Tag Archives: open internet

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.

 

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.

Net neutrality update: FCC and Congress simultaneously considering new rules

Federal Communications Commission

After last year’s decision by the Court of Appeals for the D.C. Circuit striking down anti-blocking and anti-discrimination provisions in the FCC’s 2010 Open Internet Order, the FCC has been considering new rules to protect net neutrality. Initially, it appeared that the FCC was likely to continue to rely on its authority under Section 706 to protect net neutrality (in the decision rejecting provisions in the FCC’s 2010 Open Internet Order, the D.C. Circuit did uphold the FCC’s broad authority to regulate broadband services). Numerous groups strongly advocated for the FCC to reclassify broadband under Title II rather than relying on Section 706.

Since the FCC’s initial Notice of Proposed Rulemaking, President Obama has come out in favor of reclassification as a means of ensuring net neutrality.

Reports now indicate that Chairman Wheeler will propose reclassification of broadband, allowing the FCC to treat broadband providers as common carriers. Reclassification will enable the FCC to protect the open character of the Internet by strengthening the legal basis for its anti-discrimination and, in particular, its anti-blocking provisions. One of the issues under consideration by the FCC is what provisions under Title II it will chose to “forbear” from or not enforce; many provisions that apply to common carriers may not be applicable to Internet service providers.

There is also a question of whether the FCC’s rules will simultaneously rely on its Section 706 authority. Using Section 706 authority as a backup will help strengthen the net neutrality rules, particularly rules against paid prioritization.

Chairman Wheeler is expected to circulate his proposal to the other commissioners on February 5, with a vote on the rules planned for February 26.

Congress

While the FCC is expected to move forward with its net neutrality rules, Congress appears to be preparing to address this issue, as well. Hearings on net neutrality were held in both the Senate and House of Representatives on January 21.

Prior to these hearings, a discussion draft bill was released on January 16, 2015 and would create a new Title X to the Communications Act to deal specifically with broadband providers, rather than reclassifying broadband providers as a common carrier under Title II or using Section 706 authority.

While the draft bill would ban paid prioritization, there are several concerns regarding the discussion draft.

First, the language in the draft bill could provide considerable discretion to Internet service providers in determining what is “reasonable network management.”

Additionally, the bill includes language that states “nothing in this section . . . prohibits reasonable efforts by a provider of broadband Internet access service to address copyright infringement or other unlawful activity.” These provisions could effectively create loopholes for broadband providers to circumvent bans against blocking or discrimination.

ARL, as a member of the Library Copyright Alliance (LCA), submitted a letter to the Senate Committee on Commerce, Science and Technology and House Committee on Energy and Commerce raising these concerns, noting that “Copyright holders could use this language to essentially enforce their copyrights, even if their claims are misleading or false.”

Another concern with the discussion draft is that the “mass market” definition in the bill does not address libraries and higher education. This was a problem with the FCC’s 2010 Open Internet Order, as well, and in an initial filing by a coalition of library and higher education organizations, including ARL, these groups noted that the definition of “mass market”

needs to be clarified to ensure that the term “other end-user customers” clearly includes institutions of higher education and other institutions that purchase standardized broadband Internet access service. Certainly, institutions of higher education are not “residential customers” or “small businesses.” There is some uncertainty about whether institutions of higher education (and their libraries) are included in the term “schools” because the term is sometimes interpreted as applying only to K-12 schools.

A similar clarification is needed in this draft bill.

ARL and Eleven Other Library and Higher Education Organizations File Reply Comments on Net Neutrality

On Monday, September 15, 2014, twelve library and higher education organizations, including ARL, filed reply comments with the FCC on net neutrality in response to the Notice of Proposed Rulemaking (NPRM) to protect and promote the open Internet. The FCC issued the NPRM following the Court of Appeals for the D.C. Circuit’s January 2014 decision striking down the FCC’s 2010 Open Internet Order’s rules on no-blocking and anti-discrimination . Eleven of these organizations previously filed comments as well as net neutrality principles in July; the reply comments recommend that the FCC adopt the principles and strategies contained in these prior filings. In the reply comments, these groups continue emphasizing the importance of net neutrality in protecting free speech, educational achievement and economic growth. While the initial comments pointed out that the FCC could use its legal authority to reclassify broadband Internet services as a Title II “common carrier” or exercise its Section 706 authority, the reply comments focus on options under Section 706.

