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.
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.