Network (Net) Neutrality Legislative History

113th Congress Net Neutrality Legislation

Since the D.C. Circuit Court struck down the Federal Communications Commission’s (FCC) rule of network neutrality in Verizon v FCC in January 2014 there has been several bills introduced in Congress on net neutrality.

  1. S. 1981, The Open Internet Preservation Act, introduced by Senator Edward Markey (D-MA) with 6 co-sponsors (Blumenthal, Franken, Merkley, Udall, Warren, and Wyden). This legislation restores the rules adopted by the FCC in the matter of preserving the open Internet and broadband industry practices that were vacated in the Verizon v FCC ruling.
  2. H.R. 3982, The Open Internet Preservation Act, introduced by Representative Henry Waxmen (D-CA). This legislation has 31 cosponsors and is a companion bill on S. 1981.
  3. H.R. 4070, The Internet Freedom Act, introduced by Representative Marsha Blackburn (R-TN) and has 37 cosponsors. Prohibits regulations adopted by the FCC in the matter of preserving the open Internet and broadband industry practices from having any force or effect. It also prohibits the FCC from reissuing such regulations in substantially the same form, or from issuing new regulations that are substantially the same, unless such regulations are specifically authorized by a law enacted after the enactment of this Act. Finally, H.R. 4070 exempts from such prohibitions any regulations that the FCC determines are necessary to: (1) prevent damage to U.S. national security, (2) ensure public safety, or (3) assist or facilitate actions taken by a federal or state law enforcement agency.

Currently no action has been taken on any of these three pieces of legislation.

112th Congress Net Neutrality Legislation

  • S. 74: The Internet Freedom Broadband Promotion, and Consumer Projection Act of 2011 (introduced 1/25/11)
  • H.R. 96: The Internet Freedom Act (introduced 1/05/11)
  • H.R. 166: The Internet Investment, Innovation, and Competition Preservation Act (introduced 1/05/11)
  • S.J. Res. 6 and H.J. Res 37: Joint Resolution disapproving the rule submitted by the FCC (introduced on 2/16/11)

Activity during the 112th Congress

November 10, 2011
The U.S. Senate voted on S.J. Res. 6 – an anti-net neutrality bill to overturn the Net Neutrality decision adopted by the Federal Communications Commission (FCC) was defeated in a partisan vote – 46 yeas and 52 nays. The bill’s demise ensures the FCC order will take effect on November 20, 2011.

October 14, 2011
The ALA, along with the Association of Research Libraries (ARL) and EDUCAUSE sent a letter (pdf) to Senate leadership asking them to oppose S.J. Res. 6 and any other legislation to overturn or undermine the Net Neutrality decision adopted by the FCC. In addition, the attachment to the letter provides specific examples of how libraries and higher education rely upon an open, neutral Internet in serving the public.

September 21, 2011
The Federal Communication Commission’s (FCC’s) network (net) neutrality order passed in December was published (pdf)in Federal Register. The effective date for the order is November 20, 2011. Publication of the FCC order also starts a 20 calendar day clock in the Senate under the Congressional Review Act (CRA). The clock expires on October 13 and at that point Senator Hutchinson may file to discharge her resolution from the Senate Commerce Committee and bring the resolution to the Senate floor as a privileged matter (no filibusters are allowed. Of note, Senator Hutchinson has up to 60 legislative days (days in which Congress is in session) to do so. Once the resolution is brought up, there will be a 10-hour debate (five hours for each side of the issue) and then a straight up or down vote will be taken. The House has already passed the resolution, so 51 votes for the Senate resolution would send this anti-net neutrality bill to President Obama’s desk for signature or veto.

April 8, 2011
The U.S. House of Representative passed H.J. Res. 37 disapproving the rule submitted by the Federal Communications Commission (FCC ) to regulate Internet and broadband industry practices. This resolution, passed by a largely partisan 238 to174 vote, prohibits the FCC from using funding to enforce the net neutrality principles the commission put into place in December 2010. The House resolution sends a decidedly unfriendly net neutrality message to both the FCC and the Senate. Now, the legislative action moves to the Senate where a simple majority will determine the outcome of the resolution.

February 19, 2011
The U.S. House of Representatives passed H.R. 1, the Continuing Resolution (CR). Among the amendments passed in the CR, which would extend funding for federal government operations through 2011, was a provision that would block funding for the Federal Communications Commission (FCC) to institute net neutrality rules. The amendment, from Rep. Walden (R-OR-2), is yet another strategy (along with bills and a joint resolution) that has been employed in an attempt to strip the FCC from upholding its net neutrality order passed in December.