The comments point out the importance of the open Internet, also known as net neutrality, so that these institutions can carry out their missions and promote education, research and learning. The twelve organizations ask the FCC to “take special heed” of the importance of net neutrality for library and higher education institutions pointing out:

We are not aware of any commenters who disagreed with the importance of an open Internet for education, research, and learning. In fact, the New America Foundation specifically recognized the importance of an open Internet for schools, libraries and other public institutions.

At the same time, few commenters called attention to these needs, and the NPRM does not focus on these issues as much as it could. As an example, we note that the opening paragraph of the PRM released on May 15, 2014, does not use any of the words “education,” research” or learning.” … Recognizing the important public interest in education, research and learning throughout the FCC’s final order will help the commission orient its net neutrality policy in a way that recognizes these cherished public interest values.

The comments also note the concerns that without net neutrality, paid prioritization may occur as broadband providers would have the incentive and opportunity to divide the Internet into fast lanes and slow lanes based on the ability or willingness to pay for enhanced access. The coalition of library and higher education institutions emphasize that, “If public broadband providers are allowed to prioritize or degrade certain Internet traffic, or discriminate in favor of or against certain content or applications, the future of the Internet as a platform for education, research learning, innovation and free speech will be put in jeopardy.”

Specifically, libraries and higher education institutions depend on the open Internet as they increasingly rely on access to and storage of information remotely, including subscriptions to online-only resources; serve as centers where people complete online education courses; act as partners with the Internet Archive to digitize and make accessible various materials; use the portal developed by the Digital Public Library of America (DPLA) to allow patrons to search and scan resources; and transition to cloud-based productivity application services to support faculty and student access to email, word processing and related applications as well as for administrative and learning management systems.

The comments also suggest that in addressing a no-blocking rule, the FCC could require that when a broadband provider chooses to offer Internet service, that provider must then fulfill the consumer’s decision to interact with his or her chosen edge provider and cannot block such access. This rule focuses on consumer choice, but does not obligate the broadband provider to serve every consumer as the FCC’s 2010 Open Internet Order’s no-blocking rule did. This suggestion provides an alternative path for the FCC than a rule that would require providing a minimum level of service.

Building on the July filing, the reply comments again encourage the FCC to adopt an “Internet reasonable” standard to govern the relationship between broadband providers and edge providers rather than the FCC’s proposed “commercially reasonable” standard. Numerous groups and organizations, such as the Center for Democracy & Technology, Free Press, Public Knowledge, the New America Foundation, the Internet Association, the Communications and Computer Industry Association (CCIA), among others, have opposed the “commercially reasonable” standard because such a standard would likely be ineffective in preserving net neutrality. The reply comments suggest that an “Internet reasonable” standard would provide a more tailored approach that would evaluate impact on the Internet ecosystem. Additionally, the reply comments again propose that the FCC establish clear presumptions, such as against paid prioritization, on conduct that would violate the “Internet reasonable” standard.

Federal Communications Commission (FCC) Issues Notice of Proposed Rulemaking on Open Internet/Net Neutrality

At an Open Meeting held on May 15, 2014, the Federal Communications Commission (FCC) considered the issue of “Protecting and Promoting the Open Internet,” or net neutrality. It voted on a Notice of Proposed Rulemaking (NPRM), which proposes new rules in accordance with the decision of the Court of Appeals for the D.C. Circuit that overturned the FCC’s 2010 Open Internet Rules regarding anti-discrimination and anti-blocking.

As a result of the decision, service providers could allow priority delivery for those willing to pay to promote their content, advancing commercial interests over research library and higher education interests. ARL, together with the American Libraries Association and EDUCAUSE, filed a letter with the FCC on February 13, 2014 advocating for an open Internet and expressing disappointment and concerns with the D.C. Circuit ruling.

