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McSlarrow: Networks Aren’t Blocking Content

 "Broadband providers do not block access to content," National Cable & Telecommunications Association President Kyle McSlarrow said in prepared testimony for a Tuesday hearing on Capitol Hill.

 McSlarrow said that while the cable industry supported a bill, introduced by House Telecommunications & Internet Subcommittee Chairman Ed Markey (D-Mass.) to improve data collection on where broadband has been deployed in the U.S. as well as tax incentives or public-private partnerships to extend Internet service to rural areas, it did not support the bill Markey and the subcommittee were considering at the hearing.

 That bill, the Internet Freedom Preservation Act would essentially enshrine the FCC's four network-nondiscrimination principles into law, although in language general enough to be open to regulatory discretion.

 McSlarrow argues that there is no "market failure" warranting precipitous action, and argues the FCC should do the fact-finding outlined in the first Markey data collection bill before addressing the issue of whether more regulation is needed. McSlarrow is confident the result of that collection will show that market competition is working and that networks are delivering faster speeds at lower prices, thanks to a light regulatory hand.

 The FCC currently has an open inquiry into complaints of content discrimination against Comcast and a more general inquiry into what constitutes "reasonable network management" as opposed to blocking content.

 Comcast has argued that it does not block peer-to-peer traffic, but does manage its network to insure that heavy bandwidth users do not degrade the Internet experience for other customers. "Reasonable network optimization techniques not only enable the growth and development of the Internet, they protect consumers and their legitimate expectations," said McSlarrow in his testimony.

 Some of the key issues in determining reasonable management are whether interrupting the traffic of those heavy users effectively blocks it, whether networks are sufficiently informing customers that such network management is taking place, and whether it is application-specific. The knock on Comcast was that it was singling out the BitTorrent peer-to-peer service.

 Comcast has subsequently teamed with BitTorrent to work out a solution to the traffic management issue.

 FCC Chairman Kevin Martin has said that two keys to reasonable network management would be fully informing customers of the what network management practices are being used, and setting a high bar for any application-specific network management techniques.

Markey argued that the bill would simply keep the level Internet playing field level.

 He said the issue was not whether networks can or can't manage their networks, or about fighting piracy or spam or helping parents control content, or whether traffic can be prioritized or whether network neutrality is synonymous with copyright theft. "It is not any of those," he said, but about whether networks are allowed to act in an unreasonable and noncompetitive manner. Markey argued that the bill would simply keep the level Internet playing field level.

 Mike Doyle (D-Pa.) said that the argument that network neutrality is a solution in search of a problem has been debunked, pointing to the various complaints about traffic blocking. “The time has come for rules of the road,” he said. Rep. Fred Upton (R-Mich.) countered that there is no solid evidence that consumers have been blocked from content or applications. “Our hands off policy is working… This bill takes us down a dangerous path.”

The bill also has some Reblican support. Chip Pickering (R-Miss.), who co-sponsored the bill, said that it would be helpful in clearing up the issue of whether the FCC has the power to enforce its nondiscrimination principles on a case-by-case basis. Pickering said he didn't want government intervention in the market, but also said he wanted to send the signal that the market needed to remain open, which he thought the bill would do.

Ben Scott, policy director for Free Press, said that the bill represented a reasonable middle ground that network neutrality opponents were now unwilling to stand on. He argued that the cable industry has said it supports the FCC's nondiscrimination principles, but says they are unenforceable. "They were for network neutrality before they were against it," said Scott, invoking the John Kerry line about his vote on the Iraq War.

A duopoly market will not discipline itself, said Scott.