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Hill’s Interest in Net Neutrality Seen Surviving FCC Order

Lawmakers’ interest in legislation to enforce network neutrality won’t decrease because of Friday’s FCC order against Comcast’s network management, agreed supporters and opponents of enacting a law. Net neutrality advocates said they will keep pressing for the FCC’s Internet principles to be expanded and enshrined in law, while broadband providers will keep making the case on Capitol Hill that the market is competitive and rules aren’t required. ISPs may cap subscribers’ bandwidth because the FCC found Comcast can’t single out Web applications by slowing them down (CD Aug 5 p3), but the effect of the order on lobbying strategy may not be clear for a while, industry officials said.

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If Comcast appeals the FCC order and wins, that may increase the chances of legislation, because the commission would be seen as lacking authority to enforce its 2005 network neutrality principles, a communications lawyer said. When the order is released, it may influence how Congress handles the matter, because it will show how the FCC asserts its authority over network management, the lawyer said. Comcast can’t decide on an appeal until the order is released and reviewed, a spokeswoman said.

A Comcast court victory “would be another reason for legislation to happen,” said a spokesman for Public Knowledge, who said a successful appeal is unlikely: “We think we're on firm legal ground and we think Comcast would be wise to leave it be.” The order came in response to complaints by Public Knowledge, Free Press and others about Comcast blocking peer-to-peer file transfers.

NCTA President Kyle McSlarrow and others said net neutrality will remain a high-profile issue regardless of any court action. “If there is litigation, and however a court might rule, is irrelevant to whether proponents of net neutrality legislation will try to move that legislation,” McSlarrow said. “I have no doubt they will. I don’t think we should, any of us, fool ourselves that we can be cute and avoid confronting the hard work of getting up to the Hill, going to the FCC and continuing to make the case that the types of activities that we are engaging in are good” for consumers, he added: “It’s our burden to make that case.”

Net neutrality will be a hot topic in the next Congress and at the FCC after the presidential election, McSlarrow said. “All network providers, not just in my industry, have to do a better job of explaining and translating very complicated technical issues so policymakers are very careful about what they legislate or regulate on.” ISPs should explain to Congress that network management has consumer benefits, such as filtering out child porn, said cable consultant Steve Effros. “The politics are such that it sounds good, and therefore we are going to see a lot of talk around legislation surrounding net neutrality… I think we're likely to get legislation no matter what.” House Telecom Subcommittee Chairman Edward Markey, D-Mass., said Friday he'll continue “pressing for passage of my legislative framework for addressing these issues in the months ahead.”

Supporters of a legislation said their work is far from done, because ISPs must not be able to discriminate against Web content. “You could make a case that the FCC went part of the way to doing it, but as we've maintained it does not eliminate the need for legislation,” the Public Knowledge spokesman said. “We'll be making a case, particularly after January, that the legislation is still needed.” A law should expand the FCC’s 2005 principles to include a ban on ISPs discriminating against content, he said. “A law would provide even more clarity,” said General Counsel Marvin Ammori of Free Press. “We need all the protections we can have for an open Internet, including a very clear law, FCC rules and in the meantime a willingness for the FCC to act on all complaints.”