An official from the FCC noted that there are currently no legally enforceable rules governing the Internet and the agency seeks to restore rules to ensure that the Internet remains an open platform for communication and growth. Six key elements to the NPR were mentioned:

  1. Maintains the definition and scope of the 2010 rules. The FCC does, however, seek comment regarding whether that scope is still appropriate or whether it should be expanded, for example, to include mobile networks.
  2. Seeks to enhance the transparency rule upheld by the D.C. Circuit.
  3. Intends to institute a no-blocking rule, with clarification on the minimum level of access to broadband subscribers.
  4. For conduct not prohibited by the no-blocking rule, would create a legal rule on commercially reasonable practices. The NPRM seeks comment on whether paid prioritization should be banned outright.
  5. Seeks to implement a multifaceted dispute resolution system, including an ombudsman to act on behalf of consumers and start-ups.
  6. Asks what legal authority provides the most effective path to an open Internet. While the NPRM relies on Section 706 as the source of authority, it seeks comment on whether Section 706 or Title II (or Title III) is most effective.

The sixth point addresses one of the most controversial issues in the wake of the D.C. Circuit’s ruling. Title II reclassification may be the most effective way to ensure that anti-blocking and anti-discrimination rules are permitted. The D.C. Circuit suggested that such rules, particularly with respect to anti-discrimination, looked like “common carrier” rules that are only permitted under Title II. Commissioner Wheeler previously stated his preference to continue under Section 706 authority, while making clear that all options remained on the table.

After the general overview of the NPRM, each commissioner made a statement.

Commissioner Clyburn

Commissioner Clyburn stated her belief that all content should be treated equally and that small startups should have equal footing as large entities. She said that without the open Internet, providers would be free to block or discriminate, noting that as a result of the D.C. Circuit’s ruling, no enforceable rules remain.

Clyburn mentioned specific calls and letters that she received from the public regarding the issue of net neutrality, including concerns from educators. She noted that many comments expressed concerns that the lack of enforceable rules to ensure an open Internet would lead to a stifling of free speech.

Clyburn noted that in Europe, which has not had the same protections, content has been degraded and apps have been blocked. She noted that even in the U.S., apps are blocked by wireless providers.

Finally, Clyburn stated that she had significant concerns about Chairman Wheeler’s initial proposal, but that proposal changed significantly over the past several weeks and included some of the changes that she requested.

Commissioner Rosenworcel

Commissioner Rosenworcel stated that she supported an open Internet, but that she would have handled the process differently. She expressed her opinion that the current process moved too quickly and the FCC should have taken more time to better understand the Internet and seek public input.

Rosenworcel praised the Internet economy in the U.S., calling it the “envy of the world.” She also said that the Internet was the most dynamic platform for free speech ever created and that it promotes our essential values.

Rosenworcel called for the FCC to ensure that going forward, new rules honor transparency, do not allow blocking, and do not permit unreasonable discrimination. She specifically advocated against a two-tiered system, saying that dividing the Internet into fast lanes and slow lanes was unacceptable.

She also spoke positively of the Chairman’s changes to the proposal, including seeking comments to expand the scope of the rules and keeping all options on the table, including Title II reclassification.

Commissioner Pai

Commissioner Pai argued that the FCC was not the appropriate venue for creating rules to govern the Internet, stating that we should be wary of five unelected officials deciding the fate of the Internet. Instead, Pai recommended that the FCC should seek guidance from Congress on this issue. He stated that this issue should be decided by elected representatives who are held accountable by the public, expressing his disappointment that the FCC did not turn the issue over to Congress.

Pai noted that there is bipartisan consensus in favor of a free and open Internet and he is committed to protecting the “four Internet freedoms” of freedom to: access to lawful content, use applications, attach personal devices to their connections, and obtain service plan information.

