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Net Neutrality Primer

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					                                Net Neutrality
                                   Primer
                                           June 2006




Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                            NET NEUTRALITY PRIMER
                                                   June 2006
by R. Michael Senkowski, Shawn A. Bone, Rebekah Goodheart and Jennifer Schaum



                                                                                                                       Section
 Regulatory & Government Officials’
 Statements on Net Neutrality ............................................................................................1

 Positions of the Key Players on Net Neutrality ................................................................2

 Net Neutrality: Government Actions & Pending Proposals .............................................3

 Side-by-Side Analysis of Net Neutrality
 Legislative Proposals ........................................................................................................4

 Sample of Net Neutrality Blogs and
 Additional Resources Available on the Internet ...............................................................5




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   © 2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                                                                                Net Neutrality Primer



INTRODUCTION

While “net neutrality” has become the subject of much debate, there is no consensus about what
“net neutrality” actually means. Indeed, FCC Commissioner Tate stated recently, “Whenever
anyone walks into my office and asks [whether I am] for net neutrality, I ask what it is.”1
Similarly, AT&T’s CEO Edward Whitacre stated that he “do[es]n’t even know what net
neutrality means.”2 Interested parties appear to agree that net neutrality encompasses the FCC’s
September 2005 Policy Statement that consumers are entitled to access any lawful content on the
Internet and to choose between network, application, and content providers. Beyond that,
however, the issue becomes murky. While interested parties do not dispute that consumers can
be charged more for higher speeds of bandwidth, there is no consensus on whether network
operators can charge Internet service and content providers for the increased bandwidth.

Two major views of net neutrality have emerged. Internet companies such as Google and
Amazon.com argue that net neutrality regulations should prevent “tiering” of Internet services,
whereby Internet content providers would be charged based on the frequency with which certain
applications are used and/or how bandwidth-intensive different uses are. In contrast, incumbent
local exchange carriers and, to a lesser extent, cable companies, which have invested heavily in
their networks to carry broadband technology, believe that free market principles should apply to
Internet pricing and assert that they have no intention of degrading or blocking their competitors’
content.

Not surprisingly, Congress has entered the debate, with some members stating that they are
concerned about ensuring consumers’ access to broadband and other members encouraging a
wait-and-see approach. Eight bills have been distributed this session, four of which are
standalone net neutrality bills and the remaining four bills address net neutrality as part of global
telecommunications reform (one of which has been voted out of the House Committee on Energy
and Commerce and is scheduled for consideration by the full House sometime in June).




1
        Edie Herman, Net Neutrality Permeates TelecomNEXT Regulatory Debate, Comm. Daily, Mar. 24, 2006,
at 3.
2
        Id.



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          © 2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                                                                                    Net Neutrality Primer


BACKGROUND

High Tech Broadband Coalition (“HTBC”) Comments. The concept of net neutrality first
arose in 2003 when the High Tech Broadband Coalition, which includes the Business Software
Alliance, the Consumer Electronics Association, and the National Association of Manufacturers,
among other associations, filed comments before the FCC in the Appropriate Framework for
Broadband Access to the Internet Over Wireline Facilities proceeding.3 HTBC urged the FCC to
“vigilantly monitor cable modem and DSL broadband services as they develop,” and adopt net
neutrality principles, but said that no formal regulation was currently necessary. The High Tech
Broadband Coalition’s principles included consumers’ rights to access their choice of legal
content and run applications of their choice within the bandwidth limits of their service plans. In
September 2005, the FCC concurrently adopted its Wireline Broadband Order,4 which found
that the transmission component of Internet access would be regulated under Title I of the Act,
and a Policy Statement on net neutrality, which largely reflects the HTBC’s recommendations.

FCC Policy Statement. Although neither the FCC nor Congress has imposed regulatory
requirements vis-à-vis net neutrality, the FCC adopted a Policy Statement in September 2005
with four principles of net neutrality, which has served as the model for conditions in recent FCC
review of telecommunications mergers. The Policy Statement, which currently has no binding
effect, was designed to “ensure that broadband networks are widely deployed, open, affordable,
and accessible to all consumers.” The Policy Statement finds that consumers are entitled to: (1)
access the lawful Internet content of their choice; (2) run applications and use services of their
choice, subject to the needs of law enforcement; (3) connect their choice of legal devices that do
not harm the network; and (4) have competition among network providers, application and
service providers, and content providers. The Commission stated that it would incorporate these
principles into its future policymaking activities. While encompassing the idea that Internet
service providers should not block access to lawful content and applications on their networks,
the Policy Statement does not expressly address whether the prioritizing of delivery would be
acceptable.

STATEMENTS OF THE KEY PLAYERS ON NET NEUTRALITY

The Internet content and service providers and incumbent local exchange carriers (“ILECs”) are
largely leading the net neutrality debate, with most Internet content and service providers urging
regulatory and Congressional intervention and ILECs urging a hands-off regulatory approach.
Each side has formed coalitions to lobby Congress on this issue and stir up grassroots support for
their respective positions.


3
         CC Docket No. 02-33 (filed Sept. 26, 2003). These comments were also filed on the same date in Docket
No. 02-55, Appropriate Framework for Broadband Access to the Internet Over Cable Facilities, and Docket Nos.
95-20, 98-10, Computer III Further Remand Proceedings.
4
        Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, Report and Order
and Further Notice of Proposed Rulemaking, CC Docket No. 02-33 (Sept. 23, 2005) (“Wireline Broadband Order”).



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                                                                                       Net Neutrality Primer



Internet Content and Service Providers. Led by Google, Amazon.com, and Vonage, many
(although not all) Internet content and service providers favor net neutrality regulation that
would prevent facilities-based broadband network providers from prioritizing some connections
and services, asserting that such prioritization could lead to a degradation for other services and
connections. Fundamentally, these providers see net neutrality regulation as a guarantee of equal
consumer access to all applications without prioritization. As Google explained, “[w]e have
been promoting network neutrality to ensure our users can access whatever content or
applications they want, and that broadband carriers can’t unfairly discriminate against those who
use competing services.”5

Internet and service providers express concern that cable and phone companies may capitalize on
the fact that such companies own the network by favoring their own content and service
applications over their competitors’. Further, these entities submit that because consumers
already pay for their broadband connections, that flat rate should entitle them to all services.
Given the importance of start-up companies to the Internet’s development, these providers raise
the prospect that new and smaller providers may be squeezed out of the market if they are forced
to pay fees. As NetCoalition, a group that includes Google and Yahoo!, explained, “[n]etwork
neutrality is about prohibiting network operators from discriminating against people by entering
into exclusive deals with their preferred content providers.”6 In addition, these providers argue
that the success of the Internet is due in large part to non-interference from carriers, and that net
neutrality regulation is needed to ensure the continuation of this success. Dozens of businesses,
including Amazon.com, EarthLink, eBay, Google, Skype, Microsoft, Adobe Systems, Sony
Electronics, Yahoo!, and TiVo, signed a letter sent to members of Congress urging the enactment
of net neutrality legislation. In early June 2006, EBay e-mailed a “call to action” letter to its
users, urging them to become involved in supporting net neutrality regulation.7

Some providers have rejected any notion that they will agree to pay fees to carriers. Vonage, for
example, stated that “[t]hey [the ILECs] want to charge us for bandwidth the customer has
already paid for. The customer has to pay twice. That’s crazy.”8 Similarly, Google stated that it
“is not discussing sharing the costs of broadband networks with any carrier . . . consumers are
already paying to support broadband access to the Internet through subscription fees and, as a
result, consumers should have the freedom to use this connection without limitations.”9



5
        Mark Sullivan, Google Goes to Wonkytown, Light Reading, Oct. 10, 2005.
6
        Sarah Lai Stirland, Entertainment Sector Decries Bill On ‘Net Neutrality’, Nat’l J. Tech. Daily, Mar. 16,
2006.
7
        Drew Clark, EBay Urges Users To Lobby On Network Neutrality, Nat’l J. Tech. Daily, May 31, 2006.
8
        Report: Bells to Push for Web fees, CNNMoney.com, Jan. 6, 2006.
9
        Mark Sullivan, Google Says No to QOS Fees, Light Reading, Jan. 20, 2006.



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                                                                                         Net Neutrality Primer


On the other hand, some Internet companies have entered into fee discussions with broadband
carriers. Specifically, Movielink LLC, which offers movies to consumers over the Internet, has
discussed payment arrangements with BellSouth. According to Movielink CEO Jim Ramo,
“Movielink is certainly interested in increasing the quality of service to customers. We’re
willing to explore a commercial relationship where we can get that done.”10 Walt Disney and
HDNet also have come out against net neutrality legislation. According to HDNet, providers
such as Google already are paying third party companies to speed up content delivery over the
Internet, so content providers already are paying for premium services. Therefore, HDNet
maintains that, “[t]here is no such thing as net neutrality.”11

Relatedly, two Internet providers – AOL, which is owned by Time Warner and has not taken a
position publicly on net neutrality, and Yahoo!, which has signed on to letters favoring net
neutrality but has not been vocal in the press – reported in February that they will begin giving
preferential treatment to messages from companies that pay from 1/4 of a cent to a penny each to
have them delivered. The Internet companies state that this will help reduce spam, identify
legitimate mail and cut down on identity theft scams.12 A group of organizations, including the
AFL-CIO, the Gun Owners of America, and MoveOn.org have circulated an online petition
opposing AOL’s plans to charge for e-mail delivery. The petition, available at DearAOL.com,
has been signed by more than 350,000 people and garnered media attention when AOL’s filters
temporarily blocked e-mails with a link to that site – according to AOL, a technical glitch the
company quickly corrected.13

Finally, in a recent Congressional net neutrality hearing, USTelecom President Walter
McCormick accused Internet search engines of violating neutrality principles themselves and
engaging in anticompetitive behavior by entering into agreements with businesses to have links
to such businesses’ web sites appear at the top of the search results.14 Internet content and
service providers have not responded to these allegations.



10
         Report: Bells to Push for Web Fees, CNNMoney.com, Jan. 6, 2006.
11
         Sarah Lai Stirland, Entertainment Sector Decries Bill on ‘Net Neutrality’, Nat’l J. Tech. Daily, Mar. 16,
2006. Mediacom also has stated that it and other companies are in talks with Google over a potential deal for
preferential treatment. Jonathan Make, Mediacom Says It’s Talking With Google on Preferred Access, Comm.
Daily, May 9, 2006, at 11.
12
         See Saul Hansell, Postage Is Due for Companies Sending E-Mail, N.Y. Times, Feb. 5, 2006, at 25, Section
1.
13
         Chris Gaither & Joseph Menn, AOL Blocks Critics’ E-Mails, L.A. Times, Apr. 14, 2006.
14
          See The Communications, Consumer’s Choice, and Broadband Deployment Act of 2006: Second Hearing
to Consider S. 2686 Before the S. Comm. on Commerce, Science & Transportation, 109th Cong. (2006) (statement
of Mr. Walter B. McCormick, President & CEO, United States Telecom Association (“USTelecom”)) (A video of
this hearing is available at
http://commerce.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=1754).



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                                                                                          Net Neutrality Primer


Incumbent Local Exchange Carriers (“ILECs”). Led by the former Bell Operating Companies
(“BOCs”) Verizon, AT&T, BellSouth, and Qwest, ILECs contend that they should be able to
engage in practices such as tiering of Internet services, with speed and pricing based on the types
of applications used, including gaming and digital media downloading. To the ILECs, net
neutrality does not inhibit tiering of services; rather, “net neutrality really means that there
should be no impediment to traffic.”15 In short, the ILECs advocate a hands-off regulatory and
legal approach, preferring to let the market determine what services are offered at what price,
and how the cost of using the broadband network is split between customers and content
providers. Some ILECs maintain that they should be allowed to charge a “quality of service” fee
to the providers of bandwidth-intensive services such as video, games, and VoIP in order for
consumers to have faster, higher-quality access. In so doing, ILECs seek to offset their
enormous expenditures in upgrading their networks to support higher-speed connections with
larger bandwidth capacity. ILECs submit that net neutrality regulation (or Congressional
intervention) is not necessary because there is no market failure—rather, there is competition
among ILECs, cable operators, and various broadband providers—let alone any evidence that
could justify regulatory intervention. These carriers also emphasize that they have no record of
degrading or cutting off competitors’ service, and that it would be bad business practice for them
to do so. Prohibiting tiering, they assert, would discourage their network deployment and
continue to give Internet service and content providers a “free ride” on their costly networks. In
the view of ILEC trade group USTelecom, “[t]here’s nothing neutral about the government
dictating one and only one way to design networks.”16

Competitive Local Exchange Carriers (“CLECs”). CLECs, by contrast, do not share the
ILECs’ definition of net neutrality. Rather, the CLECs echo concerns voiced by content and
service providers regarding the need for regulatory intervention. In Congressional testimony,
COMPTEL, a CLEC trade association, urged the enactment of legislation that not only
guarantees nondiscriminatory Internet access for end users, but for content and service providers
as well. Without such regulation, COMPTEL CEO Earl Comstock testified that a network
operator “has every incentive to refuse interconnection or attachment if by such refusal the
network operator can thwart a competitor.”17 Comstock also has advocated antitrust remedies
for network operators who abuse their market power and violate net neutrality principles.18
Additionally, PacWest has argued that carriers “shouldn’t be able to give preference to their own


15
        Marguerite Reardon, Qwest CEO Supports Tiered Internet, CNET News.com, Mar. 15, 2006 (quoting
Richard Notebaert, CEO of Qwest).
16
         Net Neutrality Bill Clears House Judiciary Committee, Comm. Daily, May 26, 2006.
17
        Hearing to Examine Net Neutrality Before the S. Comm. on Commerce, Science & Transportation, 109th
Cong. (2006) (statement of Earl W. Comstock, President & CEO, CompTel).
18
          Hearing to Examine Net Neutrality Before the H. Comm. on the Judiciary, 109th Cong. (2006) (statement
of Earl W. Comstock, President & CEO, COMPTEL) (“COMPTEL urges the Committee to introduce and adopt
legislation creating a specific antitrust remedy to enforce [n]et neutrality by prohibiting anticompetitive behavior by
transmission network operators.”).



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                                                                                      Net Neutrality Primer


content over someone else’s content. The solution is a form of [n]et neutrality that would not
allow them to discriminate against other companies’ applications.”19

Cable Companies. The incumbent cable operators initially were less vocal than the ILECs in the
debate over net neutrality, and, in fact, were “studiously avoiding this issue.”20 However, the
National Cable & Telecommunications Association (“NCTA”), which represents the major cable
companies, did testify before Congress opposing net neutrality regulation, arguing that if
broadband providers are to continue investing heavily in their networks, “and if consumers are
going to be given the levels of services and innovative new products and features they desire, all
at prices they can afford, broadband providers need to have continuing flexibility to innovate in
the business models and pricing plans they employ.”21 As net neutrality increasingly has gained
publicity, some cable executives have begun breaking the silence. While lamenting that ILECs
unnecessarily stirred up the net neutrality debate, Comcast has voiced its opposition to attempts
by “e-commerce giants” to force consumers to bear the entire cost of building advanced
networks while protecting their own dominant market situations.22 Mediacom Communications
CEO Rocco Commisso defended cable and phone companies’ right to manage the infrastructure
they have invested in, calling it “incredible” that companies like Google, with “market
capitalization bigger than the combined value of the cable business” are “asking for special
favors” from Congress through net neutrality legislation.23 Cable One CEO Tom Might also
decried the pro-regulation campaign, saying people “don’t know what it is, but they’re afraid to
be against [n]et neutrality, because it sounds so wonderful, like [m]om and apple pie.”24 At the
FCC, cable companies have objected to the imposition of a net neutrality condition to the
pending Comcast-Time Warner-Adelphia transactions.

Wireless Carriers. While net neutrality focuses primarily on ILECs and cable companies, there
is an open question regarding the application of such regulations (if adopted) to wireless carriers.
In Congressional testimony, Steve Largent, president and CEO of CTIA – The Wireless
Association expressed the wireless industry’s opposition to net neutrality regulation.
Specifically, Largent said the wireless industry is concerned that regulation would “drive away
the investment the industry needs to continue building the infrastructure, design the devices and
operate the evolving networks needed to sustain consumer demand for more advanced mobile



19
        Marguerite Reardon, Debate Heats Up Over Net Neutrality, CNET News.com, Mar. 15, 2006.
20
        Mike Farrell, Guaranteed Access Simmers on Back Burner, Multichannel News, Jan. 16, 2006.
21
        Hearing to Examine Net Neutrality Before the S. Comm. on Commerce, Science & Transportation, 109th
Cong. (2006) (statement of Kyle McSlarrow, President & CEO, NCTA).
22
        Drew Clark, Cable Official Slams Bells Over ‘Net Neutrality’, Nat’l J. Tech. Daily, May 10, 2006.
23
        Anne Broache, Smaller Cable Firms Take Aim at Net Neutrality Fans, CNET News.com, May 9, 2006.
24
        Id.



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services.”25 Largent stated that both the Internet and the wireless industry continue to grow and
evolve, and there “is no reason to restrict the growth or evolution of either, unless a real
marketplace failure is identified.”26 Conversely, Amazon.com’s Paul Misener testified in favor
of imposing net neutrality requirements on wireless network operators, saying “it is difficult to
see on what basis” such operators could claim exemption and explaining that the requirement
would be that “all sources of technically-similar Internet content be treated similarly.”27 To date,
however, the implications of net neutrality regulation on wireless carriers has not been a central
part of the debate.

Other Interested Parties. Other parties, including equipment manufacturers and consumer, trade
and public policy groups, have weighed in on the net neutrality debate, and multiple coalitions
have formed to advocate their positions.

Consumer groups largely have sided with Internet content providers in expressing support for net
neutrality regulation and released a poll showing that the majority of Internet users are concerned
about content and service blocking and support federal legislation. “[A]lthough consumers
believe network owners should provide unfettered access to the Internet, few believe they’ll do
so unless required by law,”28 according to the Consumer Federation of America. Similarly,
Consumers Union said that “Congress should enact tough new laws prohibiting cable and
telephone companies from blocking consumer access to content and services on the Internet,
bilking both consumers and Internet-based companies.”29 Media Access Project distinguishes
between carriers charging consumers for faster tiers of Internet service, which it believes is
acceptable, and charging third parties for their bits to be moved faster through the network,
which it believes should be prohibited.30 Free Press, Consumers Union and Consumer
Federation of America have issued a paper laying out the “facts” supporting net neutrality
regulation.31

Consumer groups have joined a diverse coalition organized by Free Press, a nonpartisan media
reform group, called the SavetheInternet.com Coalition, which was created to advocate for

25
         The Communications, Consumer’s Choice, and Broadband Deployment Act of 2006: Hearing to Consider
S. 2686 Before the S. Comm. on Commerce, Science & Transportation, 109th Cong. (2006) (statement of Steve
Largent, President and Chief Executive Officer, CTIA – The Wireless Association).
26
        Id.
27
         Hearing to Examine Net Neutrality Before the H. Comm. on the Judiciary, 109th Cong. (2006) (statement
of Paul Misener, Vice President of Global Public Policy, Amazon.com).
28
        CFA: Bells Will Block Packets, Light Reading, Jan. 19, 2006.
29
        Id.
30
        Cheryl Bolen, Firms, Consumer Advocates Debate Merits of Net Neutrality, Pike & Fischer, Mar. 27, 2006.
31
        Ben Scott et al., “Why Consumers Demand Internet Freedom: Net Neutrality: Fact vs. Fiction,” May 2006.



