Markey’s Third Strike? The Internet Freedom Preservation Act of 2009

Markey’s Third Strike? The Internet Freedom Preservation Act of 2009

On July 30, 2009, Massachusetts Congressman Ed Markey introduced a bill entitled Internet Freedom Preservation Act of 2009 ("Bill").  The Bill marks Markey's third attempt to legislate on network neutrality, this time attempting to put the onus on Internet service providers to upgrade their infrastructure rather than allowing them to degrade or block traffic.  This post highlights the main aspects of the Bill and outlines some arguments for and against it.

According to the Bill, Internet access service providers have the duty to: 

"(1) not block, interfere with, discriminate against, impair, or degrade the ability of any person to use an Internet access service...

(2) not impose a charge on any Internet content, service, or application provider to enable any lawful Internet content, application, or service to be offered... through the provider's service, beyond the end user charges associated with providing the service to such provider...

(6) not provide or sell to any content, application, or service provider, including any affiliate provider or joint venture, any offering that prioritizes traffic over that of other such providers on an Internet access service...."

Furthermore, the Bill is specifically designed to ensure Internet access is provided in a non-discriminatory manner.  Thus, the Bill's design is congruent with Vinton Cerf's  main argument for net neutrality: since a large portion of residential consumers who subscribe to Internet access can only choose from one or two providers, allowing the providers to preferentially block access to certain websites and other online content would deny consumers browsing freedom.  Also, the Bill only applies to legal content, so Internet service providers would still have the option to attempt to completely block their users illegal downloads and uploads.

In addition, the Bill grants rule-making and enforcement duties to the Federal Communications Commission.  However, some argue that the Bill still suffers from imprecise language flaws, which was a major concern of David Farber's in 2006.  For instance, the Bill requires that the Federal Communications Commission ensure Internet service providers engage in "reasonable network management" and only briefly discusses factors used in determining whether a network is reasonable managed.

Others in support of net neutrality have argued that Markey's proposed legislation would be ineffective.  They argue that government regulation on net neutrality is not necessary.  Instead, they argue that net neutrality would be better served if the government set aside reserve funding for deployment of broadband infrastructure.  The government could then use these funds in areas where there is no longer a sufficiently open network to deploy additional broadband lines into the area. A third-party could then operate an alternative Internet service on the newly deployed lines.  However, this potential solution creates some challenges.  First, deployment of additional broadband infrastructure would likely take a significant amount of time and incur large expenses.  Second, it would be difficult to determine whether a network was sufficiently open.  Third, the alternative Internet service provider, operating without net neutrality regulations, could preferentially block content and become insufficiently open.

While the new Federal Communications Commission Chairman Julius Genachowski appears to be open to the concept of net neutrality, only time will tell if Markey has done enough to persuade Congress to enact the net neutrality Bill this time.