(UPDATE, 03/19/15: Please see "Higher Ed/Library Views Impact Final Net Neutrality Order" for information on how higher education/library concerns mentioned below are addressed in the full text of the FCC's 2015 Open Internet Order, which was released roughly two weeks after this post.)
As expected, the Federal Communications Commission (FCC) approved a new Open Internet Order last week on a 3-2 vote, with all Democratic Commissioners voting in favor and both Republicans opposed. The Order establishes network neutrality rules that will keep the major retail broadband providers from pursuing practices that would seriously disadvantage higher education online. The major providers, however, will work to overturn the FCC’s action in Congress and the courts.
The new Order replaces the Commission’s 2010 Open Internet Order, which a federal appeals court largely overturned early last year. The FCC has yet to post the current Order’s full text, so some details of specific importance to our higher education/libraries coalition are not yet known. (See our comments and reply comments for the coalition’s participating organizations and key proposals.) The Commission released an outline of the Order’s major provisions, though, giving assurance that it has adopted strong network neutrality rules consistent with our coalition’s positions. (Please see also the public statements from key coalition partners, the Association of Research Libraries and the American Library Association.)
In particular, the rules will prevent “mass-market broadband Internet access service providers” (i.e., commercial ISPs like Comcast and Verizon) from blocking their customers’ access to lawful content, applications, services, and “non-harmful devices.” (This latter reference is particularly relevant to mobile broadband networks, which will be covered by the rules on an equal basis with fixed broadband access for the first time.) The rules will also prevent commercial ISPs from throttling transmission speeds “on the basis of content, applications, services, or non-harmful devices” — ISPs will be able to adjust speeds for “reasonable network management purposes,” taking into account the relevant connection technology, but not for commercial reasons. And they will ban paid prioritization — the practice of granting enhanced transmission speeds to traffic from content or service providers for a fee.
These rules — no blocking, no throttling, no paid prioritization — ensure that higher education will continue to have a level playing field online. For example, they will keep commercial ISPs from charging colleges and universities to ensure effective home and mobile access to their online learning courses and resources. They will also keep ISPs from prioritizing delivery of content from streaming movie and online gaming services at the expense of higher education content. Finally, they will preclude ISPs from implementing blocking, throttling, or pricing practices to give competitive advantage to subsidiary or affiliated sites, which could be increasingly significant as the importance of online learning continues to grow.
What the Open Internet Order will not do is equally as important. Based on the FCC’s public statements to date, it does not appear that the FCC’s net neutrality rules will apply to private networks, such as those operated by colleges, universities, and related organizations. And while the Order reclassifies retail broadband Internet access as a Title II common carrier service, the FCC is forbearing from applying most Title II provisions. This means, for example, that the Order avoids imposing Universal Service Fund taxation. (The FCC carefully notes, though, that it is considering USF taxation of retail broadband access services via a separate regulatory process already underway.) The Order also cites the recently reauthorized Internet Tax Freedom Act as exempting retail broadband access service from state and local taxes.
The outline of the Order does not indicate whether it will cover other library and higher education issues. These include clarification of the rules’ application to retail broadband services that colleges, universities, and libraries may purchase and the expansion of the proposed network neutrality ombudsman’s charge to encompass the interests of libraries and higher education. Once the FCC releases the full Order, EDUCAUSE will assess the extent to which it addresses the range of concerns raised by the coalition and engage with the FCC on any deficits as appropriate.
In many ways, the FCC’s ruling is just the end of the beginning in network neutrality’s latest chapter. The next stage will involve cable and telecommunications industry efforts to overturn the FCC’s rules, which EDUCAUSE will continue to monitor. House and Senate Republicans have drafted a bill to supersede FCC action. It would ban paid prioritization but take away the FCC’s authority to regulate broadband. It seems unlikely, though, to survive a presidential veto. That leaves industry hopes pinned to an almost-certain effort to once again overturn the FCC’s network neutrality rules in court. Any legal proceeding, however, will take a year or more (and probably much more) to produce a ruling, whether for or against the FCC. In the meantime, even if the court imposes a temporary injunction blocking the FCC from implementing its rules while the case is being heard, commercial ISPs will probably adhere to the core elements of the Order to avoid tipping the scales against them in court.
Thus, the FCC’s action represents a major milestone in the development of network neutrality, but the process is far from over. EDUCAUSE will maintain its approach of working with other major higher education and library groups to monitor network neutrality’s next steps and ensure that our members’ interests in preserving network neutrality are well-represented.
Jarret Cummings is director of policy and government relations at EDUCAUSE.