Net Neutrality’s Declare-Victory-And-Go-Home-Moment?

Will the House pass a Net Neutrality Bill before the session ends? Rep. Henry Waxman’s (D-CA) draft bill surfaced yesterday amid reports that Waxman, the Chairman of the House Energy and Commerce Committee, was hoping to get the bill introduced this week with an eye toward passage during the post-election lame duck session.

Top line, the bill would prevent the Federal Communications Commission from reclassifying broadband Internet services as “telecommunications services” in order to invoke a more intrusive regulatory hand. The bill then addresses the network neutrality issue, which sparked the FCC’s reclassification proposal inthe first place.

As Larry Downes notes in separate pieces at CNET and the Technology Liberation Front, the bill attempts to address the objections of all stakeholders. While endorsing the controversial non-discrimination clause, which would require ISPs to treat all data traffic the same way as it crosses their networks, Waxman’s bill concedes a need for “reasonable network management,” words the FCC uses in its network neutrality proceeding. Unlike the FCC proposal, however, Waxman’s bill includes specific language defining what the “reasonable network management” means.

The term “reasonable network management” means a network management practice that is appropriate and tailored to achieving a legitimate network management function, taking into account the particular network architecture or technology of the provider. It includes appropriate and tailored practices to reduce or mitigate the effects of congestion on a broadband Internet access provider’s network; to ensure network security or integrity; to address traffic that is harmful to or unwanted by users, including premise operators, or to the provider’s network, or the Internet; to meet the needs of public safety; and to provide services or capabilities to effectuate a consumer’s choices, including parental controls or security capabilities. 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. 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.

Just as important, the draft bill, which can be found here, also considers the unique requirements of wireless, and subjects it fewer restrictions.

All in all, the bill comes close to the solution Google and Verizon proposed in August. For this reason, Downes predicts it might have a “rocky road” to passage, particularly because the most vocal network neutrality enthusiasts, such as Fress Press will push back against the network management language excerpted above aw well as any wireless exemptions.

I’m a little more optimistic. While it is only in draft form, the bill also may be the closest we’ve come to resolving the network neutrality policy debate, which while occupying a segment of the tech set, is barely registering with the public. Meanwhile, you have many large high-tech companies inthe Internet ecosystem who once were favorably disposed toward net neutrality, voicing second thoughts about using reclassification to achieve it. With the support Waxman, a member of the Democratic leadership, the bill may provide cover for the net neutrality proponents in Congress and deliver a nominal policy win for the President Obama, who voiced support for net neutrality on the campaign trail. Yet the bill would also put the brakes on an expansionist FCC and its investment chilling plan for “Mother, May I?” oversight of Internet innovation.