Tag Archives: fcc

Government Petitioners’ Brief Points Out Verizon Throttling of Fire Department Battling Largest Fire in California History

On August 20, 2017, petitioners challenging the FCC’s abandonment of net neutrality protections in Mozilla v. FCC filed their initial briefs. Coverage of Mozilla’s joint brief with other non-government petitioners (including companies and public interest groups) is available here and here. This blog post focuses on the brief filed by government petitioners, which include 22 states (New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington), the District of Columbia, the County of Santa Clara, Santa Clara County Central Fire Protection District, and the California Public Utilities Commission. These states represent over 165 million people, approximately half of the United States population.

The brief of the government petitioners make two primary arguments: 1) that the 2017 Order is arbitrary and capricious and failed to take into account harm to consumers, including public safety issues; and 2) the FCC did not have valid authority to preempt state and local laws from enacting their own net neutrality protections.

The highlight of this government petitioners’ brief focuses on clear and real examples of the harms that absence of net neutrality protections will have on safety, health and the public interest. While the FCC’s 2017 reversal of net neutrality protections relies on voluntary commitments, Internet companies have demonstrated that they will prioritize their own interests over the public’s:

BIAS [Broadband Internet Access Service] providers have shown every indication that they will prioritize economic interests, even in situations that implicate public safety. For example, a BIAS provider recently throttled the connection of a County Fire emergency response vehicle involved in the response to the largest wildfire in California history and did not cease throttling even when informed that this practice threatened public safety (emphasis added).

In this case, while the County was fighting the Mendocino Complex Fire—the largest fire in California’s state history—it experienced throttling by its ISP, Verizon. The addendum to the government petitioners’ brief includes a declaration by Santa Clara County Fire Chief, Anthony Bowden, who notes that the fire department relies on “Internet-based systems to provide crucial and time-sensitive public safety services. The Internet has become an essential tool in providing fire and emergency response, particularly for events like large fires, which require the rapid deployment and organization of thousands of personnel and hundreds of fire engines, aircraft, and bulldozers. During these events, resources are marshaled from across the state and country—in some cases even from other countries” and management of these resources depends on the Internet.

As Bowden explains, the unit facilitating resources “typically exchanges 5-10 gigabytes of data per day via the Internet using a mobile router and wireless connection. Near real-time information exchange is vital to proper function . . . Even small delays in response translate into devastating effects, including loss of property, and, in some cases, loss of life.” As a result, high-speed Internet is critical in addressing these fires.

Despite the fact that Santa Clara County Fire believed it had purchased an “unlimited” data plan, Verizon throttled the County’s usage “and data rates had been reduced to 1/200, or less, than the previous speeds.” When employees of Santa Clara County Fire e-mailed with Verizon, requesting the throttling be lifted for public safety purposes:

Verizon representatives confirmed the throttling, but rather than restoring us to an essential data transfer speed, they indicated that County Fire would have to switch to a new data plan at more than twice the cost, and they would only remove throttling after we contacted the Department that handles billing and switched to the new data plan.

Indeed, in the e-mail exchange attached as an exhibit in the addendum, a reported “side by side comparison a crew members personal phone using Verizon was seeing speeds of 20MBps/7Mbps. The department Verizon device is experiencing speeds of 0.2Mbps/0.6MBps, meaning it has no meaningful functionality.”

In another e-mail exchange questioning why Verizon was throttling the Santa Clara County Fire when the County believed it had purchased unlimited data, a Verizon manager replied, “Verizon has always reserved the right to limit data throughput on unlimited plans. All unlimited data plans offered by Verizon have some sort of data throttling built-in.”

While Verizon’s response to the Santa Clara County Fire Department in the midst of fighting the largest fire in California history as an extreme example of an ISP acting in self-interest, there are other examples of concerns for other state and local government seeking to serve the health and safety needs of its residents. For example, the government petitioners’ brief points to California’s updates to manage its energy grid to balance load, manage congestion and satisfy reliability standards.

