*This post was written by Christopher Libertelli and Krista Cox*
It is hard to avoid the press coverage of the coming vote to reverse Obama-era Network Neutrality policies. In the long-sweep of history, this vote will mark an important milestone in a government proceeding that is almost 20 years old.
During the last six months, ARL has engaged independently on the details of Chairman Pai’s proposal. Sadly, we found little openness to exploring safeguards developed by ARL and our higher-education coalition partners that were any different than those initially proposed by Chairman Pai. We could spill a lot of ink discussing what that closure means for the deliberative model at the FCC specifically and in government generally. Suffice it to say that the lack of openness to evaluate other policy models like those proposed by ARL frustrated the pro-Net Neutrality coalition’s ability to reverse Chairman Pai’s proposed changes. At times, the proceeding felt like it had an anti-intellectual quality to it as policymakers at the FCC and in Congress pre-determined the outcome, without the benefit of public comment. Thus, we are expecting a fairly radical, categorical reversal of the 2015 Network Neutrality rules, transferring regulatory oversight over ISPs to the FTC and preserving only whatever government authority exists in such an environment. State regulatory authority will be preempted and federal regulators will be left enforcing a scaled back transparency rule that requires certain basic disclosures to ISP consumers.
The policymaking process now shifts to the courts. Because Chairman Pai is proposing a novel statutory interpretation of the Communications Act, there is inherent risk to sustaining the Order in the courts. That said, the FCC leadership understands this and has tried to improve its chances of prevailing on appeal. One of the more interesting aspects of the appeal will be whether Chairman Pai’s refusal to undertake a serious review of the ‘fake’ comments in the docket creates appellate risk under the Administrative Procedures Act. If the Courts of Appeals takes up that issue, it could establish new administrative law to address a world where more and more citizens are using the Internet to file comments and express their views to government officials. If we were pressed to estimate the odds that Chairman Pai’s Order we think it is probably unlikely to be sustained on appeal. If the Order lands in the DC Circuit, the odds of the government prevailing go down given that the DC Circuit upheld the 2015 Open Internet Order. If the Order lands in a circuit other than the DC Circuit, the odds of the government sustaining its Order increase as the weight of the record from the 2015 case would be less significant.
What does all of this regulatory back and forth and policy churn mean for research libraries? We think it means at least three things:
- The policymaking process does not end with an FCC vote or a Congressional action and Presidential signature. It ends with a final judicial decision on the merits, by the highest court willing to hear the case. Consistent with past practice, ARL expects to participate, along with other allies, in whichever appellate court hears the appeal;
- It is entirely possible that ISPs will test their newfound regulatory freedom by introducing new products into the marketplace. Paid fast lanes, Quality of Service guarantees or other differentiated products that differ from a well-defined “Internet access” product could be offered to consumers. Before that happens and all things being equal, if a Member purchasing from a public network provider has the opportunity to renegotiate the terms of its relationship with its ISP, it would be better to do that sooner rather than later as the chances of these products proliferating only increase over time;
- The coming court case may well kick off a parallel effort in Congress to rewrite the Communications Act in such a way to enshrine a new version of network neutrality into law. While we are skeptical that such a process will yield great value for our Members, we are watching this possibility closely and will participate in a way that preserves our Member’s unique voice in this debate.
Over the last few months, we have reflected upon a message that Commissioner Rosenworcel delivered to us when we met with her at the FCC. She discussed with us the need for fresh voices to reinvigorate a debate that is too often described as a battle between the rich (big ISPs) and the wealthy (big Internet companies). We are more and more convinced that ARL has an important role to play in this proceeding however it evolves. In various ways, the federal government appears to be undermining and reversing investments in basic science and research. We think of the reversal of the FCC’s Network Neutrality rules as part of that broader effort. However, even if the broader political context may be hostile to ARL’s interests, we are even more convinced of the value of open network policies that support ubiquitous access to the Internet whether you are a library patron logging on to one of our larger institutions or whether you are a researcher in the field using a wireless broadband connection to capture cutting edge research findings.
Finally, it is worth remembering that all is not lost in this temporary moment of policy reversal. The Canadian Radio-Television and Telecommunications Commission has a robust Network Neutrality framework in place to protect our Canadian Member’s interests. It may take another step (or even a few more steps) in the policymaking process; but we leave you with the hope that someday soon, US authorities will see the wisdom of their Canadian counterparts and adopt a Network Neutrality policy that protects consumers and the virtuous circle of investment and innovation upon which an Open Internet depends.