Net Neutrality: Preserving an Open Internet
Background on Net Neutrality Advocacy
The open Internet has created a level playing field and unprecedented opportunities for artists, cultural organizations, and creative entrepreneurs to promote their work or sell their products and services. Internet Service Provider (ISPs) can exert immense control over how Internet users’ access sites and services. Without clear rules of the road, ISPs could potentially stifle users access to lawful content.
In December 2010, the FCC approved its Open Internet Order to preserve “net neutrality”—the principle that allows any Internet user to access the lawful content or application of their choosing without interference from an ISP. However, in January 2014, the U.S. Court of Appeals for the D.C. Circuit overturned portions of the Open Internet Order–but affirmed the FCC’s authority to regulate broadband networks.
Following a public proceeding in 2014, the FCC received more than 4 million individual comments about net neutrality, the majority of which were in support of an established order. In February 2015, the FCC voted on new net neutrality rules. The rules were again challenged in court and in early December 2015, the D.C. Circuit heard oral arguments on the merits of the new rules. A final decision is expected in April 2016.
See the Net Neutrality Statement of Concern for background information and talking points about What’s At Stake.
What's at Stake
Given the broad and bipartisan public support of net neutrality rules, Congress should monitor the court’s decision and be prepared to take action to ensure that content creators and everyday users can continue to benefit from the open Internet and the innovations it inspires.
What We're Asking For
We support responsive congressional efforts that preserve the Federal Communications Commission’s (FCC) ability to preserve an open and accessible Internet while protecting copyrighted content. The viability of the arts and culture communities in the 21st century depends on our ability to compete on a level online playing field.
D.C. Circuit Court Upholds Net Neutrality Rules
On June 14, the U.S. Court of Appeals for the D.C. Circuit ruled to uphold the Federal Communications Commission’s (FCC) 2015 Open Internet Order, or net neutrality rules. In its decision, the court ruled that the FCC had the proper authority to reclassify broadband internet as a common carrier telecommunications service under Title II of the Communications Act. This classification allows the FCC to legally enforce its rules against Internet Service Providers (ISP) blocking, throttling, or otherwise inhibiting users’ access to legal content, and creating paid prioritization or “fast lanes” where users or content providers must pay more for faster service.
A group of ISPs and telecoms filed suit against the FCC last year saying that the net neutrality rules infringed on their right to free speech, that the agency’s rulemaking process was “arbitrary and capricious,” and that broadband is an information service rather than a telecommunications service. The FCC has less authority to regulate information services than telecommunications services. Judges decided against each of these arguments, upholding the agency’s rules for both fixed and mobile broadband.
ISP and telecom petitioners are expected to appeal the circuit court’s ruling and may even go as far as the U.S. Supreme Court. In spite of this possibility, FCC Chairman Tom Wheeler called the ruling “a victory for consumers and innovators who desire unfettered access to the entire web.”
New Net Neutrality Challenge in the House
While we await the D.C. Circuit Court of Appeals’ decision on net neutrality after hearing oral arguments last December, House Republicans have taken action to halt the FCC’s authority to impose parts of the rules. The House passed the “No Rate Regulation of Broadband Internet Access Act” (H.R. 2666) which prohibits the FCC from doing exactly what the title describes.
The bill means to enforce via law FCC Chairman Wheeler’s pledge that the agency would not use its 2015 Open Internet Order to regulate Internet Service Provider’s (ISP) rates. Passing a bill into law would codify this pledge for future administrations. That Order did not, however, define “rate regulation.” This lack of definition came into question at a February markup of the bill in the Energy and Commerce Communications and Technology subcommittee. Without definition, there would be no way to tell if the FCC was acting within its authority when addressing ISPs. H.R. 2666 defines “rate regulation,” but broadly: “the use of rulemaking or authority to establish, declare, or review the reasonableness of the amount charged by an ISP for delivering Internet service.”
