The experts largely fell into two camps. Representatives of major telephone and cable companies and conservative academics urged government to get out of the way, encourage the growth of high-speed Internet networks and enable Internet system operators to "recoup their investments" without statutory or regulatory constraints. On the opposing side were the Internet "evangelists" and innovators who urged Congress to enact into law longstanding principles that preserve an open Internet where no company can restrict any individual's access to content or place barriers on any lawful application or activity.

Those representing telephone and cable companies promised that they would never--ever--interfere with the public's ability to access any lawful information on the Internet. Walter McCormick Jr., president of the United States Telecom Association (USTA), pledged, "We will not block, impair or degrade content, applications or services" that customers want to access. "Our culture, our history, our business has been focused for more than a century on connecting our customers with those they choose." He added that if a phone customer wants to call Sears, "We don't connect them with Macy's."

Unfortunately, the heads of the companies that the USTA represents have not been making the same promises. Indeed, Democratic Senator Byron Dorgan of North Dakota noted that the Washington Post story he had read on Tuesday "while eating my Cheerios" cited Verizon vice president John Thorne accusing Google of "enjoying a free lunch" at the expense of Verizon and other network builders.

"Verizon accused Google of freeloading," Dorgan said. "I've had both DSL and broadband from cable, and I've paid for [both of those services].... This is not a free lunch for any one of these content providers, to come into my home or the home of anyone in this country. The access lines are being paid for by the consumer."

Kyle McSlarrow, president of the National Cable & Telecommunications Association, urged Congress to "let the marketplace develop, as it has, without government regulation." The cable companies he represents, he said, won't block access to content over the public Internet, but they do want the "ability to manage the network."

The USTA's McCormick stressed that Net neutrality "isn't a problem that Congress needs to address. Consumers expect Internet freedom. And if we don't provide it, then the consumer will choose to do business with someone else."

Google vice president and "Internet evangelist" Vinton Cerf disagreed. "There is not enough competition" for high-speed Internet, Cerf said, noting that only 53 percent of Americans have any choice among broadband service providers and that 19 percent of Americans have no access to high-speed Internet.

In an argument that some senators seemed to have difficulty following, Cerf, Stanford Law School professor and open-access guru Lawrence Lessig, and Vonage head Jeffrey Citron argued that one could not assume the continued existence of the freewheeling Internet that fosters innovation. That is because the FCC changed the rules, upending a forty-year commitment to open access and nondiscrimination. That decades-old commitment made it possible for "innovation without permission" and the development of the World Wide Web, Yahoo, Google and Amazon, Cerf said.

Those policies were altered in 2002, noted Lessig, when the FCC changed how it would regulate Internet service providers. Companies that built and maintained the Internet pipes had been regulated like telephone companies, and they were not permitted to discriminate among content providers or Internet applications.

Under the FCC's current regulatory regime, these old constraints are gone. That leaves the door open for companies like Verizon and AT&T to drastically change the rules, hogging bandwidth for their own products, like the films and games they'd like to sell to subscribers, and charging other content providers a premium for quality access to their customers, leaving little space for other content and applications. "The only companies that could afford to buy access to the fast lanes on the Internet...are companies that already have succeeded in the marketplace," Lessig said. "The next generation of Yahoos and Googles...would face barriers to entry."

"At the root, the network neutrality debate is about who will control innovation and competition on the Internet," Citron added. "Imagine if the electric company could dictate which television or toaster you could plug into the wall.... What would happen tomorrow if one of the network operators decided to block Google, Vonage, Yahoo or Amazon? What would be the legal recourse?... There is nothing in the statute or regulation today that protects consumers or Internet application providers from potential network discrimination."

Republican Senator Ted Stevens of Alaska, chair of the Commerce Committee, called Net neutrality "one of the most difficult but important" issues on his committee's plate. Tuesday's hearing was one of thirteen on various aspects of the Telecommunications Act of 1996, which Congress will rewrite in the next year or two. What wasn't clear is to what extent Stevens and his committee will revisit Net neutrality. At the end of the hearing, Stevens thanked the participants for coming a long way and having so little time to speak their piece. One hopes that for all our sakes, Stevens and his committee find the time to contemplate the implications of what they do or fail to do as they legislate the future of the Internet.

© 2006 The Nation

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