Another example cited by the County of Santa Clara is its “web-based emergency operations center to facilitate coordination internally with other agencies and with first responders in case of emergency.” It uses a web-based public alert system to notify the public about emergencies such as evacuation orders or disease outbreaks and “Significant delays from blocking, throttling, or deprioritization could impede effective notification and jeopardize safety in public-health emergencies.” The County’s hospital also uses web-based systems that are latency-sensitive, including development of expanded telemedicine capabilities which will allow doctors to “perform triage and improve outcomes in time-sensitive situations (such as strokes or vehicular accidents) where immediate diagnosis can mean the difference between life and death.” In developing these improved systems for public health and safety, the County of Santa Clara notes that it invested substantial resources, including over a million dollars in its medical records system, and did so in reliance on the FCC’s protection of an open Internet.

Ultimately, the government petitioners’ brief highlights the ways that state and local government rely on an open Internet to serve the public, health and safety needs of its residents. As the brief notes, the FCC erred in assuming

that providers’ voluntary commitments coupled with existing consumer protection laws provide sufficient protection. The Commission offered no meaningful defense of its decision to uncritically accept industry promises that are untethered to any enforcement mechanism. Nothing in the order would stop a BIAS provider from abandoning its voluntary commitments, revising its Transparency Rule disclosures, and beginning to block, throttle, or engage in paid prioritization, subject only to the Transparency Rule’s limited disclosure requirements—leading to the very harms to consumer interests and public safety that the Commission’s long-standing commitment to protecting the open Internet was intended to prevent.

ARL Urges US House of Representatives to Restore Net Neutrality

*Cross-posted from ARL News*

The Association of Research Libraries (ARL) is profoundly disappointed with the US Federal Communications Commission’s (FCC) repeal of the Open Internet Order, which takes effect today, June 11, 2018. ARL is calling on the House of Representatives to reverse the FCC’s decision and restore net neutrality, a bedrock of equitable access to information.

As of today, internet service providers (ISPs) can legally prioritize some voices—those willing and able to pay a premium—over others, such as nonprofit organizations or people holding minority viewpoints. Instead of ensuring that users can access the content of their choosing on an equitable basis, the FCC is now relying solely on market forces to regulate the flow of internet traffic. This will almost certainly lead to many blocking/paid-prioritization arrangements between ISPs and commercial entities.

One possible avenue to retain net neutrality is through the Congressional Review Act (CRA). Under CRA, Congress can overturn an agency’s decision with a simple majority vote in both houses within 60 legislative days of publication of the agency’s decision in the Federal Register. If both houses vote to overturn the decision, it will then require the signature of the President. The CRA resolution to reverse the FCC’s repeal of the Open Internet Order passed the Senate 52-47 on May 16. The House of Representatives can save net neutrality by taking up the issue and voting in favor of the similar CRA resolution introduced by Representative Doyle (D-PA). The House must act by mid-July if it is to pass a CRA resolution restoring the Open Internet Order.

“Net neutrality was essentially a nondiscrimination rule enabling the free and open exchange of ideas, thereby helping libraries fulfill their mission of advancing education, innovation, knowledge creation, and economic growth,” said Mary Ann Mavrinac, president of ARL and vice provost and the Andrew H. and Janet Dayton Neilly Dean of the University of Rochester Libraries. “We call on the House of Representatives to pass the CRA resolution restoring the open internet and we urge President Trump to sign it.”

Challenges to the FCC’s repeal of the Open Internet Order are also currently pending before the US Court of Appeals for the DC Circuit. ARL is working with other library and higher education associations to advocate for the restoration of strong net neutrality protections through submission of an amicus brief highlighting the importance of these rules for access to information, research, education, and freedom of speech.

Take action on this issue by emailing, calling, or tweeting to your Representatives and encouraging them to restore an open internet by voting for the CRA resolution. Battle for the Net provides an easy way to email, call, and tweet to your lawmakers.

Battle for the Net: Day of Action to Save Net Neutrality

Today, July 12, 2017, ARL is joining thousands of websites and tens of thousands of individuals in participating in an Internet-wide Day of Action to Save Net Neutrality. This day of action is designed to draw attention to the importance of net neutrality and the current threats an open Internet faces due to new leadership at the Federal Communications Commission (FCC).