Wheeler has expressed concern that the bill would actually hinder the agency from enforcing other net neutrality rules such as those banning ISPs from blocking or throttling lawful content. Any FCC actions to enforce these bans could be misconstrued as rate regulation. The bill states directly that it does not affect the FCC’s authority to ban paid prioritization (also called internet “fast lanes”). President Obama has threatened to veto the bill should it also pass the Senate. In an official statement issued earlier this month, he states that the bill is “overly broad” and would “restrict the FCC’s ability to take enforcement actions to protect consumers on issues where the FCC has received numerous consumer complaints.”
Net Neutrality’s Day in Court
On December 4, the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments about the FCC’s new Open Internet Order (Net Neutrality Rules) that took effect in June.
Petitioners from the telecom industry seeking to block the rules argued against the FCC’s rulemaking process, its authority to reclassify broadband as common carrier telecommunications service, and stated concerns about First Amendment rights. Supporters of the FCC’s rules also made arguments at the brief hearing. Judges are expected to make a decision this spring.
The FCC has faced several court challenges over net neutrality over the past decade, and it is predicted that this current challenge could reach the Supreme Court. PAA will keep you updated as the DC Circuit Court heads towards a decision.
Net Neutrality Hearings Begin Next Month
On December 4, the U.S. Court of Appeals for the District of Columbia Circuit begins hearing arguments against the FCC’s new Open Internet Order (Net Neutrality Rules) that took effect in June of this year. The new rules classify broadband internet service as a common carrier service under Title II of the Communications Act of 1934. This classification puts broadband service in the same public utility common carrier category as telephone service. As such, the FCC has stronger legal authority to enforce rules preventing Internet Service Providers (ISP) from blocking or throttling legal content or from prioritizing some content providers over others.
The upcoming court challenge includes petitioners from the telecom industry seeking to block the rules; they are questioning the FCC’s rulemaking process, its authority to reclassify broadband, and have concerns about First Amendment rights. There are also concerns that the new rules would stifle investment and growth in the broadband industry. Members of Congress from both the House and Senate joined and filed amicus briefs of differing opinions on the matter, one asking the court to throw out the rules and another asking the court to support and uphold them.
PAA advocates with the broader performing arts community for the preservation of an open Internet where artists and creative entrepreneurs can reach potential audiences, build businesses, and contribute to culture. Learn more about net neutrality advocacy in the PAA Issue Center.
New Net Neutrality Rules in Effect
On June 12, 2015, the Federal Communications Commission’s (FCC) new Open Internet Order (Net Neutrality rules) officially took effect. This took place after several petitions to stay were filed against the rules but were denied–including a petition denied by the same D.C. Circuit Court whose 2014 ruling ordered the FCC to re-write the rules.
The new Net Neutrality rules uphold three “bright line rules” for Internet Service Providers (ISPs): no blocking or throttling of legal content and no paid prioritization for content providers. For the first time, these rules apply to both mobile and fixed ISPs. Though these rules are in effect, petitioners may move forward in the D.C. Circuit Court with their appeals.
In addition to petitions to stay, the new Net Neutrality rules have seen challenges from Congress. The House Appropriations Subcommittee for Financial Services and General Government included legislation in its FY16 Appropriations Bill that would prohibit the FCC from using its FY16 funds for implementing Net Neutrality rules until certain court cases are resolved. The bill recommends the FCC be funded at $315 million, which is $25 million less than FY15. The full House Appropriations Committee approved the Subcommittee’s bill on June 17.
FCC Approves New Net Neutrality Proposal
On February 26, the FCC voted to approve new net neutrality rules that will reclassify broadband as a utility under Title II of the Communications Act. Many of the 4 million public comments the agency received last summer urged the agency to go in this direction. The President supported this direction as well in a video address on November 10. PAA signed on to comments filed on behalf of the arts and culture community that stated:
“It may be ultimately necessary for Congress to resolve persistent issues around FCC broadband competition, though we feel strongly that the FCC has the authority to preserve the open Internet; the clearest path seems to be through reclassification. The Commission must not wait for Congress to act; it must craft rules that will withstand legal challenges and the political tides.”
