Last week, on the heels of the State of the Union address, House and Senate committees held back-to-back hearings on a draft net neutrality bill supported by Republicans in both chambers.  It is hardly a coincidence that Congress’ resurgent interest in this once obscure topic comes as the Federal Communications Commission is preparing to consider and vote on new net neutrality rules in February. 

While proponents of robust net neutrality principles might be expected to embrace the prospect of a legislative solution, in this case there exists a wide and dangerous chasm between the ostensible goals of the GOP draft bill and its particulars.  In order to appreciate why the proposed legislation falls short of its professed aims, it is necessary to understand what net neutrality is. 

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For all of the hype and hyperbole that has surrounded the net neutrality discussion, the fundamental concept is quite simple and should be noncontroversial.  Net neutrality means that consumers should receive unimpeded access to all lawful Internet content, which happens to be precisely the service for which Americans pay their Internet service providers (ISPs). 

The Republican bill purports to do just that, describing its purpose as “to ensure Internet openness, to prohibit blocking lawful content . . . to prohibit throttling data, [and] to prohibit paid prioritization.”  So far, so good.  Unfortunately, once one gets beyond the facially pro-consumer sentiments in the introductory clause things take a turn for the worse. 

Specifically, through both omission and commission, the draft bill undermines the efficacy of the very goals it seeks to enshrine in law.  First, the critical omission. 

The bill proscribes ISPs from blocking lawful Internet content or services, subject to “reasonable network management.”  It further says that ISPs “may not throttle lawful traffic by selectively slowing, speeding, degrading, or enhancing Internet traffic based on source, destination, or content,” again “subject to reasonable network management.”  The problem with these proscriptions—as was pointed out in the House hearing—is that they fail to specifically address ISPs’ interconnection practices with other Internet networks. 

This omission is important because ISPs—often vertically integrated cable or telephone companies—have well-recognized incentives to interfere with content provided by online services that compete with an ISP’s video or voice businesses.  Moreover, as has been amply documented in the FCC proceeding and elsewhere, this is not just a theoretical concern.  Several ISPs have allowed the points at which they interconnect with other networks—the networks that carry the content which consumers request and pay for—to become congested to a degree that leads to degradation of service.  Why does this matter?  Because interconnection points are the entryway through which content originating outside of an ISP’s network get to that network and, ultimately, consumers. 

Yet nothing in the draft bill would prevent the perpetuation of such anti-consumer conduct.  A law that permits ISPs to do indirectly—via manipulation of interconnection practices—that which it seeks to prevent them from doing directly—through blocking or throttling within their own network—is ineffective.  To consumers, blocking or throttling at an interconnection point is indistinguishable from blocking or throttling within their ISP’s own network.  As Paul Misener, Amazon’s Vice President for Global Public Policy, told the House committee, if consumers’ “net neutrality is taken, they won’t care how or, for example, where in the network infrastructure it is taken.” 

In addition to this critical omission, there are also problematic aspects to what the draft bill does include.  Two items stand out in particular.  First, the “reasonable network management” caveat contained in the substantive proscriptions discussed above is sufficiently amorphous so as to give ISPs wide latitude to engage in conduct inconsistent with net neutrality principles.  While no one disputes that ISPs have legitimate interests in managing the technical and operational aspects of their broadband infrastructure, it is unsound public policy to effectively hand ISPs a blank check that can be used to justify network management practices that may favor or disfavor certain Internet content. 

Second, the draft bill curbs the FCC’s enforcement of net neutrality principles by depriving the Commission of the ability to reclassify its regulatory treatment of broadband services and constricting the scope of its existing authority.  Taken together, those provisions essentially—and unwisely—take an independent agency with expertise out of the business of overseeing the essential communications network of the modern era.          

Congress should be applauded for focusing on an issue that is of such vital import to our economy and our citizenry.  However, if new net neutrality rules are going to serve their intended purpose, whether they come from Congress or the FCC, they must not tilt the playing field in favor ISPs at the expense of consumers.  In other words, they must be neutral.  By that measure, this bill fails the test. 

Cooper is a partner at Boies, Schiller & Flexner LLP in Washington, D.C.