The strong net neutrality rules we currently have in place, set forth in the FCC’s 2015 Open Internet Order, were fought for and won by millions of people and organizations who took action by submitting comments to the FCC in support of strong rules protecting the Internet. ARL joined with other library and higher education organizations to submit principles, comments and reply comments pointing out the importance of net neutrality to our institutions and users. The FCC’s 2015 Open Internet Order provided clear rules, grounded in a strong legal basis, when it reclassified

All Internet users should be concerned about the FCC’s efforts to roll back net neutrality. Without strong rules to preserve an open Internet, service providers will have the ability and incentive to block, throttle, or engage in paid prioritization, drastically changing the character of the Internet from an even playing field to one in which only the wealthy can afford to have their content prioritized. Strong net neutrality rules are essential to protect online free speech and innovation.

You can take action by contacting the FCC and Congress, which can be done easily at Battle for the Net. The Internet should not be divided into “fast lanes” and “slow lanes.” It should remain open, so that all voices and content may have equal footing, rather than elevating only the voices of those who have the means and are willing to pay a premium.

Today’s Day of Action will harness the power of the Internet to make sure that ordinary Internet users can make their voices heard and a wide range of organizations will be participating, from library groups such as ALA and ARL, to civil society groups like Demand Progress and EFF, to social media sites like Twitter and Snapchat, to video hosting or streaming sites like Netflix and Vimeo, to journalism sites such as The Nation and Daily Kos, to companies like Amazon and Dropbox. A full list of participants is available on the Day of Action page.

ARL Joins Higher Education and Library Groups to Oppose Changes to Net Neutrality Rules

On May 18, 2017, the FCC voted 2-1 to move forward with its notice of proposed rulemaking to roll back net neutrality protections that were set forth in the agency’s 2015 Open Internet Order. The FCC appears to want to reverse course on Title II reclassification, which provided the strong legal basis for the no blocking, no throttling and no paid prioritization rules, and potentially give enforcement oversight to the Federal Trade Commission (FTC) instead. ARL joined higher education and library groups in issuing the following statement:

May 18, 2017

No Changes to Net Neutrality Law Necessary, say Higher Ed and Library Groups

Since the passage of the FCC’s 2015 Open Internet Order, internet users have benefited from strong and enforceable net neutrality policies, which are essential to protecting freedom of speech, educational achievement, and economic growth for all Americans. Today’s vote puts those protections in jeopardy.

Libraries and institutions of higher education are leaders in maximizing the potential of the Internet for research, education, teaching and learning, and the public good.  In the modern era, a free and open internet is essential to our public missions. The current net neutrality rules – no blocking, no throttling, and no paid prioritization, backed by a general conduct standard to ensure net neutrality adapts as the Internet evolves – generated unprecedented public support, and the validity of both the rules and the process that produced them has been affirmed by the DC Circuit Court.

Given all these factors, we believe no changes to the FCC’s 2015 Open Internet Order are necessary.  We urge the Commission to rescind the NPRM approved today and work with all stakeholders to enhance flexibility and innovation within the existing framework. Application of the rules to this point has demonstrated that the Commission can manage the regulatory environment for Internet access without undermining the sound, legal basis for network neutrality.

Should the FCC continue down the path proposed in the NPRM, however, the higher education and library communities would again draw the Commission’s attention to the network neutrality principles for which we have consistently advocated. We believe the Commission can and should frame any efforts to support an open Internet around these principles, and we will work through the rulemaking process to sustain strong network neutrality rules based on them.

We look forward to working with the FCC on ensuring that the Internet remains open.

The organizations endorsing this statement are:

American Association of Community Colleges (AACC)

American Association of State Colleges and Universities (AASCU)

American Council on Education (ACE)

American Library Association (ALA)

Association of American Universities (AAU)

Association of College & Research Libraries (ACRL)

Association of Public and Land-grant Universities (APLU)

Association of Research Libraries (ARL)

Chief Officers of State Library Agencies (COSLA)

Council of Independent Colleges

EDUCAUSE

National Association of College and University Business Officers (NACUBO)

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.

Libraries File Amicus Brief Supporting Net Neutrality

On September 21, 2015, ARL joined the American Library Association, Association of College and Research Libraries, and Chief Officers of State Library Agencies in filing an amicus brief in the Court of Appeals for the D.C. Circuit supporting the FCC’s Open Internet Order establishing rules protecting net neutrality.

