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Net neutrality battle continues in new venues

Tom Wheeler. Photo by Adweek.
Tom Wheeler. Photo by Adweek.

In the month since the Federal Communications Commission (FCC) voted to approve an Order to Protect and Promote the Open Internet, the American Library Association (ALA) and its allies have been wading into the details published by the Commission March 12 to better understand the implications for libraries and higher education. It’s also been a busy time with Congressional hearings and the first lawsuits filed, so an update is in order.

As coalition partner EDUCAUSE notes in a recent blog, the new Order references our coalition’s ideas and proposals nearly 20 times, indicating the impact and value of our engagement in this far-reaching proceeding.

First, and most importantly, the new “bright line” rules adopted protect against internet service providers (ISPs) blocking, degrading or prioritizing legal internet traffic align with the key concerns of the library and higher education coalition, as we wrote earlier. These rules apply to both mobile and fixed broadband, which our coalition has consistently advocated for since 2009. The Commission also strengthened transparency requirements to include the duty to disclose prices and fees, as well as network performance and practices.

The Commission also laid out a standard for future conduct to address concerns that may arise with new technologies and practices. The Order establishes that ISPs cannot “unreasonably interfere with or unreasonably disadvantage” the ability of consumers to select the online content and services they want and the ability of content providers to reach these consumers. Here again, the FCC cites the higher education and library comments proposing an “internet reasonable” standard that would protect the unique and open character of the Internet.

Our coalition also sought to ensure libraries and educational institutions are again explicitly included in network neutrality protections and to differentiate between public broadband internet access and private networks. The Commission explicitly affirmed both of these points.

Finally, ALA raised concerns about how forbearance from some Title II regulations might impact Universal Service Fund (USF) programs like the E-rate program. We are pleased the Commission recognized that “Even prior to the classification of broadband Internet access service adopted here, the Commission already supported broadband services to schools, libraries, and health care providers and supported broadband-capable networks in high-cost areas.” As a result, the FCC determined that broadband Internet access services would be subject to Section 254 USF protections, but not immediately required to provide USF contributions. It is expected that the contribution question will be addressed in a separate FCC proceeding. The Order also preempts any state from imposing any new state USF contributions on broadband at this time.

Congress has been busy on the network neutrality front, as well. Over the last two weeks Congress has held a series of hearings—including directly questioning FCC Chairman Tom Wheeler and fellow FCC Commissioners—that concluded in the House Judiciary Committee last week. While these hearings were contentious—and, at times, contentious among the commissioners themselves—it’s fair to say no major shift in policy by the commissioners was detected nor were minds changed in Congress.

ALA joined (pdf) 137 other groups and companies in a letter thanking Chairman Wheeler, Commissioner Mignon Clyburn and Commissioner Jessica Rosenworcel for their leadership in protecting the Open Internet. It was read into the record at the March 17 House Oversight hearing by Congresswoman Eleanor Holmes Norton (D-DC).

Senate Commerce Committee Chairman John Thune (R-SD) and House Energy and Commerce Committee Chairman Fred Upton (R-MI) introduced legislation earlier this year that would codify some network neutrality protections while also undermining FCC authority to regulate broadband internet access. Together these two elements leave a gulf between Democrats and Republicans in finding a legislative solution that would truly protect network neutrality and potentially forestall years of litigation. A bipartisan (and non-binding) budget amendment expressing support for network neutrality rules did manage to clear the Senate last Friday, perhaps signaling room for compromise. Republicans are apparently targeting Senator Bill Nelson (D-FL), who has indicated openness to discussions but is unwilling to accept language that would usurp FCC authority and oversight powers, for a compromise deal.

As of March 31st, the FCC Order had not yet been published in the Federal Register, which begins the true “shot clock” for Congressional and legal action on the Order. Trade association US Telecom (which includes AT&T, Verizon, Frontier and CenturyLink among its members) and Alamo Broadband couldn’t wait that long—filing suit in two different appeals courts on March 23. Using language all of us are likely to hear a lot more about, US Telecom argues (pdf) the FCC decision is “arbitrary, capricious, and an abuse of discretion.” FCC lawyers have argued the suits were filed prematurely and should be rejected.

Expect more drama but likely little immediate resolution. Carrying our message to Capitol Hill about why network neutrality is so vital for libraries and all of our users will be essential. I hope many of you will join with us on National Library Legislative Day to amplify our voice and impact.

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Larra Clark

Larra Clark is the deputy director of both the Public Library Association and Washington Office’s public policy team. Larra received her bachelor's degree in interdisciplinary studies from the University of Arizona and has a M.S. in Library and Information Science from the University of Illinois, Urbana-Champaign.


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