On Tuesday, the House Judiciary Committee's Task Force on Telecom and Antitrust held a hearing on net neutrality. It was one of the most intelligent and substantive congressional proceedings I have attended in a long time. If you missed it, the agenda, witnesses' statements and a webcast can be found here. The members of the Task Force (even the Republicans) were generally receptive to the concept of net neutrality. They recognized how certain incumbents' announced plans to institute new charges for Internet traffic and to discriminate among various types of traffic on non-technical grounds present the potential for grave harm to innovation throughout the U.S. economy. Of course, part of the Task Force's concern was motivated by a desire to protect their turf against incursions by the House Energy and Commerce Committee, which has been considering a telecom reform bill - the Communications Opportunity, Promotion, and Enhancement Act (COPE). (Randy May of the Progress and Freedom Foundation analyzed the Committee's power dispute in a perceptive piece today.)
Professor Tim Wu of Columbia Law School had a unique observation at the hearing. In response to a question about whether jurisdiction over net neutrality/discrimination in broadband networks should be the bailiwick of the FTC or be left to the FCC, Wu pointed out that this was an issue not of telecommunications policy, but of national industrial or economic policy, because allowing discrimination by network operators hampers innovation in all industries that use the networks and decreases the efficiency of the U.S. economy as a whole. Therefore, he said, the FCC should not be determining U.S. net neutrality policy because its expertise and jurisdiction were limited to telecommunications. Parties on all sides of the net neutrality debate should give the point much thought.
On Wednesday, the Energy and Commerce Committee, which is very friendly to communictaions incumbents (particularly the remaining Bell companies), approved and amended the COPE bill. The major provision of the bill is designed to speed availability of telco video services (IPTV) through the creation of a national franchise regime. The legislation would also
give the FCC exclusive but limited broadband network neutrality authority,
promote VoIP interconnection and E911, authorize municipal telecom/broadband
services, and codify "Naked DSL" requirements. The net neutrality provision is particularly odious. In the guise of codifying the FCC's "Four Principles" of net neutrality, it would actually handcuff the FCC by limiting it to post hoc enforcement of those principles and denying it the ability to examine or promulgate rules prohibiting other types of discriminatory broadband behavior or violations of net neutrality. Proponents of net neutrality testifying before the Task Force on Tuesday unanimously stated that it would be better to have no legislation than this provision; even USTA President Walter McCormick agreed. Hopefully, the provision will be deleted or strengthened when (if?) COPE is considered by the whole House.
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