7:56 PM EDT

Lamar S. Smith, R-TX 21st

Mr. SMITH of Texas. Mr. Chairman, I yield myself such time as I may consume.

The Internet has succeeded beyond our wildest dreams, in large part, because the government has not tried to regulate its growth. I sympathize with the concerns of those who want to regulate the Internet, but we do not want to destroy the wonderful tool the Internet has become in order to save it. Frankly, I do not think we have the ability to perceive how the Internet will grow or to direct that growth.

I am more comfortable leaving these matters to the antitrust courts and the FCC to decide on a case-by-case basis in the context of specific factual situations, and that is what this amendment would do. It is a simple antitrust savings clause. It makes clear that the language in the bill that gives the FCC exclusive jurisdiction of network neutrality complaints does not displace the antitrust laws or the jurisdiction of the courts to hear antitrust cases in this area. These cases would be heard

under existing antitrust standards.

Look at what the Internet was 10 years ago and look at what it is now. It would not be anything like what it is today if we had tried to regulate it then. The courts and the FCC are sometimes slow, but they are much better equipped to work through the complicated fact situations that these issues present. We can always come back and legislate in the future if they fail in their task.

This amendment makes sure that broadband service providers are subject to antitrust lawsuits. In my experience, most people would consider that to be a pretty heavy burden. If those broadband service providers lose such a suit, they are subject to the whole range of antitrust remedies, including treble damages, injunctions, and attorneys' fees. The people who are for the various provisions designed to ensure network neutrality are the same people who usually push these kinds of antitrust remedies.

Some will argue you should skip over this amendment and vote for the Markey amendment. It is true that the Markey amendment includes an antitrust savings clause, and I appreciate Mr. Markey's desire to keep the Judiciary Committee involved in this area. The problem with his amendment is that it is a package deal. Not only do you get an antitrust savings clause, you also get to impose his vision of how he and the government would regulate the Internet. I do not think, Mr. Chairman, anyone

is qualified to dictate how the government should control the Internet. The Internet has done pretty well on its own without any interference from any of us.

So the choice is this: Do we let the Internet grow on its own, as it has for the last 10 years; or do we tie its future to government regulation? To me, that is an easy choice, and that is why I offer this amendment.

I urge my colleagues to support this amendment and oppose the Markey amendment.

Mr. Chairman, I reserve the balance of my time.

7:59 PM EDT

Joe Barton, R-TX 6th

Mr. BARTON of Texas. Mr. Chairman, I wanted to clarify some things with the author of the amendment. Does your amendment deal specifically with the complaint adjudication process with regards to antitrust laws and the jurisdiction of the courts to hear such cases?

7:59 PM EDT

Joe Barton, R-TX 6th

Mr. BARTON of Texas. With that understanding, I am going to change from opposition to support and encourage you for offering the amendment.

[Time: 20:00]

8:00 PM EDT

John Conyers Jr., D-MI 14th

Mr. CONYERS. Mr. Chairman, I rise to claim the time in opposition to the amendment of the gentleman from Texas on the Judiciary Committee, Mr. Smith. I am opposed to the amendment.

8:01 PM EDT

Joe Barton, R-TX 6th

Mr. BARTON of Texas. Mr. Chairman, I respect Mr. Conyers. He is a good man. He is in serious opposition. I have 4 1/2 minutes remaining. I would be happy to yield those 4 1/2 minutes to my good friend, Mr. Conyers.

8:01 PM EDT

John Conyers Jr., D-MI 14th

Mr. CONYERS. Mr. Chairman, I want to thank the chairman, Mr. Barton, because I am sure this could have been cleared up and it was an inadvertent mistake and I thank him for his generosity in correcting this matter.

I would like to share some of this time in opposition with the gentlewoman from California (Ms. Zoe Lofgren), but I rise against the Smith amendment because what we have here is a problem of an amendment that does not really promote the goals of net neutrality as we understand them.

It is a horse, a beautiful horse, but it is a Trojan horse. The language is disguised as meaningful net neutrality protection, but it is actually an empty shell.

The current law already allows for an antitrust remedy for violations of anticompetitive conduct; but when it comes to net neutrality, there are no rules, no guidelines telling the gatekeepers of the Internet what kind of conduct is allowed and what kind is not allowed.

The telephone and cable companies have made it clear they intend to use their market power to charge companies who want to distribute their content over the Internet, thereby determining what a consumer can access.

The Sensenbrenner-Conyers net neutrality amendment which we hoped to have made in order would have provided clear guidelines. I have five specifics that would make it very clear as opposed to what the Smith amendment does not do, and I include them for the RECORD.

8:04 PM EDT

Zoe Lofgren, D-CA 16th

Ms. ZOE LOFGREN of California. Mr. Chairman, I would just like to point out that the Smith amendment does absolutely nothing. The amendment is to the Communications Act, not to the Clayton or Sherman antitrust acts; and whether or not we past this amendment, the current antitrust laws will continue to operate as before.

The savings clause neither creates new net neutrality protections nor takes them away. It is superfluous, it is nothing, and it is meant to encourage Members who actually are for net neutrality into thinking they can somehow get away with being for net neutrality but doing nothing.

The Trinko case contained a similar antitrust savings clause. The Telecommunications Act of 1996 and the Trinko case basically held there were no antitrust remedies for anticompetitive conduct in areas regulated by the Telecommunications Act.

The whole issue is how the antitrust laws apply. I would point out that our committee, the Committee on the Judiciary, reported out by a vote of 20-13 a bill introduced by Chairman Sensenbrenner and the ranking member, Mr. Conyers, that actually did provide antitrust remedies for these Internet provisions. Inexplicably, the real bill, the real amendment that the chairman of the committee and the ranking member crafted and that won a majority of support, bipartisan I would add,

on the committee to be reported out, was not made in order for us to discuss today. Instead, this phony amendment was made in order.

I would like to say something else about this rhetoric about regulation. Antitrust law is not regulation. It sets the standard for what monopolies cannot do. It is not a regulatory approach. It is a set of laws that keep monopolies from squeezing the little guys, which is what is going to happen if we do not get real net neutrality in this bill.

The Markey amendment was put in order. We can vote for that, and I hope it passes. If it does not, we will end up with the dualopolies or the monopolies turning the Internet into a kind of cable television outfit.

When the public finds out what we are doing to their Internet, the dome is going to collapse with the uproar they create. For Members who have been here a long time and remember the vote that they took that allowed cable TV rates to go through the roof, that uproar is going to be nothing compared to what you hear if this measure goes forward.