On July 18, 2014, ARL, together with ten other library and higher education groups filed comments with the FCC on net neutrality. These comments largely expand on the points made in the Net Neutrality Principles jointly filed by library and higher education groups on July 10, 2014, going into greater detail and making specific suggestions to strengthen the proposals made in the FCC’s Notice of Proposed Rulemaking.
Importance of Net Neutrality for Libraries and Higher Education
The comments point out that library and higher education organizations depend on the open Internet, or net neutrality, to carry out their missions and ensure the protection of freedom of speech, education achievement and economic growth. It notes that the essential character of the Internet is an open platform, promoting “the open exchange of information, intellectual discourse, research, free speech, technological creativity, innovation and learning.” The comments recommend that the FCC’s final order recognize the value of net neutrality for education, research and freedom of speech.
Specifically, the comments note that public libraries provide Internet access to their patrons, a particularly necessary service for the approximately one-third of the population that do not have broadband access at home but rely on such access for homework assignments, to locate e-government services, find health information, apply for jobs, share digital content and other activities. Higher education institutions make Internet access available to their students, faculty, researchers and administration. Many students today are also involved in distance learning—including MOOCs—or hybrid courses and therefore depend on the availability of high-bandwidth Internet access. Degradation of Internet transmission speeds would detrimentally impact these populations and activities.
The comments also provide seven specific examples of projects and services by libraries and higher education institutions that provide important access to information and culture but depend on net neutrality to disseminate. Three of these examples include:
- The National Library of Medicine (NLM), the world’s largest medical library, provides a vast amount of information-based services, ranging from video tutorials to downloads of large genomic datasets. NLM provides valuable information and data to the public amounting to trillions of bytes each day disseminated to millions of users. Without rules to protect the open Internet, NLM’s ability to provide access to this important information would be jeopardized.
- Columbia University created the 9/11 Oral History Project, focusing on the aftermath of the destruction of the World Trade Center. The Project includes over 900 recorded hours on digital media. More than half of the collection is open and available to the public, and the entire archive will eventually be available for study and research. This content is currently used in New York City K-12 public schools.
- After receiving over 2,500 boxes of records and documents and 12,000 promotional photographs from the New York World’s Fair of 1939 and 1940, the New York Public Library (NYPL) digitized the content and makes it available online. It provided the material in a free app that was later named one of Apple’s “Top Education Apps” of 2011 and is used in New York City K-12 public schools.
Specific Proposals to Strengthen the Proposed Rules
The joint comments lay out several specific proposals to strengthen those proposed rules published in the FCC’s NPRM. The FCC could strengthen the rules and address the concerns of libraries and higher education by:
- Clarifying the definition of end-user customers to ensure that libraries, institutions of higher education and other public interest organizations are covered.
- Prohibiting paid prioritization, which would divide the Internet into “fast lanes” and “slow lanes.” The comments note that libraries and institutions of higher education may not be able to afford the additional fees to use the “fast lanes.”
- Clearly stating that the FCC’s net neutrality rules apply to public broadband providers and not to private networks, such as those provided by many colleges and universities (which provide private end user networks that are not available to the general public), or end users.
- Applying the rules in a technology-neutral manner applicable equally to fixed and mobile services. Internet users are increasingly dependent on mobile devices, and often switch between fixed and mobile services.
- Clarifying disclosure rules to ensure that information regarding data caps and bandwidth speeds are displayed prominently and clearly to consumers and edge providers.
- Establishing a firm “no blocking” rule to bar providers from interfering with the consumer’s choice of content, application or services. The comments express concerns with the FCC’s proposal to include a definition of a “minimum level of access” or “minimum level of service,” and instead recommends that a no-blocking rule prohibit a provider from blocking access to any lawful website, application or service chosen by the end user, subject to reasonable network management. This rule is governed by the choice made by the end user and therefore would not implicate concerns regarding broadband providers being regulated as common carriers.
- Authorizing the proposed enforcement ombudsperson “watchdog” to advocate for the interests of libraries, colleges and universities, in addition to consumers, start-ups and small businesses.
Legal Basis for the FCC’s Actions
The comments clearly note that if the FCC reclassifies broadband Internet service as a Title II “common carrier” service, it would provide valuable certainty in the market place and ensure that the goal of prohibiting discrimination. However, if the FCC chooses not to reclassify and use its Title II authority, it may act under its Section 706 authority.
The comments recommend, however, that should the FCC exercise its Section 706 authority rather than choosing to reclassify broadband Internet services, the agency should use an “Internet reasonable” standard rather than a “commercially reasonable” standard because “a ‘commercially reasonable’ approach could be interpreted to allow any broadband and edge provider to reach a contract to provide “paid prioritization”. If the two companies reach an agreement that they mutually believe to be in their commercial interests, it might be found “commercially reasonable” even if it has the effect of degrading the Internet service used by other parties (such as higher education institutions and libraries) sharing the same network.”
The comments note that an “Internet reasonable” standard would recognize the Internet’s unique character and propose four rebuttable presumptions that the FCC could use to evaluate the reasonableness of an Internet provider’s actions. The following four activities should be considered presumptively unreasonable: 1) requiring approval to carry lawful content, applications or services; 2) allowing paid prioritization; 3) undermining the open architecture of the Internet; and 4) degrading the level of service provided and discouraging investment in greater bandwidth to a non-prioritized party.