Tag Archives: net neutrality

DC Circuit Court Upholds FCC’s Open Internet Order Governing Net Neutrality

On Tuesday, June 14, 2016, the Court of Appeals for the DC Circuit released its long-awaited opinion in U.S. Telecom Association v. FCC, upholding the FCC’s 2015 Open Internet Order by a 2-1 vote.  On petition for review, the petitioners challenged the FCC’s reclassification of broadband service as a Title II common carriers, reclassification of mobile broadband service, the ban on paid prioritization and the General Conduct Rule, and also argued that the net neutrality rules violate the First Amendment.  The DC Circuit found against each of these challenges and denied the petitions for review.

The FCC’s 2015 Open Internet Order set forth rules governing net neutrality, 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. In its accompanying report, the FCC noted 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 DC Circuit opinion begins with history of the FCC’s Order, including the DC Circuit’s 2014 Verizon opinion in which it vacated the FCC’s 2010 Open Internet Order anti-discrimination and anti-blocking rules as impermissible because they subjected broadband providers to common carrier treatment.  Prior to the FCC’s Open Internet Order reclassifying broadband providers, the Internet was classified as an information service, exempt from common carriage rules.  However, the court notes that in Verizon, “we upheld the Commission’s conclusion that section 706 provides it authority to promulgate open internet rules” and “the Commission’s ‘finding that Internet openness fosters . . . edge provider innovation . . . was . . . reasonable and grounded in substantial evidence’ and that the Commission had ‘more than adequately supported and explained its conclusion that edge-provider innovation leads to the expansion and improvement of broadband infrastructure.”  In its 2014 opinion, the DC cCircuit recognized that absent rules governing net neutrality “broadband providers represent a threat to Internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment.”

The DC Circuit also lays out its role in reviewing the FCC’s decision, noting that it “is a limited one . . . to ensure that an agency has acted ‘within the limits of [Congress’s] delegation’ of authority and that its action is not ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”  The court’s role is not to make policy judgments.

Turning to the facts of the present case, the Court first upholds the FCC’s reclassification under Title II pointing out the evidence that “consumers use broadband principally to access third-party content, not email and other add-on applications.”  The Internet is marketed to consumers as a conduit for transmission of data as a standalone service rather than for particular add-on services.  The DC Circuit then quickly rejects the petitioners’ procedural arguments that the FCC did not provide adequate notice that it was considering reclassification (among other issues), pointing directly to the FCC’s Notice of Proposed Rulemaking (NPRM) calling for comment on this issue.

With respect to the substantive arguments regarding Title II reclassification, the DC Circuit points out that consumer perception of the service is key:

when interpreting this provision in Brand X, the Supreme Court held that classification of broadband turns on consumer perception . . . Nothing in Brand X suggests that an examination of market power or competition in the market is a prerequisite to classifying broadband . . . citing the Commission’s economic findings as additional support for its approach is a far cry from requiring the Commission to find  market power.

Additionally, the DC Circuit notes that the FCC’s judgment that any impact its Open Internet Order will have on broadband investment are outweighed by the positive effects of the “virtuous circle,” is given “particularly deferential review, as long as they are reasonable” because it is a predictive judgment under the FCC’s field of discretion and expertise.

Similarly, the DC Circuit upholds the FCC’s decision to reclassify mobile broadband, pointing out the FCC’s finding of the ubiquity and widespread use of mobile broadband.  In addition,

 

Avoiding that statutory contradiction not only assures consistent regulatory treatment of mobile broadband across Titles II and III, but it also assures consistent regulatory treatment of mobile broadband and fixed broadband, in furtherance of the Commission’s objective that “[b]roadband users should be able to expect that they will be entitled to the same Internet openness protections no matter what technology they use to access the Internet.” 2015 Open Internet Order, 30 FCC Rcd. at 5638 ¶ 92. When consumers use a mobile device (such as a tablet or smartphone) to access the internet, they may establish a connection either through mobile broadband or through a Wi-Fi connection at home, in the office, or at an airport or coffee shop. Such Wi-Fi connections originate from a landline broadband connection, which is now a telecommunications service regulated as a common carrier under Title II. If a consumer loses her Wi-Fi connection for some reason while accessing the internet—including, for instance, if she walks out the front door of her house, and thus out of Wi-Fi range—her device could switch automatically from a Wi-Fi connection to a mobile broadband connection. If mobile broadband were classified as a private mobile service, her ongoing session would no longer be subject to common carrier treatment. In that sense, her mobile device could be subject to entirely different regulatory rules depending on how it happens to be connected to the internet at any particular moment—which could change from one minute to the next, potentially even without her awareness.

