Earlier this week, we covered the debate in Congress over a bill that would define net neutrality as part of the nation's official broadband policy and direct the FCC to ensure that it happens. But regulating communications may not be the only way to get net neutrality enacted; a bill introduced today by Representatives John Conyers (D-MI) and Zoe Lofgren (D-CA) treats it as an antitrust issue and amends the Clayton Act accordingly.

The bill, the Internet Freedom and Nondiscrimination Act of 2008, will enter the record as H.R. 5994. The text does not differ significantly from a previous attempt that went by the same name in 2006. The bill is intended to "promote competition, to facilitate trade, and to ensure competitive and non-discriminatory access to the Internet."

It does so by outlawing discriminatory fees for providing content, applications, or services over the 'Net. Internet providers also have to interact fully with the networks of their competitors and provide equal access to all users and any devices they wish to put on the network. Network providers would be allowed to provide favored service to specific types of data but, if they do, they have to provide that same favoritism to anybody transmitting the data, and couldn't charge for it.

The primary differences from the previous version of the bill come in the exceptions. As in the earlier bill, ISPs would be allowed to manage network traffic in a nondiscriminatory manner, and could discriminate to favor emergency communications or to comply with law enforcement. Three new provisions, however, add additional exceptions for marketing purposes, parental controls, and improving quality of service in a nondiscriminatory manner.





John Conyers

Ben Scott of Free Press, who testified in favor of net neutrality at the earlier hearing, was, as expected, pleased with this bill. "We applaud Chairman Conyers and Representative Lofgren for their leadership and commitment to the public interest on this critical issue," he said in a statement, "Congress must step in to defend the open Internet." Given that one of its sponsors (Conyers) is the House Judiciary Committee Chairman, the bill is likely to at least receive some consideration.

The Clayton Act dates to 1914, but the new provisions seem to fit nicely into its general scope. Among other things, the Act forbids charging different buyers different prices for the same product or service or engaging in tying or bundling agreements that harm competitors. How these provisions operate in practice has largely been settled through the courts, so it seems probable that, even if the 2008 version of this bill passes, it may take a while before we're sure what sorts of behavior it actually prohibits.