Democracy & Technology Blog Terrible net neutrality provision in latest Senate draft

The latest Senate draft telecom rewrite, issued Friday, includes page after page of weird new language on net neutrality.
The Separation of Powers Doctrine provides for Supreme Court — not Congressional — interpretation of the Constitution. Yet Section 904 of the new draft includes two paragraphs describing how the First Amendment shall apply to the Internet. In a priceless example of an exception-that-swallows-the-rule, the first paragraph begins with “no Federal, State, or local government may…” and concludes with “…unless specifically authorized by law.” Section 904 would arguably immunize any action of the legislature regardless of First Amendment implications and therefore seems utterly unconstitutional. (Does the Christian Coalition realize this provision would prevent cellphone providers from enforcing their extensive policies designed not only to prevent child pornography but all manner of objectionable content?)
Next, Section 902 contains this:

Congress finds that the Federal Communications Commission should seek to–
(1) preserve the free-flow of ideas and information on the Internet;
(2) promote public discourse on the Internet;
(3) preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services unfettered by Federal or State regulation;
(4) encourage investment and innovation in Internet networks and applications markets through a diversity of business models; and promote deployment of broadband networks nationwide.

These are roughly the same principles that have justified the Fairness Doctrine, common carrier regulation, media ownership limits, universal service, public access, program diversity and all of the other tools that enlightened regulators at the FCC and 50 state commissions use to deliver humanity from darkness to utopia. This regulation is based on a dubious “scarcity” rationale that is plainly inconsistent with the rise of innovation and competition in the communications industries. Legislative Findings may not (always) be accorded signficant weight by the courts, but are nonetheless troublesome because they can be cited endlessly to justify preserving or expanding regulation and will tend to encourage some partisans to litigate or to obstruct.
Section 905 requires any Internet service provider to offer a stand-alone Internet access product regardless of the economics of combining complementary services. Cellphone carriers would be forced to disaggregate voice and data, for example. For what possible purpose?
Section 907 sets up an enforcement mechanism under which “subscribers” (defined as retail end users) can file complaints. The FCC already has an enforcement mechanism for consumers and competitors. This provision doesn’t create anything subscribers don’t already have, nor does it carry out Chairman Stevens’ stated objective of letting the corporations hire their own lawyers — by which I think he means reorienting the FCC to intervene when necessary to protect consumers adn not competitors. A noble goal that got lost in the drafting.

Hance Haney

Director and Senior Fellow of the Technology & Democracy Project
Hance Haney served as Director and Senior Fellow of the Technology & Democracy Project at the Discovery Institute, in Washington, D.C. Haney spent ten years as an aide to former Senator Bob Packwood (OR), and advised him in his capacity as chairman of the Senate Communications Subcommittee during the deliberations leading to the Telecommunications Act of 1996. He subsequently held various positions with the United States Telecom Association and Qwest Communications. He earned a B.A. in history from Willamette University and a J.D. from Lewis and Clark Law School in Portland, Oregon.