After upholding the FCC’s decision to reclassify broadband Internet service, the DC Circuit turned to challenges against the ban on paid-prioritization and the FCC’s General Conduct Rule.

With respect to the ban on paid-prioritization, the Court points out (and the challenger conceded) that the FCC “grounded the rules in ‘multiple complementary sources of legal authority’–not only Titles II and III, but also section 706 of the Telecommunications Act of 1996.”  The DC Circuit again points to its 2014 Verizon decision in which it upheld the FCC’s broad authority to implement rules under Section 706.  The Court states “as we held in Verizon and reaffirm today, the Commission’s section 706 authority extends to rules ‘governing broadband providers’ treatment of internet traffic’–including the anti-paid-prioritization rule–in reliance on the virtuous cycle theory.”  The Court also finds that the ban on paid-prioritization “is geared to promoting the effective deployment of new telecommunications technologies such as broadband [and] . . . is entirely consistent with the Act’s objectives.”

Turning to the General Conduct Rule, the DC Circuit notes that

The Commission adopted the General Conduct Rule based on a determination that the three bright-line rules— barring blocking, throttling, and paid prioritization—were, on their own, insufficient “to protect the open nature of the Internet.” Id. at 5659–60 ¶¶ 135–36. Because “there may exist other current or future practices that cause the type of harms [the] rules are intended to address,” the Commission thought it “necessary” to establish a more general, no-unreasonable interference/disadvantage standard. Id. The standard is designed to be flexible so as to address unforeseen practices and prevent circumvention of the bright-line rules. The Commission will evaluate conduct under the General Conduct Rule on a case-by-case basis, taking into account a “non-exhaustive” list of seven factors.

The court finds that the rule is not impermissibly vague because it did not seek to retroactively enforce a new policy and the FCC provides a mechanism for advisory opinions.  The due process concerns are satisfied provided that the regulations “are sufficiently specific that a reasonably prudent person, familiar with the conditions the regulations are meant to address and the objectives the regulations are meant to achieve, would have fair warning.”  The FCC not only set forth seven factors to guide determination of what constitutes unreasonable interference with, or disadvantaging of, end-user or edge provider access, but also a description of how each factor would be interpreted and applied.

The Court also points out that overly specific rules could be harmful:

Given that “we can never expect mathematical certainty from our language,” those sorts of descriptions suffice to provide fair warning as to the type of conduct prohibited by the General Conduct Rule. Grayned v. City of Rockford, 408 U.S. 104, 110 (1972). To be sure, as a multifactor standard applied on a case-by-case basis, a certain degree of uncertainty inheres in the structure of the General Conduct Rule. But a regulation is not impermissibly vague because it is “marked by flexibility and reasonable breadth, rather than meticulous specificity.” Id. (internal quotation marks omitted). Fair notice in these circumstances demands “no more than a reasonable degree of certainty.” Throckmorton v. National Transportation Safety Board, 963 F.2d 441, 444 (D.C. Cir. 1992) (internal quotation marks omitted). We are mindful, moreover, that “by requiring regulations to be too specific courts would be opening up large loopholes allowing conduct which should be regulated to escape regulation.” Freeman, 108 F.3d at 362 (alterations and internal quotation marks omitted). That concern is particularly acute here, because of the speed with which broadband technology continues to evolve. The dynamic market conditions and rapid pace of technological development give rise to pronounced concerns about ready circumvention of particularized regulatory restrictions. The flexible approach adopted by the General Conduct Rule aims to address that concern in a field in which “specific regulations cannot begin to cover all of the infinite variety of conditions.” Id. (alteration and internal quotation marks omitted).

Finally, the Court rejects the arguments that the Open Internet Order violates a broadband provider’s First Amendment rights because “Common carriers have long been subject to nondiscrimination and equal access obligations akin to those imposed by the rules without raising any First Amendment question.  The obligations affect a common carrier’s neutral transmission of others’ speech, not a carrier’s communication of its own message.”  Furthermore:

The absence of any First Amendment concern in the context of common carriers rests on the understanding that such entities, insofar as they are subject to equal access mandates, merely facilitate the transmission of the speech of others rather than engage in speech in their own right.

. . .

