Tag Archives: net neutrality

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.

Network Neutrality in the Cross Hairs

*Jointly authored by Larra Clark, Krista Cox and Kara Malenfant*

It is widely reported that network neutrality is one of the most endangered telecommunications policy gains of the past two years. The ALA, ARL and ACRL—with EDUCAUSE and other library and higher education allies—have been on the front lines of this battle with the Federal Communications Commission (FCC), Congress, and the courts for more than a decade. Here’s an update on where we stand, what might come next, and what the library community may do to mobilize.

What’s at stake: Net neutrality is the principle that internet service providers (ISPs) should enable access to all content and applications regardless of the source, and without favoring or blocking particular services or websites. Net neutrality is essential for library and educational institutions to carry out our missions and to ensure protection of freedom of speech, educational achievement, research and economic growth. The Internet has become the pre-eminent platform for learning, collaboration, and interaction among students, faculty, library patrons, local communities, and the world.

In February 2015, the FCC adopted Open Internet rules that provided the strongest network neutrality protections we’ve seen, and which are aligned with library and higher education principles for network neutrality and ongoing direct advocacy with FCC and other allies. The rules:

  • Prohibit blocking or degrading access to legal content, applications, services, and non-harmful devices; as well as banning paid prioritization, or favoring some content over other traffic;
  • Apply network neutrality protections to both fixed and mobile broadband, which the library and higher education coalition advocated for in our most recent filings, as well as (unsuccessfully) in response to the 2010 Open Internet Order
  • Allow for reasonable network management while enhancing transparency rules regarding how ISPs are doing this;
  • Create a general Open Internet standard for future ISP conduct; and
  • Re-classify ISPs as Title II “common carriers.”

As anticipated, the decision was quickly challenged in court and in Congress. A broad coalition of network neutrality advocates successfully stymied Congressional efforts to undermine the FCC’s Open Internet Order, and library organizations filed as amici at the U.S. Appeals Court for the D.C. Circuit. In June 2016, the three-judge panel affirmed the FCC’s rules.

What’s the threat:  During the presidential campaign, and with more specificity since the election, President-elect Donald Trump and members of his transition team, as well as some Republican members of Congress and the FCC, have made rolling back network neutrality protections a priority for action.

Here’s a sample of what we are reading and hearing these days:

“The fate of the agency’s net neutrality rules will be the FCC’s biggest fight of the year.”

“2015 was the year the Federal Communications Commission grew a spine. And 2017 could be the year that spine gets ripped out.”

“Federal Communications Commission member Ajit Pai yesterday vowed to take a ‘weed whacker’ to FCC regulations after President-elect Donald Trump takes office, with net neutrality rules being among the first to be cut down.”

“The caucus recommends undoing the Federal Communications Commission’s 2015 regulation, on the grounds that it did too much in a stroke.”

“Pai and O’Rielly will have a 2-1 Republican majority on the FCC after the departure of Democratic Chairman Tom Wheeler on January 20. Pai previously said that the Title II net neutrality order’s ‘days are numbered’ under Trump, while O’Rielly said he intends to ‘undo harmful policies’ such as the Title II reclassification.”

As in the past, attacks on network neutrality may take many different forms, including new legislation, judicial appeal to the Supreme Court, initiating a new rulemaking and/or lack of enforcement by new FCC leadership, or new efforts by ISPs to skirt the rules.

For instance, there may be an effort by some Members of Congress to craft a “compromise” bill that would prohibit blocking and degradation by statute but reverse the FCC’s decision to classify ISPs as Title II common carriers. We are wary, however, that this so-called compromise may not give the FCC the authority to enforce the statutory rules.

So, now what? As the precise shape of the attacks is still taking form, the library and higher education communities are beginning to connect and engage in planning discussions. We will monitor developments and work with others to mobilize action to ensure Open Internet protections are preserved.

Library advocates can help in several ways:

  • Stay informed via District Dispatch blog (subscribe here) and ARL Policy Notes blog (subscribe here)
  • Sign up for Action Alerts so we can reach you quickly when direct action is needed
  • Share your stories, blog and engage on social networks about the importance of network neutrality and the need to defend it

*Larra Clark is Deputy Director for the ALA Office for Information Technology Policy and Public Library Association. Krista Cox is ARL Director of Public Policy Initiatives. Kara Malenfant is ACRL Senior Strategist for Special Initiatives.

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.