The Markey-Pickering “Net Neutrality” Bill: Grinding Out One More First Down In The Internet Freedom Bowl.

God knows I love Ed Markey as one of the true defenders of us average folks. Time and again, he has proven himself that rare combination of smarts and political savvy to remain an effective champion against media consolidation and telco and cable interests even when he was minority member. Which is why it always pays to pay attention when he acts.

Markey’s latest bill, The Internet Freedom Preservation Act of 2008, H.R. 5353 (co-sponsored by retiring Republican “Chip” Pickering (R-MS)), would seem at first glance pretty weak gruel compared to his previous bill in 2006. So what lies behind this apparent retreat from an outright ban on ISPs discriminating to Congressional findings, a mandate for some FCC hearings, and a report? After all, with Markey chair of the Subcommittee, shouldn’t he be pushing something more aggressive? I mean, the Dems control both houses of Congress now, right?

The answer lies in the pragmatics of Washington and the recognition that — unlike in the movies — major battles aren’t won overnight. As I have said before, this is a long, messy fight in which both sides invest a heck of a lot of time and energy in positioning themselves and grinding out short yardage plays to advance the ball. Seen in that context, the Markey Bill is a very effective tool for both keeping the debate alive and advancing the ball another ten yards toward the goal post.

Analysis below . . .

So, Harold, what does the The Internet Freedom Preservation Act of 2008 (H.R. 5353) do?

I’m glad you asked! Here is a section by section breakdown:

Section 1: gives the title “The Internet Freedom Preservation Act of 2008.”

Section 2: Makes two findings. (1) The Internet is super nifty! (2) It is super nifty because it is so open and free, and everyone depends on it remaining open and free.

Section 3:Here things start to get a bit interesting. It amends the Communications Act of 1934 as Amended (our favoritest Act in the whole wide woooooorld — if you do telecom law) to have an explicit federal policy of keeping the internet open, interconnected, a major source of diverse ideas and First Amendment freedoms,

by adopting and enforcing baseline protections to guard against unreasonable discriminatory favoratism for, or degredation of, operators based upon its source, ownership or destination on the Internet.

Section 4: Makes the FCC go out and compile a report on whether its broadband policy is doing the job of protecting the openness of the Internet. The statute mandates very specific things the FCC has to answer to try to keep the FCC from weaseling out of its responsibilities and findings (and, when it tries to go all weasly and pretend that everything is hunky-dory and therefore there is no need for regulation, it will be painfully obvious to anyone who cares). It also requires the FCC to get out of Washington and do a whole bunch of public hearings around the country, so we can expect to develop a pretty juicy record.

Once the FCC compiles all this data, it will submit a report to Congress answering all these specific questions on what broadband operators are doing and whether Congress or the FCC ought to pass some new laws or regulations to preserve internet freedom and stuff.

That’s It?

Yeah, pretty much.

Nothing about outlawing discrimination? Nothing about preventing telcos and cablecos from extorting payments from third party providers? Nothing about no degrading BitTorrent while telling your customers bald-faced lies? You know, like in Markey’s Network Neutrality Act of 2006.

Umm….There is a very strong policy statement. I mean, really strong….policy….statement.

Uh huh.

And a report. A big old detailed report. With hearings and stuff.

Right. [PAUSE] Would you mind telling me why normally sensible organizations like Free Press are acting like this is a big deal when, no offense, this looks as pathetically lame as the Democratic effort to “End the War” by forcing the President to report on non-binding benchmarks?

O.K., but it’s a secret strategy thing. You promise none of the telcos or cablecos are reading this, right?

Dude, you know what your Technorati Authority is. Get on with it.

O.K., this is a combination of two things. First, it is Markey pushing on the FCC authority issue. Second, it is Markey keeping the debate going and building a solid record for when (we hope), Congress and the FCC will become more friendly to the Net Neutrality issue.

First, the findings and policy issue. Odd as this will seem to non-lawyers, the inclusion of a specific policy that the FCC safeguard an open internet is not just wussy chin music. In the context of Title I of the Communications Act, it actually means something. As I have observed before, although the FCC effectively deregulated cable and DSL when it reclassified them as “information services”, the FCC retained “ancillary jurisdiction” under Title I of the Communications Act. I won’t rehash the whole authority argument here (when you can find it here). But having Title I include an explicit policy to tell the FCC to actually go out and protect the openness of the Internet is a major power booster for FCC authority to take action and create rules. And (should it pass) it eliminates the argument that Congress’ statement of policy in Section 230 of the Telecommunications Act of 1996 eliminated FCC authority. If I had a penny for the number of times folks pushing deregulation have relied on the out of context application of the policy statement: “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation,” I’d be able to quit my job and take up residence in the Caymans.