A complete list of amendments passed as part of the House CR are available here.

February 17, 2011
On the heels of the February 16 House hearing on net neutrality, congressional Republicans in both the House and the Senate took another shot at net neutrality.

On the Senate side, Commerce Committee ranking member Kay Bailey Hutchinson (R-TX) filed S.J. Res. 6 along with 39 co-sponsors. And in the House, Chairman of the House Energy and Commerce Subcommittee on Communications and Technology Greg Walden (R-OR*2) filed H.J. Res. 37 with 23 co-sponsors.

The joint resolution text states –

That Congress disapproves the rule submitted by the Federal Communications Commission relating to the matter of preserving the open Internet and broadband industry practices (Report and Order FCC 10-201, adopted by the Commission on December 21, 2010), and such rule shall have no force or effect.

The joint resolutions are a legislative tactic made possible by the Congressional Review Act (here’s a succinct explanation of the CRA), which gives Congress a 60-session day window to review an agency’s rule(s) (such as the FCC) and possible reject them.

This latest action pushes the issue of net neutrality to forefront in the Senate – where its fate is less clear. The real question lies in how Senate Democrats, who still hold the majority, will vote on net neutrality. If the anti-net neutrality joint resolution is ultimately passed by the Senate, the President would be in the position to veto the resolution, if he chooses.

February 16, 2011
The American Library Association (ALA) along with the Association for Research Libraries ( ARL) and EDUCAUSE, sent a letter to the members of the U.S. House Energy and Commerce Committee expressing opposition to using the Congressional Review Act or any other legislation to overturn or undermine the recent “net neutrality” decision by the Federal Communications Commission (FCC).

The letter was sent prior to the Subcommittee on Communications and Technology’s hearing titled “Network Neutrality and Internet Regulation: Warranted or More Economic Harm than Good?” held on Wednesday, February 16. The five FCC commissioners were called to testify about the controversial net neutrality rules recently passed by the commission.

The day before that hearing, the U.S. House Judiciary’s Subcommittee on Intellectual Property, Competition and the Internet held a hearing on net neutrality titled, “Ensuring Competition on the Internet: Net Neutrality and Antitrust.”

February 15, 2011
To date, a handful of amendments to the FY2011 Continuing Resolution (CR) have been offered to effectively cripple the net neutrality order passed by the Federal Communications Commission (FCC) in December. Leading the anti-net neutrality CR activity was House Energy and Commerce Communications and Technology Subcommittee Chairman Greg Walden (R-OR-2). It was reported that during a speech, Rep. Walden said that he filed an amendment that would bar the FCC from using any funds to implement the network neutrality order. Reps. Stearns (R-FL-6), Graves (R-GA-6), Diaz-Balart (R-FL-21) and Mack (R-FL-45) also submitted identical anti-net neutrality amendments.

January 25, 2011
The American Library Association’s (ALA’s) Washington Office prepared a summary (pdf) of the Federal Communications Commission’s (FCC) network neutrality order issued in December 2010.

The document highlights issues raised by the order, the ALA’s position, and the language in the order for each issue. The summary was prepared by the Washington Office in collaboration with Office for Information Technology Policy (OITP) Fellow Bob Bocher and Washington Office Consultant John Windhausen of Telepoly.

January 25, 2011
The pro- net neutrality bill – S. 74, The Internet Freedom, Broadband Promotion, and Consumer Protection Act of 2011 – was introduced by Sen. Cantwell (D-WA) and co-sponsored by Sen. Franken (D-MN). The bill would codify the Federal Communications Commission’s (FCC’s) six net neutrality principles (which the ALA supported), outlined in a November 2009 FCC Notice of Proposed Rule Making (NPRM), among other things.

Specifically, the bill would:

  • Codify the FCC’s six net neutrality principles by creating a new section in Title II of the Communications Act;
  • Prohibit paid-prioritization by banning broadband operators from requiring content, service or application providers from paying for prioritized delivery of their Internet Protocol (IP) packets;
  • Call for broadband providers to work with local, middle-mile providers on fair and reasonable terms and network management conditions; and,
  • Apply the (bulleted above) obligations to both wireline and wireless broadband Internet platforms.

The ALA much prefers the Senate bill over the two anti-net neutrality House bills, H.R. 96 and H.R. 166, as the ALA supports legislation that would uphold net neutrality principles. In addition, the ALA supports the FCC’s recent net neutrality decision on December 21 and believes it should not be overturned by Congressional action. While the FCC’s decision can be improved, the ALA strongly believes that the FCC should have the authority to oversee the broadband marketplace.

