From: Jax Russo <jax.russo@gmail.com>
  To  : <CPC@emoglen.law.columbia.edu>
  Date: Sun, 07 May 2006 14:50:03 -0400

Paper 1 - Net Neutrality: The Markey Amendment and the Search fora Solution

  Net neutrality is a phrase most Americans have, unfortunately, never 
heard of. The phrase stands as the embodiment of a free internet: the 
principle that network owners (such as Verizon and AT&T) should not be 
allowed to selectively pick and choose what applications, technologies 
or users can access their networks.[1] <# ftn1>

The main arguments for net neutrality have been made by Professors 
Lawrence Lessig and Timothy Wu, and are twofold: 1) Guaranteeing net 
neutrality “eliminates the risk of future discrimination,” which in turn 
provides “greater incentives to invest in broadband application 
development today,” and 2) Network neutrality “facilitates fair 
competition among applications,” ensuring that applications that survive 
on the net do so in a “survival of the fittest” type fashion, rather 
than those who are favored by network owners.[2] <# ftn2>

The arguments against network neutrality are fueled by the big players 
in the nascent broadband market. These players have used a financial 
argument against those in favor of net neutrality, stressing that 
internet players like Google are essentially getting a “free lunch” on 
the network owner’s bill.[3] <# ftn3> Senior Vice President and Deputy 
General Counsel for Verizon, John Thorne, accused Google earlier this 
year of free riding on the investments made by Verizon in its broadband 
infrastructure, stating: “The network builders are spending a fortune 
constructing and maintaining the networks that Google intends to ride on 
with nothing but cheap servers.”[4] <# ftn4> If net neutrality should 
continue, Thorne and similar advocates argue, the build up of broadband 
infrastructure will lag because the financial incentive to improve and 
make innovations regarding such infrastructure will be absent.[5] <# ftn5>

While the debate over net neutrality rages within the industry, outside 
of the telecommunications world, the average person knows little, or 
cares, about net neutrality and the impact the loss of neutrality could 
have on their daily lives. Just over a week ago, the House Committee on 
Energy and Commerce gave the anti-net neutrality coalition a big win by 
voting down the Markey Amendment.[6] <# ftn6> The Amendment, proposed by 
Rep. Edward Markey (D-Mass.), aims to place regulations that ensure the 
safety of net neutrality into codified law.[7] <# ftn7> If the amendment 
were to be enacted, it would place a duty on broadband network providers 
“not to block, impair, degrade, discriminate against, or interfere with 
the ability of any person to use a broadband connection to access, use, 
send, receive or offer lawful content, applications or services over the 
Internet,” essentially codifying the guiding principles of the Net 
Neutrality movement.[8] <# ftn8>

Representative Markey introduced his Net Neutrality Act of 2006 on the 
house floor this past Tuesday, May 2^nd . Markey has described his 
proposed Act as “a choice between favoring the broadband designs of a 
small handful of very large companies, and safeguarding the dreams of 
thousands of inventors, entrepreneurs, and small businesses.”[9] 
<# ftn9> Coalition groups and websites have sprung into action to raise 
public awareness on the issues. Savetheinternet.com has organized a 
petition campaign and gathered over 500,000 signatures from Net 
Neutrality supporters, while organizations like the Free Press and the 
Center for Digital Democracy are urging their supporters to spread the 
word about the current events in Washington that could greatly change 
Internet use as we know it.

* *Both sides of the argument have attempted to use the First Amendment 
to their advantage. Those against net neutrality have argued that the 
FCC is precluded by the First Amendment from regulating broadband 
operators to prevent discrimination among applications, which, if true, 
would nullify any pro-net neutrality legislation enacted by 
Congress.[10] <# ftn10>

Net neutrality supporters have argued, more realistically, that should 
the net’s neutral status become a thing of the past, so will the rights 
of many to speak freely on the internet. While it would not be a direct 
affront to free speech, ISPs would then hold the keys to deciding who 
will be allowed to speak on their servers and who will not. Freedom of 
choice on the internet will be severely sacrificed should such 
legislation not be enacted by Congress. The simple freedom to use Google 
over Yahoo, or chose Barnes and Noble over Amazon, or to even post a 
sublet listing on Craigslist may become a thing of the past.

If net neutrality legislation fails to be enacted by Congress, is there 
a solution that will make all the parties happy? And if such a solution 
is found, is there any guarantee that the ISPs will truly police 
themselves to maintain the neutrality without legislative action by the 
U.S. Government?

