Net Neutrality Debate Wydens

Chances are that the red-hot issue of “network neutrality” won't land in the law books, at least during this Congressional session. (See Google Says No to QOS Fees.)

In its current form, the the House Commerce Committee's "Broadband Internet Transmission Services (BITS)" bill provides a broad retooling of the '96 Telecom Act for the regulatory challenges of the broadband age. But the Commerce Committee's leadership is now seriously considering narrowing the bill's focus to address video franchising and possibly VOIP E911, several sources close to the situation say. (See Wyden Testifies on Neutrality.)

In substance, BITS codifies into law the idea that broadband operators "shall not grant any preference or advantage" to any one broadband service over another. (See Net Neutrality Goes to Washington and Google Plans Video Service.) In practice the law would prohibit cable and telephone companies from blocking or impairing the packet flow of competing services like, say, Google (Nasdaq: GOOG) Video. (See LR Poll: Net 'Squatters' Should Pay.)

But excising the net neutrality language from the bill might remove a potentially fatal sticking point, says Commerce Committee spokesman Terry Lane. "We could introduce the bill with a few narrow issues that we could move through quickly and get enacted this year, rather than trying to push through a broad piece of legislation and inviting a lot of debate," he says.

Committee chairman Rep. Joe Barton (R-Texas) and others, Lane says, might rather get some telecom legislation passed during this session than go for the full Monty and come away empty-handed at the end.

But that hesitancy to cram one bill with several hot issues also opens the door for legislation that's focused on nothing but net neutrality. And sources say Senator Ron Wyden (D-Ore.) will introduce his own bill regarding net neutrality this week.

Wyden, during last month's testimony before the Senate Commerce Committee on net neutrality, said he would shortly introduce a bill that "will make sure all information is made available on the same terms so that no bit is better than another one." [Ed. note: It will remain true, though, that some bits are naughtier than others.]

While Wyden takes aim, the minds behind the BITS bill are changing day to day. "It is a very fluid situation," says Art Brodsky of the Washington-based net neutrality advocacy group Public Knowledge. "In fact even as we speak, in the next day or so, there should be some meetings among the principals in which they'll try to decide something."

Few would be surprised if the committee went with its Plan B -- a slimmed-down BITS bill focusing chiefly on video franchising. The reason? Sources explain that sentiment has soured somewhat on the net neutrality cause in the Capital in recent weeks.

"I’d be less than honest if I told you there was a great deal of sympathy for the net neutrality idea right now," Brodsky told Light Reading Tuesday.

How did net neutrality lose steam? First, the powerful telco and cable lobby mobilized.

"The RBOCs have beaten the [expletive] out of everybody who has gotten in their way, and now the California Internet community is in its way," says Chadbourne and Park LLP attorney Dana Frix from his office in Washington. "The East Coast RBOCs are beating the pants off the California Internet guys on this one." (See Google Goes to Wonkytown.)

Over the past several months, the telephone and cable lobby have argued, effectively, that no such blocking or impairment of Internet services or content has occurred, or ever will occur. In the event that some service was blocked, they argue, the Federal Communications Commission (FCC) could issue a quick smack-down under existing telecom law.

The cable and telephone operators together own 98 percent of the last-mile broadband networks in the U.S., according to the FCC. "The phone companies and the cable companies are up there saying, ‘Why bother? There’s no problem here,' " Public Knowledge's Brodsky says.

The second thing hindering network neutrality is that its strongest advocates have garbled their message to lawmakers.

Lawmakers are still fuzzy on the exact purpose of a net neutrality law. Confusion remains over who such laws are meant to protect -- the consumer or the Internet companies selling content. (See Cerf's Up for Neutrality Debate.)

Neither side of the debate has a problem with consumers choosing from among lower- or higher-bandwidth service tiers. But net neutrality advocates say broadband providers will create a "scarcity of bandwidth" over the last mile so that they can charge content providers carriage or QOS fees. (See Crocodile Tiers.)

That said, the net neutrality camp hasn't offered a clear enough solution for lawmakers. “I think those who want net neutrality are losing because we have failed to be specific, and failed to define exactly what it is that’s necessary,” says a source close to several VOIP companies.

— Mark Sullivan, Reporter, Light Reading