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FCC Issues Notice of Proposed Rulemaking on Net Neutrality

Electronic Superhighway by Nam June Paik, image © The Q

At an open meeting held on May 15, 2014, the Federal Communications Commission (FCC) considered the issue of “Protecting and Promoting the Open Internet,” or net neutrality. The FCC voted on—and passed by 3-2—a Notice of Proposed Rulemaking (NPRM), which proposes new rules in accordance with the decision of the Court of Appeals for the DC Circuit that overturned the FCC’s 2010 Open Internet Rules regarding anti-discrimination and anti-blocking. The FCC seeks comments, due July 15, 2014, on a wide range of topics including the appropriate scope of the rules, whether paid prioritization should be banned outright, and what legal authority provides the most effective path to protecting an open Internet.

As a result of the DC Circuit’s decision, service providers could allow priority delivery for those willing to pay to promote their content, advancing commercial interests over research library and higher education interests. ARL, together with the American Library Association and EDUCAUSE, filed a letter with the FCC on February 13, 2014, advocating for an open Internet and expressing disappointment and concerns with the DC Circuit ruling.

At the May 15 meeting, an official from the FCC noted that there are currently no legally enforceable rules governing the Internet and the agency seeks to restore rules to ensure that the Internet remains an open platform for communication and growth. Six key elements to the NPRM were mentioned:

  1. Maintains the definition and scope of the 2010 rules. The FCC does, however, seek comment regarding whether that scope is still appropriate or whether it should be expanded, for example, to include mobile networks.
  2. Seeks to enhance the transparency rule upheld by the DC Circuit.
  3. Intends to institute a no-blocking rule, with clarification on the minimum level of access to broadband subscribers.
  4. For conduct not prohibited by the no-blocking rule, would create a legal rule on commercially reasonable practices. The NPRM seeks comment on whether paid prioritization should be banned outright.
  5. Seeks to implement a multifaceted dispute-resolution system, including an ombudsman to act on behalf of consumers and start-ups.
  6. Asks what legal authority provides the most effective path to an open Internet. While the NPRM relies on Section 706 as the source of authority, it seeks comment on whether Section 706 or Title II (or Title III) is most effective.

The sixth point addresses one of the most controversial issues in the wake of the DC Circuit’s ruling. Title II reclassification may be the most effective way to ensure that anti-blocking and anti-discrimination rules are permitted. The DC Circuit suggested that such rules, particularly with respect to anti-discrimination, looked like “common carrier” rules that are only permitted under Title II. Commissioner Wheeler previously stated his preference to continue under Section 706 authority, while making clear that all options remained on the table.

After the general overview of the NPRM, each commissioner made a statement. Those statements are summarized in a May 16 ARL Policy Notes blog post.

Also see the FCC press release on this NPRM (PDF).