The brief focuses on the importance of net neutrality for libraries and their patrons, pointing out that

As broadband subscribers, providers of Internet access points to patrons, and providers of digital content and services, libraries rely on the open character of the Internet to achieve their missions of providing equitable access to information, enhancing education and promoting life-long learning, supporting democracy and informed citizenry, and protecting intellectual freedom.

The brief points out that the FCC’s rulemaking process provided ample notice of its proposed rules, as evidenced by the extensive participation of libraries and other participants in the process.

Additionally, the brief highlights the importance of net neutrality in fulfilling their missions and serving their patrons.  The brief points out that public libraries provide broadband Internet access to their patrons, including to the roughly one-third of the population without Internet access at home.

The brief then points to several areas where libraries serve as creators and providers of content and information, often serving as edge providers.  These examples include the National Library of Medicine (NLM) which provides trillions of bytes of data each day to users; the New York Public Library’s (NYPL) digitization of content from the 1939 New York World’s Fair and creation of a free app that is used in New York public K-12 schools; Ann Arbor Public library’s production and sharing of podcasts and online interviews; the Iowa City Public Library’s digital collection of local music; the Florida Memory Project which provides free online access to archival resources from the State Library and Archives of Florida; the content created by library patrons, such as at the music created by teens at the Albany Public Library; and the Digital Public Library of America’s (DPLA) creation of a portal that delivers millions of materials from archives, libraries, museums and cultural heritage institutions to students, teachers, scholars and the public.  The brief continues:

All of these examples—which range from medical information, historical documents, cultural materials including video and audio works, and educational resources—demonstrate a clear need for an open Internet. Without bright-line rules and more general policies to preserve the open character of the Internet, access to these services and content provided by libraries may be slowed and impeded, resulting in reduced access to information and frustration for users.

The brief then turns to the issue of paid prioritization, noting that without bright-line rules banning paid prioritization, libraries and other institutions serving the public interest may not be able to pay extra fees for enhanced transmission of their content.  Prioritization risks that network operators would give priority to entertainment or other commercial content over education, civic engagement, access to information or other services.

Additionally, the brief supports the General Conduct Rule as a necessary tool to ensure that the Internet remains open and neutral.  The General Conduct Rule protects against future harms, including those made possible by technological innovations and advances.  The brief that the General Conduct Rule is supported under Title II reclassification as well as the FCC’s Section 706 authority.  The brief notes that the factors set forth by the FCC’s General Conduct Rule are sufficient to provide notice as to what conduct is not permitted.

The full brief is available for download here.

 

ARL Joins Coalition Asking House Appropriations Committee to Oppose Portions of Bill Threatening Implementation of Net Neutrality

On June 16, 2015, ARL joined a coalition of 64 public interest groups, civil rights and social justice organizations, and companies to oppose the portions of a House Appropriations bill that would threaten implementation of the FCC’s Open Internet Order, rules governing net neutrality that went into effect on June 12th.  Last week, a House Appropriations subcommittee voted in favor of the bill which includes provisions that would prevent the FCC from enforcing its Order until after litigation over the rules has ended and the full committee is expected to take up the bill this week.

The letter discusses the importance of net neutrality and cites the strong support for an open Internet.  It calls for the removal of provisions that would prevent enforcement of the FCC’s net neutrality rules, explaining:

These sections would gut the Open Internet Order, leaving the American people and economy vulnerable to blocking, discrimination, and other unreasonable practices of gatekeeper broadband providers.  These measures, buried in a spending bill that is 150 pages long, constitute a direct rebuke to the millions of people that asked for strong Net Neutrality rules.  By eliminating the FCC’s ability to protect Net Neutrality, this appropriations bill would have a chilling effect on our First Amendment rights and our economy.

 

 

Net Neutrality Rules Take Effect

On Friday, June 12, 2015, the FCC’s Open Internet Order, rules governing net neutrality, went into effect.  The FCC published its rules in the Federal Register on April 13, 2015 which reclassified broadband Internet as a common carrier under Title II, thus ensuring that the Internet cannot be divided into “fast lanes” and “slow lanes.”  The rules ban blocking, throttling and paid prioritization.  It also prohibits unreasonable interference with an the ability to select and access lawful content, applications and services.