Of course, insofar as a broadband provider might offer its own content—such as a news or weather site—separate from its internet access service, the provider would receive the same protection under the First Amendment as other producers of internet content. But the challenged rules apply only to the provision of internet access as common carriage, as to which equal access and nondiscrimination mandates present no First Amendment problem.

ARL, together with three other library associations, filed an amicus brief in September 2015 supporting the FCC’s net neutrality rules, pointing out the importance for libraries and higher education:

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.

Today’s decision is an important win for libraries and higher education, particularly with respect to the upholding of the ban on paid prioritization and the General Conduct rule. 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 General Conduct Rule is 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.

 

 

 

New Advocacy and Policy Update

The latest ARL Advocacy and Public Policy Update (covering the period from October 1 to December 22) is now available.  Previous Advocacy and Policy Updates can be found here.

From the current update’s summary:

Copyright continues to be an active area with a number of developments since October. The House Judiciary Committee continues to move forward with its copyright review and is close to completing its schedule of meetings between House Judiciary majority and minority staffers and witnesses who testified at hearings during the course of the review. In early 2016, members of the House Judiciary Committee will determine what issues they may want to work on with respect to possible reform. Additionally, Representatives Marino, Chu and Comstock introduced their bill on Copyright Office modernization, which would move the Copyright Office out of the Library of Congress and establish it as an independent agency within the legislative branch. On October 16, 2015, the Court of Appeals for the Second Circuit released its long awaited opinion in Authors Guild v. Google, strongly affirming fair use. Also in October, the Library of Congress released its final rules for the current cycle of the Digital Millennium Copyright Act’s (DMCA) Section 1201 rulemaking. Finally, the Library Copyright Alliance (LCA) filed comments responding to the Copyright Office’s Notice of Inquiry regarding a proposed pilot program for mass digitization and extended collective licensing. These comments questioned the wisdom of such a pilot program.

The US Congress passed the omnibus appropriations bill for FY 2016 and avoided a government shutdown. The omnibus exceeded mandatory caps on discretionary funding, resulting in positive results for higher education and libraries.

The Department of Education issued a proposal to amend regulations and require that all Department grantees awarded direct competitive grant funds openly license all copyrightable intellectual property created with these funds. ARL submitted comments supporting the benefits of open licensing and encouraging continued dialog.

ARL joined in comments on the proposed revision to OMB Circular A-130, the Circular that provides the rules of the road for federal information management and information technology.

The DC Circuit heard oral arguments on net neutrality in December. Although threats regarding a rider to undermine the FCC’s ability enforce its net neutrality rules emerged during the omnibus appropriations process, this rider was ultimately not included.

Congress continues to consider reform of the Electronic Communications Privacy Act (ECPA), and there is widespread support in the House for such reform. The Cybersecurity Information Sharing Act of 2015 was altered in ways that raise greater privacy concerns than its original version and was passed in the omnibus appropriations bill.

The US Supreme Court heard oral arguments in Fisher v. University of Texas at Austin (Fisher II), a case involving the University of Texas (UT) admissions process, which seeks to improve student body diversity.

Finally on the international front, more countries have ratified the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired or Otherwise Print Disabled, moving the Treaty closer to entry into force. The negotiations of the TransPacific Partnership Agreement (TPP) have now been finalized and the texts are now public, but the agreement must still be signed and passed by each of the negotiating parties.

D.C. Circuit Court to Hear Net Neutrality Arguments on December 4

On Friday, December 4, 2015, the Court of Appeals for the D.C. Circuit will hear oral arguments in United States Telecom Ass’n v. Federal Communications Comm’n.  The case comes to the D.C. Circuit after a number of telecommunications associations and companies filed petitions asking for review of the Federal Communications Commission’s (FCC) Open Internet Order governing net neutrality.  The FCC drafted and implemented its 2015 Open Internet Order after months of consultation following a January 2014 decision by the D.C. Circuit overturning the FCC’s 2010 net neutrality order.  The FCC’s 2015 Order, which reclassifies broadband Internet as a Title II common carrier and imposes bright line rules as well prohibiting unreasonable interference, was approved in February and went into effect in June.

ARL, together with the American Library Association (ALA), Association of College and Research Libraries (ACRL), and the Chief Officers of State Library Agencies (COSLA) filed an amicus brief in September 2015 supporting the FCC’s Open Internet Order and explaining the importance of net neutrality for the library community.

The case will be heard by Judge Tatel, who authored the the 2014 Verizon v. FCC opinion striking down the FCC’s 2010 Open Internet Order, as well as Judge Williams and Judge Srinivasan.