January 5, 2011
Two anti-net neutrality bills were introduced. The first bill was H.R. 96, The Internet Freedom Act, introduced by Rep. Blackburn (R-TN), with more than sixty cosponsors (all of whom are republican). H.R. 96 strikes down the FCC’s December 21 passage of its rule and order on net neutrality by asserting that regulation of the Internet is under the jurisdiction of Congress, not the FCC.

The second bill, H.R. 166, The Internet Investment, Innovation, and Competition Preservation Act – was introduced by Rep. Cliff Stearns (R-FL) and cosponsored by Rep. Blackburn. The bill also seeks to prohibit the FCC from regulating the Internet or information services (i.e. imposing net neutrality rules) unless there is demonstrated market failure.

The ALA opposes both anti-net neutrality bills, H.R. 96 and H.R. 166, as they would undo the antidiscrimination protections recently put into place by the FCC’s recent rule and order. While the FCC’s decision can be improved, the ALA strongly believes that the FCC should have the authority to oversee the broadband marketplace.

Activity during the 111th Congress

December 21, 2010
The American Library Association (ALA), the Association of Research Libraries (ARL), and EDUCAUSE say the Federal Communications Commission’s (FCC) passage of its net neutrality order on December 21 is a first step toward restoring an open Internet but does not go far enough to ensure community anchor institutions’ content and services can be equally accessed by the public.

While the groups say the FCC’s clarification of the word “consumer” guarantees the rule will apply to libraries and other educational interests, additional provisions sought by the associations are needed to achieve “true” net neutrality. The order does not hold wireless to the same non-discriminatory standards as wireline access, despite the growing number of libraries, higher education institutions, and users that utilize wireless technology to access content and information. Additionally, the practice of paid-prioritization must be banned to protect libraries and educational interests from being charged more to provide the public with the same quality of access to their educational and non-profit content.

December 17, 2010
The American Library Association (ALA) along with the Association of Research Libraries (ARL) and EDUCAUSE say U.S. Reps. Doris Matsui (CA-5), Edward Markey (MA-7) and Anna Eshoo (CA-14) are championing the concerns of anchor institutions by calling on the Federal Communications Commission (FCC) to ensure its upcoming order on network (net) neutrality applies to them.

Higher education and libraries are at the forefront of developing new and innovative research applications and educational content over the Internet. The members’ letter (pdf), sent to the FCC on December 17 requests that any net neutrality safeguards ensure that the Internet remains open for such content and essential services to the public.

December 13, 2010
The ALA along with the Association of Research Libraries (ARL) and EDUCAUSE sent a letter to the Federal Communications Commission (FCC) stressing the importance of ensuring the upcoming network (net) neutrality order contains sufficient protections for library and higher education services made available to the public.

The current proposal appears to be based on the legislative language submitted into the record by U.S. Rep. Waxman. In the letter the associations specifically ask the FCC to address the following concerns prior to the scheduled vote on the net neutrality order set for December 21.

  • The definition of Broadband Internet Access Service should not be limited to “consumer” retail services. 
  • Net neutrality protections should be limited to “lawful traffic” (as in the Waxman draft legislation). Broadband operators should not be given absolute discretion to block traffic based on their own private determination that it is unlawful. 
  • ALA, ARL, and EDUCAUSE believe “paid prioritization” should be banned altogether. 
  • Wireless services should be treated the same as wireline services. All Internet subscribers, whether using wireline or wireless technologies, should have the same right to a neutral, non-prioritized Internet.  
  • The definition of Broadband Internet Access Service should not be limited to providers serving “all or substantially all Internet end points.” This could be a loophole that allows a broadband provider to construct a service limited to a subset of Internet access points as a way to evade net neutrality protections.

October 12, 2010
The ALA along with the Association of Research Libraries (ARL) and EDUCAUSE filed comments (pdf) to the Federal Communications Commission (FCC) in response to the FCC’s request for comments on the following two issues:

  1. The relationship between open Internet protections and services that are provided over the same last-mile facilities as broadband Internet access service (commonly called “managed” or “specialized” services), and 
  2. The application of open Internet rules to mobile wireless Internet access services, which have unique characteristics related to technology, associated application and device markets, and consumer usage. 

