December 12, 2017

Net Neutrality Fight Likely to Move to Courts, Congress

Federal Communication Commission logoLibrary groups expressed disappointment following the Federal Communications Commission’s (FCC) release of a draft version of the Restoring Internet Freedom Order (RIFO) on November 21. RIFO aims to overturn the 2015 Open Internet Order, a regulatory framework established during the Obama administration that gave the FCC the power to enforce “net neutrality,” defining broadband Internet as a utility similar to electricity or water, and requiring Internet Service Providers (ISPs), such as Comcast, Verizon, and AT&T to treat all data traffic on the Internet equally. RIFO would also overturn a much older precedent (established by a Republican-led FCC during the George W. Bush administration) in which ISPs were fined for slowing or blocking customer traffic to websites or services offered by their competitors.

FCC Chairman Ajit Pai appeared determined to overturn the Obama-era regulations despite widespread public support of net neutrality rules and opposition to RIFO from major U.S. corporations including Amazon, Facebook, and Apple. The order is expected to be approved on December 14 via party-line vote by the FCC’s five-person board. Lawsuits to block the order are likely to follow.

“Preserving net neutrality is essential for equitable access to online information and services and thus a vital concern for our nation’s libraries,” American Library Association President Jim Neal said in a prepared statement. “Now that the Internet has become the primary mechanism for delivering information, services, and applications to the general public, it is especially important that commercial [ISPs] are not able to control or manipulate the content of these communications. Libraries, our patrons, and America’s communities will be at risk if the FCC repeals all protections contained in its 2015 Open Internet Order with no plans to replace with any enforceable rules. We strenuously disagree with the FCC’s actions and will continue to advocate for essential net neutrality protections.”

Mary Ann Mavrinac, president of the Association of Research Libraries (ARL) and dean of the University of Rochester Libraries, said that the organization “is disappointed that the FCC has reversed course just two years after its 2015 Open Internet Order. ARL will continue to advocate for an open Internet in the courts and in Congress.”

Major Overturn

Pai’s frequently repeated assertion that the FCC is simply returning to the “light-touch regulatory framework” that enabled the Internet to grow and thrive during the two decades prior to 2015 is at least somewhat disingenuous. Not only will RIFO reverse the Open Internet Order, it would enable ISPs to block, throttle, or charge extra fees for normal delivery of content—as long as customers are notified—reversing an FCC precedent that is more than a decade old, Columbia Law School professor Tim Wu explained in a recent New York Times column. Basic FCC-enforced bans on blocking and throttling have been enforced since 2005 (under Republican-appointed chairman Michael Powell), when only about half of U.S. households had broadband Internet service.

In a “Myth vs. Fact” document published on the FCC’s website last week, the FCC argues that requiring ISPs to disclose any blocking or throttling practices will be sufficient protection for consumers, as ISPs would face “fierce consumer backlash as well as scrutiny from the Federal Trade Commission” for blocking or throttling. However, it is clear that consumer backlash is nothing new for ISPs: they for years have received the worst rankings among the 43 industries tracked by the American Customer Satisfaction Index, and the majority of U.S. households are currently limited to one or sometimes two choices. The document does not address ways in which additional consumer backlash might empower consumers to police the practices of these localized monopolies.

Full Court Press

Wu, who is credited with coining the term network neutrality, writes that the FCC may “have overplayed its legal hand. So drastic is the reversal of policy (if, as expected, the commission approves Mr. Pai’s proposal)…and so weak is the evidence to support the change, that it seems destined to be struck down in court.” Government agencies, Wu explains, are not free to reverse longstanding rules without a good reason. “Given that net neutrality rules have been a huge success by most measures, the justification for killing them would have to be very strong. It isn’t…. Mr. Pai’s rationale for eliminating the rules is that cable and phone companies, despite years of healthy profit, need to earn even more money than they already do.”

Given RIFO’s many prominent opponents, including companies such as Google and Netflix, as well as organizations such as the American Civil Liberties Union and the Electronic Frontier Foundation, lawsuits to block implementation of the order seem likely.

Gizmodo.com last week published an analysis of the near-term impact of RIFO, and how the issue would likely play out in the U.S. Courts of Appeals. Lawyers contacted for the story expect to see numerous lawsuits/petitions for review filed if the order is adopted. One or more litigants will probably request a preliminary injunction, or “stay,” to prevent the order from going into effect until the case is decided—which will take months. A successful request for a preliminary injunction requires a plaintiff to demonstrate the potential for imminent and irreparable injury while the case is heard. So these experts also anticipate that ISPs will avoid launching new business plans or blocking and throttling content in the near term. And, like Wu, other experts believe the order will be vulnerable in court.

“If the FCC order is consistent with what has been reported, and what the chairman statements suggest, it is likely to be very vulnerable on appeal,” Pantelis Michalopoulos, a telecom partner at the law firm Steptoe and Johnson LLP, told Gizmodo. “While it may take a long time, that’s the key fact about the appellate process. At the end of a long tunnel, there may well be a decision that disagrees with the order.”

Public Disregard

Pai’s FCC has been pointedly dismissive of public opinion on the matter. As required by the Administrative Procedure Act, the agency accepted input from all interested parties, including individual citizens, from April 27 through August 30, ultimately receiving almost 22 million comments.

The “Myth vs. Fact” document argues that at least a third of the 22 million comments were linked to 45,000 individuals using email addresses from fakemailgenerator.com, and more than 400,000 were from individuals listing the same home address in Russia. An analysis released on November 29 by the Pew Research Center places the estimate even higher, noting that more than half of the comments may be fake.

Still, the FCC appears to be ignoring as many as 10 million comments made by individuals in support of net neutrality this year—a very substantial response for any rulemaking procedure—or the 3.7 million comments submitted to the FCC in support of the Open Internet Order just three years ago. In a press call following the announcement of the draft order, Pai said that the agency would only consider unique comments that introduced new facts into the record or made serious legal arguments. That standard would appear to negate millions of comments submitted this year by individuals, confirmed by unique address information, who posted form letters through advocacy organizations’ websites, such as battleforthenet.com.

An analysis funded by ISPs found that 1.52 million “considerably more ‘personalized’” comments were submitted this year in favor of current net neutrality rules, compared with just 23,000 personalized comments in support of Pai’s efforts for repeal. But apparently these comments supporting net neutrality don’t meet Pai’s “new facts” or “serious legal argument” standards.

“The commenting process is not an opinion poll—and for good reason,” the Myth vs. Fact document states. “The Chairman’s plan is based on the facts and the law rather than the quantity of comments.”

Supporters of net neutrality are encouraging others to contact their representatives in Congress. In addition to organizing live protests throughout the United States on December 7, battleforthenet.com is organizing campaigns to call representatives in the House and the Senate. The Electronic Frontier Foundation is also organizing an email campaign.

On December 7, ALA issued an Advocacy Alert, reminding members of the organization’s two resolutions supporting net neutrality, and encouraging “all library advocates to email or call their Members of Congress this week and ask them to support net neutrality protections. Libraries and our patrons cannot afford to be relegated to ‘slow lanes’ on the internet.”

Matt Enis About Matt Enis

Matt Enis (menis@mediasourceinc.com; @matthewenis on Twitter) is Senior Editor, Technology for Library Journal.

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