First, for those in Minneapolis – here’s a heads up on the Senate committee meeting this afternoon: Thursday, March 13, 2008 – 3:00 PM Room 123 Capitol

Committee on Energy, Utilities, Technology and Communications
Chair: Sen. Yvonne Prettner Solon

Agenda:
S.F. 2866-Prettner Solon: Broadband service statewide inventory and mapping requirement.
S.F. 3520-Prettner Solon: Wind energy easement provisions modification.
S.F. 3605-Prettner Solon: Legislative energy commission establishment.
S.F. 2996-Rummel: Biomass definition expansion for renewable energy objectives; metropolitan area water supply advisory committee expiration date extension.
S.F. 3528-Rummel: Solar produced energy under renewable energy standard requirement.

I finally got a little (OK lot) of time to watch the Judiciary Committee Antitrust Task Force Hearing on Net Neutrality and Free Speech on the Internet. Below are my notes:

Chairman Conyer’s Opening Response

The Internet has become the place for ideas and public discourse. It has revolutionized journalism and how we get and disseminate information. We need to proceed cautiously. Unless we see a problem – we should got legislate. Even if we do see a problem, we should tread lightly. Everyone has an equal voice today.

However ISP markets today are covered monopolies or duopolies. And those ISPs are considering acting as a gatekeeper. That will squash innovation we’ve enjoyed for things like Google. Congress cannot stand by and do nothing and allow this pay to play method take over.

If Congress acts it’s a sign that the ISPs have over stepped. We should use the anti-trust laws to take care of the situation at this point.

Hon. Steve Chabot

The Free Market will continue to work. Competition is the right answer – not legislation. Right now there is a data management structure in place. Legislation could deter investment in the network.

Former Chair Sensenbrenner

Anti-trust law should apply to telecommunications. It’s important to exercise this privilege. Moving ahead could provide to be dangerous to artists and others online.

Damian Kulash
Lead Vocalist and Guitarist
OK Go (They got famous through the Internet)
They posted a video on YouTube and got more fan response than they got through traditional means. They represent a group of rock musicians that see that the Internet enhances traditional market. Net Neutrality opens the door to allowing the market to let the little guys do well and make money in the traditional markets.

Michele Combs
Vice President of Communications
Christian Coalition of America
They get religious groups involved with politics online. They have a web site, the send email messages. We need the Internet to communicate without censorship from telecommunications companies. Recently, Verizon censored NARAL’s pro-choice message to cell phones. (Listed other stories too.) Phone companies can’t control phone conversations – why should they control data-based conversation.

Rick Carnes
President
Songwriters Guild of America
Internet piracy is a huge issue to writers. Tools that detect/prohibit illegal piracy are necessary to allow writers to survive. 70 percent of traffic is P2P traffic and 90 percent of that traffic is unlawful. Those people would stop if there was a way for vendors to warn them to stop. The quality of content would increase if broadband providers reduced Internet piracy. We need to let vendors step in to control the piracy. Broadband network congestion is caused by illegal traffic – we need to look at that.

Caroline Fredrickson
Director
ACLU Washington Legislative Office
The marketplace of ideas (Internet) needs to remain free. The neutral pipes lead to open discourse. Consumers make decisions not gatekeepers. We had Title II, which gave the common carrier status and the Internet blossomed. ISPs are like common carriers but Brand X changed this and they shouldn’t have. Without Net Neutrality the carriers do become gatekeepers (as Ms Combs examples have shown). We need t be able to choose information and applications.

Christopher S. Yoo
Professor of Law and Communication and Director
Center for Technology, Innovation, and Competition
University of Pennsylvania Law School
New applications (YouTube et al) have been hard on the networks. Video is driving demand exponentially. Network providers must increase investment by $100 billion to keep up with this demand. We need to build more lanes for traffic (that’s expensive) or use a network management strategy. 5-8 percent of users are the broadband hogs. The question is – does everyone pick up the tab for those broadband hogs? Someone will be serving as intermediary – the question who and how? Don’t rule out any solution. Let the providers find a solution that works with the technology.

Susan P. Crawford
Visiting Associate Professor of Law
Yale Law School
The stakes are very high with this discussion. There are insufficient protections in place for speech and innovation. The vendors have too much power. Congressional action is needed to ensure an open neutral network. The Internet is taking over so many of the communication venues and that’s a threat to the providers. We have to ask ourselves … Do we want a general purpose networks or a collection of specialized networks? Right now we’re learning towards the specialized networks with the current monopoly and duopoly markets.