He argued against Title II reclassification, stating that he agreed with President Clinton that it was inappropriate and would not allow growth of the Internet. Pai also stated that the Internet must be free from government control, asking if we want “smart networks or dumb pipes.”

Pai agreed with Commissioner Rosenworcel that the process was rushed and advocated for a better process moving forward. He said that any rules should be based on sound economics and engineering. Pai suggested that the FCC should ask ten distinguished economists, with each commissioner selecting two, to conduct studies regarding the Internet and growth, and that these studies should then be peer-reviewed and subject to a series of hearings. He also suggested that the FCC should also engage with computer scientists and technologists whose studies should similarly be subjected to peer-review and hearings.

Commissioner O’Rielly

Commissioner O’Rielly stated that the NPRM was based on a “faulty foundation” and “make-believe statutory authority,” arguing heavily against the reliance on Section 706. He suggested that, despite the D.C. Circuit’s ruling, Congress never intended Section 706 to be an affirmative grant of authority and that the language actually supports deregulation.

O’Rielly called the proposal “absurd” and stated that reclassification under Title II would bring back the monopoly era telephone rules to impose “defective” net neutrality rules. He said that Title II represented arcane provisions and an inappropriate framework. He also said that he worried about the credibility of an agency that appeared to be open to such obsolete rules.

O’Rielly questioned the evidence of any specific market failure that needed to be addressed. He said that some have pointed to bad conduct outside of the U.S., but have not shown how it has harmed actions in the U.S.

He also asserted that prioritization is important and even the strongest supporters of net neutrality concede that we must prioritize voice over e-mail and have reasonable network management.

O’Rielly argued that the proposal was not narrowly tailored, would stifle innovation and provide no help to consumers.

Chairman Wheeler

Chairman Wheeler concluded with a statement of his own, asserting from the outset that the FCC supports an open Internet. He said that there is only one Internet, and that it is not a fast Internet or a slow one, but rather, a single Internet.

Wheeler pointed to the D.C. Circuit’s opinion, which observed that there was “little dispute” that broadband providers can distinguish and discriminate. He pointed to examples of abuses from individual cases, including mobile services denying apps.

Wheeler stated that the NPRM starts an important process. He said that it begins with the simple and obvious premise that protecting an open Internet is important for consumers and economic growth. He emphasized that what we are dealing with today is a proposal and not a final rule.

Addressing criticisms of the proposal, he stated that nothing in the proposal would authorize paid prioritization and expressed his displeasure over the idea of having fast lanes which would break the Internet down into haves and have-nots. He noted that the NPRM asks whether and how to prevent paid prioritization.

Wheeler emphasized that the Internet needs to maintain a level playing field to allow for new ideas, small companies and startups to flourish. He said that the prospect of a gatekeeper on the Internet, which chooses winners and losers is unacceptable.

Wheeler stated that it would be commercially unreasonable for a broadband provider to not provide for the contracted pathway. Giving specific examples, he noted that it would not be commercially reasonable if a slower speed than the one the consumer purchased is provided, if a provider blocks content, or if the provider requires the consumer to pay for bandwidth that has already paid for. He said that consumers must have full connectivity.

Wheeler also highlighted two specific aspects of the NPRM, which include an enhanced transparency rule and the creation of an ombudsperson for those that cannot afford a lawyer.

Wheeler explained that he intended to use Section 706 authority because this authority was upheld by the D.C. Circuit and he believed that it provided a quicker roadmap to get rules in place. He noted, however, that it is just one of two primary avenues to reach the goal of preserving an open Internet and that the FCC was also seeking input on Title II reclassification. He concluded that he was looking forward to receiving public feedback and the issue is not about whether the Internet must be open, but rather, about how and when we will have these rules.

Conclusion

The NPRM passed by a vote of 3-2. Chairman Wheeler and Commissioner Clyburn voted in favor of the Notice of Proposed Rulemaking. Commissioner Rosenworcel concurred. Commissioners Pai and O’Rielly dissented.

Comments from the public are due on July 15, 2014.

The FCC press release on this NPRM is available here.