Higher Ed/Library Views Impact Final Net Neutrality Order

min read

The FCC recently posted the full text of the network neutrality order it passed in late February. (Please see “FCC Votes to Restore Strong Net Neutrality Protections.”) An outline released after the vote highlighted the “no blocking, no throttling, no paid prioritization” rules that the order would impose. While those align with the views of the higher education/libraries coalition in which EDUCAUSE serves as a core member, the coalition looked forward to seeing if the order would address the other concerns it raised. And the order does.

Throughout the rule-making process, the coalition stressed that the FCC should explicitly confirm its stance on not regulating private networks, such as those operated by higher education institutions, libraries, and related organizations. With the following, the FCC clearly met that request: “We again decline to apply the open Internet rules to premises operators — such as coffee shops, bookstores, airlines, private end-user networks (e.g. libraries and universities),…” (p. 85)

The coalition also asked the FCC to clarify that the “schools and libraries” reference in its definition of “mass-market” retail broadband access services covers colleges and universities if and when they purchase such services. The FCC had essentially interpreted the reference that way since establishing the definition in its 2010 Open Internet Order, but the current order now makes it explicit:

We continue to define ‘mass market’ as ‘a service marketed and sold on a standardized basis to residential customers, small businesses, and other end-user customers such as schools and libraries.’ …To the extent that institutions of higher learning purchase mass market services, those institutions would be included within the scope of the schools and libraries portion of our definition.(pp. 83-84)

(On the other hand, the FCC notably excludes enterprise and special access services from the definition, and thus from regulation under the order, which addresses concerns raised by some in the higher education network community.)

In addition, the FCC had proposed initially to establish an ombudsman to serve as a point of contact for consumers, start-ups, and small businesses seeking to resolve network neutrality questions or complaints. The higher education/libraries coalition argued, though, that the ombudsperson should be tasked with helping libraries and higher education institutions with such issues as well, given the limited resources with which they must often serve broad stakeholder populations. In the final order, the FCC broadened the scope of the ombudsperson function to assisting “consumers, businesses, and organizations with open Internet complaints and questions by ensuring these parties have effective access to the Commission’s processes that protect their interests.” (p. 114)

Finally, in establishing its “no blocking, no throttling, no paid prioritization” rules, the FCC also defined a standard of conduct with which to assess commercial ISP practices in the future and prevent those that might harm network neutrality:

The three bright-line rules that we adopt today prohibit specific conduct that harms the open Internet…. However, while these three bright-line rules comprise a critical cornerstone in protecting and promoting the open Internet, we believe that there may exist other current or future practices that cause the type of harms our rules are intended to address. For that reason, we adopt a rule setting forth a no-unreasonable interference/disadvantage standard, under which the Commission can prohibit, on a case-by-case basis, practices that unreasonably interfere with or unreasonably disadvantage the ability of consumers to reach the Internet content, services, and applications of their choosing or of edge providers to access consumers using the Internet. (p. 59)

In discussing this standard, the order makes clear that the higher education/libraries comments about a possible “Internet reasonable” standard significantly influenced the FCC’s thinking: “We adopt this standard to prohibit practices in the broadband Internet access provider’s network that harm Internet openness, similar to the approach proposed by the Higher Education coalition and the Center for Democracy and Technology” (with the footnote for this comment tying it specifically to the coalition’s “Internet reasonable” standard). (p. 60)

Altogether, the order references our coalition’s ideas and proposals nearly twenty times, indicating the extent to which the higher education and library communities helped to inform this landmark work. Whether the FCC’s action withstands subsequent legal and legislative challenges remains to be seen. EDUCAUSE will continue to work with other associations as necessary, though, to ensure that our members’ vital interests are appropriately reflected as the network neutrality debate continues.

Jarret Cummings is director of policy and government relations at EDUCAUSE.