The Internet neutrality issue has once again taken center stage in Congress, where two bills are under scrutiny. During a hearing to discuss pending legislation, the chairman of the House Subcommittee on Telecommunications and the Internet noted that commercial success for many Internet-based companies depends on an open Internet.

"The question is whether, in the name of network management, policy-makers permit carriers to act in unreasonable, anticompetitive fashion," Rep. Edward Markey (D-MA) said. The choice before Congress is between permitting network operators "to fundamentally alter how the Internet has historically functioned," or retaining "a level playing field" that allows entrepreneurial entry, he explained.

The Antitrust Angle

The Internet Freedom Preservation Act co-sponsored by Markey and Rep. Chip Pickering (R-MS) establishes principles, rather than regulations, to guide policy in this area. "Then it requests an examination of the market and current practices, requires the FCC to hold several broadband summits around the country to solicit suggestions and opinion, and finally, tasks the FCC with reporting the results and any recommendations back to Congress," Markey said.

However, House Judiciary Committee Chairman John Conyers (D-MI) and Rep. Zoe Lofgren (D-CA) want a bill with more teeth. They are co-sponsoring a bill that builds upon the Clayton Antitrust Act of 1914, which expanded upon the pioneering Sherman Antitrust Act outlawing monopolies and cartels by prohibiting conduct considered harmful to consumers.

"The Internet was designed without centralized control, without gatekeepers for content and services," Conyers said in a statement reported by The New York Times. "If we allow companies with monopoly or duopoly power to control how the Internet operates, network providers could have the power to choose what content is available."

Opposing Views

Public-interest groups such as Free Press and Public Knowledge applauded Conyers and Lofgren for their commitment and leadership on what they perceive to be a critical issue. "The bill restores the principle of nondiscrimination that allowed the Internet to flourish in the dial-up era, making certain that the same freedom and innovation will flourish in the broadband era without burdensome regulation," said Gigi Sohn, president and cofounder of Public Knowledge.

However, Republican congressmen such as John Upton (R-MI) oppose. "We first heard about the issue over eight years ago and there is no solid evidence of consumers being blocked from any content or application on the web," Upton said. "And the very few times consumers have been troubled with something, the issue has been resolved without imposing regulations or legislation, indicating that market forces indeed work."

The National Cable & Telecommunications Association agrees. "There is zero evidence that any operator is engaging in anticompetitive conduct," said NCTA CEO Kyle McSlarrow. Though McSlarrow admitted that the methods currently used to regulate broadband traffic could be justifiably questioned, he denied the need for legislation on the matter. "I don't think we are at a stage where there is any market failure that justifies government intervention," he said.

Upton said he believes the proposed legislation would actually short-circuit the evolution of the Internet. "To meet the growing capacity demands of advanced Internet services and applications, carriers need the flexibility to experiment with different business models, as well as to manage network congestion and quality of service in the short term while they invest and innovate for the long term," Upton said.