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strong net neutrality provisions in telecommunications legislation. According to Free Press, “the
idea is that there is a strange-bedfellows coalition on net neutrality, with all kinds of people
concerned about the future of the Internet, and wanting to make sure that everyone is treated
equally.”32 SavetheInternet.com Coalition counts MoveOn.org, Gun Owners of America, the
American Library Association and various bloggers and websites among its members. Celebrity
actors and musicians have recently begun to promote net neutrality regulation through
SavetheInternet.com Coalition as well.33 Amazon.com, eBay, Google, InterActiveCorp,
Microsoft, and Yahoo! have created another pro-net neutrality regulation group, the Net
Neutrality Coalition, which launched an advertising campaign asking Congress to protect “the
freedom of anyone to go anywhere at anytime on the Internet.” CEOs of the six founding
companies, plus Intel Corp., wrote a letter to Congress urging legislation ensuring Internet
openness.34

Conversely, other public policy groups support a deregulatory, free market approach. The
Progress and Freedom Foundation said that net neutrality regulation will become tied up in
litigation because the term is vague, and may really result in common carriage requirements.35 A
Progress and Freedom Foundation Digital Age Communications Act (“DACA”) Working Group
similarly issued a statement advocating the use of an unfair competition standard on a case-by-
case basis instead of enacting legislation with a broad net neutrality mandate.36
Opponents of net neutrality regulation also formed several groups to oppose economic regulation
of the Internet. The most prominent is the Hands Off the Internet Coalition, co-chaired by
former Clinton White House Press Secretary Michael McCurry, which includes AT&T, Alcatel,
the National Association of Manufacturers, Citizens Against Government Waste, the American
Conservative Union and broadband-over-power line companies, among others. According to co-
chair Chris Wolf, “[t]rying to guess at a regulated formula for network neutrality that would
protect the public interest and not impede innovation is on par with picking a perfect NCAA
basketball bracket. Federal regulation of Internet neutrality is a bad idea whose time will
hopefully never come.”37 Another new organization, the Internet Freedom Coalition, formed to
oppose Internet regulation and taxation and claims it has the backing of “every free-market think




32
        Drew Clark, ‘Net Neutrality’ Debate Heats Up as Lawmakers Return to D.C., Nat’l J., Apr. 21, 2006.
33
        Andrew Noyes, Markey, Moby Stump for Net Neutrality, Comm. Daily, May 19, 2006, at 5.
34
        Intel Joins Lobbying for Net Neutrality Law, Associated Press, Apr. 26, 2006.
35
        Id.
36
        See Press Release, Progress and Freedom Foundation, DACA Group Opposes Net Neutrality Mandate
(Mar. 20, 2006).
37
        Andrew Noyes, Net Neutrality Fight Flares Up As Congress Resumes, Comm. Daily, Apr. 25, 2006, at 9.




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tank, scholar and advocacy group.”38 Telecom reform group FreedomWorks also opposes net
neutrality.39

Equipment manufacturers also have joined the fight—on both sides. Cisco Systems CEO John
Chambers wrote a letter to Congress arguing against net neutrality legislation because
telecommunications companies should be allowed to experiment with different technologies
within their networks, form new business models, and alleviate network congestion.40 A group
of equipment manufacturers, including 3M, Alcatel, Corning, Qualcomm and Cisco Systems
similarly sent a letter to Congressional leaders, opposing regulation they said risks “hobbling the
rapidly developing new technologies and business models of the Internet with rigid, potentially
stultifying rules.”41 Consumer Electronics Association (“CEA”) partnered with the ILECs to
release device attachment principles including nationwide compatibility among networks, open
standards for manufacturing, reasonable licensing terms, testing and certification procedures, and
reasonable terms of service for customers.42 At the same time, however, CEA also has publicly
supported strong net neutrality regulation, saying it would “ensure[] that tomorrow’s small
digital entrepreneur with the ‘next great idea’ will not be blocked from reaching consumers
across the world.”43 And, as noted above, Intel CEO Paul Otellini signed onto a letter to
Congress supporting net neutrality legislation to ensure the open nature of the Internet.

In the technology sector, trade groups are divided on their net neutrality stance because of
opposing views among their members. Electronics association AeA, lobbying and political
fundraising group TechNet and the Business Software Alliance have all come out in support of
net neutrality regulation, while the Telecommunications Industry Association and the National
Association of Manufacturers oppose such regulation, and the Information Technology Industry
Council has been unable to reach a consensus.44

Finally, recently formed technology think tank Information Technology and Innovation
Foundation has issued a report advocating for what it terms the “third way” of regulating net



38
        Andrew Noyes, Markey, Moby Stump for Net Neutrality, Comm. Daily, May 19, 2006, at 5.
39
        Id.
40
        Marguerite Reardon, Debate Heats Up Over Net Neutrality, CNET News.com, Mar. 15, 2006.
41
        Declan McCullagh, Hardware Firms Oppose Net Neutrality Laws, CNET News.com, May 19, 2006.
42
         See Press Release, Consumer Electronics Association, AT&T, BellSouth, Verizon and CEA Announce
Principles on Device Attachment (Mar. 15, 2006).
43
         Press Release, Consumer Electronics Association, CEA Applauds Introduction of Net Neutrality
Legislation (Mar. 2, 2006).
44
        Drew Clark, Tech Stalemate Over Net Neutrality May Be Dissolving, Nat’l J. Tech. Daily, June 1, 2006.



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neutrality, which would combine tax breaks for broadband investments with a requirement that
the FCC monitor broadband services and adjudicate alleged abuses of market power.45

NET NEUTRALITY ACTIVITIES AT THE FEDERAL COMMUNICATIONS
COMMISSION

A few months after taking swift action against a small ILEC that allegedly blocked VoIP service
on its network, the FCC adopted a unanimous position on net neutrality to ensure that broadband
networks are open to all consumers and outlined four goals to accomplish this result in a
September 2005 Policy Statement. The FCC’s Policy Statement is similar to the “Internet
Freedoms” advocated by former FCC Chairman Powell during his term and focuses on
consumers’ ability to access content and applications of their choice. Chairman Martin has
voiced his support for an open Internet, while at the same time expressing confidence in the
market’s ability to ensure net neutrality principles are followed without the need for formal FCC
regulations. Martin also favors allowing Internet companies to tier their services, saying,
“[s]ome [consumers] want a lower speed, and for other consumers, it may be worth more to them
to pay for a better quality of service or speed.”46 In support of a hands-off approach, Martin said,
“[w]e need to make sure we have a regulatory environment [in which network operators] can
invest in the network and can recoup their costs.”47 Commissioner Copps believes the FCC can
and should go beyond the Policy Statement and adopt enforceable network neutrality rules: “I
think we have authority to go now to the second phase of network neutrality, to make sure that
there’s not discrimination against those that are not affiliated with network owners.”48 Copps
has expressed his view that more concentrated facilities providers may start “dictating who can
use the Internet and for what purpose,” and that such providers are seeking to “double-dip” by
charging both consumers and web site content providers for access.49

Madison River Consent Decree. In early 2005, Vonage reported to the FCC that Madison River
Communications, LLC, a small rural ILEC, was blocking Vonage’s VoIP service. The FCC
began investigating, and within a few weeks Madison River entered into a consent decree in
which it agreed to “not block ports used for VoIP applications or otherwise prevent customers
from using VoIP applications” and paid a $15,000 fine.50 This incident is credited with raising
the profile of the net neutrality debate. The FCC uses this example to demonstrate the


45
        Net Neutrality Proposal Combines Tax with Regulation, Comm. Daily, June 2, 2006, at 3.
46
        Drew Clark, FCC Chief Opens Door To Tiered, High-Speed Internet, Nat’l J. Tech. Daily, Jan. 6, 2006.
47
        Marguerite Reardon, AT&T Chief, FCC Chair Clarify on Net Neutrality, CNET News.com, Mar. 21, 2006.
48
        Ted Heam, Copps: FCC Can Impose Net Neutrality, Multichannel News, May 23, 2006.
49
        Edie Herman, Copps Urges National Debate on Net Neutrality, Comm. Daily, Apr. 4, 2006, at 1.
50
        In re Madison River Communications, LLC and Affiliated Companies, Order and Consent Decree, 20 FCC
Rcd. 4295, 4297 (2005).



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Commission’s ability to act swiftly to penalize any carrier that attempts to block lawful traffic.
Conversely, VoIP providers say Madison River’s actions show that telecommunications carriers
have and can continue to prevent customers from using competitors’ applications.

Policy Statement and Wireline Broadband Consumer Protection Proceeding. Concurrently
with the issuance of its net neutrality Policy Statement (discussed in the background, supra) and
the Wireline Broadband Order, the FCC issued a Further Notice of Proposed Rulemaking
requesting comment on whether consumer protection regulation was necessary for broadband
services. Although the Commission did not request comment on net neutrality, a few
commenters nonetheless raised the issue in their submissions. Filings by multiple CLECs argued
that the BOCs’ “real agenda is the ability to discriminate against competitors in favor of their
own services . . . favor[ing] their own customers in terms of speed and quality of connection to
the Internet and leaving others with inferior access.”51 These CLECs therefore urge the
Commission not to extend Title I treatment to stand-alone broadband services, saying this would
only exacerbate the problem.

Separately, the California Public Utilities Commission (“PUC”) encouraged the Commission to
consider rules implementing the September 2005 Policy Statement on net neutrality, because
“such policies promote consumer choice, choice that empowers consumers and provides
fundamental consumer protection.”52 The California PUC argued that these rules should be
implemented in this docket as “consumer protection rules for the broadband marketplace.”53

Another issue in the proceeding is the scope of the FCC’s authority to act, given the
Commission’s decision to regulate the transmission component of DSL under its Title I authority
as well as the Supreme Court’s Brand X decision, which affirmed the regulation of cable modem
service as a Title I information service under the Act.54 The Madison River proceeding arose
under the Commission’s Title II authority and some have questioned the scope of the FCC’s
ancillary authority under Title I.55

51
       Reply Comments of Broadwing Communications LLC, Integra Telecom, Inc., McleodUSA
Telecommunications Services, Inc., New Edge Network, Inc., and U.S. Telepacific Corp. D/B/A Telepacific
Communications, CC Docket No. 02-33, at 4 (Jan. 9, 2006).
52
       Reply Comments of the People of the State of California and the California Public Utilities Commission,
CC Docket No. 02-33, at 3 (Mar. 1, 2006).
53
         Id.
54
         Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 125 S. Ct. 2688 (2005).
55
          See Ted Hearn, After‘Brand X,’ New Challenges, Multichannel News, Aug. 1, 2005 (quoting CompTel
president Earl Comstock stating that the FCC “was able to take action against Madison River because they were a
common carrier. The line of authority to do that [to an information service provider] is a little less clear,” and Media
Access Project president Andrew Schwartzman saying that Justice Thomas’s opinion in Brand X indicates the FCC
has broad authority over information service providers); see also Greg Piper, Barton Broadband Bill Means ‘Cable-
ization’ of Internet, Foes Say, Comm. Daily, Mar. 29, 2006, at 6 (“The FCC’s antiblocking decision in the Madison
River VoIP case is no longer controlling on the Commission . . . the FCC’s reclassification of DSL as an information


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SBC/AT&T and Verizon/MCI Mergers. In November 2005, the FCC approved the mergers of
SBC/AT&T and Verizon/MCI with multiple conditions. One of those conditions was that, for
two years after consummation of the merger, the merged companies agree to abide by the net
neutrality principles enumerated in the FCC’s September 2005 Policy Statement: “Effective on
the Merger Closing Date, and continuing for two years thereafter, SBC/AT&T [Verizon/MCI]
will conduct business in a manner that comports with the principles set forth in the FCC’s Policy
Statement, issued September 23, 2005.”56 The merger conditions were listed in an appendix to
the FCC’s orders, and the Commission did not elaborate on its decision to impose this condition.

Comcast-Time Warner-Adelphia Transactions. In 2005, Time Warner Inc. and Comcast
Corporation filed petitions requesting that the Commission approve various license transfers and
assignments pursuant to a series of agreements the companies had entered into with Adelphia
Communications Corporation and with each other. The FCC solicited public comment on the
applications and a handful of commenters opposed the transaction and urged the FCC to impose
network neutrality conditions on any grant.

In particular, the Communications Workers of America, Media Access Project (“MAP”), and
Center for Creative Voices in Media urged the Commission to prohibit content discrimination
and interference with rival video or voice services offered via Comcast’s and Time Warner’s
broadband platforms. MAP, the most vocal proponent of a net neutrality condition, expressed
concerns that Comcast and Time Warner would block time-sensitive political speech.57
Similarly, the Center for Creative Voices in Media warned the Commission against allowing
cable companies and telephone providers to “extend [their] distribution chokehold to the
Internet.”58 In response, Time Warner, Comcast and Adelphia maintain that broadband-related
issues have industry-wide implications and it is therefore inappropriate to address such issues in
connection with the review of their specific applications.59 Further, the cable companies contend


service, regulated under Title I, negated that network neutrality principle.”); Cerf’s Up for Neutrality Debate, Light
Reading, Feb. 7, 2006 (noting USTA’s view that the FCC “already has authority under current law to prevent
network operators from discriminating against certain services running over their networks. The Commission has
made it clear that it has both the authority and the appetite to move swiftly to intervene,” but also stating, “[h]ad the
Madison River incident occurred after the Brand X decision, the FCC wouldn’t have had the authority to slap
Madison River’s hand.”).
56
       In re SBC Communications, Inc. and AT&T Corp. Applications for Approval of Transfer of Control,
Memorandum Opinion and Order, FCC 05-183, Appendix F (Nov. 17, 2005); In re Verizon Communications Inc.
and MCI, Inc. Applications for Approval of Transfer of Control, Memorandum Opinion and Order, FCC 05-184,
Appendix G (Nov. 17, 2005).
57
         Petition to Deny of Free Press, MB Docket No. 05-192, at 45-46 (July 31, 2005).
58
        Center for Creative Voices in Media, Cable’s ‘Level Playing Field’ – Not Level. No Field, Report, MB
Docket No. 05-192, at 34 (Oct. 25, 2005).
59
        Reply Comments of Adelphia Communications Corporation, Comcast Corporation, Time Warner Inc., MB
Docket No. 05-192, at 88 (Aug. 5, 2005).


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that there is no justification for the imposition of any broadband-related conditions because there
is no evidence that Comcast or Time Warner ever degraded, blocked, or otherwise discriminated
against any packets delivered by any IP-enabled service application.60 Finally, Comcast and
Time Warner assert that the state of competition in the broadband arena, which they indicated
has flourished under the Commission’s long-standing policy of keeping federal regulation away
from the Internet, shows that there is no need for any net neutrality conditions.61 The FCC has
yet to issue an Order in this proceeding.

AT&T-BellSouth Merger. On March 31, 2006, AT&T and BellSouth filed an application with
the Commission to transfer control of BellSouth’s licenses to AT&T. The FCC has solicited
public comment on the application, and comments were due June 5. Given that AT&T’s last
merger was approved with net neutrality conditions and the high profile of the issue, net
neutrality likely will be an area of concern in this proceeding as well.

NET NEUTRALITY IN CONGRESS

Net neutrality has been receiving increased Congressional attention, and seven bills have been
introduced in this Congress that seek to regulate net neutrality to varying degrees. An eighth bill
addressing net neutrality has been released in draft form, but it has not been formally introduced.
Most members of Congress agree that consumers should be free to access all legal content,
applications, and services available on the Internet through any device of their choosing, in
accordance with the FCC’s September 2005 Policy Statement. Even so, little consensus exists
on the fundamental issue of whether broadband network operators must provide equal, “neutral”
access to their networks.

While some members of the Senate, including Senate Committee on Commerce, Science, and
Transportation Chairman Stevens (R-AK) and Senator Dorgan (D-ND), have stressed the
importance of net neutrality, others (predominantly Republicans) believe it may be premature for
Congress to act. In recent hearings, for example, Senator Burns (R-MT) indicated that he would
prefer to wait and see how the issue plays out in the marketplace in lieu of enacting regulations at
this time.62 Likewise, Senator Allen (R-VA) stated that competition, not Congress, is the key to
the issue of net neutrality.63 On the other hand, some Democrats appear concerned that
consumers may be harmed if Congress does not get involved. Senator Boxer (D-CA) stated that
service providers could offer priority service to consumers willing to pay more, to the detriment



60
        Id. at 87-89.
61
        Id. at 88.
62
         Hearing to Examine Net Neutrality Before the S. Comm. on Commerce, Science & Transportation, 109th
Cong. (2006) (statement of Sen. Conrad Burns) (A video of this hearing is available at
http://commerce.senate.gov/hearings/witnesslist.cfm?id=1705.).
63
        Id. (statement of Sen. George Allen).



