The Future of Net Neutrality?

The net neutrality saga continues to unfold and it appears that threats against an open Internet may be at even greater risk today, given new leadership at the FCC and an Administration that has been extremely critical of net neutrality.

Net neutrality is essential for libraries and higher education to carry out our missions and ensure protection of freedom of expression, educational achievement, research and economic growth.  ARL celebrated the FCC’s 2015 Open Internet Order and the D.C. Circuit’s ruling upholding the Order. It remains under threat, however, because of ongoing litigation, efforts by members of Congress to roll back regulations, and statements by FCC Chairman Pai vowing to take a “weed whacker” to the net neutrality rules.

On March 30, 2017, higher education and library organizations reaffirmed their commitment to net neutrality and the Federal Communication Commission’s  (FCC) 2015 Open Internet Order.  This coalition sent a letter to Federal Communications Commission (FCC) Chairman Ajit Pai and Congressional leadership articulating the principles that should form the basis of any review of the Open Internet Order. These principles call on the FCC to ensure that no blocking, degradation or paid prioritization occurs.  Absent protections to ensure that the Internet remains open, the letter notes that Internet service providers have incentives to block or degrade traffic and create “fast lanes” and “slow lanes.”

While net neutrality remains critical to freedom of expression and education, it faces serious obstacles going forward. Chairman Pai not only voted against the 2015 Open Internet Order, but has been taking private meetings with large broadband providers where has has reportedly been promising to overturn net neutrality protections. While Pai has not laid out an extensive plan to address net neutrality, reports suggest that the Chairman wants to replace the protections under the Open Internet Order with “voluntary commitments” from broadband Internet service providers. Theoretically, while these “voluntary commitments” to not block or throttle traffic might be enforceable at the FTC, some note that such oversight could be extremely difficult. Moving enforcement to the FTC means that complaints can only be brought after a harm occurs, which is likely to favor the broadband providers. Additionally, because they are only “voluntary commitments,” some providers may choose not to adopt any open internet principles absent regulations to protect net neutrality. In fact, as the D.C. Circuit noted in its 2014 opinion overturning the 2010 Open Internet Order (prior to the FCC’s reclassification under Title II), broadband providers certainly have an incentive to abuse their power and discriminate or block certain types of Internet traffic:

Because all end users generally access the Internet through a single broadband provider, that provider functions as a ‘terminating monopolist,’ with power to act as a ‘gatekeeper’ with respect to edge providers that might seek to reach its end-user subscribers … this ability to act as a ‘gatekeeper’ distinguishes broadband providers from other participants in the Internet marketplace—including prominent and potentially powerful edge providers such as Google and Apple—who have no similar ‘control [over] access to the Internet

Chairman Pai is expected to release his plan on net neutrality this week, in advance of the FCC’s May agenda. However, to reverse the 2015 decision to reclassify broadband Internet service under Title II, the FCC would likely need to demonstrate substantial changes in the environment for a court to uphold such a reversal. Absent such a showing of substantial changes, a decision by the FCC to suddenly reverse course merely because of a change in leadership would likely be seen as arbitrary and capricious. ARL will closely track Chairman Pai’s plan and any FCC movement on this issue.

Meanwhile, some members of Congress continue to express an interest in rolling back the protections of the FCC’s Open Internet Order. While it is possible that some type of compromise bill could emerge in Congress to provide at least some protections for net neutrality, ultimately such a bill would weaken the rules under the 2015 Open Internet Order.

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