Republican net neutrality bill allows 'reasonable' network management

Draft net neutrality legislation released Friday by Republican leaders in the U.S. Congress would prohibit broadband providers from blocking or selectively slowing legal Web content, but it would allow them to engage in “reasonable” network management.

The proposal would give broadband providers wide latitude to engage in network management, with a management practice deemed reasonable “if it is appropriate and tailored to achieving a legitimate network management purpose.”

The draft legislation would also prohibit the U.S. Federal Communications Commission from reclassifying broadband as a regulated public utility, and it would stop the agency from creating any new net neutrality rules.

The draft legislation is a “thoughtful path forward” that protects consumers online, said Representative Fred Upton, a Michigan Republican. “By clearly outlining the appropriate rules of the road, and leaving 20th century utility regulation behind, we can be sure that innovators continue full throttle in bringing remarkable new technologies to all Americans,” Upton said in a statement. “This is the right solution that everyone, if they are serious in standing up for consumers, should be able to get behind.”

Under the proposal’s network management definition, broadband providers can take into account their “particular network architecture and any technology and operational limitations” when crafting network management practices, according to the text of the draft bill.

The entire definition of a reasonable network management practice, running about 45 words, is borrowed from the FCC’s 2010 net neutrality rules that were later partially overturned by an appeals court. But many advocates of strong net neutrality rules protested a proposal earlier this year from FCC Chairman Tom Wheeler that would have allowed broadband providers to engage in “commercially reasonable” network management, saying it would give providers a wide exemption to the rules.

The network management definition in the draft bill could be a “loophole” for broadband providers, said John Bergmayer, senior staff attorney at Public Knowledge, a digital rights group advocating for strong net neutrality rules.

The Republican proposal prohibits broadband providers from blocking and selectively slowing Web content, applications and services, but that’s “subject to reasonable network management.” The draft bill does prohibit broadband providers from entering into paid traffic prioritization deals with now allowance for reasonable network management, although the bill appears to allow middle-mile traffic deals, like ones Netflix has signed with major broadband providers, Bergmayer said.

The draft legislation’s prohibition of the FCC reclassifying broadband under Title II of the Telecommunications Act is the wrong approach, added Matt Wood, policy director at digital rights group Free Press. “This bill would legalize any and every other form of discrimination that the ISPs could dream up,” he said by email. “It does that by stripping the FCC of rule-making authority and handcuffing the agency’s ability to adapt to new circumstances.”

The draft proposal’s prohibition against a net neutrality rule-making proceeding at the FCC may be the biggest of several problems, Bergmayer added. The proposal would require the FCC to act on net neutrality complaints filed by consumers or companies, and it’s unclear whether the FCC could set precedent by acting on a complaint, he said.

If a consumer brings a complaint to the FCC and wins, “is that practice now considered illegal in general for everyone?” he said. “Or, every time something happens that you don’t like, are you back at square one?”

Still, Public Knowledge is heartened to see movement on net neutrality issues from top congressional Republicans, many of whom opposed any net neutrality rules in recent years, Bergmayer said. The draft bill comes from Upton, chairman of the House Energy and Commerce Committee, and Senator John Thune, a South Dakota Republican and chairman of the Senate Commerce, Science and Transportation Committee.

“This goes much further than anything we would have expected to see, particularly from congressional Republicans just a year ago,” Bergmayer said. “It does show that there is some consensus that something has to be done to protect consumers.”

Both committees have hearings on the draft bill scheduled for next Wednesday.

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