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of lower-income Americans.64 Similarly, Senator Pryor (D-AR) indicated that fairness is the key
to competition and that Congress must ensure that it does not advantage any one company or
technology and disadvantage others.65

Members of the House have had similar reactions. For example, House Committee on Energy
and Commerce Chairman Barton (R-TX) has maintained that Congress should take it slow when
addressing net neutrality.66 Other Republican members, as well as Democrat Representative
Gonzalez (D-TX), have expressed views similar to Chairman Barton’s.67 But not all House
Republicans support this wait-and-see approach. House Judiciary Committee Chairman
Sensenbrenner joined with the Ranking Member of that Committee, Representative Conyers (D-
MI) and introduced legislation that would regulate net neutrality under antitrust laws and bar
broadband network operators from assessing fees for priority service.68 Like the Senate
Democrats, many House Democrats have been quite vocal in their belief that Congress should
impose stringent net neutrality requirements on broadband network operators. Leading the
charge has been Representative Markey (D-MA), joined by Representatives Boucher (D-VA),
Eshoo (D-VA), and Inslee (D-WA).69

As explained in more detail below, both houses of Congress have held broad telecommunications
reform hearings that touched upon net neutrality,70 but two bills have been reported out of


64
         Id. (statement of Sen. Barbara Boxer).
65
         Id. (statement of Sen. Mark Pryor).
66
         See, e.g., Declan McCullagh & Anne Broach, Republicans Defeat Net Neutrality Proposal, CNET
News.com, Apr. 5, 2006 (“Before we get too far down the road, I want to let the market kind of sort itself out, and
I’m not convinced that we really have a problem with Net neutrality.”).
67
          The Communications Opportunity, Promotion and Enhancement Act of 2006: Hearing to Consider H.R. __
Before the Subcomm. on Telecommunications and the Internet, H. Comm. on Energy and Commerce, 109th Cong.
(2006) (A video of this hearing is available at
http://energycommerce.house.gov/108/Hearings/03302006hearing1823/hearing.htm.).
68
         See Internet Freedom and Nondiscrimination Act of 2006: Hearing on H.R. 5417 Before the H. Comm. On
the Judiciary, 109th Cong. (2006); see also News Release, Office of Chairman Jim Sensenbrenner, Jr.,
Sensenbrenner, Conyers Introduce Bipartisan Net Neutrality Legislation (May 18, 2006). In the statement
Chairman Sensenbrenner’s office release upon introduction of H.R. 5417, the Chairman states: “This legislation is a
necessary step to protect consumers and other Internet users from possible anti-competitive and discriminatory
conduct by broadband providers.”
69
         See id.
70
          Hearing to Examine Net Neutrality Before the S. Comm. on Commerce, Science & Transportation, 109th
Cong. (2006) (statement of Sen. Conrad Burns) (A video of this hearing is available at
http://commerce.senate.gov/hearings/witnesslist.cfm?id=1705.); The Communications Opportunity, Promotion and
Enhancement Act of 2006: Hearing to Consider H.R. __ Before the Subcomm. on Telecommunications and the
Internet, H. Comm. on Energy and Commerce, 109th Cong. (2006) (A video of this hearing is available at
http://energycommerce.house.gov/108/Hearings/03302006hearing1823/hearing.htm). The House Committee on the


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committee to date. Further net neutrality debate in Congress can be expected over the summer,
as bills involving net neutrality continue through the legislative process. Below, the bills that
have been voted out of committee are discussed first, followed by a discussion of the net
neutrality provisions in the two major broad telecommunications reform initiatives being
considered in the Senate. Finally, the other stand-alone net neutrality legislation is described,
along with other broader telecommunications reform legislation that contains net neutrality
provisions.

Communications Opportunity, Promotion, and Enhancement Act of 2006 (“COPE Act”). In
the House of Representatives, a bill cosponsored by Chairman Barton (R-TX) and Rep. Rush (D-
NY), which focuses primarily on video franchising, would grant the FCC the power to enforce
its September 2005 Policy Statement.71 Under the current version, which was approved by the
Energy and Commerce Committee and is scheduled for consideration by the House in June, the
Commission would be prohibited from initiating a rulemaking proceeding and adopting any
regulations to enforce, alter, or expand the Policy Statement. In addition, the FCC would be
required to conduct a study within 180 days of the bill’s enactment and report to Congress
whether the FCC’s net neutrality principles are being achieved. Notably, the version of the
COPE Act approved by the Committee marks a significant departure from an earlier draft, which
would have prevented broadband providers from blocking, impairing, or interfering with the
offering of, access to, or the use of any content or service provided over the Internet.72

The current version of the COPE Act began circulating on March 28, 2006, and a hearing
concerning the bill’s contents was held March 30, 2006.73 Net neutrality proponents submit that
the bill does not go far enough in ensuring the open nature of the Internet. At the March 30
hearing, House Democrats, including Rep. Markey (D-MA) and Rep. Boucher (D-VA), warned


Judiciary’s Full Committee Task Force on Telecom and Antitrust has also held a hearing exploring the need for net
neutrality legislation. Hearing to Examine Net Neutrality Before the H. Comm. on the Judiciary, 109th Cong.
(2006) (A video of this hearing is available at http://judiciary.house.gov/oversight.aspx?ID=233.). The Senate
Committee on the Judiciary scheduled, and then later postponed, a hearing on those aspects of net neutrality that
touch the nation’s antitrust laws and competitiveness in the telecommunications marketplace. Reconsidering Our
Communications Laws: Ensuring Competition and Innovation: Hearing Before the S. Comm. on the Judiciary,
109th Cong. (scheduled for May 23, 2006, but postponed until a later date). In addition, the Senate Commerce
Committee devoted a second hearing to net neutrality as part of a series of hearings on the “Communications,
Consumer’s Choice, and Broadband Deployment Act of 2006,” Chairman Stevens’s bill seeking broad
telecommunications reform. The Communications, Consumer’s Choice, and Broadband Deployment Act of 2006:
Second Hearing to Consider S. 2686 Before the S. Comm. on Commerce, Science & Transportation, 109th Cong.
(2006).
71
         See Communications Opportunity, Promotion, and Investment Act of 2006, H.R. 5252, 109th Cong. § 201
(2006) (“The Commission shall have the authority to adopt an order to require the entity subject to the complaint to
comply with the broadband policy statement and the principles incorporated therein.”).
72
         Nov. 3, 2005 Draft of H.R. __, 109th Cong. § 104 (2005).
73
         Although it began circulating in March, this bill was not formally introduced until May 1, 2006.



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that the bill could have a profound effect on the Internet – and that once the door is opened for
priority treatment on the Internet, there will be no turning back.74 Google, Microsoft,
Amazon.com, eBay, IAC/InterActiveCorp, and Yahoo! sent a letter to Congress opposing the
legislation, which they said “would fail to protect the Internet.”75

The House Energy and Commerce Committee’s Subcommittee on Telecommunications and the
Internet marked up the COPE Act on April 5, 2006, and adopted an amendment offered by Rep.
Upton (R-MI). The Upton amendment would enhance the FCC’s penalty options by authorizing
the agency to use its full panoply of enforcement powers under Titles IV and V of the
Communications Act, and increasing the forfeiture penalty for a Policy Statement violation to
$500,000. The Upton amendment would also require the FCC to rule on any complaint alleging
a violation of the Policy Statement within 90 days. At the same time, the Subcommittee rejected,
by a vote of 23 to 8, an amendment offered by Reps. Markey, Boucher, Eshoo (D-CA), and
Inslee (D-WA), which would have strengthened the net neutrality provisions in the bill by
prohibiting access fees on content providers or prioritizing network content based on anything
other than the type of content.76

The full House Energy and Commerce Committee has also marked up the COPE Act. During
the April 26, 2006 mark-up session, Rep. Markey reoffered his amendment discussed above, but
this was rejected by a vote of 22 to 34. Rep. Gonzalez also offered an amendment which would
have instructed the FCC to study the issue of “screen bias,” meaning alleged agreements between
Internet search engines and businesses that cause businesses’ web sites to appear at the top of
users’ search results.77 The amendment was opposed by other members of the Committee
(including Reps. Markey and Eshoo) and was defeated by a vote of 43 to 11. The COPE Act
was reported out of Committee by a vote of 42 to 12.




74
         See Markey, Boucher Raise Questions on Video Franchising Bill, Nat’l J. Cong. Daily, Mar. 30, 2006.
75
         Internet Firms Contest Draft Broadband Language, Nat’l J. Tech. Daily, Mar. 29, 2006.
76
          The Markey/Boucher amendment would have imposed several duties on broadband network operators,
including a duty not to charge fees for prioritization of content, applications, and services; to offer unaffiliated
content, application, and service providers nondiscriminatory access to an operator’s network; and not to create a
fast lane for content, applications, and services provided by affiliated providers. Broadband network operators
would have been permitted to secure and manage their networks, offer varied plans to consumers, offer consumer
protection services, and give priority to emergency communications.
77
         This issue was brought to the Committee’s attention during testimony by USTelecom President Walter
McCormick, who claimed that Internet content and service providers have engaged in anticompetitive behavior by
using “screen bias” to influence consumers to purchase items from large retailers with the means to enter into such
arrangements, to the detriment of local businesses. See The Communications, Consumer’s Choice, and Broadband
Deployment Act of 2006: Second Hearing to Consider S. 2686 Before the S. Comm. on Commerce, Science &
Transportation, 109th Cong. (2006) (statement of Mr. Walter B. McCormick, President & CEO, United States
Telecom Association (“USTelecom”)).



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Before the full House could consider the bill, House leadership had to determine whether the
House Judiciary Committee should have the opportunity to review the bill.78 Judiciary Chairman
Sensenbrenner and Ranking Member Conyers argued that the COPE Act should be referred to
the Judiciary Committee for consideration.79 On May 1, 2006, Chairman Sensenbrenner and
Rep. Conyers sent a 35-page letter to Speaker of the House Hastert (R-IL) stating that several
provisions in the COPE bill, including those oriented toward net neutrality, fall within the
antitrust jurisdiction of the Judiciary Committee.80 As a result, Chairman Sensenbrenner
requested that the Speaker sequentially refer the COPE Act to his committee for consideration
within a limited period of time.81 Failing that, he asked that the Speaker not bring the bill to the
House floor until the Judiciary Committee could “consider telecommunications legislation of its
own addressing the critical Judiciary Committee-related issues presented by [the COPE Act].”82
The House Parliamentarian denied the Chairman’s request for sequential referral of the bill on
May 17, 2006, and industry sources expect the COPE Act to be considered by the House
sometime in the early summer.83

The Internet Freedom and Nondiscrimination Act of 2006. On May 18, 2006, the day after the
House Judiciary Committee was denied a referral of the COPE Act, Judiciary Chairman
Sensenbrenner, joined by Judiciary Ranking Member Conyers and Reps. Boucher and Lofgren
(D-CA), introduced the “Internet Freedom and Nondiscrimination Act of 2006,” a bill that would
regulate net neutrality under the Clayton Act’s antitrust laws rather than under
telecommunications laws.84 In particular, the legislation would establish that the following
actions of a broadband network provider would violate the antitrust laws: (1) a failure to
interconnect its facilities with the facilities of other network providers on a reasonable and
nondiscriminatory basis; (2) a failure to operate its network in a reasonable and
nondiscriminatory manner such that non-affiliated providers of content, services and applications
have an equal opportunity to reach consumers; and (3) a failure to refrain from interfering with
users’ ability to choose the lawful content, services and applications they want to use. If a
broadband network operator chooses to prioritize data on its network, that operator would be
required to prioritize all data of the same type without imposing a fee or charge. The bill would

78
        See Drew Clark, House Telecom Bill Stalls Over “Network Neutrality”, Nat’l J. Tech. Daily, May 1, 2006.
79
        See, e.g., David Hatch, House Judiciary Panel Carves Out Its Telecommunications Turf, Nat’l J. Tech.
Daily, Mar. 15, 2006; Drew Clark, Sensenbrenner Digs in on Demand to Review Overhaul Bill, Nat’l J. Tech. Daily,
May 4, 2006.
80
       Letter from the Honorable James Sensenbrenner, Chairman of the House Judiciary Committee, to the
Honorable Dennis Hastert, Speaker of the United States House of Representatives (May 1, 2006).
81
        See id.
82
        Id.
83
        See David Hatch, House Judiciary Panel is Denied Referral, Nat’l J. Cong. Daily, May 18, 2006.
84
        Internet Freedom and Nondiscrimination Act of 2006, H.R. 5417, 109th Cong. (2006).



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preserve the ability of a network operator to do certain things, including management of its
network, offering consumer protection services, and offering promotional pricing and other
market initiatives, subject to certain conditions. The Clayton Act is enforced by the Department
of Justice and Federal Trade Commission in most instances, although where provisions of the
Clayton Act reach common carriers “engaged in wire or radio communication or radio
transmission of energy,” enforcement jurisdiction is vested in the Federal Communications
Commission.85

The Judiciary Committee marked up and approved the bill by a vote of 20 to 13. The fourteen
Democrats on the Committee, along with six Republicans, voted for the bill, while the remaining
Republican Committee members voted against it.86 The bill now awaits further action by the
House of Representatives. It could be offered as an amendment to the COPE Act when that bill
is taken up on the House floor. The bill could also be considered as stand-alone legislation if
floor time is available.

Communications, Consumer’s Choice, and Broadband Deployment Act of 2006. On May 1,
2006, Chairman Stevens introduced the “Communications, Consumer’s Choice, and Broadband
Deployment Act of 2006,”87 which makes global reforms to the Telecommunications Act.
Regarding net neutrality, the bill would instruct the Commission to conduct an annual study,
beginning one year after enactment and continuing for a period of five years, regarding: (1)
“developments in Internet traffic processing, routing, peering, transport, and interconnection”;
(2) “how such developments impact the free flow of information over the public Internet and the
consumer experience using the public Internet”; (3) “business relationships between broadband
service providers and applications and online user services”; and (4) “the development of and
services available over public and private Internet offerings.”88 The FCC would be permitted to
make recommendations to resolve any significant problems discovered by the studies, including
appropriate enforcement mechanisms, “but [the Commission could] not recommend additional
rulemaking authority for [itself].”89 Ranking Member Inouye (D-HI) co-sponsored the bill but
stressed that he does not support it in its current form, stating: “We cannot ignore concerns about
the potential for discrimination by network operators, but the [Senate] draft appears to do just




85
          15 U.S.C. § 21 (Section 11 of the Clayton Act).
86
          Declan McCullagh & Anne Broach, House Panel Votes for Net Neutrality, CNET News.com, May 25,
2006.
87
          Communications, Consumer’s Choice, and Broadband Deployment Act of 2006, S. 2686, 109th Cong.
(2006).
88
          Id. § 901(a).
89
          Id. § 901(b).




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that by failing to create enforceable protections that will ensure network neutrality.”90
USTelecom, AT&T, Verizon, and NCTA have expressed their support for this bill.91

Consumer Competition and Broadband Promotion Act. In response to Chairman Stevens’s
rewrite bill, Senator Inouye released a “staff working draft” of his “Consumer Competition and
Broadband Promotion Act” on May 24, 2006.92 The draft’s net neutrality provisions would
require broadband network operators to: (1) give certain information regarding their broadband
service to users of the Internet;93 (2) provide the ability to offer, provide, or post content,
applications, or services into the operator’s network in a manner that is equal to the speed and
quality of service given to an operator’s affiliate providing content, applications, or services; (3)
prioritize content based only on the type of content without charge; and (4) allow unaffiliated
Internet content, applications, and services to be offered, provided, or posted in a reasonable and
nondiscriminatory manner, “including with respect to quality of service, access, speed, and
bandwidth.”94 The bill would allow network operators to offer different service plans to
consumers, manage their networks, and provide consumer protection services. The legislation
would exempt services regulated pursuant to Title VI of the Communications Act (such as cable
services and cable operators) from the bill’s net neutrality regulations “regardless of the physical
transmission facilities used to provide or transmit such service.”95 In addition, the FCC would be
instructed to address complaints filed by aggrieved parties within 90 days. The bill also would
direct the Commission to issue a cease-and-desist order against a network operator five days
after a complaint is filed that establishes a prima facie violation of the legislation.

The Network Neutrality Act of 2006. Rep. Markey, along with Reps. Boucher, Eshoo, and
Inslee, introduced the “Network Neutrality Act of 2006”96 on May 2, 2006, which would prohibit

90
         Roy Mark, Senate Bill Dumps Net Neutrality, Internetnews.com, May 2, 2006.
91
        Ann Veigle, Stevens Introduces 10-Title Telecom Bill, Comm. Daily, May 2, 2006, at 1; Ann Veigle et al.,
Congress Will Pass Telecom Bill This Session, Upton Predicts, Comm. Daily, May 3, 2006, at 2-4.
92
         The “staff working draft” has been distributed to interested parties for comment, but the bill has not been
formally introduced. As of June 1, 2006, a copy of the “staff working draft” was available at
http://www.publicknowledge.org/pdf/draft-telecom-20060524.pdf.
93
         “Broadband service” is defined as “a two-way transmission that (A) connects to the Internet . . .; and (B)
transmits information at an average rate of at least 200 kilobits per second in at least 1 direction.” The bill allows
for periodic updating of the broadband speed by the FCC. At no time can the definition of broadband, however,
encompass transmission speeds less than 200 kilobits in one direction.
94
         Staff Working Draft § 201.
95
         Id.
96
         Network Neutrality Act of 2006, H.R. 5273, 109th Cong. (2006). The bill defines “broadband service” as a
“two-way transmission capability that (A) enables the user to access content, applications, and services; (B) is
delivered with or without a fee . . .; (C) includes a transport speed of at least 200 kilobits per second on average in at
least one direction; and (D) permits a user to transmit or receive information of their own choosing or design.”



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a broadband network provider from blocking, impairing, degrading or discriminating against the
ability of any person to use a broadband connection to access the Internet. This legislation
would further require broadband network providers to operate their networks in a non-
discriminatory manner and “offer, upon reasonable request to any person, a broadband service
for use by such person to offer or access unaffiliated content, applications, and services.”97 In
addition, the bill would prevent broadband network providers from charging fees for enhanced
quality of service or the prioritization of bits. If a broadband provider elected to prioritize data of
any type, the bill would require that it do so for all data of that type without assessing any fee or
charge. The Markey bill also would direct the FCC to address complaints filed by aggrieved
parties within 90 days, allow for the issuance of a cease-and-desist letter if a complainant has
established a prima facie case, and permit the Commission to use its enforcement powers to
remedy violations of the Act.

The Internet Non-Discrimination Act of 2006. On March 2, 2006, Senator Wyden (D-OR)
introduced the “Internet Non-Discrimination Act of 2006,”98 which would prohibit broadband
network operators from favoring certain content over others or charging companies for faster
delivery of their content to consumers over the Internet. In particular, the bill would: (1) prevent
network operators from interfering with, blocking, degrading, altering, modifying or changing
traffic on the Internet; (2) bar the creation of a “priority lane” where content providers could buy
faster access to customers, while those who do not pay the fee would be left in the “slow lane”;
(3) require network providers to treat all data traveling on their network in a non-discriminatory
way; (4) permit consumers to choose which devices they use to connect to the Internet; (5)
ensure that consumers have non-discriminatory access and service; and (6) require a transparent
system in which consumers, Internet content providers, and applications companies would have
access to the rates, terms, and conditions for Internet service. The Wyden legislation would
direct the FCC to address complaints filed by aggrieved parties within 90 days and impose the
burden of proof on the network operator to show that it did not violate the law.

