Sunday, April 6, 2014

Fantasy Congress: The INSTALL Act (Internet Neutrality, Stability, and Telecom Allowance Act)

            The Internet Neutrality, Stability, and Telecom Allowance Act (INSTALL Act) would establish rules for net neutrality, build network infrastructure, and codify parts of the FCC’s National Broadband Plan into law.[1] The bill would restrict government regulation of Internet content but a bill of rights for consumers. The bill would give states, cities and towns the right to build broadband networks and use taxes and funds to help expand broadband.
            By identifying the Internet as a “common carrier” of telecommunications, the bill could protect the rights of content creators to distribute their products on the Internet. While expanding access to consumers with the Universal Service Fund and the Connect America National Broadband Plan, the bill could garner support by expanding infrastructure to promote economic growth.

Leadership and Committees
Senator Al Franken and Representative Henry Waxman wish to spearhead the cause of net neutrality in the Congress. With Franken up for re-election this year and Waxman retiring,[2] they have a unique opportunity to work past the typical driving forces of their respective institutions. The bill have apt timing for both men; it would provide Democrats like Franken a forward-looking campaign promise beyond protecting the past social safety-net and Waxman’s retirement would create a coherent deadline for colleagues negotiating after the elections.

After the D.C. Circuit struck down the Federal Communications Commission’s Open Internet rules, Waxman proposed the Open Internet Preservation Act.[3] Franken, a long time advocate of net neutrality, recently criticized the potential Comcast-Time Warner merger as a threat to integrity of the Internet.[4] Their bill could be tinkered to benefit enough business interests and tap into the country’s recent libertarian streak, while still maintaining sufficient support from the left.

In the Senate, the Commerce, Science and Transportation Committee and the Judiciary Committee’s on Privacy, Technology and the Law would craft the legislation. The Energy and Commerce Committee and the Judiciary Committee would serve as the main vehicles for the bill in the House.

Meeting with Proponents and Opponents
Given the likelihood of heavily invested interests on the issue, businesses should be brought into the conversation quickly. Proponents of net neutrality include the likes of Netflix, Twitter, Facebook, Google, Amazon, Microsoft and eBay. Opponents of over-burdensome regulation by the FCC include Comcast, Verizon, Time Warner and AT&T. Using the recent Comcast-Netflix deal[5] as a model for forward looking negotiations, meetings with these business players should examine the possible places of agreement in a policy and where a deal would fall apart. It might even prove useful to invite President Obama to negotiate; I hear he was pretty persuasive and motivated about the topic.

I will take a backseat to no one in my commitment to network neutrality because once providers start to privilege some applications or websites over others then the smaller voices get squeezed out and we all lose. The Internet is perhaps the most open network in history and we have to keep it that way.
-Barack Obama, November 14, 2007[6]

Committee Hearings
Soaring rhetoric aside, the summer committee hearing season needs to make net neutrality tangible to the public while members sort through the technical. A bill of this kind has tried and failed numerous times in the past decade.

The Senate hearings ought to work on building the macro-case for network neutrality, explaining the idealistic aspects of why an open internet is important for the health of democracy by bringing in witnesses from the New America Foundation or Tim Berners-Lee (the true “inventor of the internet”) to the Judiciary subcommittee while Commerce, Science and Transportation navigates the complexities of business demands. The bill should be built as an issue of protecting free speech by enlisting the help of previous conservative supporters like the Parents Television Council, Christian Coalition and even try to bring a group like Gun Owners of America back into the fold.[7] The hearings should also bring in business which would be harmed should the Internet stop being an open platform.

Casting the bill as an issue of protecting civil liberties from the beginning would weaken the criticism that the bill is a “government takeover” of the Internet. Much of the legislation could even cede federal control over the Internet like the recent relinquishing of domain registration.[8] Internet industry interests also could be brought to the table to explain what actions need to occur to allow for improving the speed of the Internet so lawmakers understand what the legislation should assist. The process ought to clarify the question of these standards in the wake of upcoming mergers to create clear standards rather than reactionary regulation.

The House hearings should navigate the possibility that expanding broadband networks will help economic development while emphasizing the need to preserve the personal liberty and consumer choice that an equal Internet provides to the American public. The House needs to bring in witnesses that can bolster how important the Internet can be for start up businesses. Perhaps witnesses from new ventures like Kickstarter along with more established names brought into the closed-door negotiations earlier to describe how allowing broadband providers to tier content would hurt the American dream of a building your own business. Inviting proponents and opponents to speak their case would lend the bill much more credibility and make the bill a better product towards creating a level playing field in the market.