Questions:

Kulash: We just want a fair marketplace.

Carnes: The Internet is not neutral now – it belongs to the bandwidth hogs.

Yoo: The competitive market could work here. There is room for more providers. Network management is critical. The only way smaller providers can survive is by keeping the bandwidth down for the handful of hogs.

Frederickson: We need the network to be non-discriminatory. It can’t be used after the fact. We need neutral rules.

Crawford: We did this successfully in the 1960’s with phone regulation. The providers are more worried about the precedent than the money involved.

Is the relationship between providers and content mutually beneficial? Consumers need the network and the content to be valuable? How can government add to that?

Crawford: You’d think so. But providers have incentive to lean towards their content. They are too short sighted. Also, content providers are non-traditional

Yoo: They are mutually beneficial and Supreme Court precedence shows that. The wireless industry exemplifies it. It prioritizes voice over data – because from a user perspective voice (phone call) needs immediate attention and data (email) can wait.

How do networks deal with innovation? How will government have an impact?

Frederickson: Net Neutrality will allow free flow of innovation. Discrimination is already happening. We need for it to remain free.

Crawford: Call waiting was the late great innovation by providers – we need to enhance others.

Yoo: We did have nondiscrimination rules but with each innovation they needed to get a waiver and that slowed down the process. Call waiting was slowed down because it wasn’t neutral.

Comcast has issues with BitTorrent. Where does this lead if we charge for upload/download?

Crawford: The innovation is the ability to upload – that allows everyone to become a content provider and anything that alters that ability hurts our ability to innovate. One problem is that we can’t upload as others can around the world.

Yoo: BitTorrent does not support YouTube. YouTube doesn’t create as many bottlenecks.

The Internet is supposed to be free. Is the concern about turning Internet into cable it overblown?

Crawford: It’s as if the providers suddenly want to be something else but we need providers for the network but not for cable.

It’s nice to see everyone standing up for the first amendment.

ISPs want to provide tiered service. The DOJ to the FCC says mandating services limits the options and new investment? How do you feel about tiered service?

Crawford: Tiered service makes sense. If you use more, charge more. Discriminating against certain content or applications is the problem because it lets that ISPs draw the liens.

If a broadband provider hinders traffic to certain sources will consumers have an option to get access to that source?

Yoo: Yes there are options. Bloggers don’t need the fast lane – only video does.

What is the relationship with piracy and online congestion?

Carnes: Congestion is caused by piracy.

Do you have concerns about piracy?

Kulash: Yes. Musicians should be paid for work. The question is – who is going to create the system for new markets?

Crawford: We need to look at the future and legislate for the future – not only for what is available (content and application wise) today.

How do we promote innovation yet squash illegal activities?

Crawford: We all hate child pornography. But that’s a behavioral activity difficult to manage in advance with technology. We need to go after the behavior, not the technology. ISPs do cooperate.

[OK the conversation gets strange because there seemed to be an idea that Net Neutrality would prevent child pornography – but not in the dissemination stages but in the creation stages.]

Could we talk about the similarities between censoring online rock concerts with online censorship in China?

Combs: Both are discrimination.

What can Congress do to protect messages? Should the Congress or FCC give the right to sue?

Combs: Every organization should be able to send messages. There should be a free and open Internet – where recipients can get email from anyone.

Frederickson: The issue is that with all of the small players the burden of having to sue is too high a barrier.

Can we promote competition with managed networks?

Yoo: There are new technologies out there. Wireless promotes voice and video over data because contact and ready response is necessary for utility of the application. That’s not as true with data.

How does Yoo’s reasonable perspective deal with first amendment?

Crawford: Gatekeepers can choose speech but it is difficult to differentiate application from content.

What applications are the bandwidth hogs?

BitTorrent can be helpful to spread security patches. It can also promote illegal activities. Peer to peer was a big application – but YouTube brought back the download. We need to consider not just what applications are available/used today but what is coming up.

Yoo: We need to let businesses take chances.

Crawford: But we don’t’ have a functioning free marketing in the ISP world.

Carnes: We need an intelligent network. The dumb pipes we’ve had for years is not longer working.

Here are some articles and blogs that have on the meeting:

House Judiciary Free Speech hearing a yawner; Christian Coalition couldn’t answer simple questions

Christian Coalition, NARAL odd bedfellows at net neutrality hearing

Politicos make new push for Net neutrality policing

House panel explores net neutrality antitrust law