July 15, 2010
The ALA filed comments (pdf) with the Federal Communications Commission (FCC) on the commission’s Notice of Inquiry (NOI) on the Framework for Broadband Internet Service, commonly referred to as the “Third Way.”  The ALA has a strong track record of advocating for an open, or neutral, Internet. The ALA sees the Third Way as the most appropriate level of oversight as it provides the flexibility needed by the Internet community and also provides key protections to guarantee the public has equal access to the wide variety of online content readily available today.

In addition, the ALA also joined forces with the Association of Research Libraries (ARL) and EDUCAUSE in a separate filing (pdf) in support of net neutrality stressing that libraries, librarians and higher education and those we serve rely on a fast, reliable and open Internet.

April 7, 2010
The FCC extended the deadline for reply comments requested in the matter of Preserving the Open Internet Broadband Industry Practices from April 8, 2010 to April 26, 2010. Parties that requested the deadline extension cited the desire for more time to evaluate and consider the legal implications of the D.C. Appeals Court’s decision in Comcast Corp. v. FCC before filing. The ALA plans to participate in filing reply comments.

April 6, 2010
In a much anticipated court decision, the U.S. Court of Appeals for the District of Columbia ruled (pdf) that the FCC lacks the authority to require broadband providers to give equal treatment to all Internet traffic flowing over their networks.

The ALA believes the Internet faces major threats as a result of deregulation and had voiced support for FCC’s efforts to maintain an open Internet by codifying the principles of network neutrality.

March 1, 2010
Eleven library and higher education-related institutions and organizations, including the American Library Association, sent a letter (pdf) to FCC Chairman Julius Genachowski in support of preserving an open Internet.

The groups asserted that the Internet faces major threats as a result of deregulation. Internet Service Providers (ISPs) have strong incentives to degrade certain Internet services, and new technologies increasingly allow them to control Internet traffic without end user knowledge. Simple, flexible policies are necessary to safeguard the open nature of the Internet and to protect the free flow of information and educational content, according to the letter.

The letter’s signatories urged the adoption of Internet (net) neutrality principles including non-discrimination and transparency, while allowing for reasonable practices to manage technical issues such as congestion and spam. These principles would give ISPs simple ground rules, and guarantee that private network operators and end users remain free to use Internet access as they see fit.

January 14, 2010
The ALA supports the FCC’s efforts to maintain an open Internet by codifying the principles of network neutrality, including two new principles recently introduced by Chairman Julius Genachowski.

The ALA affirmed its support for all six principles in its filing (pdf) to the FCC in response to the commission’s call for comments in the matter of Preserving the Open Internet Broadband Industry Practices.

The fifth principle of nondiscrimination is essential to ensuring equal access to content on the Internet.

“With the ever closer relationship between service providers and content, we think there are (unfortunately) many opportunities for service providers to abuse their gatekeeper status by picking and choosing what content they might privilege with faster access,” the ALA’s comments state.

Additionally, the ALA asserted that the sixth principle will promote transparency of service providers’ practices, including how they manage their networks. This information will allow libraries and consumers to make informed choices among competing providers.

October 26, 2009
Rep. Marsha Blackburn (R-TN) introduced the “Real Stimulus Act of 2009” ( H.R. 3294) that was then referred to the House Energy and Commerce Committee.  
Rep. Blackburn’s bill came on the heels of Sen. John McCain’s bill (S. 1836) and is practically verbatim the text of the Senate bill (i.e. anti-net neutrality).

October 22, 2009
On October 22, 2009, Sen. McCain (R-AZ) introduced the “Internet Freedom Act of 2009” ( S. 1836). The bill would prohibit the FCC from enacting rules that would regulate the Internet. In other works, the bill, if passed, would prevent the FCC from imposing network or “net” neutrality rules to the Internet. Specifically, the bill language states, “The Federal Communications Commission shall not propose, promulgate, or issue any regulations regarding the Internet or IP-enabled services. In other words, the bill, if passed, would prohibit the FCC from enacting rules that would regulate the Internet – or against net neutrality.

The bill was introduced on the same day FCC Chairman Genachowski issued a notice of proposed rulemaking on network neutrality.

October 22, 2009
The ALA issued a press release supporting Chairman Julius Genachowski’s efforts to move the FCC forward in consideration of principles to protect the free and open nature of the Internet.

The FCC voted unanimously to proceed with issuing a notice of proposed rulemaking (pdf), which would add two principles of non-discrimination and transparency to the existing four principles of network neutrality, and to allow a period of public commentary.

ALA’s principles center on intellectual freedom and access to information. Network neutrality extends these principles to online content; it also encourages innovation and allows even the smallest provider of online information access to a level playing field. The Internet developed as a neutral, democratic technology, and ALA believes the FCC must preserve it.