The Internet Freedom Preservation Act. Senators Snowe (R-ME) and Dorgan (D-ND)
introduced a stand-alone net neutrality bill on May 19, 2006 that would impose substantially the
same duties on broadband network operators as would the “Consumer Competition and
Broadband Promotion Act” sponsored by Senator Inouye and discussed in detail above.99


97
         Id. § 4(a)(4).
98
         Internet Non-Discrimination Act of 2006, S. 2360, 109th Cong. (2006). A “network operator” is “any
person who owns, operates, controls, or resells and controls any facilities that provides communications directly to a
subscriber.” “Communications” includes “any voice, video, or data application or service . . . that (i) is a
transmission to a consumer by use of the public rights-of-way, spectrum, numbering or addressing resources, or
other inputs licensed or managed by a unit of local government . . .; (ii) is offered to the public, or as to such class of
subscribers as to be effectively available to the public, with or without a fee; and (iii) enables an end user . . . to
transmit content of their own design or choosing . . . .” The term includes “on-demand services” but does not
include “cable service.”
99
         Internet Freedom Preservation Act, S. 2917, 109th Cong. (2006). There are technical differences between
the two bills, including with respect to the definitions used in each. For instance, “broadband service” in this bill is


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           © 2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                                                                                              Net Neutrality Primer



Broadband Investment and Consumer Choice Act. On July 27, 2005, Senator Ensign (R-NV)
and Senator McCain (R-AZ) introduced their “Broadband Investment and Consumer Choice
Act,”100 which would bar broadband providers from “den[ying] access to any content provided
over facilities used to provide broadband communications service.” The bill would also prevent
broadband providers from “willfully and knowingly block[ing] access to such content by a
subscriber, unless (A) such content is determined to be illegal; (B) such denial is expressly
authorized by Federal or State law; or (C) such access is inconsistent with the terms of the
service plan of such consumer including applicable bandwidth capacity or quality of service
constraints.”101 Even so, the bill would permit providers to “offer to a consumer a customized
plan” for service, as well as “commercial arrangements with providers of content, applications,
and other service components.”102 These plans and commercial arrangements would be
permitted to “differentiate (A) access to content; (B) the availability of applications; and (C) the
character of service components available.”103 In addition, the bill would instruct broadband
communications service providers not to interfere with a subscriber’s ability to use any
equipment and devices of the subscriber’s choosing “in connection with lawful content or
applications.”104

While Congress is currently discussing the issue of net neutrality, it is unclear at the time of
publication if any legislation will pass in 2006. The Senate has only just begun to consider its
telecommunications reform bill, with a mark-up of the legislation tentatively scheduled for early-
to-mid summer. The internal divisions over the issue of net neutrality in the Senate Commerce


defined as “ two-way transmission that (A) connects to the Internet . . .; and (B) transmits information at an average
rate of at least 200 kilobits per second in at least 1 direction,” but the FCC lacks the power to alter the speed as
allowed by the Inouye staff working draft.

         There is one substantive difference between the two bills. Section 201 of the Inouye staff working draft
includes a requirement that broadband network operators “enable any content, application, or service” available on
the Internet “to be offered, provided, or posted on a basis that . . . is at least equivalent to the access, speed, quality
of service, and bandwidth that such broadband service provider offers to affiliated content, applications, or
services.” Staff Working Draft § 201. The Snowe/Dorgan bill alters this requirement slightly, requiring equivalent
“access, speed, quality of service, and bandwidth that such broadband service provider offers to affiliated content,
applications, or services made available via the public Internet into the network of such broadband service
provider.” S. 2917 § 2 (emphasis added).
100
         Broadband Investment and Consumer Choice Act, S. 1504, 109th Cong. § 7 (2006). “Broadband
communications service” is defined as “a communications service enabling the transmission of communications at a
capacity greater than 64 kilobits per second.”
101
         Id. § 7(a)(1).
102
         Id. § 7(a)(2).
103
         Id.
104
         Id. § 7(d).



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            © 2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                                                                            Net Neutrality Primer


Committee likely will create a heated battle on the issue, which could hold up Chairman
Stevens’s bill and delay Senate action on net neutrality and broader telecommunications reform.
In the House, the COPE Act survived the jurisdictional battle with the Judiciary Committee and
appears to be headed to the House floor in June, but it is unclear what impact, if any, the
Sensenbrenner legislation will have on the timing of consideration and final form of the COPE
Act. It is also unclear whether Chairman Sensenbrenner will push for independent consideration
of his bill in this Congress. The limited number of legislative days left in the year, as well as the
highly charged nature of the issue, makes it uncertain whether net neutrality legislation will
make its way to the President’s desk this year.


                                                ***




                                                 23
         © 2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                                        Contact Information
For specific questions regarding net neutrality, please contact one of the WRF attorneys listed below.

      Richard E. Wiley                  R. Michael Senkowski                     Nancy J. Victory
        202.719.7010                        202.719.7249                           202.719.7344
      rwiley@wrf.com                    msenkowski@wrf.com                       nvictory@wrf.com

       Gregg L. Elias                       Shawn A. Bone                       Eve Klindera Reed
        202.719.7360                         202.719.7243                         202.719.7404
       gelias@wrf.com                       sbone@wrf.com                        ereed@wrf.com




                                                     24
             ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                                   Section One



                   Regulatory & Government Officials’
                     Statements on Net Neutrality




Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                    Regulatory & Government Officials’
                       Statements on Net Neutrality

    Official             Position                                       Statements

                                             FCC
FCC Chairman        Does not believe any     “We need to make sure we have a regulatory environment [in
Kevin J. Martin     additional               which network operators] can invest in the network and can recoup
                    regulations are          their costs.” Marguerite Reardon, AT&T Chief, FCC Chair Clarify
                    needed, supports a       on Net Neutrality, CNET News.com, Mar. 21, 2006.
                    free market
                                             “Some [consumers] want a lower speed, and for other consumers,
                    approach, and
                                             it may be worth more to them to pay for a better quality of service
                    believes the FCC
                                             or speed.” Drew Clark, FCC Chief Opens Door To Tiered, High-
                    currently has
                                             Speed Internet, Nat’l J. Tech. Daily, Jan. 6, 2006.
                    authority to act if it
                    receives a complaint     “I do think the [C]ommission has the authority necessary [to
                    alleging violation of    enforce network neutrality violations]. . . . We’ve already
                    net neutrality           demonstrated we’ll take action if necessary.” Paul Kapustka,
                    principles.              Martin Says FCC Has Authority to Enforce Network Neutrality,
                                             Networking Pipeline, Mar. 21, 2006.
FCC                 Believes the FCC         Has called for a “national dialogue” on net neutrality: “We need
Commissioner        must carefully           everyone—from big carriers, rural providers, high-tech companies,
Michael J. Copps    oversee the Internet     Internet innovators, bloggers, the news media—and most
                    to make sure net         importantly, the American people involved.” Remarks at Freedom
                    neutrality principles    to Connect 2006, Apr. 3, 2006.
                    are being followed;
                                             Has said he “looks forward to [the FCC] putting all needed effort
                    pushed for including
                                             into monitoring what happens in [2006] and coming up with ways
                    net neutrality
                                             to make sure that the free and open and dynamic Internet …
                    principles as a
                                             remains free and open and dynamic.” Martin Gives Glimpse of
                    condition of recent
                                             2006 Agenda, Pike & Fischer, Jan. 24, 2006.
                    telecom mergers.
                                             “The more concentrated our facilities providers grow, the more
                                             they are able to act as Internet gatekeepers, influencing flow and
                                             speed of Internet traffic, perhaps even dictating who can use the
                                             Internet and for what purpose. We cannot let that happen.” Copps
                                             Urges National Debate on Net Neutrality, Comm. Daily, Apr. 4,
                                             2006, at 1.
                                             Said that it appears broadband providers want to “double-dip,” by
                                             being “paid by consumers for access to web sites and paid by the
                                             web sites for access to consumers,” even though “web site content
                                             is what makes a broadband network so valuable in the first place.”
                                             Id.
                                             “We need a watchful eye to ensure that network providers do not
                                             become Internet gatekeepers, with the ability to dictate who can
                                             use the Internet and for what purposes.” Dionne Searcey & Amy
                                             Schatz, Phone Companies Set Off a Battle Over Internet Fees, Wall
                                             St. J., Jan. 6, 2006.
FCC                 Has not taken a          “You don’t need to worry about priority access if you’ve got 100
Commissioner        public position on       megabits going to the home. Hopefully as we get more capacity
Jonathan S.         net neutrality at this   those kinds of questions become much less significant.” Jeremy
Adelstein           time.                    Pelofsky & Robert MacMillan, US Telecom Execs Battle Net
                                             Neutrality Demands, Reuters, Mar. 24, 2006.




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           ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                   Regulatory & Government Officials’
                      Statements on Net Neutrality

    Official            Position                                         Statements

FCC                Has not taken a          “There is a big difference between a very important issue that needs
Commissioner       public position on       discussion and a problem.” Id.
Deborah Taylor     net neutrality at this
                                            “Whenever anyone walks into my office and asks am I for net
Tate               time.
                                            neutrality I ask what it is.” Edie Herman, Net Neutrality
                                            Permeates TelecomNEXT Regulatory Debate, Comm. Daily, Mar.
                                            24, 2006, at 3.

FCC Appointee      Has not taken a          McDowell’s confirmation is pending in the Senate. He is currently
Robert McDowell    public position on       VP & Asst. Gen. Counsel of CompTel, a CLEC trade association
                   net neutrality at this   which has publicly supported net neutrality regulation to guarantee
                   time.                    nondiscriminatory Internet access for content and service
                                            providers.
                                            Congress
Senator Ted        Has expressed            “We ought to define the problem and give them [the FCC] a chance,
Stevens (R-AK)     support for the          if it ever does happen, to take action. That would be my solution. I
                   general concept of       think we ought to set up some mechanism that would be triggered
                   net neutrality but       if there really is a case.” Senator Weighs FCC Enforcing Net
                   has not taken a          Neutrality, Reuters, Mar. 20, 2006.
                   public position at
                                            “I do believe that net neutrality ought to be the basic principle of
                   this time on
                                            whatever legislation we pursue. I can't put it in words. I'm going
                   Congress’s role in
                                            to have to take a look at it in terms of how you define real
                   mandating net
                                            neutrality. It's sort of like defining a vacuum, isn't it? It's not easy
                   neutrality.
                                            to do.” Ted Hearn, Stevens for Net Neutrality in Theory,
                                            Multichannel News, Feb. 7, 2006.
Senator John       Supports                 “The fact is that our regulations and our laws need to be
Ensign (R-NV)      deregulating             modernized to reflect the realities of technology today to create
                   telecommunications       more incentives for companies to invest so that we have those
                   and opposes              broadband networks that are higher quality, that are faster, that
                   stringent net            give consumers more competition.” Anne Broache, Politicos
                   neutrality mandates.     Divided on Need for Net Neutrality Mandate, CNET News.com,
                                            Feb. 7, 2006.
Senator George     Favors a wait-and-       “The point now is, right now we don't have a problem. Do you pass
Allen (R-VA)       see approach to net      a law presently … or do you pass a law retroactively to try to put the
                   neutrality, arguing      genie back in the bottle?” Id
                   that there is no
                   present need for
                   Congressional
                   action.


Senator Daniel     Has expressed            “We cannot ignore concerns about the potential for discrimination
Inouye (D-HI)      support for net          by network operators, but the [Senate] draft appears to do just that
                   neutrality               by failing to create enforceable protections that will ensure network
                   regulations.             neutrality.” Roy Mark, Senate Bill Dumps Net Neutrality,
                                            Internetnews.com, May 2, 2006.




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          ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                   Regulatory & Government Officials’
                      Statements on Net Neutrality

    Official            Position                                      Statements

Senator Byron      Has circulated a        “It is not a free lunch. . .(broadband subscribers have) already paid
Dorgan (D-ND)      draft bill that would   the monthly toll. . .Those lines and that access is being paid for by
                   impose net              the consumer.” Anne Broache, Politicos Divided on Need for Net
                   neutrality              Neutrality Mandate, CNET News.com, Feb. 7, 2006.
                   regulations on
                   broadband network
                   operators and favors
                   Congressional
                   action on the issue.
Senator Ron        Favors strong net       “Mr. President, a headline in today’s Wall Street Journal warns
Wyden (D-OR)       neutrality              consumers that they will soon face a ‘pay to play’ Internet where
                   regulations to          those businesses and consumers who want to continue to see equal
                   preserve the            content and get equal treatment will have to pay more. Rather
                   openness of the         than let them continue to have the freedom to choose whatever
                   Internet and has        content, applications and services they want, the big network
                   introduced a bill on    operators want to control the content consumers can access.
                   the issue.              Allowing the big network operators to discriminate on the Net is
                                           bad news for consumers, small businesses, schools, libraries,
                                           nonprofits and any other user who enjoys their freedom of access. .
                                           ..
                                           My legislation, the Internet Non-Discrimination Act of 2006, will
                                           establish the principle of network neutrality by requiring the
                                           operators of the network to treat all content on the Internet
                                           equally. It will ensure transparency so that everyone can easily
                                           determine all rates, terms and conditions for the provision of any
                                           communications. Transparency coupled with a complaint process
                                           before the Federal Communications Commission will encourage
                                           compliance.” Statement of Senator Wyden upon Introducing S.
                                           2360, the Internet Non-Discrimination Act of 2006.




                                                  3
          ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                   Regulatory & Government Officials’
                      Statements on Net Neutrality

    Official            Position                                       Statements

Representative     Believes net             “Before we get too far down the road, I want to let the market kind
Joe Barton         neutrality is an issue   of sort itself out, and I'm not convinced that we really have a
(R-TX)             that is best left to     problem with Net neutrality.” Declan McCullagh & Anne Broach,
                   the market so            Republicans Defeat Net Neutrality Proposal, CNET News.com,
                   Congress should          Apr. 5, 2006.
                   avoid the issue
                                            “We just had eight gentlemen that represent the largest trade
                   entirely.
                                            groups and the brightest minds in the country, and not one of them
                                            gave a concise definition. We’re tied up in knots in this bill,
                                            potentially over something that we do not yet even have a
                                            universally recognized definition of what it is.” Brooks Boliek, Pols,
                                            Web Firms, Telcos Wrestle Over “Net Neutrality”, Hollywood
                                            Reporter, Mar. 31, 2006.
                                            “The market is going to make it a moot issue,” he said. “I don’t
                                            think we'll be gnashing our teeth over Net neutrality two to three
                                            years from now.” Anne Broache, Politico Rejects Net Neutrality
                                            Concerns, CNET News.com, Mar. 29, 2006.
                                            “[Net neutrality is] still not clearly defined. It’s kind of like
                                            pornography: You know it when you see it. [But] I don’t think all
                                            the Draconian things [the Democrats predict] will happen if we
                                            don’t adopt their amendment.” Declan McCullagh, Democrats
                                            Lose House Vote on Net Neutrality, CNET News.com, Apr. 26,
                                            2006.
                                            “If they spend billions and billions of dollars to put these networks
                                            in place under these principles, they have the right to charge a fee.”
                                            Verne Kopytoff, Panel Dumps Net Neutrality: House Committee
                                            Drops Amendment Banning Two-tier Internet, San Francisco
                                            Chron., Apr. 27, 2006.
                                            “If some bad actor is out there and discriminates against the [FCC
                                            principles on Internet freedom] . . . we’ll pop them.” Amy Schatz,
                                            House Panel Backs Phone Firms’ Bid to Sell Pay TV, Wall St. J.,
                                            Apr. 27, 2006.
Representative     Expressed support        “I believe that authorizing the FCC to enforce its broadband policy
Fred Upton         for the moderate         statement – on a case-by-case adjudicatory basis — is a better
(R-MI)             approach taken by        framework to ensure that the public Internet remains open and
                   the Barton bill,         dynamic.” U.S. Lawmakers Eye Fines for Internet Discrimination,
                   which allows FCC         Reuters, Apr. 6, 2006.
                   enforcement of net
                   neutrality through
                   adjudication.
Representative     Believes that            “The best approach on this [issue] is caution, because if we legislate
Marsha             Congress should opt      incorrectly, there will be unintended consequences.” Declan
Blackburn (R-      for limited              McCullagh, Democrats Pledge Fight Over Net Neutrality, CNET
TN)                regulation of net        News.com, Apr. 26, 2006.
                   neutrality.




                                                  4
          ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                   Regulatory & Government Officials’
                      Statements on Net Neutrality

    Official            Position                                    Statements

Representative     Has not expressed     “The continued success of the Internet depends on unfettered
Chris Cannon (R-   an opinion on net     interconnection.” Declan McCullagh, Democrats Pledge Fight
UT)                neutrality, but       Over Net Neutrality, CNET News.com, Apr. 26, 2006.
                   values the openness
                   of the Internet.
Representative     Would like to see     “Private tax collectors could single out certain consumers and
John Dingell       Congress ensure a     content providers to pay extra fees. They could also single out
(D-MI)             free and open         others for preferential treatment.” U.S. Lawmakers Eye Fines for
                   Internet.             Internet Discrimination, Reuters, Apr. 6, 2006.

                                         “The [Barton bill] before us permits private taxation of the
                                         Internet. Private tax collectors could single out certain Web sites to
                                         pay extra fees while they select others for preferential treatment.”
                                         Declan McCullagh, Democrats Pledge Fight Over Net Neutrality,
                                         CNET News.com, Apr. 26, 2006.
Representative     Has expressed         “I believe the bill before this committee today has serious defects –
Ed Markey          strong support for    flaws that will harm consumers and that risk condoning conduct by
(D-MA)             Congressional         broadband companies that will destroy the Internet as we know it.
                   action to preserve    In my view, rules ensuring network neutrality are indispensable.”
                   net neutrality.       Patrick Barnard, House Subcommittee Rejects Net Neutrality
                                         Amendment, TMCnet, Apr. 6, 2006.
                                         “There is a fundamental choice. It's the choice between the
                                         bottleneck designs of a. . .small handful of very large companies
                                         and the dreams and innovations of thousands of online companies
                                         and innovators.” Declan McCullagh & Anne Broach, Republicans
                                         Defeat Net Neutrality Proposal, CNET News.com, Apr. 5, 2006.

                                         “For consumers to pay [for faster download speeds], that’s one
                                         thing, for innovative companies to have to pay a tithe is something
                                         else.” John Eggerton, Network Neutrality Amendment Defeated,
                                         Broadcasting & Cable, Apr. 5, 2006.

                                         “Did the Bells create the Internet? Did the cable companies create
                                         the Internet? The answer is no. The Internet was built on a
                                         different model, a public interest model, funded by American
                                         taxpayers.” Declan McCullagh, Democrats Lose House Vote on
                                         Net Neutrality, CNET News.com, Apr. 26, 2006.

                                         “When the Bells and the cable industry move in to take over the
                                         Net, they will not respect the open nature of the Internet. They’ll
                                         respect their bottom line.” Amy Schatz, House Panel Backs Phone
                                         Firms’ Bid to Sell Pay TV, Wall St. J., Apr. 27, 2006.




