ACSblog Symposium on FCC's Net Neutrality Rules

  • September 29, 2015
    Guest Post

    by Matt Wood, Policy Director, Free Press

    *This post is part of ACSblog’s symposium on the FCC’s net neutrality rules.

    Working for an organization that’s helped lead a decade-plus fight on a single set of policy issues, it’s hard to know where to begin.

    I could just start in the present. After all, intervenors and amici supporting the Federal Communications Commission’s rules filed at the DC Circuit just last week. My organization was one of almost two dozen parties joining that intervenors’ brief.

    Over the past ten years, Free Press has written extensively on these topics, focusing on issues like communications network nondiscrimination principles, common carriage fundamentals, broadband investment realities, and the proper legal treatment for broadband networks under federal communications law.

    That’s too long a history to choose from if I’m going to say anything coherent in a short post. So I’ll make it even harder and start in 1946.

    Why so far back? Because of a Supreme Court case called Marsh v. Alabama, a decision about public sidewalks owned by private companies. That case has always reminded me of common carrier communications networks (and law school – but that’s another story).

    To be sure, the questions surrounding Net Neutrality pre-date the modern “Open Internet” era at the FCC, in cases much closer to home for the agency. Beginning in the early 1960s, it started wrestling with questions about how to treat computer services offered over phone networks.

  • September 24, 2015
    Guest Post

    by Erik Stallman, Director of the Open Internet Project and General Counsel at the Center for Democracy and Technology

    *This post is part of ACSblog’s symposium on the FCC’s net neutrality rules.

    Depending on one’s perspective, the Open Internet Order’s reclassification of broadband Internet access service as a telecommunications service under Title II of the Communications Act – giving the FCC clear rulemaking authority with respect to that service – was either unavoidable or unthinkable. What the history leading up to that reclassification shows is not a power-mad Commission looking to “regulate the Internet,” but a Commission left with few other options to protect an open Internet that has become increasingly important to all Americans.  What the future hopefully will show is that reclassification is the best option, not only in terms of legal defensibility, but also in terms of accommodating and fostering continued evolution in Internet technology and uses.

    In part, the FCC’s reclassification of broadband as a Title II telecommunications service responded to the limited or illusory nature of alternative sources of authority for net neutrality rules. When the Supreme Court’s 2005 decision in NCTA v. Brand X affirmed the FCC’s classification of cable broadband as an “information service” not subject to the FCC’s plenary authority, the Court suggested that “the Commission remains free to impose special regulatory duties on facilities-based ISPs under its Title I ancillary jurisdiction.” That sounded good — until the FCC tried it. In the Comcast-BitTorrent case, the FCC sought to rely on ancillary jurisdiction and policy statements to sanction an ISP for degrading peer-to-peer traffic. In 2010, the D.C. Circuit Court of Appeals held in Comcast v. FCC that this would not do because “[a]lthough policy statements may illuminate [statutory] authority, it is Title II, III, or VI to which the authority must ultimately be ancillary.”

    Many observers viewed reclassification of broadband as a Title II telecommunications service as the logical next step following the Comcast decision, but it took one more rulemaking and one more unsuccessful trip to the D.C. Circuit to take the remaining options off the table. The Verizon v. FCC decision in 2014 vacated the FCC's 2010 Open Internet Order on the ground that the FCC had once again exceeded its cited authority – this time Section 706 of the Telecommunications Act – by imposing common carriage rules on ISPs (such as no blocking or no throttling of Internet traffic) without reclassifying broadband as a Title II common carrier service. Back to the drawing board. 

  • September 23, 2015
    Guest Post

    by Olivier Sylvain, Associate Professor, Fordham University School of Law. Professor Sylvain’s post draws from arguments he makes in a law review article coming out in Hastings Law Journal early next year. See Olivier Sylvain, Network Equality, 67 Hastings L. J. __ (forthcoming 2016).

    *This post is part of ACSblog’s symposium on the FCC’s net neutrality rules.

    Two Cheers for the Open Internet

    The FCC’s Open Internet Rules establish that users and application developers should be able to connect to all lawful Internet content, applications, and services of their choice without the permission of their broadband service providers.  The Rules do this by imposing bright-line rules on broadband providers against (a) blocking subscribers’ Internet connections, (b) throttling subscribers’ Internet connections, or (c) prioritizing their affiliated content, applications, or services over those of their rivals.  And, in a catch-all provision, the Rules also bar providers from otherwise unreasonably interfering with subscribers’ Internet connections.  This is to say that broadband providers now must have really good reasons to interfere with or disadvantage paying subscribers’ Internet connections. 

    The Rules enshrine in public law the view that users and developers at “the edges of the network” should be the primary sources of innovation in our networked information economy.  Service providers should be little more than conduits or, in the parlance of public law, “common carriers” through which Internet communications should be able to travel freely.

    This is not the first time that regulators have treated commercial gatekeepers like broadband service providers in this way.  This regulatory approach is very old, dating back to the old English common law treatment of ports, granaries, and other indispensable gateways of commerce. 

    And, in the United States, the distinction between broadband providers as common carriers on the one hand and content, applications, and services on the other is at least four decades old.  In the late 60s and 70s, the agency’s concern was with protecting the nascent industry in networked computing against the predations of service providers.  Then, not unlike now, the FCC sought to ensure that service providers supplied network access to all comers – affiliates and competitors alike.    

  • September 22, 2015
    Guest Post

    by Kit Walsh, Staff Attorney, and Corynne McSherry, Legal Director, Electronic Frontier Foundation.

    *This post is part of ACSblog's symposium on the FCC's net neutrality rules. It is also cross-posted at the Electronic Frontier Foundation.

    The Electronic Frontier Foundation (EFF) is asking a federal appeals court to approve Federal Communications Commission (FCC) net neutrality rules that prevent Internet service providers from interfering with and censoring content on the Web.

    U.S. telecommunication providers sued the FCC in Washington D.C. federal circuit court after the FCC published the rules, called the Open Internet Order, earlier this year. Among other things, service providers and their supporters argue that the order strips telecom companies of control over which speech they transmit.

    In an amicus brief filed in the case today, EFF and the American Civil Liberties Union (ACLU) explain that the order is an appropriately-tailored measure that protects the Internet’s open and robust  "marketplace of ideas" without placing excessive or inappropriate restrictions on telecommunications providers or regulating their speech or messages.

    "The openness of the Internet has transformed our civic life, our culture, and our economy, and net neutrality is essential to ensuring that ISP gatekeepers do not undermine the freedom of speech and access to knowledge we enjoy online," said EFF Staff Attorney Kit Walsh. "Internet service providers stand between subscribers and the rest of the world, giving them the power to interfere with our communications in order to further their own interests. We’re urging the court to approve rules that protect users’ rights to freely express themselves and access information online."