Close Reading: The Internet Freedom Preservation Act of 2009
Close Reading: The Internet Freedom Preservation Act of 2009
Close Reading: The Internet Freedom Preservation Act of 2009

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    Earlier this week, Art called attention to the Internet Freedom Preservation Act of 2009, a bill introduced in Congress by Representatives Ed Markey and Anna Eshoo. The bill, which you can read here (PDF link), marks the latest front in the Net Neutrality battle–the ongoing fight to ensure that the Internet remains an open, nondiscriminatory platform. Seeing how this bill is likely to rekindle the Net Neutrality debate once Congress returns in September, we thought that a quick rundown of the text of the bill was in order.

    The bill, which modifies Title I of the Communications Act of 1934, is divided into a number of sections and subsections. For the sake of clarity, I’ve broken down the analysis below along those same lines.

    A. Internet Freedom Policy

    This section sets out the ideas that will guide U.S. government policy with regard to “Internet freedom”. Pursuant to this section of the bill, the Federal government must:

    • Protect the rights of users to access the lawful content, applications and services of their choice on the Internet
    • Preserve the open and interconnected nature of broadband networks
    • Promote consumer choice and competition in the broadband marketplace
    • Ensure that consumers receive meaningful information about communications services (acceptable use policies, terms of service, etc.)
    • Guard against discriminatory practices
    • Foster innovation and economic growth
    • Provide a level playing field for new entrants and independent service providers

    A number of the above points dovetail nicely with the goals of the Broadband Technology Opportunities Program (BTOP) and the National Broadband Plan (NBP), signaling that different branches of the Federal government are finally starting to get on the same page with regard to broadband. Of particular note here is the openness language (to “enable consumers to connect to such networks their choice of lawful devices, as long as such devices do not harm the network”), which extends the Carterfone rules that have long governed wireline voice networks to broadband data networks.

    B. Duties of Internet Access Service Providers

    This section lays out the new rules that ISPs will have to follow. Among them, ISPs:

    • Must not block, interfere with, discriminate against, or degrade the ability of a user to engage in lawful activity on the Internet
    • May not charge users additional fees for accessing specific Internet content or services
    • Must allow a user to connect any lawful application or device to the network, so long as that application or device does not harm the network
    • May not provide or sell any technology that prioritizes any one party’s traffic over that of another party

    C. Commission Action

    This section details exactly what action the FCC can take to enforce the above principles. The Commission is given 90 days from the enactment of the Act to convene a rulemaking whereby it will bestow upon itself the power to fulfill the duties in section A, inform consumers of their new rights and encourage network buildout in a manner that makes the above goals feasible.

    D. Reasonable Network Management

    Ever the point of contention, the phrase “reasonable network management,” first appeared, undefined, in the FCC Internet Policy Statement’s four principles (PDF link) and has since been used in attempts to justify everything from Comcast’s blocking of Bit Torrent to Time Warner Cable’s bandwidth caps. The Internet Freedom Preservation Act attempts to finally put the debate surrounding reasonable network management to rest, devoting an entire section to its definition. In short, the bill defines network management as “reasonable” only if it furthers a critically important interest, is narrowly tailored to address that interest and operates in the least restrictive, discriminatory manner possible. While this definition still leaves the Commission a fair amount of wiggle room, it provides a standardized litmus test that the Commission can use to evaluate an ISP’s actions.

    E. Transparency For Consumers

    This section requires ISPs to provide customers with meaningful notice regarding not just the speed, nature and limitations of a service but also, any network management practice that the user is likely to encounter in the course of routine use.

    F. Stand Alone Internet Access Service

    The language in this section precludes ISPs from forcing consumers to purchase other services in order to receive Internet service (as someone who once maintained a “dummy” phone line just so that I could get DSL service, I was particularly excited to see this language in the bill).

    G. Other Services

    Not a whole lot here that’s worthy of note, aside from a few points that pertain to “private transmission capacity services,” more commonly known as “managed services”. These are those network services offered by ISPs (VoIP, IPTV, etc.) that are siloed off from the rest of the Internet, in order to guarantee a minimum quality of service. The bill calls upon the Commission to define the term “private transmission capacity services” and to decide whether such services are subject to the same rules of nondiscrimination as Internet services. Specifically, the bill requires that such services do not diminish or degrade the Internet service offered by an ISP and that they are not offered in an anticompetitive or discriminatory manner.

    K. Definitions

    Normally, the definitions section of a bill wouldn’t be all too interesting. In this case, however, an “Internet Access Service Provider” is defined as anyone who offers a two-way Internet communications service, “whether provided via wire or radio”. This means that wireless broadband providers (i.e. AT&T, Verizon, Sprint and T-Mobile) are also on the hook.

    All in all, the Internet Freedom Protection Act of 2009 seems like a great first step toward the goal of enshrining net neutrality in U.S. law. It finally extends Carterfone rules to broadband providers, addresses the long-standing questions surrounding reasonable network management and ensures a number of much-needed protections for consumers. What remains to be seen is how the language of the bill will change as it works its way through Congress, how the FCC will choose to implement and enforce the provisions of the bill and whether or not the bill will be taken up by Congress at all. Only one thing is certain: those few, powerful opponents of net neutrality are not going to let this bill through without a fight.