House Approves COPE Act, Without Network Neutrality Amendment

June 8, 2006. The House amended and approved HR 5252, the "Communications Opportunity, Promotion, and Enhancement Act of 2006" (COPE Act). The vote on final approval was 321-101. See, Roll Call No. 241.

Republicans voted 215-8 for the bill. Democrats voted 106-92.

The House rejected the Markey network neutrality amendment [PDF] by a vote of 152-269. See, Roll Call No. 239. Republicans voted 11-211. Democrats voted 140-58.

The House approved the Smith antitrust amendment by a vote of 353-68.. See, Roll Call No. 238. Republicans voted 222-1. Rep. James Sensenbrenner (R-WI) cast the only Republican vote against this amendment. He also voted for the Markey amendment, and against final passage.

This amendment provides that "Nothing in this section shall be construed to modify, impair, or supercede the applicability of the antitrust laws or the jurisdiction of the district courts of the United States to hear claims arising under the antitrust laws." It also provides that "The term 'antitrust laws' has the meaning given to it in subsection (a) of the first section of the Clayton Act (15 U.S.C. 12(a)), except that such term includes section 5 of the Federal Trade Commission Act (15 U.S.C. 45) to the extent that such section 5 applies to unfair methods of competition."

Hence, the bill as amended, provides,  in Title II, that the Federal Communications Commission (FCC) is authorized to enforce its August 2005 policy statement [3 pages in PDF] regarding network neutrality through case by case adjudicatory proceedings. However, it lacks the broader network neutrality language of the Markey language, and the Clayton Act based network neutrality language of HR 5417, the "Internet Freedom and Nondiscrimination Act of 2006", which the House Judiciary Committee approved on May 25, 2006. The Rules Committee has refused to make in order an amendment containing language substantially similar to HR 5417. However, the bill now does have the limited the antitrust authority preservation language added by the Smith amendment.

The House approved by voice vote a manager's amendment [6 pages in PDF] offered by Rep. Joe Barton (R-TX), the Chairman of the House Commerce Committee (HCC), and lead sponsor of the bill.

The House approved by voice vote an amendment [3 pages in PDF] offered by Rep. Gil Gutknecht (R-MN). This amends Titled III of the bill, regarding VOIP, to provide that "Nothing in this Act (including the amendments made in this Act) shall be construed to exempt a VOIP service provider from requirements imposed by the Federal Communications Commission or a State commission on all VOIP service providers to (1) pay appropriate compensation for the transportation of a VOIP service over the facilities and equipment of another provider; or (2) contribute on an equitable and non-discriminatory basis to the preservation and advancement of universal service."

The House approved by voice vote an amendment [3 pages in PDF] offered by Rep. Bobbie Rush (D-IL) that provides for a complaint process to resolve fee disputes.

The House approved by voice vote an amendment [2 pages in PDF] offered by Rep. Eddie Johnson (D-TX) that increases from $500,000 to $750,000 the penalty for an operator who discriminates by denying access to a service on the basis of income.

The House approved by voice vote an amendment [7 pages in PDF] offered by Rep. Al Wynn (D-MD) that allows local franchising authorities to issue an order requiring compliance with FCC consumer protection rules.

Rep. Sheila Lee (D-TX) withdrew her amendment [2 pages in PDF].

Rep. Barton (at left) stated "The primary focus of this legislation is to create a streamlined cable franchising process in order to increase the number of facilities-based providers of video, voice, and data services everywhere in our great nation. Today, there are thousands of local franchising authorities, and each may impose disparate restrictions on the provision of cable service in its specific franchising area.  The requirement to negotiate such local franchises, and the patchwork of obligations local franchising authorities impose, are hindering the deployment of advanced broadband networks that will bring increasingly innovative and competitive services to all of our constituents."

He added that "The bill also seeks to strike the right balance between ensuring that the public Internet remains an open, vibrant marketplace and ensuring that Congress does not hand the FCC a blank check to regulate Internet services, an action that I believe would have a chilling affect on broadband deployment, especially, broadband innovation. We do need the FCC to stop the cheats without killing honest creativity. We don't need anybody to be the first Secretary of the Internet."

Reaction. BellSouth's Herschel Abbott stated in a release that "We congratulate and thank Chairman Barton and Representative Rush for shepherding this legislation through the House. We look forward to Senate action so that legislation can be signed by the President this year. Completion of video franchise legislation will allow faster rollout of a video service that can provide another competitive alternative to cable, offering the kind of customer service and quality that customers demand. Given the amount of debate over so called 'net neutrality' during consideration of this bill, let me again assure consumers that BellSouth will not block or degrade access to any legal content on the internet. Net neutrality is a phony issue and it ought to be laid to rest by today's vote."

See also, release of Walter McCormick, head of the USTelecom.

Kyle McSlarrow, head of the NCTA, stated in a release that "As an industry that already operates in a fully competitive marketplace, cable supports the vision of this legislation which ensures that all providers compete on a level playing field. And with the inclusion of interconnection language for facilities-based Internet voice providers, the COPE Act is a significant step forward for voice competition in the U.S. Cable companies today provide competitive voice service to millions of American consumers, and this legislation will encourage even more robust competition in the telephone market."

He added that "By rejecting network neutrality regulation, the House has clearly stated a preference for telecom reform that allows the marketplace and not the government to pick winners and losers. And consumers will reap the benefits. We continue to believe that government should further study the emerging broadband marketplace before injecting itself into a thriving, dynamic market where investment and innovation are flourishing."

Earl Comstock, head of Comptel, stated in a release that "COMPTEL is greatly disappointed that the House today capitulated to the strong arm tactics of the Bell operating monopolies and passed legislation that advances the interests of the Bell companies at the expense of consumers and competition. By failing to adopt pro-competitive safeguards, including Net neutrality provisions, the House has set the stage for America to fall further behind Europe and Asia with respect to broadband services. This legislation provides even greater incentive for the Bell companies, like the cable companies before them, to raise prices, limit competition, and squash innovation. The House today has failed American consumers and businesses by taking a giant step toward turning the Internet into a cable duopoly."

Public Knowledge's Gigi Sohn stated in a release that "With the defeat of the Markey amendment, the House bill will have no meaningful protections for consumers or service providers against the discriminatory practices that the telephone and cable companies will employ to favor their own content and services. Today's Internet, which gives consumers control over what applications, services and content they want to access, will be replaced by an Internet that looks like a cable system -- where network providers determine who gets on and at what price."