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Network Neutrality: Telecom Reform Spoiler?

Network neutrality is now the spoiler in telecom reform.

At least that's what major portions of the tech sector, an array of grassroots organizations and Democrats desperate to differentiate themselves from Republicans in an election year, hope.

In fact, it's their only hope, dim though it may be.

For the last five years, Congress has toyed with the idea of a 21st-century reform of the 1996 Telecommunications Act. Two Congresses passed on the notion, but the current 109th Congress began in 2005 with pledges to finally do something about the 1996 landmark legislation that barely contemplated a digital world.

The U.S. House came out the chute first, approving a telecom reform package on June 9.

The Communications Opportunity, Promotion, and Enhancement (COPE) Act would permit national video franchising, establish E911 obligations on Voice over IP providers, force broadband providers to offer unbundled high-speed Internet service and allow municipalities to provision broadband services.

The bill passed on a 321-111 vote with 215 Republicans and 106 Democrats voting in the affirmative.

Network neutrality? Defeated, 269-152 with 58 Democrats joining 211 Republicans in turning back the measure. Only 11 Republicans joined the 140 Democrats voting for the amendment.

On June 28, the Senate Commerce Committee passed its own telecom reform bill, a far more encompassing piece of legislation than the House effort.

The ambitious bill also headlines national video franchising for telecom giants Verizon and AT&T to bypass all those pesky municipal rules for cable franchises. The idea is to fast-track competition against cable television.

The bill also seeks to reform the troubled Universal Service Fund (USF). In addition, the bill would not only extend USF obligations to VoIP providers but also tap broadband service as a source of USF funding.

A broadcast flag provision is in the bill, as is a legally questionable portion dealing with warning labels on sexually explicit sex sites.

Network neutrality? Defeated.

The Senate bill now faces a full floor vote, and what happens next is anybody's guess.

Sen. Ted Stevens of Alaska, chairman of the Commerce Committee, author of the Advanced Telecommunications and Opportunity Reform Act and the heavy hand that ramrodded the legislation through two contentious days of debate, admitted Wednesday the future of the legislation is cloudy.

"I don't think there's any member that won't feel comfortable with this bill," Stevens told reporters. "The question is whether we can get people to realize that it should be done now. If we can get 60 votes, we'll get it up and get it out."

Network neutrality becomes the wildcard in the 60-vote scenario.

Under Senate rules, any senator can filibuster against a bill unless at least 60 members vote to stop the filibuster. Stevens said his headcounters don't currently have 60 votes to block a filibuster.

Which is exactly what Democrat Ron Wyden promised to do Wednesday.

"The major telecommunications legislation reported today by the Senate Commerce Committee is badly flawed," Wyden said in a statement.

"The bill makes a number of major changes in the country's telecommunications law but there is one provision that is nothing more than a license to discriminate."

You guessed it: network neutrality.

"Without a clear policy preserving the neutrality of the Internet and without tough sanctions against those would discriminate, the Internet will be forever changed for the worse," he said.

Or not.

Both the House and Senate bills do not ignore the issue of network neutrality. Both pieces of legislation refer any issues of network traffic discrimination by broadband providers to the Federal Communications Commission (FCC).

"The bill ensures that all Internet service providers allow subscribers to access and post any lawful content; access any Web page; access and run any voice, video, or e-mail application of their choosing; access and run any software or search engine service; and connect any legal device of their choosing," Stevens said.

But, at what speed and at what price?

"Sure, the time it takes you to access the Web might be slower with dialup, or you might zoom around the Web at warp speed, but you get to choose the speed," Wyden said. "Today, whatever speed you choose doesn't make any difference in which sites you can visit. You still have access to any site you want.

"This is the beauty and the genius of the Internet. The net is neutral."

Verizon and AT&T contend they will not block, impair or degrade any traffic on the public Internet portion of their new fiber optic networks.

They do, however, intend to charge a fee for bandwidth-hogging content, as well as application and service providers who want to access the network's non-public pipes for faster delivery to customers.

Confused? So are lawmakers in both chambers of Congress, which makes leaving network neutrality to the FCC an attractive political alternative.

What each member of Congress must now ask is this: Is it worth sinking some form of telecom reform, particularly what is likely a poll pleasing effort to bring competition to the pay television market, to make a stand on issue they don't even understand?

As one former lawmaker recently said, "The voters are not marching in the streets with pitchforks demanding network neutrality. They do, however, want cheaper pay television alternatives."

That does not bode well for network neutrality.