New Bill Would Stop ISPs From Blocking Content

Reps. Ed Markey (D-Mass.) and Anna Eshoo (D-Calif.) today introduced a broad net neutrality bill that bans Internet service providers from discriminating based on content.

Among other provisions, the Internet Freedom Preservation Act of 2009 would prohibit ISPs from blocking or degrading any lawful content. The measure also would prevent ISPs from selling content or service providers "any offering that prioritizes traffic over that of other such providers on an Internet access service."

Additionally, while the proposed law has an exception for "reasonable network management," it specifies that an ISP's practice will only be considered reasonable if it "furthers a critically important interest, is narrowly tailored to further that interest, and is the means of furthering that interest that is the least restrictive, least discriminatory, and least constricting of consumer choice available."

Broadband advocates like Public Knowledge and Free Press have already come out in favor of the new measure. "The future of the Internet as we know it depends on maintaining freedom and openness online," Ben Scott, policy director of Free Press, said in a statement. "This crucial legislation will help to ensure that the public -- not big phone and cable companies -- controls the fate of the Internet."

Markey has pushed for net neutrality before, but this most recent measure is broader than one he introduced last year. That bill would have established a policy in favor of net neutrality, but wouldn't have mandated it.

Last year, Federal Communications Chair Kevin Martin testified that new legislation wasn't necessary, arguing that the agency already had the power to enforce neutrality principles. Indeed, shortly after Martin testified, the FCC sanctioned Comcast for violating those principles by impeding peer-to-peer traffic.

But not even that ruling guarantees that ISPs in the future will follow neutrality principles.

Comcast is appealing the decision on the ground that the FCC lacked authority to enforce principles that were never enshrined in law. The outcome of that appeal is uncertain.

But even if Comcast loses on appeal, the FCC's decision itself was fairly narrow. The agency only found that Comcast violated the Internet policy statement by blocking peer-to-peer traffic without disclosing what it was doing. It's not clear how the FCC would have ruled had Comcast made disclosures in advance, or had the company slowed traffic in a less significant way.

This new proposal could remove significant ambiguity by definitively establishing that ISPs can't decide which content to prioritize or degrade based on their own financial interests.

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