If the broadband network owners are true to their arguments against net 
neutrality in the sense that net neutrality is holding back the 
advancement of broadband because there is no financial incentive to 
build up its future, then the solution might lie in a revision to the 
Telecommunications Act of 1996.

Under the current Telecommunications Act, incumbent local exchange 
carriers (ILECs) are forced to share their facilities and resources with 
competing local exchange carriers (CLECs),[11] <# ftn11> a provision 
that was enacted in the wake of the AT&T breakup to facilitate 
competition and the easy entry of new competitors to a market that was 
long thought to be held by a seemingly impenetrable monopoly. The 
current Telecommunications Act is now in the process of being revised. 
Freeing ILECs like Verizon from the duties to share with their 
competitors would provide the incentive to build up their networks. It 
would allow them to reap the benefit of their investments, and would 
seemingly provide the financial incentive to grow the broadband network 
and technology they currently claim does not exist.

I feel that although such revision of the Telecommunications Act should 
be in place, this still would not prevent the ISPs from taking advantage 
of the “freedom” to discriminate as they choose in a non-net neutral 
world. Freeing the telephone companies from their obligations to the 
CLECs does not eliminate the possibility that ISPs would begin to take 
advantage of the vast funds they could receive from those who wish to 
have user access on their networks.

The line between censorship and the exclusivity agreements that would 
flow from a non-neutral net is a thin one, and the longer Congress 
dances on that line, the more prevalent the danger becomes. It’s 
important to use the internet to spread the word about net neutrality, 
before the option isn’t available anymore.


------------------------------------------------------------------------

[1] <# ftnref1> Broache, Anne and Declan McCullagh, /Playing Favorites 
on the Net?/, http://news.com.com/Playing+ 
favorites+on+the+Net/2100-1028 3-6003281.html?tag=nl (last visited May 
6, 2006).

[2] <# ftnref2> Wu, Timothy and Lawrence Lessig, “Net Neutrality,” FCC 
CS Docket 02-52, Aug. 22, 2003, http://www.timwu.org/wu lessig fcc.pdf 
(last visited May 6, 2006).

[3] <# ftnref3> Mohammad, Arshad. “Verizon Executive Calls for End to 
Google’s ‘Free Lunch’,” Wash. Post, Feb. 7, 2006, at D01, 
http://www.washingtonpost.com/wp-dyn/content/article/2006/02/06/AR2006020601624.html 
(last visited May 6, 2006).

[4] <# ftnref4> /Id./

[5] <# ftnref5> Thorne, John, /The 1996 Telecom Act: What Went Wrong and 
Protecting the Broadband Buildout/, Paper published at the Columbia 
University conference “The Broadband Economy,” (2001), 
http://newscenter.ver <http://newscenter.ver/>; 
izon.com/policy/broadband/primer c.pdf (last visited May 6, 2006).

[6] <# ftnref6> Miller, Jason Lee. “Neutrality Amendment Shot Down,” 
Apr. 27, 2006, http://www.webpronews.com/insi 
derreports/marketinginsider/wpn-50-20060427NetNeutralityAmendmentShotDown.html 
<http://www.webpronews.com/insi%20derreports/marketinginsider/wpn-50-20060427NetNeutralityAmendmentShotDown.html> 
(last visited May 6, 2006).

[7] <# ftnref7> Bosworth, Martin H. “Congress Wrestles with Net 
Neutrality,” May 3, 2006, http://www.consumer <http://www.consumer/>; 
affairs.com/news04/2006/05/neutrality.html (last visited May 6, 2006).

[8] <# ftnref8> “Markey Net Neutrality Amendment,” 
http://markey.house.gov/docs/telecomm/Markey%20Net%20 
<http://markey.house.gov/docs/telecomm/Markey%20Net> 
Neutrality%20Amendment.pdf, Pg. 2 (last visited May 6, 2006).

[9] <# ftnref9> Bosworth, Martin H. “Congress Wrestles with Net 
Neutrality,” May 3, 2006, http://www.consumer <http://www.consumer/>; 
affairs.com/news04/2006/05/neutrality.html (last visited May 6, 2006).

[10] <# ftnref10> Wu, Timothy and Lawrence Lessig, “Net Neutrality,” FCC 
CS Docket 02-52, Aug. 22, 2003, http://www.timwu.org/wu lessig fcc.pdf 
(last visited May 6, 2006).

[11] <# ftnref11> Telecommunications Act, 47 U.S.C. 251 (1996).



-----------------------------------------------------------------
Computers, Privacy, and the Constitution mailing list