ARL has issued a statement expressing disappointment with the DC Circuit’s January 14, 2014 ruling overturning the Federal Communications Commission’s (FCC) Open Internet Order’s anti-discrimination and anti-blocking rules. Research libraries, as providers of content and services on the Internet, research libraries and their parent institutions have long relied on and supported open and non-discriminatory access. The court’s ruling could result in prioritized delivery for those willing to pay to promote their content, advancing commercial interests over research library and higher education interests. ARL’s full statement is available here.
Carol Pitts Diedrichs, president of ARL stated, “The intellectual freedom that libraries, colleges, and universities have long championed would be threatened if network operators act as gatekeepers, bar access to competing or nonprofit voices, or relegate unpopular or non-commercial expression to the Internet’s slow lanes. We look forward to working with the FCC in considering the avenues available to ensure effective network neutrality and open Internet rules going forward.”
Notably, the DC Circuit did uphold the FCC’s broad authority to regulate broadband services, leaving open the possibility of further FCC action to promote net neutrality. The court noted that the FCC “reasonably interpreted section 706 [of the Telecommunications Act of 1996] to empower it to promulgate rules governing broadband providers’ treatment of Internet traffic, and its justification for the specific rules at issue here—that they will preserve and facilitate the ‘virtuous circle’ of innovation that has drive the explosive growth of the Internet—is reasonable and supported by substantial evidence.”
The FCC defended its regulations by arguing, “Internet openness … spurs investment and development by edge providers, which leads to increased end-user demand for broadband access, which leads to increased investment in broadband network infrastructure and technologies, which in turn leads to further innovation and development by edge providers.” Broadband providers provide high-speed communications technologies whereas edge providers provide content, services or applications over the Internet.
The DC Circuit agreed with the FCC’s assessment that broadband providers might abuse their power and discriminate against certain types of Internet traffic. The court noted that, “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.’” In fact, the FCC provided evidence of four prior instances where broadband providers had utilized their “gatekeeper” function.
In rejecting the FCC’s anti-blocking and anti-discrimination regulations, the court pointed to the fact that the FCC classified broadband providers as “information service” rather than “telecommunications service.” This classification exempts providers in this category from the same obligations of “common carriers,” or traditional communication services such as landline telephone lines. It stated, “the Commission would violate the Communications Act were it to regulate broadband providers as common carriers” and ultimately concluded that these regulations amounted to common carrier obligations. The court therefore left open the possibility of the FCC reclassifying broadband providers as a “telecommunication service,” a category subject to common carrier regulations. Alternatively, the FCC could redraft its rules in accordance with the DC Circuit’s ruling to ensure that the principles of net neutrality are maintained.