Rep. Blackburn Introduces Bill To Codify ‘Net Neutrality’

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Eric Lieberman Managing Editor
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Republican Rep. Marsha Blackburn of Tennessee introduced legislation Tuesday that aims to ultimately end the heated debate around so-called “net neutrality” regulations.

Known as the Open Internet Preservation Act, the prospective legislation would codify particular rules imposed by the Federal Communications Commission (FCC) in 2015 that prohibit the throttling and blocking of certain internet traffic. It would also mandate that internet service providers (ISPs) maintain transparency rules reinforced by the FCC earlier this month when the agency voted 3-2 to undo many of the rules put in place in 2015.

Perhaps most notably, the pending bill would forbid the FCC from claiming broad powers over the internet through a Title II utility classification — a reform that many proponents of net neutrality advocate for in order to enforce the two aforementioned requirements.

The current FCC — which is comprised of three Republican and two Democratic commissioners — recently rolled back rules aiming to strictly administer net neutrality ideals, effectively reverting the policing responsibility back to the Federal Trade Commission (FTC), as well as the Department of Justice (DOJ).

“Blackburn’s bill makes one huge concession out of the gate: keeping net neutrality enforcement at the FCC. We’ve long said that the FCC shouldn’t be in the Internet regulation business,” Berin Szóka, president of TechFreedom, said in a statement. “There’s no reason the FTC couldn’t be the agency tasked with enforcing bright-line net neutrality rules. We hope that’s where this issue ultimately winds up, but focusing on the FCC to start will help to keep legislation from turning into a fight over imposing ‘neutrality’ regulations on other Internet services, as leading Democrats and Republicans have proposed.”

The bill does not address the issue of paid prioritization, the concept in which broadband providers could conceivably let content owners (think Netflix and Hulu) cut to the front of the line at congested nodes of internet traffic for an added fee. Such an absence is good, according to Szóka’s analysis, because such an issue, for the most part, would and should be left to the FTC and DOJ and “Congress needs to be very careful in legislating any rule on paid prioritization.”

“First, even under Title II, the D.C. Circuit said the FCC couldn’t stop an ISP from ‘filtering of content into fast (and slow) lanes based on the ISP’s commercial interests,’ provided it was upfront about doing so,” Szóka continued. “Any legislative compromise will turn on this thorny issue, but it’s not surprising that Blackburn wanted to start with a clean, simple bill. A flat ban has always been unwise: ‘Prioritization’ is essentially what content delivery networks do, and without them, the Internet could never handle the video services we all enjoy.”

He says if Congress does find it absolutely necessary to have a more specific rule on paid prioritization “it should consider the compromise negotiated by Google and Verizon in 2010,” which “set a presumption against prioritization” but allows “that presumption to be rebutted if the practice can be shown not to cause ‘meaningful harm to competition or to users.'”

Szóka is sure to add that “prioritization” is often necessary because it “is also what will make 5G services so revolutionary and so beneficial.” (RELATED: The Race To 5G Technology: How America Could Lose Out On The Next Biggest Thing)

Roslyn Layton, a visiting scholar at the American Enterprise Institute who also served on the 2016-2017 FCC Presidential Transition Team, said, the inherent nature of the internet and its complex system requires prioritization — a point in which Szóka alluded to.

Layton explains that equality in services don’t comport with how technology or 5G, the next generation of wireless technology, works, since certain products and utilities require or warrant faster speeds.

“The whole notion about neutral networks and all data being the same is the total opposite of 5G,” said Layton. “5G is about all data being treated with the particular [respective] technological requirements.”

Layton continued:

If you have a thousand devices in your house, they are not going to all need the same treatment, they’ll need different treatment depending upon what the service is. Maybe [for] health sensors on your body you want to have a certain kind of treatment, and then appliances you don’t. The whole notion of the pricing and engineering for the Internet of Things, it’s not one-price-fits-all, or one-size-fits-all, it’s a highly diversified strategy.

People across the ideological spectrum have argued before that legislation is needed to clarify the jurisdictional authority of the federal agencies, and to firmly establish the rules surrounding internet governance.

“The new [FCC] approach is better then the 2015 order, but we still need Congress to clarify US policy toward the internet and the limits of the FCC’s power,” Richard Bennett, one of the original creators of the WiFi system and cofounder of High Tech Forum, told The Daily Caller News Foundation.

Blackburn’s bill may just be a way to show Democrats and advocates of strong regulations over the internet — many of whom have engaged in highly clamorous, and even highly aggressive behavior — that there are apparently legitimate means of ensuring ISPs don’t commit unfair practices without excessively expanding the government’s power.

She arguably did the same by introducing the Browser Act earlier in the year which ostensibly aimed to mandate that people must explicitly give permission to ISPs and websites wanting to use their browsing history and data for business purposes. (RELATED: Google, Facebook Are Super Upset They May No Longer Be Able To Sell Your Internet Data Without Permission)

Blackburn was one of the 265 members of Congress who voted to reverse a privacy rule implemented by the FCC under the Obama administration. Like the Browser Act, the rule was going to require ISPs to get customers’ consent before sharing their browsing history with other companies. But unlike the Browser Act, the Obama-era FCC rule didn’t include companies like Facebook and Google (also known as edge providers).

In other words, Blackburn seemed intent on leveling the playing field much like the recently introduced Open Internet Preservation Act, which also tries to ensure the rules apply to all industries including companies like Netflix and Google — which some argue were unduly favored by the 2015 net neutrality rules.

Blackburn’s office did not respond to TheDCNF’s request for further details by time of publication.


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