Friday, May 19, 2006

Bad unintended consequences of HR 5417

(I should preface this by saying that I am not a lawyer, only a relatively well-informed layman who has demonstrated the ability to win lawsuits against telemarketers without using an attorney.)

Some network neutrality advocates are promoting James Sensenbrenner and John Conyers' HR 5417 as a step in the right direction for putting network neutrality into law. But HR 5417 is a badly written bill with some serious negative implications. (There are a bunch of other network neutrality bills in the works, which I haven't yet examined.)

First, it turns all NSPs and ISPs into "broadband network providers" even if they don't provide any residential consumer services. All that matters is whether you provide two-way Internet at speeds of 200 kbps or greater.

Second, it prohibits preventing anyone from sending or receiving traffic that is legal. This means ISPs cannot have acceptable use policies against spammers that go beyond what is required by the federal CAN-SPAM law except in states which have stricter laws, and they have to sell service to known spammers who comply with CAN-SPAM, and you can't kick adware companies off your network until and unless the specific abusive actions they are taking are made illegal.

Third, it says that if you provide a custom service like IP Video or VOIP interconnection at a higher class of service, you must allow your customers to connect to that "type" of service to any other provider of IP Video or VOIP, regardless of location, whether those providers are customers of yours or not. But if you don't provide those services over the Internet, who is supposed to bear the costs of interconnection to providers who aren't customers?

Fourth, it prohibits all restrictions on what devices users can connect to the network except on grounds of physical harm or degrading the service of others. But what if you offer a specialized service that only supports some vendors' equipment, and has to have a particular configuration to function properly? This seems to say that you have to let customers configure unsupported or incorrectly configured equipment to the network.

This bill is a nice example of bad unintended consequences.

(Also see Richard Bennett's Original Blog.)


Harold Feld said...

As a lawyer, I must disagree with your reading of HR 5417. In any event, I hope the manager's amendment added during mark up to clarify this addresses your concerns.

Lippard said...

Harold--that's tantalizing but not very satisfying. Can you say more (here or at your own blog) about why you disagree (on all points?), maybe with a reference to the manager's amendment (it doesn't seem to be on Thomas at this moment)?