Legislative text put forward by Rep. Henry Waxman (D-CA) under the banner of mandating network neutrality would instead prevent the government from requiring broadband providers to treat all Internet traffic equally.

Waxman, who has vowed that he would support the so-called ‘Net Neutrality’ policy proposals favored by most Democrats and progressives, has instead put forward an as-yet-unsettled legislative framework that explicitly prohibits the Federal Communications Commission from regulating broadband Internet under Title II of the Communications Act: a caveat key to implementation of what’s been called the Internet’s First Amendment.

Should the president sign a bill containing Waxman’s language, it would effectively kill ‘Net Neutrality’ efforts and make key parts of a hotly contested proposal by Google and Verizon the law of the land.

While the bill [PDF link], first published by National Journal blog Tech Daily Dose, carries language that speaks of preventing ISPs from “unjustly or unreasonably” discriminating against “lawful traffic,” the spirit of the rule is completely undermined by text that follows.

For today’s fast-growing wireless networks, largely seen as the future dominant mode of Internet access, it makes a provision allowing for “reasonable network management,” but prohibits blocking “lawful Internet websites”.

It’s unclear whether this prohibition would even be enforceable, since the bill states that it gives the FCC no new authority to regulate providers unless the company actually elects to be regulated. Violations of rules, which would be investigated only on a case-by-case basis, would incur a maximum fine of $2 million.

Critics of Waxman’s bill say that $2 million is almost nothing compared to the potential profits that could be generated by engaging in questionable network traffic management practices. Another concern expressed by ‘Net Neutrality’ proponents is that bloggers or whistle-blowers publishing content the network providers object to could simply be deprioritized, leaving their material in a gray zone devoid of traffic, which many Internet users cannot easily access.

The legislation also purports to prevent wireless providers from blocking “lawful applications that compete with the provider’s voice or video communications services,” but it again makes an allowance for “reasonable network management.”

That term, “reasonable network management,” is defined as “a network management practice that is appropriate and tailored to achieving a legitimate network management function”. Waxman’s text goes on to explain that “appropriate and tailored practices to reduce or mitigate the effects of what it calls “traffic that is harmful to or unwanted by users” are permissible.

The catch: “Users” includes “premise operators, […] the provider’s network, or the Internet”.

Stated in plain language, under Waxman’s proposal, traffic that is unwanted on a provider’s network may still be subject to “management.” Instances of traffic shaping which can be construed as “unreasonable” pose only a minor inconvenience to ISPs, as the FCC is only investigating individual claims.

From an Internet user’s perspective, traffic shaping and discriminatory practices are impossible to prove without the service provider’s own admission that it is occurring.

“In determining whether a network management practice is reasonable, the Commission shall consider technical requirements, standards, or best practices adopted by one or more independent, widely-recognized Internet community governance initiative or standard-setting organization,” the bill continues. “In determining whether a network management practice for wireless broadband Internet access service is reasonable, the Commission shall also consider the technical, operational, and other differences between wireless and other
broadband Internet access platforms, including the need to ensure the efficient use of spectrum.”

In other words, “[the bill] allows blocking over wireless broadband any peer-to-peer activity or even applications, and merely forces ‘transparency’ rather than a ban on discrimination of lawful traffic,” David Dayen summarized, blogging for FireDogLake.

Even lacking full consensus from fellow members of the House Energy and Commerce Committee, Waxman’s text “seems to have enough support to pass the House,” The Hill noted, citing three unnamed aides to the California Democrat.

Waxman, at one point, was a proponent of the Internet Freedom and Preservation Act, which would have truly enshrined network neutrality as one of America’s emerging broadband policies. It was referred to the Energy and Commerce Committee in July, 2009, where it still lingers at time of this writing.

Here’s what Waxman said about ‘Net Neutrality’ on Sept. 17, 2009:

The fears some have professed that Net Neutrality rules will stifle network investment have proven unfounded over the years. Most recently, over 2,200 public and private entities applied for broadband grants and, in so doing, opted-in to Net Neutrality rules. Industry will benefit from clarity, consistency and predictability with regard to Net Neutrality.

As a member who has worked hard to protect the intellectual property rights of our creative communities, I do not believe Net Neutrality and strong copyright protection are mutually exclusive goals. In fact, clear Net Neutrality rules should help broadband network operators explore innovative steps designed to stop the theft of online content. I know our new FCC Chairman shares my perspective on the importance of achieving both goals.

FCC Chairman Julius Genachowski, a former FCC attorney selected by President Obama to lead the agency, has said he would like to reclassify broadband Internet as a universal service, subjecting it to the enforcement of network neutrality rules. He enjoys the support of the president on the issue, as Obama promised that his administration would usher in non-discrimination policies for Internet traffic.

However, given that Waxman’s bill explicitly allows network management on every level — including the blocking of content “unwanted” by users that include the network’s providers — it would appear the one-time advocate of enforceable network neutrality has completely abandoned the principle.

“Interestingly, the draft proposal has a sunset at the end of 2012,” FDL’s Dayen wrote. “That’s probably a good idea with all Internet-related legislation, given the fast pace of innovation. But it means that the FCC wouldn’t be able to do anything on reclassification until the next election, and I think the timing is pretty profound.”

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