Co-authored by Larra Clark and Kevin Maher
Library groups are again stepping to the front lines in the battle to preserve an open internet. The American Library Association (ALA), Association of College and Research Libraries (ACRL), Association for Research Libraries (ARL) and the Chief Officers of State Library Agencies (COSLA) have requested the right to file an amici curiae brief supporting the respondent in the case of United States Telecom Association (USTA) v. Federal Communications Commission (FCC) and United States of America. The brief would be filed in the US Court of Appeals for the District of Columbia Circuit—which also has decided two previous network neutrality legal challenges. ALA also is opposing efforts by Congressional Appropriators to defund FCC rules.
Legal brief to buttress FCC rules, highlight library values
The amici request builds on library and higher education advocacy throughout the last year supporting the development of strong, enforceable open internet rules by the FCC. As library groups, we decided to pursue our own separate legal brief to best support and buttress the FCC’s strong protections, complement the filings of other network neutrality advocates, and maintain the visibility for the specific concerns of the library community. Each of the amici parties will have quite limited space to make its arguments (likely 4,000-4,500 words), so particular library concerns (rather than broad shared concerns related to free expression, for instance) are unlikely to be addressed by other filers and demand a separate voice. The FCC also adopted in its Order a standard that library and higher education groups specifically and particularly brought forward—a standard for future conduct that reflects the dynamic nature of the internet and internet innovation to extend protections against questionable practices on a case-by-case basis.
Based on conversations with FCC general counsel and lawyers with aligned advocates, we plan to focus our brief on supporting the future conduct standard (formally referenced starting on paragraph 133 in the Order as “no unreasonable interference or unreasonable disadvantage standard for internet conduct”) and why it is important to our community, re-emphasize the negative impact of paid prioritization for our community and our users if the bright-line rules adopted by the FCC are not sustained, and ultimately make our arguments through the lens of the library mission and promoting our research and learning activities.
As the library group motion states, we argue that FCC rules are “necessary to protect the mission and values of libraries and their patrons, particularly with respect to the rules prohibiting paid prioritization.” Also, the FCC’s general conduct standard is “an important tool in ensuring the open character of the Internet is preserved, allowing the Internet to continue to operate as a democratic platform for research, learning and the sharing of information.”
USTA and amici opposed to FCC rules filed their briefs July 30, and the FCC filing is due September 16. Briefs supporting the FCC must be filed by September 21.
Congress threatens to defund FCC rules
ALA also is working to oppose Republican moves to insert defunding language in appropriations bills that could effectively block the FCC from implementing its net neutrality order. Under language included in both the House and Senate versions of the Financial Services and General Government Appropriations Bill, the FCC would be prohibited from spending any funds towards implementing or enforcing its net neutrality rules during FY2016 until specified legal cases and appeals (see above!) are resolved. ALA staff and counsel have been meeting with Congressional leaders to oppose these measures.
The Obama Administration criticized the defunding move in a letter from Office of Management and Budget (OMB) Director Shaun Donovan stating, “The inclusion of these provisions threatens to undermine an orderly appropriations process.” While not explicitly threatening a Presidential veto, the letter raises concern with appropriators attempts at “delaying or preventing implementation of the FCC’s net neutrality order, which creates a level playing field for innovation and provides important consumer protections on broadband service…”
Neither the House or Senate versions of the funding measure has received floor consideration. The appropriations process faces a bumpy road in the coming weeks as House and Senate leaders seek to iron out differing funding approaches and thorny policy issues before the October 1 start of the new fiscal year. Congress will likely need to pass a short-term continuing resolution to keep the government open while discussions continue. House and Senate Republican leaders have indicated they will work to avoid a government shut-down. Stay tuned!
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