The Stevens Bill Moves Towards Internet Regulation

In the first version of what is now called the "Advanced Telecommunications and Opportunities Reform Act," Senator Stevens sensibly proposed that the FCC study the net neutrality issue and report back to the Committee after a year. Unfortunately, the latest draft version recently circulated contains very problematical Net Neutrality mandates in Title IX, beguilingly titled, "Consumer Internet Bill of Rights." A study is a much better idea.

A couple of obvious problems. Although not yet much appreciated, Senator Stevens' draft bill, along with all of the other similar bills, tramples on the real Bill of the Rights, the one containing the First Amendment. That's the First Amendment that says rather plainly: "Congress shall make no law...abridging the freedom of speech, or of the press...." Yet the bill mandates that each service provider shall allow each subscriber to "post any lawful content of that subscriber's choosing...." Of course, it goes on to mandate that each service provider must allow each subscriber to access any content of the subscriber's choosing. Simply put, unless all of these ISPs are common carriers, which they have not been declared to be and should not be, it is a violation of the ISPs' free speech rights to be required to post any message of any subscriber's choosing or to be prohibited from selecting content which subscribers will not be allowed to access. I prefer that we put a higher priority on preserving freedoms in the Bill of Rights than creating new feel-good "consumer rights" that contravene these precious freedoms. I'll have more to say about this First Amendment argument fairly shortly.

Of course, it is unlikely that in the current increasingly competitive Internet access environment that any subscriber will be denied access to any content. If one ISP decides to restrict access to certain content, it is most likely that a competitor will see a market opportunity to stake out another position.

That brings me to a final point (for now): The draft has a new provision, Section 905, that mandates that ISPs must provide "any Internet service" without requiring a potential subscriber to purchase or use "any telecommunications service, information service, IP-enabled voice service, video service, or other service offered by such Internet service provider." There almost certainly will be enormous difficulties encountered trying to distinquish between the bare-bones "any Internet service" and these other usually integrated service offerings. This provision is an handsome and no doubt welcome invitation to the lawyers to enter litigation metaphysicsland. Remember the "Metaphysics of VoIP" from way back in January 2004!

What's more, putting aside the likelihood of ISPs being tied up in litigation knots for years to come, there is no consumer welfare reason, in the current competitive marketplace environment, for any anti-bundling prohibition. The draft bill, Section 902 (3), actually refers to "the vibrant and competitive free market that presently exists for the Internet and other interactive computer services." That being so, to paraphrase John Lennon, the Senator Stevens and his colleagues ought "to give markets a chance."