Higher Ed Reply Comments Bolster Net Neutrality Support

(Sept. 1, 2017 – Jarret Cummings) Earlier this week, a coalition of higher education leadership associations filed reply comments for the 2017 Federal Communications Commission (FCC) rule-making on network neutrality. In addition to EDUCAUSE, the coalition includes:

  • The American Association of Community Colleges (AACC)
  • The American Association of State Colleges and Universities (AASCU)
  • The American Council on Education (ACE)
  • The Association of American Universities (AAU)
  • The Association of Public and Land-grant Universities (APLU)
  • The Association of Research Libraries (ARL)
  • The National Association of College and University Business Officers (NACUBO)
  • The National Association of Independent Colleges and Universities (NAICU)

FCC regulatory processes typically entail an initial opportunity to comment on the Commission’s rule-making proposals followed by a reply comment period. This second chance to submit comments allows respondents to review the record to date and submit additional information or analysis to extend or adjust their original positions.

The initial comments submitted by the coalition in July 2017 highlighted the continuing relevance of network neutrality protections to higher education institutions and research libraries; stressed that the current network neutrality rules established by the FCC in 2015 remain legally sound; and renewed previous higher education and library arguments that the FCC can and should establish strong, enforceable network neutrality protections under Section 706 of the Telecommunications Act if it decides to vacate the 2015 order on which the current rules are based.

The coalition used its reply comments to build on these initial positions. Drawing on arguments and examples provided by other respondents, such as the American Library Association, a long-time network neutrality partner of higher education, the coalition noted that the FCC's current opposition to the use of its authority under Title II of the Communications Act, which forms the basis of the existing rules, has broader implications than just the potential loss of those rules. Essentially, the FCC arguments against the current classification of consumer broadband services as "telecommunications services" (Title II) and for reclassification of those services as "information services" (Title I) has the potential to define Title II services out of existence in an increasingly IP-based world. This would significantly undermine FCC authority to sustain other important Commission priorities, such as the Universal Service Fund that provides subsidized telecommunications services for rural areas, schools and libraries, low-income citizens, and telehealth programs.

The coalition also pushed back on arguments that increased transparency requirements or anti-trust law alone could adequately maintain an open Internet. A “transparency only” approach would require broadband service providers to disclose all relevant arrangements, including paid prioritization agreements between the provider and content companies, without restricting those arrangements. Advocates of this concept assume that arming end-users with such information will allow them to opt for other broadband service providers if they find their current provider’s behavior overly restrictive or otherwise contrary to their interests. As EDUCAUSE and its partners note, though, other respondents point to the FCC's own data to illustrate the serious limitations of this approach, given that most end-users have very few if any options for broadband service other than their existing provider. Likewise, when it comes to using antitrust law to police broadband service provider behavior, many of the harms anti-net neutrality developments might generate would not fall under the standard framework for antitrust enforcement. Such enforcement actions also take significant resources and often many years to prosecute, by which time the harms to the Internet's development from activities such as paid prioritization would already be entrenched.

As an alternative, the coalition discussed general support in the record for reestablishing strong, enforceable network neutrality rules under the Commission's Section 706 authority, which charges the FCC with advancing the ongoing development of broadband service nationwide. Consistent with its July comments, the coalition reiterates the capacity of Section 706 to support effective "no blocking" and "no throttling" rules as well as an "Internet reasonable" conduct standard to govern broadband provider behavior. Such a standard would avoid the pitfall of applying Title II common carrier requirements to Title I services, as the FCC proposes to reclassify consumer broadband service, by relying on rebuttable presumptions against anti-net neutrality steps broadband providers might take. In applying the standard, the FCC would presume that a well-defined set of potential provider actions, such as the initiation of paid prioritization arrangements, would necessarily impact net neutrality negatively. Thus, they would be disallowed unless the provider could establish that the presumption(s) should not apply in a given case, based on the benefits to the public interest it would otherwise produce. This would provide a flexible regulatory framework that would avoid casting Section 706 rules as common carrier requirements and ensure the adaptability of network neutrality rules to changes in the consumer broadband services marketplace.

With the reply comment period now closed, the FCC will work to finalize its analysis of the record and determine how its findings should impact the regulatory proposals it put forward earlier this year. It has set no timetable for when it will release an order changing or vacating the existing rules and identifying what if any regulatory requirements it might establish instead. Public speculation indicates that the FCC is likely to make its ruling known this fall or at least by the end of the year. In the meantime, EDUCAUSE and its partners will continue to look for ways to support strong, enforceable network neutrality rules. This may include further outreach to the FCC as appropriate, as well as engaging members of Congress on legislative proposals that would make network neutrality protections a matter of law, not regulation. We will also follow possible developments in the courts, as any anti-network neutrality order by the FCC is expected to be challenged in the DC Circuit Court of Appeals.


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