EDUCAUSE, Higher Ed Support Net Neutrality

(July 19, 2017 – Jarret Cummings) EDUCAUSE joined several other higher education leadership associations in submitting comments to the Federal Communications Commission regarding its 2017 notice of proposed rule-making (NPRM) on network neutrality, “Restoring Internet Freedom” (WC Docket No. 17-108). In our comments, the groups (listed below) urge the FCC to retain the existing net neutrality rules established in 2015, including the legal classification of retail broadband Internet service on which they are based. We also argue, however, that abandoning the legal basis for the current rules, should the FCC choose to do so, does not mean that the Commission lacks the legal authority necessary to maintain strong, enforceable net neutrality protections. Rather, we show how the Commission can — and should — use other legal authority available to it to sustain net neutrality regulations essential to the missions of higher education institutions, libraries, and other organizations that serve the public interest.

In the NPRM, the current FCC majority, led by FCC Chairman Ajit Pai, argues in favor of returning the classification of retail broadband Internet service to what it was before the FCC’s 2015 Open Internet Order moved retail broadband under Title II of the Communications Act. The 2015 reclassification of broadband as a Title II telecommunications service provided the FCC with a firm legal basis on which to establish strong, enforceable network neutrality rules, such as “no blocking,” “no throttling,” and “no paid prioritization,” as well as a general conduct standard to use in protecting against possible anti-net neutrality steps by Internet service providers (ISPs) in the future. (Please see the Policy Spotlight post on the 2015 rules for more information.)

Returning retail broadband to an “information services” designation under Title I of the Act, as advocated in the NPRM, would vacate the current rules. Thus, the NPRM also raises a number of questions about the need for the Commission to reconstitute net neutrality rules and the legal basis on which it might do so. For example, while expressing support for “no blocking” and “no throttling,” the NPRM asks whether rules prohibiting those practices are still actually necessary, given general acceptance by ISPs of the “no blocking” and “no throttling” concepts.

EDUCAUSE and its higher education partners responded to these questions by noting that ISPs continue to have significant financial incentives for pursuing anti-net neutrality practices. This is particularly the case, we argued, in the context of paid prioritization and the possible development of similar “business model innovations” that ISPs might implement to leverage their control over their subscribers’ broadband access to generate additional revenue. In the absence of rules preventing such behavior, higher education institutions, libraries, and other public interest entities face a future in which they will either have to pay to ensure effective, appropriate end-user access to their online resources and services or risk seeing such access degraded to the point that it severely undermines the educational, research, and service objectives their online offerings were intended to fulfill.

With this in mind, higher education groups stressed that the basis on which the 2015 order and its associated net neutrality rules were established remains in place, and thus the order and the current rules should remain in place. We equally emphasized, however, that Section 706 of the Telecommunications Act provides the FCC with all of the legal authority necessary to reestablish strong, enforceable network neutrality rules should the Commission decide (we think inappropriately) to reclassify retail broadband services out from under Title II of the Communications Act.

Drawing on points EDUCAUSE and its higher education and library partners first made in the 2014-15 net neutrality rule-making, our current comments stress that the value of net neutrality to the continuous advancement of broadband deployment makes establishing and sustaining rules to protect net neutrality a significant national priority. Since the Telecommunications Act gives responsibility for achieving progress in national broadband deployment to the FCC, it therefore provides a legal basis on which the FCC can set net neutrality rules necessary for meeting this responsibility. Given the nature of the authority the Telecommunications Act provides in this respect, we argue that the Commission should adopt net neutrality rules under Section 706 as “rebuttable presumptions.” This would mean that the FCC would presume behavior contrary to the rules negatively impacts net neutrality, and would thus be unallowable, unless an ISP could overcome the relevant presumptions by demonstrating its proposed action otherwise serves the public interest.

The FCC majority has stressed its support for the concept of net neutrality, but predicated its current position on the supposed negative effects of trying to achieve it via Title II. Our higher education coalition therefore hopes the Commission will see the wisdom of our position and adopt strong net neutrality protections under Section 706 if it vacates the existing Title II-based rules. EDUCAUSE and its partners will look to further clarify and advance our position in the next round of comments, which are due August 16. Those comments will provide higher education groups with the opportunity to respond to arguments that attempt to undermine the efficacy of Section 706 as the basis for appropriate, effective network neutrality regulations.

Should the FCC ultimately forge ahead without maintaining the current rules or exercising its 706 authority to establish new ones, public advocacy organizations will almost certainly seek to overturn the FCC’s action in court. Meanwhile, stakeholders on both sides of the net neutrality divide have stated that only new legislation from Congress can finally decide the issue. In either case, EDUCAUSE and its partner associations believe that our comments and pending reply comments will provide a framework for Congress and the courts to use in firmly establishing net neutrality protections that do not depend on utility-style regulation.

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