                                                  5
          ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                   Regulatory & Government Officials’
                      Statements on Net Neutrality

    Official            Position                                    Statements

Representative     Offered an             “What the telephone companies are essentially proposing is a two-
Rick Boucher       amendment to the       lane Internet. Everybody else is going to be relegated to the slow
(D-VA)             Barton bill that       lane.” Caron Carlson, Net Neutrality Measure Set for a Vote,
                   would have             eWeek.com, Apr. 4, 2006.
                   dramatically
                   strengthened the net   “I can tell you that I am working with Zoe Lofgren, and she and I
                   neutrality             have drafted some preliminary language. That’s as far as we have
                   regulations in the     taken it. We would simply make it an antitrust violation with
                   bill and favors a      normal antitrust enforcement if there were a violation of that
                   strong legislative     provision. . . . Broadband providers typically exercise market
                   answer to the issue.   power over transmission. What we are trying to do is keep them
                                          from extending that market power to the control of content.” Ted
                                          Hearn, Antitrust Law Aimed at Net Neutrality, Multichannel
                                          News, Apr. 28, 2006.

                                          “I think network neutrality is a highly important principle. We did
                                          not get to where we need to be during [Energy and] Commerce
                                          committee consideration, so I am going to use whatever tools are at
                                          my disposal to try to win that debate at the end of the day. If that
                                          involves encouraging the House Judiciary Committee to move its
                                          own legislation on the subject, that’s what I will do.” Id.
Representative     Was a co-sponsor of    “The ones that get hurt [if Congress does not adopt strong net
Jay Inslee         the Boucher            neutrality regulations] are the young innovators, the garage
(D-WA)             amendment and          innovators, the small-business innovators, the ones that have not
                   favors strong net      achieved the great success of the Googles of the world.” Anne
                   neutrality             Broache, Democrats Attack New Bill Over Net Neutrality, CNET
                   regulations.           News.com, Mar. 30, 2006.
Representative     Has indicated that     “I’m concerned about e-mails being blocked by advocacy groups, of
Jan Schakowsky     she supports           all sides. I’m concerned about start-ups that may be shut down.”
(D-IL)             regulations to         Declan McCullagh, Democrats Lose House Vote on Net Neutrality,
                   preserve net           CNET News.com, Apr. 26, 2006.
                   neutrality and the
                   openness of the
                   Internet.




                                                  6
          ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                   Regulatory & Government Officials’
                      Statements on Net Neutrality

    Official            Position                                   Statements

Representative     Was a co-sponsor of   “Make no mistake about it, this will be the most profound change
Anna Eshoo (D-     the Boucher           on the Internet if we don’t have what has come to be known as
CA)                amendment and         network neutrality.” Verne Kopytoff, Panel Dumps Net Neutrality:
                   favors strong net     House Committee Drops Amendment Banning Two-tier Internet,
                   neutrality            San Francisco Chron., Apr. 27, 2006.
                   regulations.
                                         “The battle for ‘net neutrality’ will determine the future of the
                                         Internet and the continued innovation and technological
                                         development the Internet has produced. . . . It would be difficult
                                         to find a clearer, more concise threat to use market power to
                                         extract monopoly rents. Congress must do everything it can to
                                         ensure that the non-discriminatory framework that has allowed the
                                         Internet to thrive and competition to flourish, is preserved.
                                         Without meaningful, enforceable net neutrality rules, we will be
                                         enabling network operators to fundamentally change the open
                                         nature of the Internet, allowing them to control Internet users’
                                         Web experiences and establish ‘walled gardens’ of bandwidth
                                         reserved for themselves and their preferred providers.” Anna
                                         Eshoo, Congress Must Protect Free Access to Web Sites, Services,
                                         The Mercury News, Apr. 26, 2006.




                                                  7
          ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                                   Section Two



                        Positions of the Key Players on
                                 Net Neutrality




Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                            Positions of the Key Players
                                 On Net Neutrality

   Entity         Interest                                       Public Statements

                                                     ILECs
Verizon      ILEC that would like    “We have to make sure [content and service providers] don’t sit on our
             to recover the costs    network and chew up capacity.” –CEO Ivan Seidenberg. Dionne Searcey &
             of fiber build-out in   Amy Schatz, Phone Companies Set Off a Battle Over Internet Fees, Wall St.
             part by charging        J., Jan. 6, 2006.
             Internet content
                                     “The network builders are spending a fortune constructing and maintaining
             providers for faster
                                     the networks that Google intends to ride on with nothing but cheap servers.
             service.
                                     It is enjoying a free lunch that should, by any rational account, be the lunch of
                                     the facilities providers.” –Sr. VP & Dep. Gen. Counsel John Thorne. Dan
                                     Frommer, Verizon CEO Backs Off Executive’s Google Slam, Forbes.com, Feb.
                                     9, 2006.
                                     “I don’t think anybody in the room would want us to put all the costs [of
                                     building fiber networks] into DSL rates, nor do I think that would be
                                     economically efficient.” –CEO Ivan Seidenberg. Id.
                                     “We have no intention of blocking or degrading other services on our
                                     network. . . . We are giving customers what they want, which is fast pipes at a
                                     low cost. Anyone who tries to take that away from customers will be
                                     punished by the market.” –Fed. Reg. VP David Young. Marguerite Reardon,
                                     Debate Heats Up Over Net Neutrality, CNET News.com, Mar. 15, 2006.
AT&T         ILEC that supports      “This debate I think is all about movies. What we're saying is that you can't
             charging companies      provide dedicated line, virtual private network services for free.” –Sr. Exec.
             to ensure their         VP for Legis. Affairs Jim Cicconi. Jeremy Pelofsky & Robert MacMillan, US
             content gets priority   Telecom Execs Battle Net Neutrality Demands, Reuters, Mar. 24, 2006.
             delivery over its
                                     “AT&T will not block or degrade traffic, period. And we won’t change [our
             network.
                                     position] no matter what sky-is-falling rhetoric you hear. Markets work best
                                     when consumers have choices.” –CEO Edward Whitacre. Marguerite
                                     Reardon, AT&T Chief, FCC Chair Clarify on Net Neutrality, CNET
                                     News.com, Mar. 21, 2006.




                                                    1
            ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                            Positions of the Key Players
                                 On Net Neutrality

   Entity         Interest                                      Public Statements

BellSouth    ILEC that would like    Published the company’s primer on network neutrality—broadband network
             to charge content       providers should be able to: 1) take steps to ensure network security and
             providers a fee         preserve the integrity of their overall systems; 2) manage bandwidth and curb
             based on the volume     network usage that consumes a disproportionate amount of bandwidth and
             of material they        may adversely impact other network users; and 3) offer different plans that
             send over the           feature enhanced levels of service or that promote their own brand names
             company’s network,      and products or the services of selected vendors. The Policy Council,
             as well as the          BellSouth, Overview of Net Neutrality,
             bandwidth the           http://policycouncil.nationaljournal.com/EN/Forums/BellSouth.
             content takes up.
                                     “We believe that a company that is feeding video or games or voice-over-
                                     Internet Protocol services would want their customers to have a good
                                     experience and would be willing to pay for that priority service.” –Dir. of
                                     Media Relations Bill McCloskey. Dan Frommer, Whose Line is it Anyway?,
                                     Forbes.com, Jan. 20, 2006.
                                     “If America is to enjoy the ever-expanding Internet, providers have to be able
                                     to manage their networks according to the needs of customers. But let me be
                                     clear, managing the networks is not about controlling where people go on the
                                     Internet.” –Chief Executive Duane Ackerman. Jeremy Pelofsky & Robert
                                     MacMillan, US Telecom Execs Battle Net Neutrality Demands, Reuters, Mar.
                                     24, 2006.
                                     “During the hurricanes, Google didn’t pay to have the DSL restored. We’re
                                     paying all that money.” –Spokesman Jeff Battcher. Dionne Searcey & Amy
                                     Schatz, Phone Companies Set Off a Battle Over Internet Fees, Wall St. J.,
                                     Jan. 6, 2006.
Qwest        ILEC that supports      “I don’t think we ought to block anything on our network, and we won’t. Net
             charging companies      neutrality really means that there should be no impediment to traffic. Never
             for priority delivery   has it been intended to mean that companies can't reach commercial
             over its network.       agreements with each other to enhance services.” –CEO Richard Notebaert.
                                     Marguerite Reardon, Qwest CEO Supports Tiered Internet, CNET News.com,
                                     Mar. 15, 2006.
                                     “Our job has never been to degrade service. Or to give any customer
                                     anywhere, at any time less capability than they ask for and paid for … It’s a
                                     fact that our wholesale customers want to serve their end users and it’s
                                     possible that they would like to have a differentiated service. If you've got
                                     enough money, you can make a lot of things happen.” –CEO Richard
                                     Notebaert. Rhonda Ascierto, Qwest Boss Debunks Net Neutrality, Computer
                                     Bus. Rev. Online, Mar. 16, 2006.




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            ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                             Positions of the Key Players
                                  On Net Neutrality

   Entity          Interest                                       Public Statements

US Telecom    Trade group             “Today, I make the same commitment to you that our member companies
              representing ILECs      make to their Internet customers: We will not block, impair or degrade
              that oppose net         content, applications or services. That is the plainest and most direct way I
              neutrality              know to address concerns that have been raised about Net neutrality.” –CEO
              regulation.             Walter McCormick. Roy Mark, No New Laws for Net Neutrality?,
                                      Internetnews.com, Feb. 7, 2006.
                                      “All sides of the Net neutrality debate agree that consumers should be in
                                      control of their Internet experience. Where we differ is whether consumers
                                      alone should foot the bill for the advanced networks that drive the Internet's
                                      growth and evolution. Simply put, our side believes that businesses that seek
                                      to profit on the use of next-generation networks should not be free of all costs
                                      associated with the increased capacity that is required for the delivery of the
                                      advanced services and applications they seek to market.” –CEO Walter
                                      McCormick. Id.
                                      “The Internet is the success it is today because the government has
                                      maintained a vigilant, hands-off approach that has allowed companies to
                                      innovate in direct response to the evolving wants and needs of their
                                      customers. Regulatory or legislative solutions wholly without justification in
                                      marketplace activities would stifle, not enhance the Internet. Laws can be
                                      inflexible and difficult to fine-tune—particularly when applied to technologies
                                      that are rapidly evolving.” –CEO Walter McCormick. Hearing to Examine
                                      Net Neutrality Before the H. Comm. on the Judiciary, 109th Congress
                                      (2006).
                                                      CLECs
CompTel       CLEC trade              A network operator “has every incentive to refuse interconnection or
              association that        attachment if by such refusal the network operator can thwart a competitor.”
              supports net            –Pres. & CEO Earl Comstock. Hearing to Examine Net Neutrality Before
              neutrality regulation   the S. Comm. on Commerce, Science & Transportation, 109th Congress
              to guarantee            (2006).
              nondiscriminatory
                                      “Network operators are entitled to charge, on a non-discriminatory basis, for
              Internet access for
                                      the transmission services they provide and to charge more for larger amounts
              content and service
                                      of bandwidth. Network operators are also entitled to offer consumers
              providers.
                                      whatever content and services they want. What [n]et neutrality would not
                                      allow a network operator to do, however, is to favor transmission of their own
                                      or affiliated content or services, to act as gatekeepers on who can provide
                                      content or services, to discriminate against unaffiliated content and services
                                      in the allocation of transmission capacity, or to force consumers to buy
                                      unwanted content and services in order to obtain basic transmission
                                      services.” –Pres. & CEO Earl Comstock. Hearing to Examine Net Neutrality
                                      Before the H. Comm. on the Judiciary, 109th Congress (2006).
PacWest       CLEC that supports      Carriers “shouldn’t be able to give preference to their own content over
Telecom       net neutrality          someone else’s content. The solution is a form of Net neutrality that would
              regulation.             not allow them to discriminate against other companies’ applications.” –VP
                                      of Reg. Affairs John Sumpter. Marguerite Reardon, Debate Heats Up Over
                                      Net Neutrality, CNET News.com, Mar. 15, 2006.




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             ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                            Positions of the Key Players
                                 On Net Neutrality

   Entity         Interest                                     Public Statements

                                          Cable Companies
NCTA         Trade association     If broadband providers are to continue investing heavily in their networks,
             that represents       “and if consumers are going to be given the levels of services and innovative
             major cable           new products and features they desire, all at prices they can afford,
             companies and         broadband providers need to have continuing flexibility to innovate in the
             opposes net           business models and pricing plans they employ.” –Pres. & CEO Kyle
             neutrality            McSlarrow. Hearing to Examine Net Neutrality Before the S. Comm. on
             regulation.           Commerce, Science & Transportation, 109th Cong. (2006).
                                   “As the industry that largely created the residential broadband market, we
                                   fully embrace and will seek to protect a vibrant Internet. So, let me be clear:
                                   NCTA's members have not, and will not, block the ability of their high-speed
                                   Internet customers to access any lawful content, application or services
                                   available over the public Internet.” –Pres. & CEO Kyle McSlarrow. Roy Mark,
                                   No New Laws for Net Neutrality?, Internetnews.com, Feb. 7, 2006.
                                    Internet Content & Service Providers

Google       Internet content      “We have been promoting network neutrality to ensure our users can access
             provider that         whatever content or applications they want, and that broadband carriers can’t
             supports net          unfairly discriminate against those who use competing services.”
             neutrality            –Washington Policy Counsel Alan Davidson. Mark Sullivan, Google Goes to
             regulation.           Wonkytown, Light Reading, Oct. 10, 2005.
                                   “The Internet has flourished as the most revolutionary communications
                                   medium in history, based on a model where carriers do not interfere or
                                   choose what people do online. Even simply picking winners among services
                                   threatens the basic Internet model of communications, where users get to
                                   decide which services are the most important to them.” –Washington Policy
                                   Counsel Alan Davidson. Dan Frommer, Whose Line is it Anyway?,
                                   Forbes.com, Jan. 20, 2006.
                                   “Google is not discussing sharing of the costs of broadband networks with any
                                   carrier. We believe consumers are already paying to support broadband
                                   access to the Internet through subscription fees and, as a result, consumers
                                   should have the freedom to use this connection without limitations.”
                                   –Spokesman Barry Schnitt. Mark Sullivan, Google Says No to QOS Fees,
                                   Light Reading, Jan. 20, 2006.
                                   “Google believes that the consumer should be able to use the Internet
                                   connections that they pay for the way they want. This principle – that users
                                   pick winners and losers in the Internet marketplace, not carriers – is an
                                   architectural and policy choice critical to innovation online. In the absence of
                                   any meaningful competition in the consumer broadband market, and
                                   without. . .consumer safeguards, one would expect carriers to have the
                                   economic incentive – and the opportunity – to control users’ online
                                   activities.” –VP & “Chief Internet Evangelist” Vint Cerf. Roy Mark, No New
                                   Laws for Net Neutrality?, Internetnews.com, Feb. 7, 2006.




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            ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                             Positions of the Key Players
                                  On Net Neutrality


   Entity          Interest                                        Public Statements

Amazon.com    Internet content             “We're not looking for a free ride, but that downstream injection of
              provider that supports       content be offered on reasonable and non-discriminatory terms.” –VP
              net neutrality regulation.   for Global Pub. Policy Paul Misener. Jeremy Pelofsky & Robert
                                           MacMillan, US Telecom Execs Battle Net Neutrality Demands, Reuters,
                                           Mar. 24, 2006.
                                           “I keep hearing there’s not a problem yet. . .[but] just because nothing
                                           has happened doesn’t mean you have to turn a blind eye.” –VP for
                                           Global Pub. Policy Paul Misener. Net Neutrality Permeates
                                           TelecomNEXT Regulatory Debate, Comm. Daily, Mar. 24, 2006, at 3.
                                           “Currently, consumers pay network operators for Internet access, and
                                           have the freedom to select lawful content from providers like Amazon,
                                           who pay network operators millions of dollars a year for Internet access.
                                           In essence, we fear circumstances in which broadband network operators
                                           with market power are permitted – based on payments, political or
                                           religious viewpoints, or any other non-technical discriminatory factors –
                                           to prefer some content and thereby restrict consumer access to other
                                           content.” –VP for Global Pub. Policy Paul Misener. Hearing to Examine
                                           Net Neutrality Before the H. Comm. on the Judiciary, 109th Congress
                                           (2006).
                                           “Leveraging their market power, phone and cable companies plan to
                                           restrict American consumers’ access to such content based in large part
                                           on lucrative deals they intend to cut with third parties. And it will be just
                                           as easy for the operators to favor content based on political or religious
                                           viewpoints or other non-technical discriminatory criteria. By
                                           constraining consumer access to content providers, the network
                                           operators also would create an artificial ‘channel scarcity’ – essentially a
                                           bandwidth cartel – where none previously existed.” –VP for Global Pub.
                                           Policy Paul Misener. Id.
Vonage        VoIP service provider        “They [the ILECs] want to charge us for bandwidth the customer has
              that supports net            already paid for. The customer has to pay twice. That’s crazy.” –CEO
              neutrality regulation.       Jeffrey Citron. Dionne Searcey & Amy Schatz, Phone Companies Set Off
                                           a Battle Over Internet Fees, Wall St. J., Jan. 6, 2006.
                                           “As a businessman, I don't get – nor do I expect – a ‘free ride’ on
                                           anyone’s network. Vonage pays network operators tens of millions of
                                           dollars a year for Internet access to deliver our service to subscribers. On
                                           top of that, consumers pay billions of dollars every year to these
                                           companies for high-speed Internet access. No one gets a free ride.” –
                                           CEO Jeffrey Citron. Roy Mark, No New Laws for Net Neutrality?,
                                           Internetnews.com, Feb. 7, 2006.
Movielink     Company offering             “Movielink is certainly interested in increasing the quality of service to
LLC           movies over the Internet     customers. We’re willing to explore a commercial relationship where we
              that has entered into        can get that done.” –CEO Jim Ramo. Report: Bells to Push for Web
              discussions with ILECs       Fees, CNNMoney.com, Jan. 6, 2006.
              about paying for
              premium service.




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             ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                             Positions of the Key Players
                                  On Net Neutrality

   Entity          Interest                                       Public Statements

Yahoo!        Internet content            No public position at this time. Yahoo! – among others including
              provider that has signed    Amazon.com, EarthLink, eBay, Google, Skype, Microsoft Adobe Systems,
              on to public statements     Sony Electrics, and Tivo – is a signee to a letter to Congress that states in
              favoring net neutrality     part: “Consumers in the marketplace, and not network operators, should
              regulation but also has     decide what content and services succeed or fail. The end-to-end design
              entered into an             of the Internet was made possible by the non-discriminatory framework
              agreement to give           that has long been the bedrock of U.S. telecommunications policy. It is
              preferential treatment to   this framework that has prevented gatekeepers on the Internet and
              messages from               guaranteed the innovation and economic success that has driven the
              companies that pay to       American economy over the past decade. . . . We stand ready to work
              have them delivered in      with you to pass legislation that will continue the successful legal policies
              order to reduce spam.       that are essential to allowing the broadband Internet to thrive.” Carol
                                          Wilson, Technology, Consumer Groups Unite on Net Neutrality,
                                          Telephony Online, Mar. 17, 2006.

