House Judiciary Committee Approves Net Neutrality Bill

May 25, 2006. The House Judiciary Committee (HJC) amended and approved HR 5417, the "Internet Freedom and Nondiscrimination Act of 2006".

This is the network neutrality bill sponsored by Rep. James Sensenbrenner (R-WI), Rep. John Conyers (D-MI), Rep. Rick Boucher (D-VA), and Rep. Zoe Lofgren (D-CA). For a summary of the base bill, see story titled "Sensenbrenner and Conyers Introduce Net Neutrality Bill" in TLJ Daily E-Mail Alert No. 1,375, May 22, 2006.

Rep. Sensenbrenner (at left), the Chairman of the HJC, stated that "most Americans are subject to a broadband duopoly while others -- particularly in rural areas -- are subject to a broadband monopoly". He said that "These conditions create an environment ripe for anti-competitive and discriminatory misconduct."

He said that HR 5417 "prohibits anticompetitive conduct in which the network provider fails to provide service and interconnection on nondiscriminatory terms, blocks or impairs lawful content, prohibits users from attaching devices to its network, or fails to inform consumers about the terms of the broadband service."

Rep. Sensenbrenner also said that the House Commerce Committee (HCC) recently approved HR 5252, the "Communications Opportunity, Promotion, and Enhancement Act of 2006", or COPE Act. See, stories titled Amendment by Amendment Summary of Full Committee Mark Up of COPE Act" and "Roll Call Votes On COPE Act" in TLJ Daily E-Mail Alert No. 1,360, April 28, 2006.

He said that the COPE Act "vest the FCC with ``exclusive´´ authority to define and adjudicate discriminatory broadband practices, while explicitly prohibiting the FCC from issuing any rules or regulations to establish meaningful sanctions for this misconduct. These provisions displace the application of the antitrust laws in this field and transgress the authority of this Committee. H.R. 5417 restores these safeguards."

The HJC approved a manager's amendment offered by Rep. Sensenbrenner on a voice vote. There were no other amendments. The HJC then approved the bill, as amended, on a roll call vote of 20-13-1. See, roll call at right.

The lopsided vote in favor of this bill, while the HCC overwhelmingly rejected a different network neutrality proposal on April 26, was due in part to the desire by many HJC members to preserve the HJC's jurisdiction, preserve the role of the courts in adjudicating disputes regarding anticompetitive practices by broadband service providers, and to preserve a role for the HJC in the formulation of telecom reform legislation generally.

The HCC members drafted and amended the COPE Act with the goal of excluding any claim to jurisdiction by the HJC.

Hence, some HJC members criticized the content of HR 5417, but nevertheless voted for it.

Summary Of Bill As Amended. First, the bill enumerates a list of prohibited practices. It provides that "It shall be unlawful for any broadband network provider---
   (1) to fail to provide its broadband network services on reasonable and nondiscriminatory terms and conditions such that any person can offer or provide content, applications, or services to or over the network in a manner that is at least equal to the manner in which the provider or its affiliates offer content, applications, and services, free of any surcharge on the basis of the content, application, or service;
   (2) to refuse to interconnect its facilities with the facilities of another provider of broadband network services on reasonable and nondiscriminatory terms or conditions;
   (3)(A) to block, to impair, to discriminate against, or to interfere with the ability of any person to use a broadband network service to access, to use, to send, to receive, or to offer lawful content, applications or services over the Internet; or (B) to impose an additional charge to avoid any conduct that is prohibited by this subsection;
   (4) to prohibit a user from attaching or using a device on the provider’s network that does not physically damage or materially degrade other users’ utilization of the network; or
   (5) to fail to clearly and conspicuously disclose to users, in plain language, accurate information concerning any terms, conditions, or limitations on the broadband network service."

This language, from the base bill, was not amended by the manager's amendment.

Second, the bill provides that "If a broadband network provider prioritizes or offers enhanced quality of service to data of a particular type, it must prioritize or offer enhanced quality of service to all data of that type (regardless of the origin or ownership of such data) without imposing a surcharge or other consideration for such prioritization or enhanced quality of service." (Parentheses in original.)

This too was left unchanged by the manager's amendment.

Third, the bill provides that it does not prevent a broadband network provider from taking certain enumerated "reasonable and nondiscriminatory measures". The manager's amendment rewrites this subsection. The bill, as amended, now provides as follows:

"Nothing in this section shall be construed to prevent a broadband network provider from taking reasonable and nondiscriminatory measures---
   (1) to manage the functioning of its network, on a systemwide basis, provided that any such management function does not result in discrimination between content, applications, or services offered by the provider and unaffiliated provider;
   (2) to give priority to emergency communications;
   (3) to prevent a violation of a Federal or State law, or to comply with an order of a court to enforce such law;
   (4) to offer consumer protection services (such as parental controls), provided that a user may refuse or disable such services;
   (5) to offer special promotional pricing or other marketing initiatives; or
   (6) to prioritize or offer enhanced quality of service to all data of a particular type (regardless of the origin or ownership of such data) without imposing a surcharge or other consideration for such prioritization or quality of service."

(Parentheses in original. The above language also includes two technical and conforming changes that TLJ anticipates will be made by HJC counsel, namely, deletion of one use of the word "or" between items, and changing a "." to a ";".)