FCC to Eliminate Net Neutrality Rules

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(November 21, 2017 – Jarret Cummings) The following message was sent to the EDUCAUSE CIO Listserv earlier today. It discusses the pending release of a new order by the Federal Communications Commission (FCC) that would eliminate the existing net neutrality rules without putting any effective protections in their place. As noted in our higher education/research libraries comments and reply comments from earlier this year, such an action will likely have a significant, negative impact on colleges, universities, and libraries, as well as the Internet as a whole.

Dear EDUCAUSE Members:

A news report began circulating late last night that Federal Communications Commission (FCC) Chairman Ajit Pai and his fellow commissioners in the majority plan to move forward at the FCC's Dec. 14th meeting with an order eliminating the current net neutrality rules. (https://www.politico.com/story/2017/11/20/net-neutrality-repeal-fcc-251824)

Instead of actual net neutrality protections, the report noted that the FCC would only require commercial ISPs to make public any blocking or throttling practices in which they engage, with the idea that competitive pressures would limit such practices. In essence, the FCC majority assumes that broadband consumers will abandon or avoid providers known to engage in blocking or throttling, and thus ISPs will not engage in those activities. No mention was made of transparency requirements for paid prioritization practices that could drastically distort the Internet moving forward. The only protection against the anti-competitive effects of such prioritization practices would then be anti-trust enforcement by the Federal Trade Commission.

As our higher education/research libraries coalition highlighted in its FCC comments this August, however, the FCC majority's position is based on a fallacy that sufficient competition exists in most markets to allow broadband consumers a real, competitive choice of provider. The FCC's own data shows this not to be the case. Likewise, the majority is apparently prepared to ignore the realities of anti-trust enforcement, where cases often take several years and tens of millions of dollars to resolve. As we discussed in our filing, the harms to consumers and other stakeholders, such as colleges, universities, and libraries, not to mention to the Internet as a whole, would be fully entrenched long before an anti-trust case could be favorably settled. (https://er.educause.edu/blogs/2017/9/higher-ed-reply-comments-bolster-net-neutrality-support)

Chairman Pai has since released a statement essentially confirming the details of that report. (https://apps.fcc.gov/edocs_public/attachmatch/DOC-347868A1.pdf) The order itself will not be available to the public until tomorrow. Once it is available, our coalition will begin reviewing it in detail and preparing next steps. Those will likely emphasize informing potential legislative and legal efforts to reestablish net neutrality protections, however. Despite our best efforts, the current majority seems intent on ignoring the FCC's authority to set viable rules even under the legal standard the majority prefers. We will now have to see if the courts and/or Congress will address the significant threat to the Internet that the pending FCC action poses.

Jarret Cummings
Director of Policy and Government Relations

Jarret Cummings is the Director of Policy and Government Relations for EDUCAUSE.