So while it sounds wussified, federal policy stuff really does matter. But it is put out their in a way that is harder to oppose than a specific mandate. Does someone want to maintain that the policy of the United States is to screw with openness and convert the internet into a shopping mall? For the vast majority of members who don’t follow this issue or track it closely, it is damn hard to see why it should be objectionable (other than telco and cable lobbyists vociferously object).

Second, the reporting thing. This has a few basic purposes. One is getting this issue on people’s radar screens before the telcos and cablecos get everyone used to an internet where they manage traffic by following Mark Twain’s advice for boiling a frog: just keep raising the heat a little at a time and the frog won’t notice ’til he’s dead. Requiring the FCC to go out and hold hearings and do a report keeps the issue alive and in the news. It gives folks opportunities to organize and educate the public. This strategy worked reasonably well on media ownership. The other point of the reports is to create a record and force the FCC to answer a bunch of very pointed questions. Even if we assume the FCC will work its patootie off to find that Pangloss was a pessimist and we live in the best of all possible worlds, the truth will out and the FCC will ultimately look even more ridiculous if it engages in such contortions. As NTIA’s recent experiment in creative reality shows, you really aren’t fooling anyone no matter how hard you get your cheering squad to declare “mission accomplished.”

And, of course, all of this keeps the debate going and keeps the spotlight on the cablecos and telcos.

O.K., so it’s not useless. But why not reintroduce something totally kick ass like Markey’s Network Neutrality Act of 2006? I mean, after all, the Dems are in the majority now.

As you may recall, Senators Dorgan and Snowe already tried this, reintroducing their Net Neutrality bill. They even got Presidential candidates Senators Obama and Clinton as co-sponsors. Wanna know how many hearings the Senate Commerce Committee has held on the Dorgan-Snowe Bill? Zero, nada, big fat goose egg. Wanna know the chances for passage? Diddly divided by Squat.

As always, one of the key questions in Washington is “would you rather feel good and be pure or would you rather be effective.” It is not a pleasant question, and you need to watch yourself from falling into the trap of selling out or losing your principles. But the Internet Freedom Act of 2008 doesn’t raise that concern, because it actually forces a next step when the FCC comes back with its report and plops the problem back in Congress’ lap again. And unlike the Net Neutrality Act of 2006, the Internet Freedom Act of 2008 has at least a reasonable chance of moving forward.

So, in my opinion at least, it’s not settling for wuss instead of going for gold. It is a deliberate decision to grind out yet another running play for another first down rather than trying to throw a touchdown pass 75 yards down the field. Do I wish the Dems in Congress were united on this issue and had some real cojones? Sure. And maybe with Donna Edwards kicking Al Wynn’s ass in the recent primary, all the other major sellouts will mend their evil ways. But I’m not willing to bet the whole net neutrality game on Bobby Rush finding wisdom despite that $1 million donation by AT&T to his civic center.

So, Harold, bottom line?

Ed Markey is a cagey player who understands about playing for the long haul. This is a good bill — probably the best that can get through in the current Congress. It advances the ball forward in a substantial way, and would make a good law if passed. It doesn’t solve all the problems, but it doesn’t pretend to do so either. It deliberate lines things up for the next step — assuming we get that far.

This isn’t even a case of “not making the best the enemy of the good.” This is recognizing that we win this thing one fight at a time, step by step, willing to match the telcos and the cable cos for patience, stubbornness and strategy. It’s a good bill and deserves 100% support.

Stay tuned . . .


  1. OK, I’ll ping my friend Mr. Delahunt today & tell him I’ll be looking for his support of Markey.

    Your Technoratic rank is growing, sir, as is Wetmachine’s in general. But it’s not the number of people who read us that matter, it’s the stellar quality and power of our readership that matters! Excelsior.

  2. Hey you there comes a time in every like you just got to say — “What the F@#$” and go for it. As in go for it might I suggest a Bill that simply provides an extension to existing law. Remember this one? — “ The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    I would propose — “ The right of the people to be secure in their persons, houses, papers, [communications] and effects, against unreasonable searches…” The legal system has been dancing around ‘rights’ as it extends to electronic disbursement outside of the homestead since the Internet was adopted as something other than the DoD comm system. The problem is we have a hodgepodge legal readings and no unifying codus that makes it definitive.

    The simple expedient of amending the 4th would hopefully make it clear that communications external to the home hold the same standing as those inside of it. It turns ISPs into custodians not owners of data streams and relieves them of the surveillance responsibility. It also puts DoJ on notice they got to earn the warrant the old fashion way — probable cause and evidencary proceeding. Had it been in place the whole issue about Telco immunity would be moot.

    But then I think a little blood on the tyrant is useful every once in a while.

Comments are closed