This week, we examine two proposals that aim to prevent the FCC from establishing or enforcing any rules or regulations on internet service providers. Currently, all bandwidth use must be treated as equal. This standard has long been cherished by activists as a way of ensuring the values of democracy online. Conservatives, however, have begun to question whether or not this regulation goes against free market principles. The two bills we examine, coming out of the House of Representatives, similarly attempt to allow internet service providers (ISP's) to treat bandwidth use as they see fit.
Status: Both bills assigned to Energy and Commerce Subcommittee on Communications and Technology. Hearing held on the issue 2/16/11. No further action scheduled. The House-passed Continuing Resolution (H.R. 1) did include an similar amendment by Rep. Greg Walden. However, it is highly unlikely that H.R. 1 passes the Senate in its current form.
Senate Companion: No direct equivalent. One resolution by Sen. Kay Bailey Hutchison (R-TX) would prohibit the FCC rule passed in December 2010 from taking effect, but not impose further limitations on the Commission's ability to act.
Purpose: To date, the Internet has been a truly democratic institution; its structure has allowed traffic to flow equitably by treating all bandwidth use as equal in priority. However, telecom companies have been eager to implement tiered content structures, thus slowing down traffic on websites not willing or able to pay a fee. In response, the Federal Communications Commission recently crafted a rule that does not guarantee preservation of the status quo, but does assert its authority to regulate the broadband market. As a result, supporters of the telecom position are deeply unsatisfied.
Summary: Both H.R. 96 and H.R. 166 would directly prohibit the FCC from issuing or enforcing any regulations related to Internet access and service, including regs forcing ISPs to treat all content as equal. The details of each are as follows:
• Both bills exempt a narrow range of activity related to national security, public safety and law enforcement issues;
• The Stearns bill (H.R. 166) includes a more general loophole designed to ensure that lack of regulation does not cause a "substantial number of consumers nationwide" to be prevented from "accessing a substantial amount of lawful Internet content". Such regulations must be the least restrictive necessary to address the market failure;
• The Blackburn bill (H.R. 96) clarifies that under the Constitution's Commerce Clause, the federal government holds exclusive jurisdiction over issues related to internet access.
CBO Score: none provided.
Supporters: Most Republicans, Chamber of Commerce, Americans for Prosperity, etc.
• Supporters believe FCC rules regulating the Internet are unnecessary, will stifle innovation and are a breach of the agency's jurisdiction. Some have openly invoked the right of ISPs to control their own products with autonomy.
Opponents: Most Democrats, netroots organizations, SavetheInternet.com Coalition, etc.
• Opponents view the future of the free and open Internet as seriously jeopardized by wealthy, profit-driven telephone and cable companies. These corporations seek to reserve the fastest speeds for their own content and those willing to pay hefty tolls, and slow other traffic to a virtual crawl. Opponents believe such a development would drastically stifle innovation, competition and access to information.
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