About eight months and 4 million comments after the Federal Communications Commission (FCC) launched the Notice of Proposed Rulemaking on preserving and protecting the Open Internet, a decision could come as soon as the December 11th FCC open meeting.
The American Library Association (ALA) and a host of higher education and library colleagues have been engaged in this conversation throughout, and yesterday added more detail to what we propose as an “internet-reasonable” standard for network neutrality protections.
We developed the “internet reasonable” approach to provide much stronger protections to preserve the openness of the Internet than the FCC’s original proposal (“commercially reasonable”). This proposal obviously isn’t a good fit for non-commercial entities like libraries and other educational institutions. Most public interest groups shared our deep concern that this approach would fail to preserve the open platform that has defined the internet from its inception. (And, to its credit, it sounds like the FCC is seriously considering alternative approaches.)
So, we asked: What would preserve an internet originally built to serve research and learning and now a vital engine of innovation, education, engagement and empowerment? How could the FCC best support our principles of network neutrality, including prohibiting blocking content and paid prioritization, protecting against unreasonable discrimination and providing transparency? Fundamentally, once an internet subscriber pays for service, the subscriber should be able to access the content of their choosing and communicate without interference from the internet service provider (ISP).
We envision an “internet reasonable” standard that would establish a mix of bright line rules, rebuttable presumptions (where the burden is on the internet service provider to demonstrate how any action in opposition to the presumption would be in the public interest) and some areas of discretion for the FCC to consider as the market changes.
Adopting an “internet reasonable” standard is a strong, enforceable policy approach to protecting the openness of the internet, regardless of whether the FCC adopts a legal approach under Title II reclassification, under Section 706, or some combination thereof. As ALA and others stated in our original comments in this proceeding, Title II and Section 706 could each provide a viable legal path for protecting the openness of the internet.
The filing also touches on recent news that the FCC is strongly considering a “hybrid” approach to its new rules. The Verizon v. FCC decision in January 2014 opened the door to this train of thought by suggesting that the service provided by ISPs to edge providers could be regulated differently than the service provided by ISPs to consumers. Mozilla and Tim Wu/Tejas Narechania (of Columbia Law School) have proposed that the service provided to edge providers should be regulated under Title II, allowing the FCC to regulate ISPs’ relationship with consumers under a different regulatory regime.
We’re not quite sure how this hybrid would work–particularly for organizations like libraries that are both consumers and creators. The prospect of applying two different legal regimes over different components of internet access seems confusing and impractical, at the least. We need more details and plan to meet with FCC staff and commissioners to better understand how this might work in practice.
But I’m willing to hear them out. In a world where the “art of the possible” seems harder and harder to achieve, I don’t want to miss a path forward that might achieve our goal of developing strong, legally enforceable rules that keep the internet open and free for creation, free speech and inquiry, research and learning for all.
Unfortunately, with so many perspectives and so much at stake, it’s likely that whatever path the FCC takes, a legal challenge will follow (as has been true twice before). We may reach a stopping point before the end of the year, but not an end to this complex and critically important issue. As always, stay tuned.
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