However, the hard sell lies outside the halls of Congress. Language of a “government takeover” of the Internet would stop the bill in its tracks. Sponsors of the bill need to carefully explain to constituents how this bill prevents government intrusion and business abuse from making choices for them. Common experience is tremendously important to conveying concerns. Everyone knows what it is like to pay for a phone bill, a television subscription, and an Internet connection; not many care about what computer geeks think about Nerd Neutrality. At the same time, I would be wary of referring the bill to the Subcommittee on Commerce, Trade and Consumer Protection, given the political hot potato that “consumer protection” has become since Dodd-Frank.

Another group that could galvanize the outside game are members of the entertainment industry. The Writer’s Guild Strike of 2007-2008 exemplified how loud of a megaphone entertainers have to coerce their bosses in telecom to buckle to public pressure. That dispute was largely over the issue of royalties on the Internet and the effort of Internet companies to harm the fairness of distributing content could be an equally motivating force that connects with active advocates who could counteract the influence of industry lobbyists.

The markup of the bill in committee ought to negotiate the plausibility of the bill’s ambitions. Can the FCC receive this ability to regulate the Internet in such a limited fashion that Jeff Flake will let it out of the Judiciary subcommittee? Can the bill receive additions to restore confidence in Internet privacy bona fides for members like Dianne Feinstein and Lindsey Graham? In the Senate, the markup process ought to allow debate and amendments that reconcile the fear of government control into a bipartisan assurance of ensuring that the Internet as a free medium to remains a free market.

The committee also needs to narrowly define the standards required by net neutrality (restricting variable pricing for content) rather than writing a blank bill with too much FCC discretion. In 2008, the broad power given to the FCC by the Markey amendment killed the bill.[9] Regulatory uncertainty in net neutrality’s scope would cause an immediate revolt from Internet providers with too much to lose.

On the House side, committees should experiment with how legislative bundling can help the build broadband networks with various niche provisions for congressional districts. The bill should likely follow the model of the universal service fund, subsidizing broadband expansion rather than allowing municipalities and states to build their own broadband networks under the federal government’s Commerce Power. An amendment in committee for public broadband networks perhaps could serve as a rallying cry but it should not reach the floor for fear of the health of the bill. Nevertheless, the possibility of contributing government research and government support to improving and expanding broadband networks ought to prove to make the bill a promotion of positive rights rather than a government intrusion.

Scheduling the bill for floor proceedings seems to be the most uncertain factor. Schedule the bill to the floor too far before the election and its content can be misconstrued. These problems could become campaign issues and electioneering can get in the way of negotiations. At the same time, the deadline before the next Congress looms quickly after the election. Nevertheless, it is probably best to schedule the legislation to come to the floor in the weeks following the elections in November so as to gain the most cooperation in Congress. 

Having the bill alive in a committee with perhaps some obstruction serves better as a symbol of Republicans blocking progress than as a failed bill. After the elections, it would be less risky to take on Republicans who oppose the bill for standing in the way and less of a political risk for the Republicans needed to pass the bill in the House or overcome filibuster in the Senate. On a personal level, people will understand the value of the Internet working well more tangibly in the fall/winter than they would if the bill came to a vote in July.

Floor Proceedings
A bill emphasizing the importance of a transparent and democratic Internet needs a relatively open process for amending the bill on the floor. While Democratic leadership should lean heavily on liberal efforts to expand the scope of the bill to a large-scale project, Republican amendments on the subject may prove useful for mobilizing support. Opposition to a bill designed to expand and protect the Internet could really harm Republicans seeking to demagogue about a government takeover.          

Some of the proponents of legislation like the Stop Online Piracy Act will likely be contradictory opponents to giving the FCC these oversight capabilities. Overreaching amendments to curtail the bill could trigger a blowback from the Netroots community, reminding the world of the great Ted Stevens’ infamously referred to the Internet as a “series of tubes” when the 2006 net neutrality bill failed to pass.[10]

Given the dynamic of the House’s conflicting interests between Republican leadership and Tea Party members, it may be best to keep tight rules on the floor proceedings with regards to amendments. A more open debate in the Senate could balance this process out and probably improve the construction of such a specific bill better than in the House. While there should be some restrictions on amendments for germaneness, some amendment processes could prove beneficial towards finding the best path for achieving the stated goals. For example, the bill would adopt the same amendment that Lamar Smith had about anti-trust jurisdiction compared to FCC powers, as included the 2006 version of the bill.[11]

Beyond the hot button question of net neutrality, amendments on expanding broadband networks could explore possibilities of funding projects. Would the Congress prefer a universal service fund style tax to subsidize broadband for rural areas and lower-income residents? Would members prefer to issue block grants to states to make their own decisions about expanding projects? How plausible is granting cities the right to build their own networks to compete with local monopolies? Some of these questions cannot be answered by a committee of experts but rather by representatives relaying the beliefs of their constituents.