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.

 

New Advocacy and Policy Update: August 14, 2015

A new ARL Advocacy and Policy Update, covering mid-June to mid-August is now available here.  Prior updates can be accessed here.

The summary and contents from the current Advocacy and Policy Update are reproduced below:

Summary

The US House of Representatives began the summer recess on July 30th, and the US Senate adjourned on August 6th with both reconvening on September 8th. September and October promise to be very busy months as both chambers must act on the FY 2017 appropriations bills, highway trust fund, debt ceiling, and many other issues. It is also hoped that there will be a deal to increase the spending limits under sequestration, which higher education institutions and others have long advocated for.

Much of the activity related to copyright has centered around the Copyright Office. Congressional offices continue to explore and discuss ways to modernize the Copyright Office, including various proposals to move the Copyright Office out of the Library of Congress. Additionally, the Copyright Office has issued notices of inquiries that relate to orphan works, mass digitization, visual works, and extended collective licensing.

There have been positive developments with respect to open access, open educational resources, and open data. The Obama Administration released science and technology priorities for FY 2017, which note that “preserving and improving access to scientific collections, research data, other results of federally funded research, open datasets and open education resources should be a priority for agencies.” The FASTR Bill to enhance public access to research was approved unanimously by the US Senate Committee on Homeland Security and Governmental Affairs.

Privacy and surveillance concerns continue as Congress is considering cybersecurity legislation that raises serious issues for privacy and civil liberties. Litigation around net neutrality is in full swing, with the briefs of telecommunications companies opposing the FCC’s net neutrality rules filed in July.

Finally, ARL continues to promote a simple and quick ratification of the Marrakesh Treaty. Currently, 10 countries have ratified the Treaty, and 10 more are needed for it to enter into force.

Contents

Copyright and Intellectual Property

  • Proposal to “Modernize” the Copyright Office
  • Copyright Office Notice of Inquiry on Visual Works
  • Copyright Office Notice of Inquiry on Mass Digitization and Extended Collective Licensing
  • House Judiciary Committee’s Copyright Review

Open Access, Open Educational Resources, and Open Data

  • Obama Administration Releases Science and Technological Priorities for FY 2017
  • Coalition Calls on White House to Open Up Access to Federally Funded Educational Resources
  • FASTR Bill to Enhance Public Access to Research Approved by US Senate Committee
  • National Technical Information Service (NTIS)

Update Appropriations

Draft Bill Would Eliminate NHPRC

Privacy and Surveillance

  • Cybersecurity Legislation
  • Electronic Communications Privacy Act Reform

Telecommunications

  • Net Neutrality Litigation

International Treaties

  • Trans-Pacific Partnership Agreement
  • Marrakesh Treaty

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.

 

ARL Applauds Federal Communications Commission Decision to Support Net Neutrality

Cross-posted from ARL News, originally posted on Thursday, February 26, 2015

*Updated March 4, 2015 to include links to statements by ALA and EDUCAUSE*

The US Federal Communications Commission (FCC) voted today, February 26, 2015, in favor of adopting rules to protect and promote the open Internet, also known as net neutrality. With today’s vote passing the 2015 Open Internet Order, the FCC can ensure that Internet providers do not create “fast lanes”—designated for those willing and able to pay a premium—and “slow lanes”—for everyone else—and that the Internet remains open and available to all.

The Association of Research Libraries (ARL) applauds the Open Internet Order, which reclassifies the Internet under Title II of the Communications Act and also relies upon the FCC’s authority under Section 706 of the Telecommunications Act to provide a strong legal basis to protect net neutrality. As both providers and consumers of content and services on the Internet, research libraries and their parent institutions have long relied on the open character of the Internet, including non-discriminatory access.

Deborah Jakubs, president of ARL, said, “Libraries, colleges, and universities have long championed, advanced, and provided critical intellectual freedoms such as education, research, learning, free speech, and innovation. These freedoms rely on net neutrality, and today’s vote at the FCC ensures that network operators cannot act as gatekeepers and place commercial interests above non-commercial expression.”

Ultimately, the FCC’s 2015 Open Internet Order recognizes the fact that the open Internet is increasingly critical to the way information is shared and disseminated today. ARL congratulates the FCC on its decision, which incorporates many of the joint principles filed by library and higher education organizations and will allow the research library community to continue to offer a growing number of distance learning services, online course instruction, and access to extensive digital content, as well as promote new innovations.

*Update: See statements of the American Libraries Association and EDUCAUSE.