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Will Antitrust Law Save Net Neutrality?

Congressman wants to use old regulations to prevent Internet discrimination

By Martin H. Bosworth
ConsumerAffairs.Com

May 12, 2008 

The "Internet Freedom and Nondiscrimination Act of 2008," introduced by House Judiciary Committee chairman John Conyers (D-MI) and co-sponsored by Rep. Zoe Lofgren (D-CA), would require Internet service providers (ISPs) to interact with each other on a "reasonable and nondiscriminatory basis," and would require network operators to ensure that all content, applications, and services are treated the same and not favored over others when consumers access them.

"Americans have come to expect the Internet to be open to everyone," said Conyers. "The Internet was designed without centralized control, without gatekeepers for content and services. Many of the innovations and products we use every day, such as search engines, music download services and online video, likely would never have developed in such a restricted environment."

"Recent events have shown that net neutrality is more than a hypothetical concern," Lofgren said. "This legislation will help guarantee that the innovative spirit of the Internet is not trampled."

The basis of the new legislation is in the Clayton Antitrust Act of 1914, an additional set of regulations designed to strengthen the Sherman Antitrust Act of 1890, the cornerstone of antitrust law. Under the Clayton Act, sellers are prohibited from charging different customers different prices for the same product, which would prevent the usage of "tiered pricing" schemes favored by many ISPs, cable companies, and telecoms. The Act is enforceable both by the Justice Department and the Federal Trade Commission (FTC).

Net neutrality supporters such as Free Press reacted positively.

"We applaud Chairman Conyers and Representative Lofgren for their leadership and commitment to the public interest on this critical issue," said Free Press policy director Ben Scott. "The future of the Internet as we know it depends on maintaining the freedom and openness online that we have always enjoyed. Congress must step in to defend the open Internet."

Conyers had previously introduced a version of the Act in the 109th Congress as a proposed amendment to sweeping telecom legislation. The Act failed to pass the house, but the proposed telecom legislation also stalled in both the House and the Senate over the net neutrality debate.

The debate reignited in October 2007 with the confirmation that Comcast was blocking subscribers from fully accessing file-sharing services such as BitTorrent, even when they were trading perfectly legal content. The discovery triggered a public outcry for renewed legal protections for net neutrality, and Conyers convened hearings in March 2008 to discuss the best method for ensuring net neutrality, where he indicated he favored an antitrust-based approach.

Conyers' fellow Congressmen Ed Markey (D-MA) and Chip Pickering (R-MS) had previously introduced separate net neutrality legislation that would enshrine the principle as part of the 1934 Communications Act, the governing telecom law of the country, and would mandate that the Federal Communications Commission (FCC) investigate any claims of content blocking or discrimination against users. The FCC had already promised to investigate Comcast for its discriminatory practices.

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