A Bill to Ban Internet ‘Fast Lanes’ Won’t Pass. But Here’s Why It Still Matters.

The FCC faces increasing pressure to ban paid prioritization of Internet traffic.

National Journal
Brendan Sasso
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Brendan Sasso
June 17, 2014, 12:15 p.m.

A Demo­crat­ic bill to ban “fast lanes” on the In­ter­net isn’t go­ing to be­come law.

Re­pub­lic­ans have long op­posed net-neut­ral­ity reg­u­la­tions, and as long as they con­trol the House, they’ll block le­gis­la­tion that would re­strict the busi­ness choices of In­ter­net ser­vice pro­viders.

But the On­line Com­pet­i­tion and Con­sumer Choice Act, in­tro­duced Tues­day by Sen. Patrick Leahy and Rep. Dor­is Mat­sui, isn’t really about chan­ging the law. It’s about send­ing a mes­sage to the Fed­er­al Com­mu­nic­a­tions Com­mis­sion.

“We put forth the bill to put in­creased pres­sure on the FCC to ban paid-pri­or­it­iz­a­tion agree­ments,” an aide to a bill sup­port­er ex­plained.

Net neut­ral­ity is the prin­ciple that all In­ter­net traffic should be treated equally. The FCC first en­acted net-neut­ral­ity rules in 2010 that barred In­ter­net ser­vice pro­viders from block­ing any web­sites or from “un­reas­on­ably” dis­crim­in­at­ing against any traffic.

A fed­er­al court struck those rules down earli­er this year, and now FCC Chair­man Tom Wheel­er is try­ing to re­write them in a way that can sur­vive fu­ture court chal­lenges. His pro­pos­al would still bar In­ter­net pro­viders from block­ing web­sites but would al­low pro­viders to charge sites for faster ser­vice as long as the agree­ments are “com­mer­cially reas­on­able.”

In­ter­net act­iv­ists, ma­jor Web com­pan­ies such as Google, and many Demo­crats on Cap­it­ol Hill fear that change could cre­ate a two-tiered In­ter­net that be­ne­fits the richest cor­por­a­tions and lim­its free speech.

“Amer­ic­ans are speak­ing loud and clear — they want an In­ter­net that is a plat­form for free ex­pres­sion and in­nov­a­tion, where the best ideas and ser­vices can reach con­sumers based on mer­it rather than based on a fin­an­cial re­la­tion­ship with a broad­band pro­vider,” Leahy, the chair­man of the Sen­ate Ju­di­ciary Com­mit­tee, said in a state­ment.

The FCC has been flooded by thou­sands of out­raged com­ments in re­cent weeks op­pos­ing the “fast lane” pro­pos­al.

Chris­toph­er Lewis, a lob­by­ist for the con­sumer-ad­vocacy group Pub­lic Know­ledge, said the bill is sig­ni­fic­ant be­cause it shows there is a grow­ing con­sensus around the idea that net neut­ral­ity means com­pan­ies shouldn’t be al­lowed to pay for faster ser­vice.

“I think this is a le­gis­lat­ive state­ment,” Lewis said, ar­guing that Wheel­er will have to “take no­tice” of the out­pour­ing of op­pos­i­tion from law­makers, in­vestors, and In­ter­net com­pan­ies.

Wheel­er ex­pec­ted to take cri­ti­cism from Re­pub­lic­ans, who are skep­tic­al of the gov­ern­ment telling broad­band pro­viders how to man­age their net­works. But the grow­ing op­pos­i­tion to his pro­pos­al from Demo­crats could leave the FCC chief in a tenu­ous polit­ic­al po­s­i­tion. Even the White House has offered little sup­port, not­ing that the FCC is an “in­de­pend­ent agency.” 

Wheel­er needs the votes of both Demo­crats on the five-mem­ber com­mis­sion to en­act his pro­posed reg­u­la­tions. But those com­mis­sion­ers, Jes­sica Rosen­wor­cel and Mignon Cly­burn, might not be eager to help the chair­man if he’s all alone on the is­sue.

A spokes­man for the FCC chair­man de­clined to com­ment on the bill. 

The On­line Com­pet­i­tion and Con­sumer Choice Act, which also has the sup­port of Sen. Al Franken and Reps. Henry Wax­man and Anna Eshoo, would in­struct the FCC to en­act rules ban­ning paid pri­or­it­iz­a­tion with­in 90 days of the bill be­com­ing law. The bill would also call for rules ban­ning In­ter­net pro­viders from fa­vor­ing con­tent they own or are af­fil­i­ated with.

The bill avoids the con­ten­tious de­bate over the FCC’s au­thor­ity. Many net-neut­ral­ity sup­port­ers ar­gue that the only way to en­act rules that can sur­vive in court is to re­clas­si­fy In­ter­net pro­viders as “com­mon car­ri­er” util­it­ies un­der Title II of the Com­mu­nic­a­tions Act. But Re­pub­lic­ans and In­ter­net pro­viders ar­gue that util­ity-style reg­u­la­tion of the In­ter­net would dis­cour­age in­vest­ment and stifle eco­nom­ic growth.

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