Two Democratic members of Congress are introducing a bill that would require the FCC to ban internet "fast lanes" under its new net neutrality rules. As Brian Fung of The Washington Post reported this morning, Senator Patrick Leahy (D-VT) and Rep. Doris Matsui (D-CA) have revealed the Online Competition and Consumer Choice Act, explicitly directing the FCC to stop ISPs from letting companies pay to get their content to customers faster. The agency is currently taking public comment on a draft of open internet policies, but it's raised the ire of net neutrality supporters by opening the door to "commercially reasonable" prioritization, which critics say would undermine the spirit of the rules.
This bill doesn't grant the FCC new enforcement options, but it would require the agency to make regulations banning broadband providers from making any agreement with a company that would give "preferential treatment or priority" to their content over that of others. It would also stop ISPs from making their own content run faster, preventing them from favoring their own in-house video or VoIP services over products like Netflix and Skype. Exceptions are carved out for emergency communications, and the bill's authors stress that while they want to give the FCC more authority, they're not trying to stop it from using any other rules to justify net neutrality.
"This is the worst kind of political theatre."
Public Knowledge, one of the primary proponents of net neutrality, has praised the bill. "This bill sends a clear signal to the FCC that fast lanes and paid prioritization could endanger the internet ecosystem as we know it," says VP of government affairs Chris Lewis. "As the FCC continues to evaluate new net neutrality rules, it's important they understand that Americans want an internet that everyone can succeed in, not just the companies with enough money to pay a toll to ISPs."
Banning ISPs from speeding up certain content (or slowing down other content) has proved difficult to do as long as broadband isn't classified as a "common carrier" service. FCC chair Tom Wheeler has said he'll consider reclassifying it if that's the only way to push through new rules, and that's still an option even if this bill passes. Berin Szoka of the anti-net neutrality think tank TechFreedom thinks that none of these options are viable, and that the bill doesn't help the FCC. "This is the worst kind of political theatre: it orders the FCC to do something it cannot legally do. Congress has never given the FCC the authority to ban paid prioritization," he says, noting that it doesn't revise the 1996 Telecommunications Act upon which current debates are based. "If Leahy and Matsui were really serious, they'd propose a statutory language that would actually provide the necessary legal authority for the FCC to regulate prioritization — and join the dialogue their Republican counterparts have already started about how to rewrite the Act."
Net neutrality support has been split down party lines at the FCC, and it's no less polarized in Congress. Supporters of the prioritization provision say that it would give ISPs and internet companies more options and would not degrade the quality of services that didn't pay. As the agency negotiated over Wheeler's proposal, Sen. Ted Cruz (R-TX) circulated a bill that would remove its authority to "promote competition," which has been used to justify net neutrality. More recently, Rep. Bob Latta (R-OH) introduced legislation to stop it from reclassifying broadband as a common carrier technology. No matter how contentious the debate between Leahy, Cruz, Latta, and others, though, at least none of them are likely to send extremely detailed murder fantasies to Tom Wheeler.
Update June 17, 2014 12:20PM: Updated to add official bill text and statements from Public Knowledge and TechFreedom.