In an effort to make network neutrality impossible for the FCC temperament, Congressman Cliff Stearns (R-FL) yesterday introduced a new bill (PDF) that would require "neutral network neutrality." And no, that's not a typo.

The bill would make it difficult for the FCC to proceed with its preferred approach to network neutrality, "reclassifying" Internet access as a telecommunications service over which the FCC has "common carrier" authority.

Before this can happen, the bill demands that the FCC send a lengthy report to Congress showing that "there is a market failure in the provision of such information service or Internet access service" and that "there is substantial evidence that the market failure is causing specific, identified harm to consumers by preventing a substantial number of consumers nationwide from accessing a substantial amount of lawful Internet content, applications, and services of their choice on a continuing basis."

The FCC would have to conduct a detailed cost-benefit analysis of its new rules, could only propose rules that are "the least restrictive necessary to address the market failure and specific harm to consumers," and could not prohibit managed services (in which ISPs offer their own voice or video services that directly compete with other over-the-top Internet offerings, but can prioritize these own services on the grounds that they are "separate" from the Internet).

The FCC also could not prohibit network management, and it could not interfere with "measures designed to prevent or deter unauthorized or illegal activity, including copyright infringement."

Taken together, the bill's measures would gut most network neutrality rules, since they prohibit the FCC from regulating congestion management and quality of service decisions by ISPs.

Completely neutral



Stearns' bill also requires the novel concept of "neutral network neutrality." This requires any new FCC regulations that meet the above criteria to be enforced "on a nondiscriminatory basis between and among broadband network providers, service providers, application providers, and content providers."

In other words, whatever rules the FCC develops would need to be applied equally to Verizon, YouTube, Google, etc. It's not at all clear from the bill what this means; the target does not appear to be actual content (i.e., YouTube somehow displaying a "neutral" set of videos) but the connections between and among providers that take place outside the public-facing ISP networks.

ISPs have long complained that they are being unfairly targeted by network neutrality, even as backbone operators or content delivery networks would be exempt from the rules.

In a statement announcing the bill, Stearns called the FCC's network neutrality plan a "partisan maneuver to regulate the Internet.... It's important to note that broadband is an information service outside the reach of Title II. This point was affirmed by the US Supreme Court in its Brand X decision in 2005."

Perhaps Stearns would like to revisit the Brand X decision before opining on it. That case, about the FCC's decision not to open up cable networks to competitors, did not conclude that broadband was "outside the reach of Title II." The Supreme Court concluded that the FCC had the right to decide which title covered broadband services—a very different thing indeed.

In fact, the Court's decision makes clear that "the Commission is free within the limits of reasoned interpretation to change course if it adequately justifies the change."

As for the Court's own view on the matter: "we express no view on those matters." When Brand X complained that the Commission was treating cable networks and DSL lines in different ways, the Court had "no view on how the Commission should, or lawfully may, classify DSL service."

Broadband is only "outside the reach of Title II" because the FCC decided to make it so; now it wants to make a different decision. Stearns' new bill aims to make that decision very difficult indeed—and top Republicans are joining him in pressuring the FCC to stand down.