The Telecommunications and Internet subcommittee of the the House Committee on Energy and Commerce held a hearing today on H.R. 5353, the Internet Freedom Preservation Act of 2008. The bill would establish an official national broadband policy, one that prevents service providers from subjecting lawful content to "unreasonable interference" or "discrimination." It also calls on the Federal Communications Commission to assess competition in and consumer access to broadband Internet access in light of this policy. The testimony at the hearing, however, suggested that these provisions, and net neutrality in general, means very different things to different groups. And, as far as the RIAA is concerned, net neutrality legislation could hamstring the fight against piracy.





Edward Markey

Representative Edward Markey (D-MA), a sponsor of the bill and chair of the subcommittee, left little doubt that the IFPA is about a specific vision of net neutrality. "Now we are faced with a choice," he said in his opening statement, "Can we preserve this wildly successful medium and the freedom it embodies, or do we permit network operators to fundamentally alter how the Internet has historically functioned?" Markey presented the neutral Internet as an enabler of innovation, and contrasted it with a future in which, "in the name of network management, policymakers permit carriers to act in unreasonable, anti-competitive fashion."

Telcos, not surprisingly, beg to differ. Kyle McSlarrow, president of the National Cable & Telecommunications Association, was one of the witnesses testifying, and his past testimony regarding a similar Senate bill reveal that he's apparently operating in an entirely different universe than Markey. From his perspective, mandated net neutrality would somehow suppress all incentive for ISPs to expand broadband access. He accused companies like Yahoo and Google, which flourished in the broadband market, of trying to "foreclose any new business model that would enable new entrants to challenge them." From McSlarrow's perspective, network management, far from ensuring neutrality, is a form of innovation that will somehow bring the next generation of Internet into being.

In this, McSlarrow got support from University of Pennsylvania law professor Christopher Yoo. Yoo has testified on behalf of ISPs before, arguing that congestion caused by file sharing represents a real burden for all Internet users. His academic writing also presents 'Net neutrality as somehow interfering with solving the "last mile access" problem.





Christopher Yoo

Markey's universe wasn't entirely uninhabited, however. A representative of the Christian Coalition and the president of Shoebuy.com both testified that a non-neutral 'Net in which ISPs could charge for access to their customers would stifle both small organizations and newly formed companies. Ben Scott, the policy director of Free Press also echoed Markey's concerns, and suggested that Comcast's blocking of P2P traffic suggested that net neutrality regulation is no longer an abstract concern—it's a real-world problem. "It is time for Congress to act," Scott testified, "this is the right bill at the right time."

Representatives of the RIAA and the Writer's Guild of America were also on hand. For these groups, the traffic filtering favored by telcos is a close cousin of the content-based filtering that they favor for combating piracy. As such, they clearly have an interest in helping ISPs enable some form of network filtering on a non-neutral 'Net. But the actual state of the Internet is less important to the RIAA than blocking piracy so, since it has been far from successful in bringing all ISPs on board the filtering bandwagon, its representative played hardball.

The RIAA barely addressed the legislation at hand, and simply thanked those who crafted it for recognizing a distinction between legal and illegal Internet traffic. Instead, its testimony seemed to consist largely of a veiled threat against ISPs, suggesting the RIAA hoped to negotiate a market-based solution with them, but it would support legislative intervention—which the service providers are hoping to avoid—if necessary.

To a certain extent, the testimony was filled with questionable comparisons and false dichotomies, such as the telcos equating innovation in biasing Internet traffic with the innovative companies that succeeded through services offered on an unbiased network. Any informative debate or informed legislation will ultimately have to carefully separate these issues, and there seems to be a degree of urgency in doing so. As the Free Press' Scott noted, "it is not a question of whether consumers will have laws guarding against Internet gatekeepers, but how those laws will be crafted."