Today, Senator Maria Cantwell (D-Wash.) introduced the Internet Freedom, Broadband Promotion, and Consumer Protection Act of 2011 to the Senate. Senator Al Franken (D-Minn.) cosponsored. The bill is a model of clarity, because it starts from a simple premise: What’s best for consumers, and what will best protect the open and democratic character of the Internet? The bill answers that question, by setting up short, simple, no-loopholes rules of the road that ensure that the companies that control the onramps to the Internet don’t get to extend that control and begin determining the shape of commerce and speech online.
Too often, well-meaning policymakers have tried to come up with “compromise” solutions that “industry” accepts. The relevant “industry” here is broadband providers. Website operators, online services, bloggers and journalists, and Internet voice and video companies don’t benefit from a “compromise” that means the still have to pay a toll to reach the public. The FCC issued its Open Internet order after months of negotiations with broadband companies, to little purpose. Verizon and MetroPCS are already suing to have them overturned.
The FCC’s rules are filled with exceptions and loopholes that create disputes about what’s allowed, instead of settling the issue. The FCC’s rules create a two-tier Internet, one wired—the real Internet—and the other wireless, “curated” and brought to you by your mobile broadband provider. The FCC’s rules try to distinguish between “websites” and “applications.” But is a video you watch in your browser part of a “website,” or is it really an “application”? The most disappointing thing about the FCC’s rules is that they seem to show an agency that doesn’t have the courage of it convictions. The Commission writes (see paragraph 76) that “it is unlikely that pay for priority would satisfy the ‘no unreasonable discrimination’ standard.” But the actual rules the Commission adopted (Appendix A) don’t clearly prohibit such a practice—inviting broadband providers in the future to test the waters.
That’s why Senator Cantwell’s bill is such a breath of fresh air. Here’s an example of its language. It says that a broadband provider may not “charge a content, application, or service provider for access to the broadband Internet access service providers’ end users based on differing levels of quality of service or prioritized delivery of Internet protocol packets.” Yes, it turns out that you can just say that some behaviors are not allowed, instead of just hinting that they probably, maybe, might not be. It also states that a broadband provider may not “block, interfere with, or degrade an end user’s ability to access, use, send, post, receive, or offer lawful content (including fair use), applications, or services of the user’s choice.” That’s right, it mentions fair use!
By looking out for consumers and the broader economy (i.e., not just broadband providers) first, Senator Cantwell has made a strong statement: the Open Internet can’t be protected by watered-down, industry-negotiated compromises. She and her staff deserve praise for introducing an excellent bill.