Rep. Conyers and Rep. Lofgren Introduce Antitrust Based Network Neutrality Bill

May 7, 2008. Rep. John Conyers (D-MI) and Rep. Zoe Lofgren (D-CA) introduced HR 5994 [LOC | WW | PDF], the "Internet Freedom and Nondiscrimination Act of 2008"

This bill is very similar, but not identical, to a bill introduced in the 109th Congress, HR 5417 [5 pages in PDF], the "Internet Freedom and Nondiscrimination Act of 2006". For a summary of that bill, see story titled "Sensenbrenner and Conyers Introduce Net Neutrality Bill" in TLJ Daily E-Mail Alert No. 1,375, May 22, 2006.

The just introduced bill follows HR 5417's amendments to the Clayton Act. However, it contains new language regarding exceptions for network management, and other matters.

This bill would attempt to achieve a form of network neutrality through antitrust law and enforcement. Oversight in the Congress of antitrust laws and the Department of Justice (DOJ) lies with the judiciary committees. Rep. Conyers is the Chairman of the House Judiciary Committee (HJC), and Rep. Lofgren is a member.

In contrast, some members of the commerce committees also seek to achieve a form of network neutrality, but through communications law and the Federal Communications Commission (FCC), oversight of which lies within the jurisdiction of the commerce committees.

Thus, this bill not only faces opposition from opponents of network neutrality mandates, it is also subject to turf battles within the House and Senate. Moreover, the bill was introduced late in the present Congress.

Proponents of this bill likely lack sufficient support to obtain enactment of this bill into law in the present Congress.

Bill Summary. This bill would amend the Clayton Act, which is codified at 15 U.S.C. § 12 et seq., by adding a new Section 28. It would provide 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."

The above quoted language is the same as the bill in the 109th Congress.

The bill would also provide 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 is the same as the bill in the 109th Congress.

The bill would also provide exceptions. This part of the just introduced bill varies from the previous version of the bill.

The just introduced bill provides that "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.)

Statements Regarding Bill. Rep. Conyers (at left) stated in a release "Americans have come to expect the Internet to be open to everyone ... The Internet was designed without centralized control, without gatekeepers for content and services. If we allow companies with monopoly or duopoly power to control how the Internet operates, network providers could have the power to choose what content is available. Many of the innovations and products we use every day, such as search engines, music download services and online video, likely would never have developed in such a restricted environment."

Rep. Lofgren stated in this release that "Recent events have shown that net neutrality is more than a hypothetical concern. We need a meaningful remedy to prevent those who control the infrastructure of the Internet from controlling the content on the Internet. This legislation will help guarantee that the innovative spirit of the Internet is not trampled."

Gigi Sohn, head of the Public Knowledge, stated in a release that "The bill squarely addresses the issue of the enormous market power of the telephone and cable companies as the providers of 98 percent of the broadband service in the country. The bill restores the principle of non-discrimination that allowed the Internet to flourish in the dial-up era, making certain that the same freedom and innovation will flourish in the broadband era without burdensome regulation."

Markham Erickson, of the Open Internet Coalition, stated in a release that "Over the past year, network operators have repeatedly taken steps to block Internet content, delivering a blow to the core Internet value of openness. Their actions have reduced consumer choices about how to use the Internet and chilled innovation by entrepreneurs and application developers. This has been an unfortunate development in the history of the Internet, one that threatens our leadership position in the information economy and should not be allowed to stand."

Markham added that "Today's bill addresses this threat head-on. By providing a strong antitrust remedy, it puts direct, immediate pressure on broadband providers not to engage in arbitrary discrimination against content or applications. We believe it is a positive step towards reining in these abuses by the cable/telco broadband duopoly, and will help ensure the Internet will be protected and remain open for all Americans."