AOL           Internet service and        No public position at this time. In support of its agreement to charge for
              content provider that       certified e-mail delivery, AOL said: “The last time I checked, the postal
              has entered into an         service has a very similar system to provide different options. [With
              agreement to give           certified mail] you really do get assurance that if what you send is
              preferential treatment to   important to you, it will be delivered, and delivered in a way that is
              messages from               different from other mail.”
              companies that pay to       –Spokesman Nicholas Graham. Saul Hansell, Postage Is Due for
              have them delivered in      Companies Sending E-Mail, N.Y. Times, Feb. 5, 2006, at 25, Section 1.
              order to reduce spam.
                                          “There will be no requirement, ever, for non-for-profits who deliver e-
                                          mail to AOL members, to pay for e-mail certification and delivery.” –
                                          Postmaster Charles Stiles. Chris Gaither & Joseph Menn, AOL Blocks
                                          Critics’ E-Mails, L.A. Times, Apr. 14, 2006.

Pulver.com    VoIP service provider       “I think it's probably true that companies are coming to Qwest willing to
              that supports net           pay for better treatment on their network. But I think they're doing it
              neutrality regulation.      out of fear. It's legalized extortion.” –CEO Jeff Pulver. Marguerite
                                          Reardon, Qwest CEO Supports Tiered Internet, CNET News.com, Mar.
                                          15, 2006.




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             ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                                Positions of the Key Players
                                     On Net Neutrality

   Entity             Interest                                    Public Statements

U.S. Internet    Trade association for      “Network neutrality continues to be nothing more than a solution in
Industry         companies engaged in       search of a problem. In spite of intense media hype and speculation by
Association      Internet commerce and      advocates, there is no evidence that a problem does or will exist. . . .
(USIIA)          connectivity that has      Legislating ‘network neutrality,’ no matter how well-intended, takes
                 authored a white paper     America back to the communications technologies of 1983. It literally
                 and launched an            destroys advances made in broadband and broadband technologies, and
                 advertising campaign       could serve to permanently cripple America’s ability to compete in the
                 opposing net neutrality    global economy as well as the ability of consumers to maintain their
                 regulation.                current choices in telecommunications services.” –Pres. & CEO David P.
                                            McClure. Press Release, USIIA, Internet Industry Association Rejects
                                            Legislative Approach to Network Neutrality,(Mar. 14, 2006).
                                            “The USIIA recently launched a high-profile campaign decrying support
                                            of net neutrality as ‘preventing network operators from exploring ways
                                            to guarantee the reliability of advanced Internet services over a public
                                            Internet that was not designed to be reliable.’” Martin H. Bosworth,
                                            “Net Neutrality” Battle Heats Up, ConsumerAffairs.com, Mar. 22, 2006.


                                            Equipment Manufacturers
Cisco            Equipment                 Cisco has issued a statement on net neutrality that encompasses the
                 manufacturer that         FCC’s net neutrality policy statement and also supports freedom for
                 opposes net neutrality    broadband Internet service providers to manage their networks. The
                 regulation.               statement also advocates a case-by-case approach to resolving violations
                                           of the FCC’s policy statement, rather than specific net neutrality rules. In
                                           part, the statement says: “Broadband Internet access service providers
                                           should remain free to engage in pro-competitive network management
                                           techniques to alleviate congestion, ameliorate capacity constraints, and
                                           enable new services. Broadband Internet access service providers should
                                           remain free to offer additional services to supplement broadband
                                           Internet access, including bandwidth tiers, quality of service, security,
                                           anti-virus and anti-spam services, network management services, as well
                                           as to enter into commercially negotiated agreements with unaffiliated
                                           parties for the provision of such additional services.” News Release,
                                           Cisco, Cisco Statement on Net Neutrality (Mar. 15, 2006), available at
                                           http://newsroom.cisco.com/dlls/2006/corp_031506b.html.
                                           Cisco Systems CEO John Chambers has written a letter to Congress
                                           arguing that telecommunications companies “should be allowed to
                                           experiment with different technologies within their networks, form new
                                           business models, and alleviate network congestion.” Marguerite
                                           Reardon, Debate Heats Up Over Net Neutrality, CNET News.com,
                                           (Mar. 15, 2006).




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                ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                               Positions of the Key Players
                                    On Net Neutrality

   Entity            Interest                                      Public Statements

TIA             Trade association for       TIA has issued “Broadband Internet Access Connectivity Principles” that
(Telecommun     companies that              are largely identical to Cisco’s policy statement above, encompassing the
-ications       manufacture or supply       FCC’s policy statement, arguing that broadband service providers should
Industry        products and services for   be able to offer “speed tiers,” and favoring a case-by-case approach to
Association)    broadband-enabled           violations. TIA sent a letter including its statement to members of
                services that opposes net   Congress, saying: “Our view is that the principles we offer provide an
                neutrality regulation.      evenhanded and practical approach to this debate. Importantly, while we
                                            offer guidance on how policy leaders should monitor potential behavior,
                                            we also observe that no significant evidence of a problem exists at this
                                            time.” Letter from TIA Pres. Matthew J. Flanigan to Chairman Barton, (
                                            Mar. 10, 2006).

Consumer        Equipment                   CEA has released principles supporting compatibility for commercial
Electronics     manufacturer that           devices that attach to IP-enabled video networks, saying: “IP-enabled
Association     supports net neutrality     video networks will provide consumers across the nation with a
                regulation.                 revolutionary new way to access their favorite video programs when and
                                            where they want. In order to realize the full potential of this brave new
                                            world, consumers must be able to choose from the exciting array of
                                            innovative new devices being developed by consumer electronics
                                            manufacturers that attach to IP networks to receive video programming.
                                            We believe these principles will provide solid guidelines and help support
                                            an environment in which IP video can flourish.” –Pres. & CEO Gary
                                            Shapiro. Press Release, Consumer Electronics Association, AT&T,
                                            BellSouth, Verizon and CEA Announce Principles on Device Attachment
                                            (Mar. 15, 2006).
                                            CEA also publicly endorsed Sen. Wyden’s net neutrality bill: “We
                                            applaud Senator Wyden for legislation that will help ensure continued
                                            dynamism and explosive growth for the Internet. This legislation helps
                                            to preserve the full, unfettered freedom to navigate on the Internet that
                                            Americans have come to expect. Specifically this legislation would
                                            ensure that consumers retain the right to access music, movies and other
                                            digital content from across the Internet - when and where they want and
                                            with the device of their choice, no matter how they connect to the
                                            Internet. It also ensures that tomorrow’s small digital entrepreneur with
                                            the ‘next great idea’ will not be blocked from reaching consumers across
                                            the world. We are especially pleased that this legislation provides
                                            adequate authority to the Federal Communications Commission (FCC) to
                                            ensure and enforce compliance with net neutrality.”
                                            –VP of Tech. Policy Michael Petricon. Press Release, Consumer
                                            Electronics Association, CEA Applauds Introduction of Net Neutrality
                                            Legislation, (Mar. 2, 2006).




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               ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                                 Positions of the Key Players
                                      On Net Neutrality

   Entity                Interest                                       Public Statements

                                              Coalitions
SavetheInter-     A coalition of various      On the creation of the Coalition: “[T]he idea is that there is a strange-
net.com           groups organized by         bedfellows coalition on net neutrality, with all kinds of people concerned
Coalition         Free Press and including    about the future of the Internet, and wanting to make sure that everyone
                  MoveOn.org, Gun             is treated equally.” –Free Press Policy Dir. Ben Scott. Drew Clark, ‘Net
                  Owners of America,          Neutrality’ Debate Heats Up as Lawmakers Return to D.C., Nat’l J.,
                  American Library            Apr. 21, 2006.
                  Association, Public
                                              “The fight for Internet freedom is now being waged in earnest. On one
                  Knowledge, Center for
                                              side you have the public. . .on the other side you have the nation’s largest
                  Creative Voices in
                                              telephone and cable companies, who have aligned with some in Congress
                  Media, Media Access
                                              to strip the Internet of the First Amendment.” –Free Press Campaign
                  Project, bloggers, and
                                              Dir. Tim Karr. Anne Broache, New Group Aims to ‘Save the Internet’,
                  Internet sites formed to
                                              CNET News.com, Apr. 24, 2006.
                  support net neutrality
                  regulation.                 “If the telecoms believe they can frame opposition to their power grabs as
                                              a liberal or anti free-market attack, they are sadly mistaken.” –Gun
                                              Owners of America Internet Dir. Craig Fields. Web’s ‘First Amendment’
                                              at Risk, Net Neutrality Fans Warn, Comm. Daily, Apr. 24, 2006, at 3.

Hands Off the     A coalition of various      “If the federal government adopts neutrality regulations, Congress and
Internet          groups, including AT&T,     FCC regulators will have to write complex rules covering every aspect of
Coalition         Alcatel, National           Internet traffic, including caching, collocation and digitized packet
                  Association of              prioritization and reassembly. Federal regulation of Internet traffic will
                  Manufacturers, Citizens     produce a host of unintended – but completely predictable –
                  Against Government          consequences. . .Trying to guess at a regulated formula for network
                  Waste, American             neutrality that would protect the public interest and not impede
                  Conservative Union, and     innovation is on par with picking a perfect NCAA basketball bracket.
                  broadband-over-power        Federal regulation of Internet neutrality is a bad idea whose time will
                  line companies formed       hopefully never come.” –Co-Chmn. Chris Wolf. Net Neutrality Fight
                  to oppose net neutrality    Flares Up As Congress Resumes, Comm. Daily, Apr. 25, 2006, at 8-9.
                  regulation.
                                              “Government cannot, in the explosive changes in telecommunications,
                                              guess what a regulatory outcome will look like. . .I believe we made a
                                              right decision in the Clinton years to keep the Internet unregulated, and
                                              not to transport the rules of [telecommunications regulation] to the
                                              Internet.” –Co-Chmn. Michael McCurry. Drew Clark, Coalition Formed
                                              to Fight ‘Network Neutrality’ Rules, Nat’l J., Apr. 10, 2006.

Net Neutrality    A coalition founded by      The Net Neutrality Coalition founding members and Intel have written a
Coalition         Amazon.com, eBay,           letter to Congress which says in part, “We call upon you to enact
                  Google, IAC/                legislation preventing discrimination against the content and services of
                  InterActiveCorp,            those not affiliated with network operators and thereby preserve network
                  Microsoft and Yahoo!        neutrality. . .Absent such safeguards, the fundamental paradigm of the
                  that has launched an        Internet will be irreparably altered and that most worthy of preservation
                  advertising campaign        will be lost. American consumers will lose basic Internet freedoms, the
                  supporting net neutrality   engine of innovation will be hobbled, and our global competitiveness will
                  regulation.                 be compromised.” Letter from Amazon.com Founder & CEO Jeff Bezos,
                                              et al. to Chairman Stevens and Ranking Member Inouye, (Apr. 25, 2006),
                                              available at http://www.dontmesswiththenet.com/home/.




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                 ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                               Positions of the Key Players
                                    On Net Neutrality

   Entity              Interest                                       Public Statements

NetCoalition    A public policy group of   “Network neutrality is about prohibiting network operators from
                Internet companies that    discriminating against people by entering into exclusive deals with their
                includes Google and        preferred content providers.” –Lobbyist Markham Erickson. Sarah Lai
                Yahoo! and supports net    Stirland, Entertainment Sector Decries Bill On ‘Net Neutrality,’ Nat’l J.
                neutrality regulation.     Tech. Daily, Mar. 16, 2006.
VON             A coalition of VoIP        “The VON Coalition encourages policy makers to ensure that consumers
Coalition       companies that lobbies     are allowed to use any device, application, or service on the Internet that
                for freedom of IP          they choose. These basic Internet freedoms positively shaped the
                telephony from             development of the Internet and should be carried forward to the
                government regulation.     broadband future. Indeed, the openness of the Internet has been its
                                           defining hallmark, and such openness is critical to unlocking the vast
                                           future potential of Internet communications. At the same time,
                                           consumers should not be prevented from lawfully using the bandwidth
                                           for which they pay.” -Pres. Staci Pies. VON Conference Attendees Send
                                           Letter to Congress, Show Support for ‘Net Neutrality’, PR Newswire,
                                           Mar. 16, 2006.
                                           “Blocking is not the issue. We don’t believe Verizon, AT&T or Cox will
                                           block. . .what we will see is pricing discrimination.” –Pres. Staci Pies.
                                           Edie Herman, Net Neutrality Permeates TelecomNEXT Regulatory
                                           Debate, Comm. Daily, Mar. 24, 2006, at 3.
NETCompet-      An e-forum comprised of    Chairman Scott Cleland opened up the “net neutrality vs. net
ition.org       broadband telephone,       competition” debate with the following thoughts on net neutrality: “My
                cable, and wireless        first challenge is that the use of the term ‘neutrality’ in this context is very
                companies created to       misleading. There is nothing ‘neutral’ about how net neutrality proposals
                promote competitive        would affect the future of the Internet. My second challenge is to the
                Internet choices for       notion that net neutrality proponents have fostered, that all data traffic
                consumers and promote      has been and should continue to be treated equally. That impression is
                debate on the merits of    also very misleading because everyone knows of many legitimate, real-
                net neutrality.            world reasons why data traffic is not treated the same. My third
                                           challenge is to another notion that net neutrality proponents have
                                           fostered, that a net neutrality policy would just be preserving the long-
                                           standing status quo and not be a big change in policy. That impression is
                                           very misleading too, because it suggests that people don’t have to
                                           consider the broader implications or potential unintended consequences
                                           of net neutrality legislation/regulation.” Challenging the Foundational
                                           Principles of Net Neutrality Thinking, NETCompetition.org, May 2,
                                           2006, available at http://netcompetition.org/docs/eforum/.




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               ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                                Positions of the Key Players
                                     On Net Neutrality

   Entity               Interest                                      Public Statements

                                            Consumer & Public Interest Groups
                                            and Other Interested Parties
Consumer         Consumer group that        “[A]lthough consumers believe network owners should provide
Federation of    supports net neutrality    unfettered access to the Internet, few believe they’ll do so unless required
America          regulation.                by law.” –Dir. of Research Mark Cooper. CFA: Bells Will Block Packets,
                                            Light Reading, Jan. 19, 2006.
                                            “Without strong protections to prevent giant cable and
                                            telecommunications companies from blocking their competitors’ access
                                            to customers, consumers can expect less, not more competition and
                                            innovation from the Internet-based companies.” -Dir. of Research Mark
                                            Cooper. Press Release, hearusnow.org, House Panel Vote Leaves Low-
                                            Income, Rural Consumers Further Behind in Digital Divide, (Apr. 26,
                                            2006).
Consumers        Consumer group that        “Congress should enact tough new laws prohibiting cable and telephone
Union            supports net neutrality    companies from blocking consumer access to content and services on the
                 regulation.                Internet, bilking both consumers and Internet-based companies.” –Sr.
                                            Policy Analyst Jeannine Kenney. CFA: Bells Will Block Packets, Light
                                            Reading, Jan. 19, 2006.
Free Press       Nonpartisan media          “These pricing schemes are simply poorly disguised discrimination.
                 reform group that          Requiring Internet companies to pay for high-speed access to the
                 supports net neutrality    Internet when they’re already charging consumers for the same service
                 regulation.                means consumers will ultimately pay twice. Worse, the scheme will stifle
                                            innovation and competition by effectively denying access to start-ups that
                                            can’t afford to pay for access to high speeds.” –Policy Dir. Ben Scott. Id.

Progress &       Think tank studying the    Digital Age Communications Act Regulatory Framework Working Group
Freedom          digital revolution and     issued a regulatory framework proposal that would use an “unfair
Foundation       related public policy      competition” standard in a case-by-case approach to prevent any
                 issues that opposes net    anticompetitive actions on the Internet. “As Congress considers changes
                 neutrality regulation in   to our communications laws, and with so much attention currently
                 favor of a case-by-case    focused on ‘Net Neutrality’ issues. . .it [is] important to explain why the
                 approach.                  case-by-case competition-based approach. . .is preferable to adoption of
                                            legislation that contains a broad Net Neutrality mandate. Any such
                                            anticipatory Net Neutrality mandate is likely to stifle investment in new
                                            networks and innovative services and harm consumer welfare.” –Sr.
                                            Fellow & Dir. of Comm. Policy Studies Randolf May. Press Release,
                                            Progress and Freedom Foundation, DACA Group Opposes Net Neutrality
                                            Mandate (Mar. 20, 2006).

Tier1            Telecom and IT research    “Network neutrality allows end users to choose winners and losers in an
                 firm that supports net     application meritocracy that threatens service providers long dependent
                 neutrality regulation.     on barriers to entry. The idea that Yahoo could pay Verizon to improve
                                            performance over Google means Verizon, not the end user, decides which
                                            search engine wins.” –Analyst Daniel Berninger. Martin H. Bosworth,
                                            “Net Neutrality” Battle Heats Up, ConsumerAffairs.com, Mar. 22, 2006.




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                ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                            Positions of the Key Players
                                 On Net Neutrality

   Entity           Interest                                      Public Statements

Freedom      Conservative think tank     “Net neutrality legislation would grant the federal government broad
Works        and grassroots lobbying     power to dictate how businesses offer Internet service. FreedomWorks
             organization that has       finds this violation of fundamental property rights alarming.
             launched an information     Additionally, FreedomWorks has grave concerns that, if enacted, net
             and advertising             neutrality provisions would significantly deter investment in exciting new
             campaign against net        technologies that offer a faster, higher-quality Internet experience, thus
             neutrality regulation.      ultimately hurting the consumer.” Press Release, FreedomWorks,
                                         FreedomWorks Targets Dangerous Network Neutrality Effort (Apr. 24,
                                         2006).
                                         “Net neutrality allows the government to run all over basic property
                                         rights in classic, Kelo fashion while expanding regulation in the
                                         telecommunications arena. Having the government tell a cable or phone
                                         company how to manage the pipes that offer their clients Internet service
                                         would fare no better than having the government tell Wal-Mart how to
                                         stock its lawn and garden department.” -Chmn. Dick Armey. Id.

