Democracy & Technology Blog Markey’s bark worse than his bite


Markey: “The bill contains no requirements for regulations on the Internet whatsoever.”

The long-awaited network neutrality bill of Rep. Ed Markey (D-MA) was unveiled this week. H.R. 5353 establishes a new broadband policy and requires the Federal Communications Commission to conduct an Internet Freedom Assessment, with public summits and a report to Congress.
Broadband Policy
According to the bill, it would be the policy of the U.S. to:

  • maintain the freedom to use for lawful purposes broadband telecommunications networks, including the Internet …
  • ensure that the Internet remains a vital force in the United States economy …
  • preserve and promote the open and interconnected nature of broadband networks …
  • safeguard the open marketplace of ideas on the Internet by adopting and enforcing baseline protections to guard against unreasonable discriminatory favoritism for, or degradation of, content by network operators …

These policies would become part of the Communications Act, but as all lawyers know, Congressional declarations aren’t enforceable (although sometimes they may be useful in resolving ambiguous or doubtful provisions of law).
Markey concedes this point:

“There are some who may wish to assert that this bill regulates the Internet. It does no such thing. The bill contains no requirements for regulations on the Internet whatsoever. It does, however, suggest that the principles which have guided the Internet’s development and expansion are highly worthy of retention, and it seeks to enshrine such principles in the law as guide stars for U.S. broadband policy.”

When Congress wants to make something happen, it passes a law. It’s safe to assume Markey would be proposing a law if he thought he had the votes to pass it.
Internet Freedom Assessment
Markey’s bill also directs the FCC to open a proceeding on broadband services and consumer rights, assess whether broadband providers are in compliance with the above policies, conduct at least 8 public broadband summits around the country and submit a report to Congress. But another agency has already done something similar.
Last summer the Federal Trade Commission completed a study, “Broadband Connectivity Competition Policy: A Federal Trade Commission Staff Report,” covering the same subject.
The advantages of the Markey net neutrality bill for net neutrality proponents are: (1) the policy statements would have symbolic value which proponents could try to exploit in court rooms, hearing rooms and editorial boards, and (2) another year or two of wasteful and duplicative process at the FCC would keep the net neutrality issue front and center for a while longer.

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.