Although broadband providers that have sued over the Open Internet Order requested to “stay” the Order and prevent the FCC’s net neutrality rules from taking effect until after litigation concludes, the Court of Appeals for the D.C. Circuit denied this request.  The denial of the stay request allows the FCC’s Order to take effect and helps preserve the open character of the Internet.

The D.C. Circuit also ruled that the lawsuit should be heard in expedited fashion, which means that oral arguments could be heard by the end of the year.

FCC Publishes Final Net Neutrality Rule; Lawsuits to Follow

On April 13, 2015, the FCC published its final Open Internet Order governing net neutrality in the Federal Register.  The rule will become effective on June 12, 2015, 60 days after its publication in the Federal Register.

ARL applauded the FCC’s vote in February to reclassify broadband Internet as a common carrier under Title II, ensuring that the Internet cannot be divided into “fast lanes” and “slow lanes,” while also retaining its Section 706 authority.  The rule bans blocking, throttling and paid prioritization.  It also prohibits unreasonable interference or unreasonably disadvantaging of an end user’s ability to select and access lawful content, applications and services, or an edge provider’s ability to make such content and services available to end users, subject to reasonable network management.

Now that the final Order has been published, a 10-day clock is triggered for legal challenges to the new rules.  While two lawsuits have already been filed, they may be considered premature because they were filed before publication in the Federal Register.  It is expected that the plaintiffs in those cases will refile, along with other lawsuits.  These lawsuits will likely be consolidated and a Judicial Panel on Multidistrict Litigation could determine, by lottery, which Circuit Court of Appeals will hear the case.

In addition to these lawsuits, Congress may attempt to overturn the order through the Congressional Review Act which allows Congress to overturn an agency regulation by a majority vote in both houses of Congress within 60 days.  However, even if Congress did overturn the FCC’s Open Internet Order, the President must sign it, or Congress must overrule a veto with a two-thirds majority.  Given President Obama’s strong support for net neutrality, including for reclassification, it seems unlikely that the FCC’s Open Internet Order would be overturned in this way.

Congress might also consider overruling the FCC’s decision through legislation.  Indeed, in January 2015, a discussion draft bill was released to create a new Title X to the Communications Act to specifically deal with broadband providers.  While the draft bill would ban paid prioritization there are several concerns regarding the discussion draft, discussed in this previous blog post.

 

New FCC Open Internet Order Incorporates Proposals Made in Filings by Libraries and Higher Education

On Thursday, February 26, 2015 the FCC adopted its Open Internet Order, ensuring that Internet providers cannot create “fast lanes” and “slow lanes” by reclassifying broadband under Title II of the Communications Act while also relying on the FCC’s authority under Section 706 of the Telecommunications Act. Relying on both sources of legal authority strengthens the ability of the FCC to protect net neutrality. As noted, in ARL’s February 26th press release, the fact sheet released by the FCC when it voted in favor of the new Order, indicated that the Commission had incorporated many of the joint principles filed by libraries and higher education organizations.

The FCC has now released the text of its Report and Order which explicitly recognizes the role of libraries and institutions of higher education, including several citations and references to comments ARL filed with other library and higher education associations in July and September of 2014. The FCC’s final order represents improvements over the initial proposed rules. ARL applauds the FCC’s decision to strongly protect the open Internet and its responsiveness to the concerns of libraries and higher education.

In its report, the FCC notes the importance of net neutrality, including for specific communities:

Open Internet rules benefit investors, innovators, and end users by providing more certainty to each regarding broadband providers’ behavior, and helping to ensure the market is conducive to optimal use of the Internet. Open Internet rules are also critical for ensuring that people living and working in rural areas can take advantage of the substantial benefits that the open Internet has to offer. In minority communities where many individuals’ only Internet connection may be through a mobile device, robust open Internet rules help make sure these communities are not negatively impacted by harmful broadband provider conduct. Such rules additionally provide essential safeguards to ensure that the Internet flourishes as a platform for education and research.