Public       Public interest group for   “In short, open broadband networks are vitally important to our society,
Knowledge    intellectual property and   our future economic growth, our high-tech manufacturing sector, and
             technology issues that      our First Amendment rights to information free of censorship and
             supports net neutrality     control. Even if an openness policy imposes some slight burden on
             regulation.                 network operators, these microeconomic concerns pale in comparison to
                                         the macroeconomic benefits of maintaining an open Internet to the
                                         society and the economy at large.”
                                         Press Release, Public Knowledge, Public Knowledge Finds Net Neutrality
                                         Necessary (Feb. 6, 2006).
                                         “While we think an enforceable rule is necessary for an open Internet, we
                                         don’t think a heavy regulatory structure is necessary. A straightforward
                                         rule, which includes a statement of network operators’ obligations to
                                         carry traffic on a non-discriminatory basis, backed up by an efficient
                                         complaint process at the FCC, should suffice.” –Pres. Gigi B. Sohn. Id.
                                         “Think of the cable system. You as a consumer have no control over what
                                         channels the cable operator picks. They pick certain channels based on
                                         where they have a financial interest. Time Warner favors the
                                         programming in which it has a financial interest. We’re concerned that
                                         the cable model will essentially be grafted onto the Internet.” -Pres. Gigi
                                         B. Sohn. Ed Gubbins, Gun Owners, Librarians Unite Against Bells,
                                         Telephony Online, Apr. 24, 2006.
                                         “Google can afford certain high value services that Public Knowledge
                                         can’t. We recognize there’s already differentiation – that’s fine. What’s
                                         not fine is picking and choosing and making exclusive deals with favorite
                                         operators.”
                                         –Pres. Gigi Sohn. Net Neutrality Fight Flares Up As Congress Resumes,
                                         Comm. Daily, Apr. 25, 2006, at 8.




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                                Positions of the Key Players
                                     On Net Neutrality

   Entity               Interest                                       Public Statements

Center for       Non-profit public policy    CDT plans to release a report showing the consequences that could result
Democracy &      organization advocating     without net neutrality regulation, including more government mandates
Technology       free expression, privacy,   on Internet service providers as overseers of traffic, and urging
                 and open access on the      “legitimate” ways for network providers to manage their networks
                 Internet.                   without violating net neutrality principles. ISP Mandate Might Grow
                                             Without Net Neutrality, Group Warns, Comm. Daily, May 1, 2006, at 6
                                             (citing Exec. Dir. Leslie Harris).

Phoenix          Non-profit group that       Has not taken a position on the need for net neutrality legislation but has
Center for       studies public policy       released a white paper warning against regulation that has the effect of
Advanced         issues with an emphasis     “commoditizing” broadband access services: “Economic theory suggests
Legal &          on law and economics of     that product differentiation is an important component of competition,
Economic         regulated industries.       particularly in industries with large fixed and sunk costs. Allowing
Public Policy                                broadband firms to differentiate their products may make entry more
Studies                                      likely, thereby leading to a less concentrated industry structure. . . . Our
                                             economic model indicates that by deterring entry, [n]etwork [n]eutrality
                                             rules encouraging commoditization are clearly bad for consumers. . . .”
                                             George S. Ford, et al., Phoenix Ctr. for Adv. Legal & Econ. Pub. Policy
                                             Studies, Network Neutrality and Industry Structure, Apr. 2006.

Disney           Multimedia company          “We appreciate the pledges made [not to block or degrade services,
                 opposing net neutrality     applications or content]. . .We do not support any [net neutrality]
                 regulation that, among      legislation at this time.” –CEO Robert Iger. Paul Kapustka, Disney’s
                 other operations,           Iger: No Net Neutrality Laws Needed, Networking Pipeline, Mar. 20,
                 produces movies and         2006.
                 television shows and has
                 its own networks.
MoveOn.org       Liberal political           MoveOn.org’s online petition to “save the Internet” states: “Congress is
                 advocacy and grassroots     now pushing a law that would end the free and open Internet as we know
                 lobbying organization       it. Internet providers like AT&T and Verizon are lobbying Congress hard
                 that is encouraging its     to gut [n]etwork [n]eutrality, the Internet's First Amendment. Net
                 members to ask              [n]eutrality prevents AT&T from choosing which websites open most
                 Congress for net            easily for you based on which site pays AT&T more. So Amazon doesn’t
                 neutrality regulation.      have to outbid Barnes & Noble for the right to work more properly on
                                             your computer. Many members of Congress take campaign contributions
                                             from these companies, and they don't think the public are paying
                                             attention to this issue. Let’s show them we care – please sign this
                                             petition today. Congress must keep the Internet free and open by voting
                                             for meaningful and enforceable [n]etwork [n]eutrality.” MoveOn.org,
                                             Save the Internet, http://civic.moveon.org/save_the_internet/ (last
                                             visited Apr. 25, 2006).
                                             MoveOn.org also sent out a mass e-mail which said in part: “MoveOn has
                                             already seen what happens when the Internet’s gatekeepers get too much
                                             control. Just last week, AOL blocked any e-mail mentioning a coalition
                                             that MoveOn is a part of, which opposes AOL’s proposed ‘e-mail tax.’”
                                             Cynthia Brumfield, MoveOn.org Moves on Net Neutrality, IP
                                             Democracy, Apr. 20, 2006.




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                                   Positions of the Key Players
                                        On Net Neutrality

   Entity                  Interest                                      Public Statements

American           Non-profit group             Sent a letter to Congress encouraging adoption of strong net neutrality
Civil Liberties    dedicated to preserving      legislation, which states in part:
Union              civil rights and liberties
                                                Without specific recognition and enforcement of network neutrality
                   that supports net
                                                principles, the democratic nature of the Internet as we know it could
                   neutrality regulation.
                                                change, to the detriment of the First Amendment. . .Cable company
                                                Internet service providers (ISP) wield almost complete control over the
                                                content their customers are able to see and disseminate on the Internet.
                                                A cable company. . .can set prices for various levels of high-speed
                                                Internet access. Cable ISPs have the ability to discriminate in a very fine
                                                level, by the kind of packets being sent (e.g., streaming video), by the
                                                addressee or addressor, or by the kind of user (e.g., private individual
                                                versus corporation). . . . Moreover, ISPs can control what the customer
                                                can and cannot view online. For example, an ISP that was ideologically
                                                opposed to anti-abortion web sites could block her customers from
                                                viewing them. As a result, network neutrality could soon become a thing
                                                of the past, to the detriment of First Amendment values. . .If the Internet
                                                is to remain a robust and open forum for free speech, Congress must act
                                                to enforce the network neutrality that has allowed free speech to flourish.
                                                Letter from ACLU to Chairman Barton and Ranking Member Dingell,
                                                (Apr. 25, 2006), available at
                                                http://www.aclu.org/cyberliberties/general/25334leg20060425.html.




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                                Section Three



                   Net Neutrality: Government Actions
                         & Pending Proposals




Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                       Net Neutrality: Government Actions &
                                Pending Proposals

 Proceeding/ Bill                                           Proposal/ Action

                                                      FCC
High Tech                Comments urged the FCC to “vigilantly monitor cable modem and DSL broadband
Broadband                services as they develop,” and adopt net neutrality principles, but said that no formal
Coalition                regulation was currently necessary. The principles included consumers’ rights to access
Comments                 their choice of legal content and run applications of their choice within the bandwidth
Appropriate              limits of their service plans. The FCC’s September 2005 Policy Statement, below, largely
Framework for            reflects these recommendations.
Broadband Access to
the Internet Over
Wireline Facilities
proceeding
Filed Sept. 26, 2003

FCC Policy               States four principles of net neutrality designed to “ensure that broadband networks are
Statement                widely deployed, open, affordable, and accessible to all consumers,” but has no binding
                         effect. Under the Policy Statement, consumers are entitled to (1) access the lawful
Adopted
                         Internet content of their choice; (2) run applications and use services of their choice,
Aug. 5, 2005
                         subject to the needs of law enforcement; (3) connect their choice of legal devices that do
Released
                         not harm the network; and (4) have competition among network providers, application
Sept. 23, 2005
                         and service providers, and content providers. The Commission stated that it would
                         incorporate these principles into its future policymaking activities.
Madison River            In early 2005, Vonage reported to the FCC that Madison River Communications, LLC, a
Consent Decree           small rural ILEC, was blocking Vonage’s VoIP service. The FCC began investigating, and
                         within a few weeks Madison River entered into a consent decree in which it agreed to
Adopted & Released
                         “not block ports used for VoIP applications or otherwise prevent customers from using
Mar. 3, 2005
                         VoIP applications” and paid a $15,000 fine.

CLEC and State           The FNPRM requests comment on whether consumer protection regulation is necessary
PUC Comments             for broadband services, and a few commenters took this opportunity to raise the issue of
Appropriate              net neutrality. Comments filed by multiple CLECs argue that the BOCs’ “real agenda is
Framework for            the ability to discriminate against competitors in favor of their own services. . .favor[ing]
Broadband Access to      their own customers in terms of speed and quality of connection to the Internet and
the Internet over        leaving others with inferior access.” These CLECs therefore urge the Commission not to
Wireline Facilities      extend Title I treatment to stand-alone broadband services, saying this would only
Further Notice of        exacerbate the problem. Separately, the California Public Utilities Commission (“PUC”)
Proposed Rulemaking      filed comments encouraging the Commission to consider rules implementing the
                         September 2005 Policy Statement on net neutrality, because “such policies promote
Filed Jan.-Mar. 2006
                         consumer choice, choice that empowers consumers and provides fundamental consumer
                         protection.” The California PUC argues that these rules should be implemented in this
                         docket as “consumer protection rules for the broadband marketplace.”
SBC/AT&T and             The FCC approved the mergers of SBC/AT&T and Verizon/MCI with multiple
Verizon/MCI              conditions. One of those conditions was that, for two years after consummation of the
Mergers                  merger, the merged companies must abide by the net neutrality principles enumerated
                         in the FCC’s September 2005 Policy Statement: “Effective on the Merger Closing Date,
Adopted
                         and continuing for two years thereafter, SBC/AT&T [Verizon/MCI] will conduct
Oct. 31, 2005
                         business in a manner that comports with the principles set forth in the FCC’s Policy
Released
                         Statement, issued September 23, 2005.” The merger conditions were listed in an
Nov. 17, 2005
                         appendix to the FCC’s orders, and the Commission did not elaborate on its decision to
                         impose this condition.


                                                     1
             ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                   Net Neutrality: Government Actions &
                            Pending Proposals

Proceeding/ Bill                                         Proposal/ Action

Comments on            The Comcast-Time Warner-Adelphia transactions are pending before the FCC and
Comcast-Time           several commenters oppose the transactions and have asked the FCC to impose network
Warner-Adelphia        neutrality conditions on any grant. The Communications Workers of America, Media
Transactions           Access Project (“MAP”), and Center for Creative Voices in Media urged the Commission
                       to prohibit content discrimination and interference with rival video or voice services
Filed July 2005-Mar.
                       offered via Comcast’s and Time Warner’s broadband platforms. MAP expressed concern
2006
                       that Comcast and Time Warner would block time-sensitive political speech. The Center
                       for Creative Voices in Media warned the Commission against allowing cable companies
                       and telephone providers to “extend their distribution chokehold” over the Internet. In
                       response, Time Warner, Comcast and Adelphia maintain that broadband-related issues
                       have industry-wide implications and it is therefore inappropriate to address such issues
                       in their specific applications. They also note that there is no evidence that Comcast or
                       Time Warner ever degraded, blocked, or otherwise discriminated against any packets
                       delivered by any IP-enabled service application, and assert that the state of competition
                       in the broadband arena shows that there is no need for any net neutrality conditions.
                                                      Congress
H.R. 5252, the         The Commission is granted explicit authority to enforce its Broadband Policy Statement
“Communications        (better known as its net neutrality statement) through case-by-case adjudication. The
Opportunity,           FCC may enforce the Policy Statement by using the powers granted it in Titles IV and V
Promotion, and         of the Communications Act of 1934.
Enhancement Act
                       The maximum forfeiture fine faced by a company who violates the Policy Statement is
of 2006”
                       $500,000 per offense.
Introduced by
                       Any adjudication commenced under this section must be completed within 90 days. If
Reps. Barton
                       the FCC determines that a violation of the Policy Statement has occurred, it “shall have
(R-TX), Upton (R-
                       the authority to adopt an order to require the entity subject to the complaint to comply
MI), Pickering (R-
                       with the broadband policy statement and the principles incorporated therein.”
MS), and Rush (D-
IL)                    “[T]he Commission’s authority to enforce the broadband policy statement and the
                       principles incorporated therein does not include authorization for the Commission to
                       adopt or implement rules or regulations regarding enforcement of the broadband policy
                       statement and the principles incorporated therein.”
                       Status: voted out of Committee by a vote of 42-12 and awaits consideration by the
                       House.




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                  Net Neutrality: Government Actions &
                           Pending Proposals

Proceeding/ Bill                                          Proposal/ Action

Amendment to           The amendment would have replaced the provisions in the Committee Print regarding
H.R. 5252, the         the FCC’s net neutrality policy statement with rules imposing net neutrality duties on
“Communications        broadband network operators. Such duties would have included the following:
Opportunity,
                            (1) “not to block, impair, degrade, discriminate against, or interfere with” a person’s
Promotion, and
                            ability to access Internet content, applications, or services through their broadband
Enhancement Act
                            service;
of 2006”
                            (2) to operate their networks “in a nondiscriminatory manner,” allowing entities to
Offered by Reps.
                            offer content, applications, and services on the network “with equivalent or better
Markey (D-MA),
                            capability” as the operator gives itself or an operator’s affiliate without paying a fee
Boucher (D-VA);
                            or access charge; and
Eshoo (D-CA), and
Inslee (D-WA)               (3) to prioritize content, applications, or services solely on the basis of “the type of
                            content, application, or service” and without a prioritization charge or fee.
Rejected by the
Telecommun-            Under the amendment, broadband network operators would have been permitted to
ications and           secure and manage their networks, offer varied plans to consumers, offer consumer
Internet               protection services, and give priority to emergency communications.
Subcommittee by a
vote of 23 to 8.       Complaints alleging a violation of the broadband network operator’s duties would have
                       been subject to an expedited complaint process, including a mandate on the FCC to issue
Rejected by the full   a final order on a complaint within 30 days of its filing.
Energy and
Commerce
Committee by a
vote of 22-34.




                                                   3
           ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                    Net Neutrality: Government Actions &
                             Pending Proposals

Proceeding/ Bill                                          Proposal/ Action

H.R. 5273, the        Establishes a series of rules imposing net neutrality duties on broadband network
“Network              operators. Such duties include the following:
Neutrality Act of
                           (1) to “not block, impair, degrade, discriminate against, or interfere with” a person’s
2006”
                           ability to access Internet content, applications, or services through their broadband
Introduced by              service;
Reps. Markey (D-
                           (2) to “offer, upon reasonable request to any person, a broadband service for use by
MA), Boucher (D-
                           such person to offer or access unaffiliated content, applications, and services;”
VA), Eshoo (D-CA),
and Inslee (D-WA)          (3) to “not discriminate in favor of itself in the allocation, use, or quality of
                           broadband services or interconnection with other broadband networks;”
                           (4) to allow unaffiliated content, application, and service providers access to the
                           network at speeds and quality at least equal to the access granted to affiliated
                           content, application, and service providers, without charge; and
                           (5) to prioritize content, applications, or services solely on the basis of “the type of
                           content, application, or service” and without a prioritization charge or fee.
                      Broadband network operators are permitted to secure and manage their networks, offer
                      “varying levels of transmission speed or bandwidth,” offer consumer protection services,
                      and “carry or offer a cable service that requires management of the network to provide
                      enhanced quality of service,” as long as a subscriber does not have to accept that service
                      and no network operator duty is violated.
                      Complaints alleging a violation of the broadband network operator’s duties are subject
                      to an expedited complaint process, including a mandate on the FCC to issue a final order
                      on a complaint within 90 days of its filing. If a consumer makes a prima facie case
                      showing a violation of the Act, then the Commission must issue a cease and desist order
                      to the network operator.

S. 2686, the          Requires the FCC to submit an annual report to Congress regarding: (1) “developments
“Communications,      in Internet traffic processing, routing, peering, transport, and interconnection”; (2) “how
Consumer’s            such developments impact the free flow of information over the Internet and the
Choice, and           consumer experience using the public Internet”; (3) “business relationships between
Broadband             broadband service providers and applications and online user services”; and (4) “the
Deployment Act of     development of and services available over public and private Internet offerings.”
2006”                 Reports must begin 1 year after enactment and must be submitted each year for 5 years.
Introduced by         The Commission is permitted to make recommendations to resolve any significant
Sens. Stevens (R-     problems outlined in the reports through means that are “necessary and appropriate to
AK) and Inouye (D-    ensure that consumers can access lawful content and run Internet applications and
HI)                   services over the public Internet subject to the bandwidth purchased and the needs of
                      law enforcement.” Any recommendations made by the FCC must include appropriate
                      enforcement mechanisms “but may not recommend additional rulemaking authority for
                      the Commission.”




                                                   4
           ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                Net Neutrality: Government Actions &
                         Pending Proposals

Proceeding/ Bill                                        Proposal/ Action

S. 1504, the         Section 7 of the bill outlines certain principles concerning the rights of consumers to
“Broadband           access content and applications on the Internet.
Investment and
                     “A consumer may not be denied access to any content provided over facilities used to
Consumer Choice
                     provide broadband communications service and a broadband service provider shall not
Act”
                     willfully and knowingly block access to such content by a subscriber, unless (A) such
Introduced by        content is determined to be illegal; (B) such denial is expressly authorized by Federal or
Sens. Ensign         State law; or (C) such access is inconsistent with the terms of the service plan of such
(R-NV) and McCain    consumer including applicable bandwidth capacity or quality of service constraints.”
(R-AZ)
                     Providers are permitted to offer consumers customized plans that “differentiate (A)
                     access to content; (B) the availability of applications; and (C) the character of service
                     components.”
                     The FCC is authorized to enforce the provisions in the bill by rule.
                     Providers “shall not prevent any person from utilizing equipment and devices in
                     connection with lawful content or applications.”

S. 2360, the         Broadband network operators must abide by a series of duties that include:
“Internet Non-
                          (1) a prohibition on blocking, degrading, altering, modifying, impairing or changing
Discrimination Act
                          bits, contents, applications, or services;
of 2006”
                          (2) a prohibition on discriminating in favor of itself or any other person in
Introduced by Sen.
                          “allocating bandwidth; and transmitting content or applications or services;”
Wyden
(D-OR)                    (3) a prohibition on assessing access fees for network access;
                          (4) “offer communications [defined as not including cable service as that is defined
                          in section 602(6) of the Communications Act of 1934] such that a subscriber can
                          access, and a content provider can offer, unaffiliated content or applications or
                          services in the same manner that content of the network operator is assessed and
                          offered, without interference or charges;”
                          (5) a duty to “treat all data traveling over or on communications in a non-
                          discriminatory way;” and
                          (6) a duty to offer “just, reasonable, and non-discriminatory rates, terms, and
                          conditions” when it offers transmission services.
                     Network operators may still offer consumers plans that include measures to protect their
                     computers from viruses, harmful data, and illegal content, provided that consumers are
                     given notice of the measures and a choice to opt out. In addition, such operators are
                     permitted to take steps to secure their networks from outside threats.
                     The FCC is empowered to hear any complaint regarding a violation of the Act. Review
                     must be done on an expedited basis and must conclude within 90 days. If a consumer
                     makes a prima facie case showing a violation of the Act, then the Commission must issue
                     a cease and desist order to the network operator. It is incumbent upon the network
                     operator, when a prima facie violation has been alleged, to prove that it did not violate
                     the Act.




