Open Internet Order

  • 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 25, 2015
    Guest Post

    by Barbara A. Cherry, Professor, The Media School, Indiana University

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

    The U.S. Open Internet Debate is a Legal Battle

    The open Internet debate in the U.S. is essentially a legal chess game.  Americans need to understand the core legal battle at stake in order make sense of the rhetoric and media coverage related to the Open Internet debate as well as the importance of the FCC’s Open Internet Order adopted in early 2015.

    Why is the open Internet a legal chess game?  Because it’s an ongoing legal battle – before the FCC, the courts, and potentially through Congressional legislation - over classification of broadband Internet access service (BIAS) under federal statutory law.  Is BIAS a “telecommunications service” and thus a common carriage service, or is BIAS an “information service and thus not a common carriage service?

    To understand the core legal battle at stake, we need to start with some important historical content.  Since the early 20th century, telecommunications carriers have borne two separate, special legal statuses in the United States – as common carriers and as public utilities. The origins of these two legal statuses arise from different bodies of law, and each imposes obligations for different reasons.  Throughout the 20th century, telecommunications carriers have been common carriers under federal law, and public utilities under states’ laws.  For this reason, both the federal and state governments have regulatory jurisdiction over telecommunications carriers.

  • 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 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."