The FCC’s new rules provide for bright-line rules that prohibit blocking, throttling and paid prioritization. The Order and Report explains:

105. No-Blocking. First, we adopt a bright-line rule prohibiting broadband providers from blocking lawful content, applications, services, or non-harmful devices. This “no-blocking” principle has long been a cornerstone of the Commission’s policies. While first applied in the Internet context as part of the Commission’s Internet Policy Statement, the no-blocking concept dates back to the Commission’s protection of end users’ rights to attach lawful, non-harmful devices to communications networks.

106. No-Throttling. Second, we adopt a separate bright-line rule prohibiting broadband providers from impairing or degrading lawful Internet traffic on the basis of content, application, service, or use of non-harmful device. This conduct was prohibited under the commentary to the no-blocking rule adopted in the 2010 Open Internet Order. 241 However, to emphasize the importance of this concept we delineate under a separate rule a ban on impairment or degradation, to prevent broadband providers from engaging in behavior other than blocking that negatively impacts consumers’ use of content, applications, services, and devices.

107. No Paid Prioritization. Third, we respond to the deluge of public comment expressing deep concern about paid prioritization. Under the rule we adopt today, the Commission will ban all paid prioritization subject to a narrow waiver process.

The waiver process involves a “rare circumstance” where the “broadband provider can convincingly show that its practice would affirmatively benefit the open Internet.”

The FCC report and order notes the problem of paid prioritization, including that it will “introduce artificial barriers to entry, distort the market, harm competition, harm consumers.” In its discussion of paid prioritization, the FCC cites the comments filed by libraries and higher education in July 2014 which pointed out that “it is likely that those who are able to pay for preferential treatment will pass along their costs to their consumers and/or subscribers. In some cases, libraries and other public institutions may be among these subscribers who would then be forced to pay more for services they may broker on behalf of their patrons.”

Although Chairman Wheeler initially proposed using a “commercially reasonable” standard in assessing the conduct of broadband providers, library and higher education groups expressed concerns that this standard might not adequately protect the open character of the Internet. The final report and order reveals that the FCC has clearly listened to these concerns and instead adopts a standard that prohibits unreasonable interference with an end user’s ability to access lawful content or an edge provider’s ability to make such content available. The FCC states, “Based on the record before us, we are persuaded that adopting a legal standard prohibiting commercially unreasonable practices is not the most effective or appropriate approach for protecting and promoting an open Internet.” Rather than adopting a “commercially reasonable standard,” the FCC

adopt[s] this standard to prohibit practices in the broadband Internet access provider’s network that harm Internet openness, similar to the approach proposed by the Higher Education coalition and the Center for Democracy and Technology. Specifically, we require that:

Any person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not unreasonably interfere with or unreasonably disadvantage (i) end users’ ability to select, access, and use broadband Internet access service or the lawful Internet content, applications, services, or devices of their choice, or (ii) edge providers’ ability to make lawful content, applications, services, or devices available to end users. Reasonable network management shall not be considered a violation of this rule.

The FCC’s order also ensures that libraries and higher education institutions are protected under the net neutrality rules. While the definition of “mass market” remains the same as defined under the 2010 Open Internet Order (“a service marketed and sold on a standardized basis to residential customers, small businesses and other end-user customers such as schools and libraries”), the FCC recognizes the potential ambiguity in the definition. The order continues:

To be clear, ‘mass market’ includes broadband Internet access services purchased with support of the E-rate and Rural Healthcare programs, as well as any broadband Internet access service offered using networks supported by the Connect America Fund (CAF). To the extent that institutions of higher learning purchase mass market services, those institutions would be included within the scope of the schools and libraries portion of our definition.

Additionally, the Chairman’s initial proposal included “the creation of an ombudsperson to act as a watchdog to represent the interests of consumers, start-ups and small businesses.” The comments filed by libraries and higher education asked for these groups to be included in this list of interests. The FCC’s final order does this by allowing complaints by “individuals and organizations,” rather than seeming to limit access to start-ups and small businesses.

As with the FCC’s 2010 Open Internet Order, it is likely that challenges will be brought against the 2015 Order. ARL will continue to monitor these issues and work to ensure that the open character of the Internet is preserved.