In a conference committee, negotiators from both chambers could whittle the bill down to a more practical level of spending and negotiate differences in the bills. The committee could identify what parts of the country actually need direct federal assistance in expanding broadband while simply giving permission for others to implement public broadband on their own initiative. The conference committee would ideally be able to better expand upon the capabilities granted to the FCC to enforce net neutrality outside of the influence of polarized partisans.

Ultimately, this bill may not make it to the President’s desk in this political environment but bringing the bill to the floor would be a success compared to previous attempts. Since 2008, Congress has not debated this topic. It might compel people to consider the importance of action instead invested interests preventing this legislation by fear. Sooner or later, net neutrality through laws and infrastructure will be necessary to protect on free markets and a free speech on Internet.[12]
Senator Franken’s Floor Speech
“The INSTALL Act is meant to preserve the Internet as we know it. I believe that as the most open network in the history of mankind we have a duty to ensure that net neutrality allows the Internet to remain an equal platform for ideas and open market for businesses. Content producers cannot keep consumers content if they have to navigate various barriers to entry. Whether it is a C-SPAN stream, network videos of a particular comedian from Saturday Night Live who ‘dog gonnit people like’[13] or videos of a cat playing a keyboard, people expect their content to get to them at the same speed without having to pay more based on the content.

These rules are meant to prevent censorship rather than enable it. We know that the Internet is an important vehicle for dissent in emerging democracies and we know it is essential for continuing the success for democracy. As money continues to influence our politics, giving a louder voice to a smaller and smaller group of invested individuals and corporations, the Internet remains best equalizer for the American people to counteract conventional wisdom in Washington.

American businesses should also be able to expect that their content will be carried equally across the Internet. The “common carrier” designation that applies to telephones, airlines, buses, taxies, trucks, and railroads ought to apply to the Internet as businesses have the right to see that their Internet products make it safely to your computer much like the days of horse-and-buggy.  Though a California Superior Court ruled in 2005 that amusements like a Disney Land roller coaster Indiana Jones ride are not a common carrier,[14] protecting the Internet means much more than amusing ourselves with Indiana Jones on Netflix. Information technology is vital to the health of our democracy. It is as important to businesses as water and gas lines; after all, the Internet is a ‘series of tubes.’

In all seriousness, the INSTALL Act is fundamentally designed to preserve our Internet freedom and expand economic opportunity across the country. It means promoting our competitiveness around the world and ensuring that American products compete on an open and level playing field. I hope that the Congress takes this as seriously as I do. Our future prosperity depends on universal access to an open Internet, the greatest vehicle for free enterprise and free speech.”

[1] Genachowski, Julius. "The Third Way: A Narrowly Tailored Broadband Framework -" (accessed April 6, 2014).

[2] Tumulty, Karen. "Henry Waxman to retire at end of congressional session." Washington Post. (accessed April 6, 2014).

[3] "Democratic Leaders Introduce Net Neutrality Legislation." Welcome to Congressman Henry Waxman. (accessed April 6, 2014).

[4] Brodkin, Jon. "Al Franken: Don’t let Comcast ‘manipulate Internet traffic’" Ars Technica. (accessed April 6, 2014).

[5] Wyatt, Edward, and Noam Cohen. "Comcast and Netflix Reach Deal on Service." The New York Times. (accessed April 4, 2014).

[6] "Barack Obama: On Net Neutrality." YouTube. (accessed April 6, 2014).

[7] Jerome, Sara. "Net-neutrality group challenged by ties to MoveOn.Org, ACORN." The Hill. (accessed April 6, 2014).

[8] "US plans to cede some control over the Internet." Fox News. (accessed April 6, 2014).
[10] Bill Summary & Status 109th Congress (2005 - 2006) H.R.5252 All Congressional Actions with Amendments." Bill Summary & Status. (accessed April 6, 2014).

[11] "Bill Summary & Status 109th Congress (2005 - 2006) H.AMDT.986." Bill Summary & Status. (accessed April 6, 2014).

[12] "Why the government should provide internet access." Vox. (accessed April 6, 2014).
[13] "Stuart Smalley's famous quote." YouTube. (accessed April 6, 2014).

[14] Gomez v. Superior Court (Walt Disney Co.)35 Cal. 4th 1125 (2005)