                                                  5
          ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                   Net Neutrality: Government Actions &
                            Pending Proposals

Proceeding/ Bill                                        Proposal/ Action

S. __, Staff         Broadband network operators face several duties, including the following:
Working Draft of
                          (1) not to “block, interfere with, discriminate against, impair, or degrade the ability”
the “Internet
                          of persons “to access, use, send, post, receive, or offer any lawful content,
Neutrality Act”
                          application or service” over the Internet;
Released by Sens.
                          (2) “to provide on a reasonable and nondiscriminatory basis the ability to offer,
Snowe (R-ME) and
                          provide, or post content, applications, or services into the operator’s network in a
Dorgan
                          manner that is at least equal to the speed and quality of service that the broadband
(D-ND)
                          network operator offers to affiliated content, applications, or services, and not to
                          impose a charge on the basis of such content, applications, or services;”
                          (3) “to prioritize content, applications, or services within the operator’s networks
                          based only on the type of content, applications, or services and the level of service
                          purchased by the user, without charge for such prioritization;” and
                          (4) “to make available the same bandwidth the operator uses to provide affiliated
                          content, applications, or services in a way that permits a user to access and enjoy
                          similar content, applications, or services offered by other persons.”
                     Network operators, however, are permitted to “offer a broadband connection to persons
                     at defined levels of bandwidth and different prices,” to manage their networks, to offer
                     consumer protection services, and “to offer to users a broadband video service or other
                     service that require prioritization of content, applications or services, if offering does not
                     cause the broadband network operator to violate any duty” in the Act.
                     The FCC is given the power to hear complaints regarding violations of the Act. If it hears
                     a complaint, the Commission must rule within 90 days. Where a prima facie case has
                     been alleged, the Commission must issue a cease and desist order to the network
                     operator within 5 days of receiving a complaint.




                                                  6
          ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                                  Section Four



                        Side-by-Side Analysis of Net
                       Neutrality Legislative Proposals




Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                                                                                                                                                                                                            Side-by-Side Analysis of Net Neutrality Legislative Proposals


                                                                                                                                                                                                                                                    Section 901 of S. 2686, the
                   H.R. 5252, the “Communications                                                                                                                                                  Section 7 of S. 1504, the “Broadband
                                                          H.R. 5273, the “Network Neutrality                                                                S. 2360, the “Internet Non-                                                           “Communications, Consumer’s
     Bill            Opportunity, Promotion, and                                                          S. __, the “Internet Neutrality Act”                                                      Investment and Consumer Choice
                                                                     Act of 2006”                                                                           Discrimination Act of 2006”                                                         Choice, and Broadband Deployment
                      Enhancement Act of 2006”                                                                                                                                                                      Act”
                                                                                                                                                                                                                                                           Act of 2006”


  Sponsors       Reps. Joe Barton (R-TX), Fred Upton    Reps. Ed Markey (D-CA), Rick Boucher            Sens. Olympia Snowe (R-ME) and                Sen. Ron Wyden (D-OR)                        Sens. John Ensign (R-NV) and John            Sen. Ted Stevens (R-AK)
                 (R-MI), Charles “Chip” Pickering (R-   (D-VA), Anna Eshoo (D-CA), and Jay              Byron Dorgan (D-ND)                                                                        McCain (R-AZ)
                 MS), and Bobby Rush (D-IL)             Inslee (D-WA)


Net Neutrality   No provision.                          Broadband network operators must:               Broadband network operators have the          Broadband network operators shall:           Consumers cannot be denied access to         No provision.
  Defined                                                                                               duty:                                                                                      any content provided facilities used to
                                                        (1) allow users to use their broadband                                                        (1) not interfere with, block, degrade,      provide broadband communications
                                                        service to access all lawful Internet           (1) not to block, interfere with,             alter, modify, impair, or change any bits,   service.
                                                        content, applications, and services;            discriminate against, impair, or degrade      content, application or service
                                                                                                        the ability of any person to use a            transmitted over its network;                Broadband communications service
                                                        (2) not block, impair, degrade,                 broadband connection to access, use,                                                       providers cannot willfully and knowingly
                                                        discriminate against, or interfere with         send, post, receive, or offer any lawful      (2) not discriminate in favor of itself or   block access to content, unless that
                                                        user’s ability to (a) access, use, send,        content, application, or service made         any other person in allocating               content is illegal, the content is blocked
                                                        receive, or offer lawful Internet content,      available via the Internet;                   bandwidth and transmitting content or        pursuant to federal or state law, or
                                                        applications, and services; and (b)                                                           applications to or from a subscriber;        access to the content is inconsistent
                                                        attach any lawful device of their               (2) to enable a user to connect to the                                                     with the terms of the consumer’s service
                                                        choosing that does not harm the                 network with any lawful device;               (3) not assess a charge to any               plan (including bandwidth capacity
                                                        network;                                                                                      application or service provider not on       limitations or quality of service
                                                                                                        (3) to provide and make available to          the operator’s network for the delivery of   constraints).
                                                        (3) disclose to users accurate                  users information about their Internet        traffic to a subscriber;
                                                        information about the speed, nature,            access and the speed, nature, and                                                          Providers shall not prevent any person
                                                        and limitations of their service;               limitations of their broadband                (4) offer communications so that a           from utilizing equipment and devices in
                                                                                                        connection;                                   subscriber can access and a content          connection with lawful content or
                                                        (4) offer, upon request to any person, a                                                      provider can offer unaffiliated              applications.
                                                        broadband service for use by such               (4) to provide on a reasonable and            applications, content, or services;
                                                        person to offer or access unaffiliated          nondiscriminatory basis the ability to
                                                        content, applications, and services;            offer, provide or post content,               (5) allow attachment of any legal device;
                                                                                                        applications, or services into the
                                                        (5) not discriminate in favor of itself in      operator’s network in a manner that is at     (6) treat all data on the network in a
                                                        the allocation, use, or quality of              least equal to the speed and quality of       non-discriminatory way;
                                                        broadband services or interconnection           service that the broadband network
                                                        with broadband networks;                        operator offers to affiliated content,
                                                                                                                                                      (7) offer just, reasonable, and non-
                                                                                                        applications, or services, and not to
                                                                                                                                                      discriminatory rates, terms, and
                                                        (6) provide the ability to offer unaffiliated   impose a charge on the basis of such
                                                                                                                                                      conditions on the offering or provision of
                                                        content, applications, or services in a         content, applications, or services;
                                                                                                                                                      any service by another over the
                                                        manner that is at least equal to the                                                          network;
                                                        speed and quality of service that the           (5) to prioritize content, applications, or
                                                        operator offers to affiliated content,          services solely on the basis of the type
                                                                                                                                                      (8) provide non-discriminatory access
                                                        applications, or services, without a fee        of content, applications, or services and
                                                                                                                                                      and service to subscribers; and
                                                        or charge;                                      not based on a fee;
                                                                                                                                                      (9) post and make available for public
                                                        (7) prioritize content, applications, or        (6) to make available the same
                                                                                                                                                      inspection all rates, terms, and
                                                        services solely on the basis of the type        bandwidth the operator uses to provide
                                                                                                                                                      conditions for provision of any
                                                        of content, applications, or services and       affiliated content, applications, or
                                                                                                                                                      communications.
                                                        not based on a fee;                             services in a way that permits a user to
                                                                                                        access and enjoy similar content,
                                                        (8) not install network features,               applications, or services offered by
                                                        functions, or capabilities that would           other persons; and
                                                        prevent compliance with the Act.
                                                                                                        (7) not to install or utilize network
                                                                                                        features, functions, or capabilities that
                                                                                                        impede or hinder compliance.




                                                                                                                                 1
                                                                                         ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                                                                                                                                                                                                             Side-by-Side Analysis of Net Neutrality Legislative Proposals

                                                                                                                                                                                                                                                    Section 901 of S. 2686, the
                   H.R. 5252, the “Communications                                                                                                                                                   Section 7 of S. 1504, the “Broadband
                                                                H.R. 5273, the “Network Neutrality                                                             S. 2360, the “Internet Non-                                                        “Communications, Consumer’s
     Bill            Opportunity, Promotion, and                                                             S. __, the “Internet Neutrality Act”                                                    Investment and Consumer Choice
                                                                           Act of 2006”                                                                        Discrimination Act of 2006”                                                      Choice, and Broadband Deployment
                      Enhancement Act of 2006”                                                                                                                                                                       Act”
                                                                                                                                                                                                                                                           Act of 2006”


Net Neutrality   The FCC is granted the authority to           The Commission is permitted to hear         The FCC is given the power to hear             The FCC is authorized to address          The Commission may take enforcement         No provision.
Enforcement      adjudicate violations of its net neutrality   complaints alleging a violation of the      complaints concerning a violation of the       complaints filed by aggrieved parties     actions by rule if it determines that a
                 policy.                                       Act.                                        Act.                                           and imposes the burden of proof on the    provider has intentionally restricted
                                                                                                                                                          network operator to show it did not       access in violation of the net neutrality
                 The FCC policy provides that:                 Any complaint filed that is not acted on    The Commission must act on any                 violate the law.                          principles, subject to certain exceptions
                                                               by the FCC within 90 days is deemed         complaint within 90 days; it must issue a                                                for network maintenance, network
                 (1) Consumers are entitled to access          granted; the Commission must issue a        cease and desist order within 5 days of        The FCC must act on any complaint         security, and preventing unlawful
                 Internet content of their choice.             cease and desist order within 48 hours      receiving the complaint if the                 within 90 days; it must issue a cease     content.
                                                               if an aggrieved party makes a prima         complaining party makes a prima facie          and desist order if an aggrieved party
                 (2) Consumers are entitled to run             facie showing of a violation of the Act.    showing of a violation of the Act.             makes a prima facie showing of a          Providers are entitled to make available
                 applications and end user services of                                                                                                    violation of the Act.                     parental controls to consumers without
                 their choice, subject to the needs of law     The FCC may use mediation and               The FCC may use its full panoply of                                                      violating this section; mobile service
                 enforcement.                                  arbitration to resolve disputes under the   powers in Titles IV and V of the 1934          If a content provider is found to have    providers can offer a subscriber access
                                                               Act; it is also permitted to use its full   Act, except that (1) no forfeiture liability   violated the Act, the penalties are the   only to family friendly service.
                 (3) Consumers are entitled to connect         panoply of powers under Titles IV and V     will be determined without section             same as those in the Communications
                 legal devices of their choice that do not     of the 1934 Act to enforce the Act,         503(b)(3) or 503(b)(4) notice; and (2)         Act.
                 harm the network.                             including issuing orders mandating          the provisions in section 503(b)(5) do
                                                               compliance with the Act.                    not apply.
                 (4) Consumers are entitled to
                 competition among network providers,                                                      The Commission “may issue any
                 application and service providers, and                                                    appropriate order, including an order
                 content providers.                                                                        directing a broadband network operator
                                                                                                           to pay damages to a complaining party
                                                                                                           for a violation of this section or the
                 The Commission may use the powers in
                                                                                                           regulations hereunder, to enforce the
                 Titles IV and V of the 1934 Act to
                                                                                                           provisions of this section.”
                 enforce the policy statement; it may also
                 impose a fine of up to $500,000 for
                 each violation of the policy statement
                 and adopt appropriate orders in the
                 case of a violation to ensure compliance
                 with the policy statement.

                 Any adjudication concerning the policy
                 statement must be completed no later
                 than 90 days from the date the
                 complaint was filed with the
                 Commission.

                 The FCC is denied the ability to conduct
                 rulemakings as part of enforcement
                 authority.




                                                                                                                                      2
                                                                                              ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                                                                                                                                                                                                    Side-by-Side Analysis of Net Neutrality Legislative Proposals

                                                                                                                                                                                                                                           Section 901 of S. 2686, the
                       H.R. 5252, the “Communications                                                                                                                                      Section 7 of S. 1504, the “Broadband
                                                          H.R. 5273, the “Network Neutrality                                                          S. 2360, the “Internet Non-                                                        “Communications, Consumer’s
       Bill              Opportunity, Promotion, and                                                  S. __, the “Internet Neutrality Act”                                                  Investment and Consumer Choice
                                                                     Act of 2006”                                                                     Discrimination Act of 2006”                                                      Choice, and Broadband Deployment
                          Enhancement Act of 2006”                                                                                                                                                          Act”
                                                                                                                                                                                                                                                  Act of 2006”


Tiered Consumer      No provision.                      No provision.                               Broadband network operators are              No provision.                             Broadband communications service            No provision.
      Plans                                                                                         permitted “to offer a broadband                                                        providers can offer consumers
                                                                                                    connection to persons at defined levels                                                customized plans that differentiate
                                                                                                    of bandwidth and different prices.”                                                    access to content, availability of
                                                                                                                                                                                           applications, and character of service
                                                                                                                                                                                           components.

                                                                                                                                                                                           Providers cannot, however, adversely
                                                                                                                                                                                           affect the performance of non-
                                                                                                                                                                                           customized consumer access to
                                                                                                                                                                                           content, services, and applications.


Preserved Network    No provision.                      Network operators are granted the           Network operators are permitted to:          Network operators can protect             Broadband communications service            No provision.
Operator Authority                                      power to:                                                                                subscribers against unwanted spam,        providers can block content pursuant to
                                                                                                    (1) manage and secure their networks;        spyware, viruses, pornography, and        federal or state law, or access to the
                                                        (1) manage their networks, as long as                                                    other programs, as long as subscribers    content is inconsistent with the terms of
                                                        such management does not result in          (2) offer consumer protection services,      are informed of the application/service   the consumer’s service plan (including
                                                        discrimination between content,             provided that consumers are notified of      and have an opportunity to refuse or      bandwidth capacity limitations or quality
                                                        application, and service providers;         such services and can opt out; and           disable the service.                      of service constraints).

                                                        (2) “offer varying levels of transmission   (3) “to offer users a broadband video        Network operators have the ability to
                                                        speed or bandwidth;”                        service or other service that requires       respond to emergencies and court-
                                                                                                    prioritization of content, applications or   ordered law enforcement needs.
                                                        (3) secure their networks;                  services, if offering does not cause the
                                                                                                    broadband network operator to violate
                                                        (4) offer consumer protection services,     any duty” in the Act.
                                                        provided that consumers are notified of
                                                        such services and can opt out;

                                                        (5) “carry or offer a cable service that
                                                        requires management of the network to
                                                        provide enhanced quality of service,
                                                        provided that” (1) a broadband
                                                        subscriber does not have to subscribe
                                                        to the service, and (2) no duties under
                                                        the Act are violated; and

                                                        (6) “where otherwise required by law,
                                                        prevent any violation of Federal or State
                                                        law.”




                                                                                                                               3
                                                                                       ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                                                                                                                                                                                   Side-by-Side Analysis of Net Neutrality Legislative Proposals

                                                                                                                                                                                                                     Section 901 of S. 2686, the
                       H.R. 5252, the “Communications                                                                                                                     Section 7 of S. 1504, the “Broadband
                                                         H.R. 5273, the “Network Neutrality                                                 S. 2360, the “Internet Non-                                            “Communications, Consumer’s
       Bill              Opportunity, Promotion, and                                            S. __, the “Internet Neutrality Act”                                       Investment and Consumer Choice
                                                                    Act of 2006”                                                            Discrimination Act of 2006”                                          Choice, and Broadband Deployment
                          Enhancement Act of 2006”                                                                                                                                         Act”
                                                                                                                                                                                                                            Act of 2006”


FCC Reports on Net   No provision.                      No provision.                         No provision.                            No provision.                      No provision.                          The FCC must submit a report to
    Neutrality                                                                                                                                                                                                   Congress regarding (1) “developments
                                                                                                                                                                                                                 in Internet traffic processing, routing,
                                                                                                                                                                                                                 peering, transport, and interconnection”;
                                                                                                                                                                                                                 (2) “how such developments impact the
                                                                                                                                                                                                                 free flow of information over the Internet
                                                                                                                                                                                                                 and the consumer experience using the
                                                                                                                                                                                                                 public Internet;” (3) “business
                                                                                                                                                                                                                 relationships between broadband
                                                                                                                                                                                                                 service providers and applications and
                                                                                                                                                                                                                 online user services”; and (4) “the
                                                                                                                                                                                                                 development of and services available
                                                                                                                                                                                                                 over public and private Internet
                                                                                                                                                                                                                 offerings”; reports must begin 1 year
                                                                                                                                                                                                                 after enactment and must be submitted
                                                                                                                                                                                                                 each year for 5 years.

                                                                                                                                                                                                                 The Commission is permitted to make
                                                                                                                                                                                                                 recommendations to resolve any
                                                                                                                                                                                                                 significant problems outlined in the
                                                                                                                                                                                                                 reports through means that are
                                                                                                                                                                                                                 “necessary and appropriate to ensure
                                                                                                                                                                                                                 that consumers can access lawful
                                                                                                                                                                                                                 content and run Internet applications
                                                                                                                                                                                                                 and services over the public Internet
                                                                                                                                                                                                                 subject to the bandwidth purchased and
                                                                                                                                                                                                                 the needs of law enforcement”; any
                                                                                                                                                                                                                 recommendations must include
                                                                                                                                                                                                                 appropriate enforcement mechanisms
                                                                                                                                                                                                                 “but may not recommend additional
                                                                                                                                                                                                                 rulemaking authority for the
                                                                                                                                                                                                                 Commission.”




                                                                                                                           4
                                                                                   ©2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
                                   Section Five



                   Sample of Net Neutrality Blogs and
                   Additional Resources Available on
                               the Internet




Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com
           SAMPLE OF NET NEUTRALITY BLOGS AND
     ADDITIONAL RESOURCES AVAILABLE ON THE INTERNET

                                http://free2innovate.net/

                         http://www.wirelesscommunity.info/

           http://www.democraticmedia.org/issues/JCnetneutrality.html

    http://www.commoncause.org/site/pp.asp?c=dkLNK1MQIwG&b=1234951

                        http://www.freepress.net/netfreedom/

                 http://www.lessig.org/blog/archives/003290.shtml

    http://www.hearusnow.org/internet/whatsatstake/openaccessandcontent/

http://www.publicknowledge.org/content/papers/pk-net-neutrality-whitep-20060206

       http://www.iptablog.org/2006/02/28/net_neutrality_reading_list.html

              http://news.tmcnet.com/news/2006/03/24/1487875.htm

            http://www.digg.com/technology/Net_Neutrality_Nonsense

                      http://www.freedom-to-tinker.com/?p=957

        http://evans.blogware.com/blog/_archives/2006/2/4/1744187.html




     © 2006 Wiley Rein & Fielding LLP | Washington, DC | Northern Virginia | www.wrf.com

				
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