The House on Neutrality

I took a look at the Senate version of the “net neutrality” legislation. That was after the fact. Let’s take a peek under the hood for the House version, shall we? This one apparently is up for a floor vote, so there’s still time to try to help educate your rep about HR5273. As before, please note that this is a non-expert analysis devoid of formal legal training.


To amend the Clayton Act with respect to competitive and nondiscriminatory access to the Internet.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


This Act may be cited as the `Internet Freedom and Nondiscrimination Act of 2006′.

Stanards startup for a bill. This one’s title has the catchphrases “Freedom” and “Nondiscrimination.” Freedom appeals to everybody, and nondiscrimination is a perennial liberal buzzword.


The purposes of this Act are to promote competition, to facilitate trade, and to ensure competitive and nondiscriminatory access to the Internet.

Competition, trade, and access are all things you can go back to your constituents with, right?


The Clayton Act (15 U.S.C. 12 et seq.) is amended–

(1) by redesignating section 28 as section 29,

(2) by inserting after section 27 the following:

An analysis of the Clayton Act is beyond the scope of this article. If you’d like to check it out, check out the library of congress.


`Sec. 28. (a) It shall be unlawful for any broadband network provider–

As usual, we’ll start with some broad prohibitions. Presumably the exceptions follow immediately thereafter, then some definitions.

`(1) to fail to provide its broadband network services on reasonable and nondiscriminatory terms and conditions such that any person can offer or provide content, applications, or services to or over the network in a manner that is at least equal to the manner in which the provider or its affiliates offer content, applications, and services, free of any surcharge on the basis of the content, application, or service;

Note the judicious use of the term “reasonable” here. Nearly anything can be successfully argued as reasonable after a bill such as this has become law.

`(2) to refuse to interconnect its facilities with the facilities of another provider of broadband network services on reasonable and nondiscriminatory terms or conditions;

Again with the “reasonable.” At this point I’m doubting that this bill actually says much of anything at all.

`(3)(A) to block, to impair, to discriminate against, or to interfere with the ability of any person to use a broadband network service to access, to use, to send, to receive, or to offer lawful content, applications or services over the Internet; or

This would be the Scott Richter clause, making it unlawful to block spam and such.

`(B) to impose an additional charge to avoid any conduct that is prohibited by this subsection;

`(4) to prohibit a user from attaching or using a device on the provider’s network that does not physically damage or materially degrade other users’ utilization of the network; or

Far better-worded than the nearly-identical clause in the Senate version of the bill.

`(5) to fail to clearly and conspicuously disclose to users, in plain language, accurate information concerning any terms, conditions, or limitations on the broadband network service.

Again, better-worded than the nearly-identical clause in the Senate version.

`(b) If a broadband network provider prioritizes or offers enhanced quality of service to data of a particular type, it must prioritize or offer enhanced quality of service to all data of that type (regardless of the origin or ownership of such data) without imposing a surcharge or other consideration for such prioritization or enhanced quality of service.

Interesting, as this takes the more up-beat view of addressing the enhancement of service for data of a particular type (think VOIP or IPTV).

`(c) Nothing in this section shall be construed to prevent a broadband network provider from taking reasonable and nondiscriminatory measures–

Here come the aforementioned exceptions:

`(1) to manage the functioning of its network to protect the security of such network and broadband network services if such management does not result in discrimination among the content, applications, or services on the network;

Oh good, ISPs will be able to block DoS attacks.

`(2) to give priority to emergency communications; or

Good, if there’s some network congestion the fire departments and such can be given special treatment.

`(3) to prevent a violation of a Federal or State law, or to comply with an order of a court to enforce such law.

Ooh, your transit provider can be a vigilante. I wonder if sysadmins can wear cowls and capes like Batman.

`(d) For purposes of this section–

Bestill my heart, the definitions!

`(1) the term `affiliate’ means–

`(A) a person that directly or indirectly owns, controls, is owned or controlled by, or is under the common ownership or control with another person; or

`(B) a person that has a contract or other arrangement with a content or service provider concerning access to, or distribution of, such content or such service;

These are reasonable definitions. Legislators are good as specifying who is afilliated with whom.

`(2) the term `broadband network provider’ means a person engaged in commerce that owns, controls, operates, or resells any facility used to provide broadband network service to the public, by whatever technology and without regard to whether provided for a fee, in exchange for an explicit benefit, or for free;

This means that if you own a $30.00 wireless router, you’re a broadband network provider. Enjoy your new regulations.

`(3) the term `broadband network service’ means a 2-way transmission service that connects to the Internet and transmits information at an average rate of at least 200 kilobits per second in at least one direction, irrespective of whether such transmission is provided separately or as a component of another service; and

As with the Senate version.

`(4) the term `user’ means a person who takes and uses broadband network service, whether provided for a fee, in exchange for an explicit benefit, or for free.’, and

Note that “take” has a very specific legal definition. This means that the jerk parked in front of your house surfing for pirated software is “user” of your broadband network (that $30.00 Linksys you have set to default, wide-open access).

(3) by amending subsection (a) and the 1st sentence of subsection (b) of section 11 by striking `and 8′ and inserting `8, and 29′.

This simply extends the scope of the original act (which includes a statement about which parts of the USC are being referred to; the legal equivalent of updating a crufty hyperlink.

My Take

As with the Senate version, I’m impressed by some parts of this bill and sorely disappointed with others. This bill lacks the unrealistic time constraints on the FCC to get their job done at a speed unnatural for government commisions, but retains the somewhat perilous prohibitions against restricting network access based upon the source or destination of the traffic. Considering the terrible lack of well-written law regarding unsolicited bulk email, this would leave several useful means of combatting spam in a legal limbo that would doubtless call down mountains of litigation between spammers and access providers. I’ll be writing my rep about this and asking that it be either seriously-revised or rejected outright.