EDUCAUSE Joins Net Neutrality Amicus Brief

The US Court of Appeals for the DC Circuit is currently hearing a consolidated legal challenge from twenty-two state attorneys general and public-interest groups seeking to overturn the 2017 Federal Communications Commission (FCC) order eliminating network neutrality protections. Legal briefs from interested parties not directly involved in the case but with important arguments for the court to consider, also known amici curiae or "amicus briefs," were due August 27, 2018.

EDUCAUSE joined with nineteen other higher education and library groups, including the American Council on Education (ACE), the Association of Research Libraries (ARL), and the American Library Association (ALA), to file an amicus brief in support of reversing the FCC's net neutrality repeal and restoring its 2015 rules. Those rules, which were vacated by the FCC's more recent order, clearly prohibited ISPs from blocking or throttling lawful data traffic over their networks or engaging in paid prioritization—i.e., arrangements in which ISPs could charge online content and service providers additional fees to ensure faster transmission of their data traffic.

The parties petitioning the court have multiple valid arguments for why the DC Circuit should reject the 2017 FCC order and restore clear, unambiguous protections for net neutrality. The higher education and library communities, however, wanted to draw the court's attention to the specific harms we face as a result of the 2017 FCC action. In our brief, which mirrors substantial portions of our 2017 comments, reply comments, and final FCC letter, our groups highlighted the following:

• The degree to which an open internet is now mission-critical to colleges, universities, and libraries;
• The inability of most colleges, universities, and libraries to absorb the costs of paying ISPs to ensure true high-speed delivery of their online content and services over end-users' home and mobile connections;
• The direct link between that inability to pay for prioritized delivery and harms to learning, research, service, and college affordability, such as:
  • Having the transmissions of online learning resources from institutions that are unable to pay for priority shunted to an increasingly congested "slow lane," where their effectiveness would inevitably be seriously degraded, or
  • Seeing the costs that students bear for their education rise still further as institutions are forced to pass on higher expenses from third-party content and service providers who themselves feel compelled to pay for priority.
• The extent to which the loss of no-blocking and no-throttling protections puts academic freedom and free expression in jeopardy, given prior examples when telecom providers limited the distribution of unpopular speech over their networks; and
• The importance of restoring net neutrality protections to mobile as well as fixed end-user connections since more and more of our stakeholders rely on mobile internet access to reach our online content and services.

Based on the briefing schedule [https://www.inteserra.com/blog/the-regulatory-mix-thursday-august-2-2018] for the case, the FCC has until October 11, 2018, to file its arguments with the court seeking to have the 2017 net neutrality repeal order upheld, while the allies of the current FCC majority have until October 18, 2018, to submit their briefs in support of that position. Reply briefs from all parties addressing each other's arguments will be due by mid-November, with any final briefs due just before the end of that month. Given the holidays and the volume of material this case will likely entail, the DC Circuit is not expected to issue its final ruling before spring of next year.

Even then, whichever side loses will almost certainly appeal the decision to the full DC Circuit, and it's possible that the case could ultimately reach the Supreme Court. In the meantime, legal challenges to state laws and executive orders seeking to reestablish net neutrality protections in those jurisdictions will also start to emerge. The FCC and the major telecom providers will seek to enforce federal preemption of state authority to impose net neutrality protections, which the 2017 order asserted. However, the legal basis on which the FCC eliminated its prior rules opens the door to questions about its authority to preempt state action, which numerous states and pro–net neutrality groups are eager to explore.

Our current amicus brief illustrates the ongoing commitment of the higher education and library communities to support network neutrality. EDUCAUSE has been central to the higher education/library partnerships striving to advance net neutrality since the inception of FCC rule-making in the space, and we will continue to work with our partners to restore and sustain network neutrality on behalf of our members and the students, faculty, and stakeholders they serve.

Jarret Cummings is Senior Advisor for Policy and Government Relations at EDUCAUSE.