A Not-So-Viable Alternative

Only days after the U.S. Federal Communications Commission (FCC) repealed hard-won, Obama-era net neutrality rules, a new bill has appeared in the House of Representatives in its place. Sponsored by Republican congresswoman Marsha Blackburn (Tenn.), the bill that unveiled on December 19 supposedly promotes legislation that promises to replace net neutrality.

Except, it really doesn’t.

The Open Internet Preservation Act headlines itself as an amendment to “the Communications Act of 1934 to ensure internet openness, to prohibit blocking of lawful content, applications, services, and [non-harmful] devices, to prohibit impairment or degradation of lawful internet traffic, to limit the authority of the Federal Communications Commission and to preempt State law with respect to internet openness obligations, to provide that broadband internet access service shall be considered to be an information service, and for other purposes.”

While it does restore two of the most important provisions of the repealed net neutrality rules — namely, the ban on blocking and slowing of websites —the GOP-sponsored bill lacks an equally crucial provision. Included in the FCC’s 2015 net neutrality rules was a ban on so-called “paid prioritization:” i.e., the ability of Internet Service Providers (ISPs) to prioritize and speed up certain websites in exchange for money.

Without this tenet, internet providers can technically influence consumers to patronize certain content over others, as long as these websites can pay for it. Sure, ISPs won’t be able to ban particular websites, but this “nudging” pretty much works in the same way.

No blocking. No throttling. The Open Internet Preservation Act will ensure the internet is a free and open space. This legislation is simple, it provides light-touch regulation so companies can invest and innovate, and make sure our internet is up to 21st century standards. — Marsha Blackburn (@MarshaBlackburn) December 19, 2017

“On paid prioritization, there is not agreement,” Blackburn said in an interview, according to the Washington Post. “We have heard from a lot of innovators who are working around [artificial intelligence] and with [autonomous vehicles] and in health-care technology that their preference would be for it to be silent on the paid prioritization issue.”

Not Real Net Neutrality

According to the Post, another key point in Blackburn’s bill that supporters of net neutrality might find questionable is the provision that pushes the FCC to recognize ISPs as “lightly regulated ‘information service providers.'” This was rejected under the 2015 FCC rules, as it’s a category that comes with fewer obligations, compared to classifying ISPs as utilities.

Stanford University law professor Barbara van Schewick, director of the Center for Internet and Society, told Futurism that Blackburn’s bill is net neutrality only in name. “This bill doesn’t protect net neutrality by law; it eliminates it by law. While the bill looks as if it codifies the existing bans on blocking and throttling of websites, apps and services, it doesn’t even do that,” she explained. “Moreover, the bill permanently frees ISPs to engage in lots of harmful behaviors that are currently prohibited, and dramatically curtails the FCC’s power to enforce what meager protections are in the bill.”

“It’s a joke that’s not funny,” said Evan Greer, director of the Fight for the Future campaign, in an interview with Futurism, referring to Blackburn’s proposed bill. Fight for the Future has been one of the long-standing advocates for a truly open and free internet, and supported the FCC’s 2015 net neutrality rules. In the group’s official statement, they called the latest attempt to replace net neutrality “a poorly disguised slap in the face to Internet users from across the political spectrum.”

This is a fight they plan on continuing, according to Greer. “Internet users are outraged. We plan to channel that anger productively and strategically and put everything we’ve got into pushing for Congress to overturn the FCC vote using a resolution of disapproval under the Congressional Review Act (CRA),” she told Futurism. “It will be a simple up or down vote on whether to protect the open Internet or sign its death warrant. Lawmakers should choose wisely which side of history they want to be on.”

Indeed, a number of efforts are underway to challenge and hopefully reverse the FCC’s repeal. A coalition of attorneys general plan to challenge the decision in court, a move that some lawmakers are also exploring. In California and Washington, authorities pledged to prevent ISPs from restricting internet excess. Under Blackburn’s bill, however, such a move would no longer be possible. The proposed bill expressly prohibits states from coming up with their own legislation on net neutrality.

For Berin Szoka, president of think-tank TechFreedom, the bill presents an opportunity. “I don’t expect [Democrats] are going to endorse Blackburn’s bill, but that’s never how this has worked,” he told the Post. “The point is to get both sides talking.”