This is an exciting outcome for net neutrality advocates, yet there may be several legal challenges to today’s decision in the coming months. PAA will keep you posted on this issue as it unfolds.
FCC to Use Title II for Net Neutrality
On February 4, Chairman Wheeler announced in Wired that his new proposal for open internet rules will classify broadband under Title II of the Communications Act of 1934. This differs from the proposal Wheeler discussed at the FCC’s May 15, 2014 open meeting.
“Originally, I believed that the FCC could assure internet openness through a determination of ‘commercial reasonableness’ under Section 706 of the Telecommunications Act of 1996. While a recent court decision seemed to draw a roadmap for using this approach, I became concerned that this relatively new concept might, down the road, be interpreted to mean what is reasonable for commercial interests, not consumers.”
Title II reclassification would give the FCC strong legal authority against content blocking and throttling as well as paid prioritization or “fast lanes.” Wheeler stated wanting to take a “light touch” approach to Title II; the FCC would not get involved in ISP’s pricing decisions to the same degree that it gets involved with utility companies’ pricing decisions. The proposal details will be discussed and voted on at the FCC’s Feb. 26 open meeting.
House & Senate Hearings on Net Neutrality Legislation
On January 21, the House Energy & Commerce Committee and the Senate Commerce, Science, and Transportation Committee held hearings discussing draft legislation by Sen. John Thune (R-SD) and Rep. Fred Upton (R-6th-MI) that would:
- Prohibit ISPs from blocking and throttling legal content
- Ban paid prioritization
- Ban ISPs from prohibiting the use of non-harmful devices
- Require broadband to be classified as an information service
- prohibit the FCC from using authority under section 706
ISPs would, though, be allowed to offer specialized services, but none that would evade these obligations.
The bill limits the FCC to enforcing these obligations only by adjudicating consumer complaints against ISPs. The agency would not be able to make any rules that would require ISPs to hold to these obligations. If the bill is enacted, the FCC would have 60 days to adopt formal procedures for dealing with consumer complaints.
The bill defines broadband internet as a “mass market retail service” that “provides advanced telecommunications capability” but shall be considered an information service. Broadband “transmits and receives data from all Internet endpoints, including transmissions that enable the operations of communications services.” This definition applies to any other equivalent service.
The bill also states that the FCC or state commissions with regulatory jurisdiction over telecommunications cannot use section 706 as authority over broadband.
New Net Neutrality Proposal Expected Feb. 26
At the Consumer Electronics Showcase on January 7, FCC Chairman Tom Wheeler announced that the agency will vote on a new net neutrality proposal at its open meeting on February 26. Net neutrality—the principle that all users and content providers should have equal access to the internet and that the internet should be a level playing field—has been in debate for years, most recently since January 2014 after a DC district court struck down parts of the agency’s 2010 net neutrality rules.
The FCC received almost four million public comments last summer and fall from advocates weighing in on the direction of the new rules. The debate centers around the agency reclassifying broadband as a telecommunications service under Title II of the Communications Act. With this reclassification, the FCC could regulate broadband just as it does telephone services.
Several sources report that the proposal may reclassify broadband under Title II, but the FCC has not confirmed this. The public can attend the February 26 open meeting, and it will also be webcast on FCC.gov.
Net Neutrality Comments From the Non-Profit Arts & Culture Sector
The FCC’s initial public comment period on its proposed Open Internet Rules closed on July 15. PAA joined a group of national arts and culture organizations in signing comments expressing that “the FCC must safeguard an open and accessible Internet for many reasons, including our sector’s ability to inspire new generations of cultural ambassadors, creators, and innovators.” PAA joins national arts and culture advocates in asking the FCC to maintain the internet as a level playing field.
Net Neutrality Legislation Introduced in House & Senate
In the House, Rep. Bob Latta (R-OH) introduced a bill preventing the FCC from reclassifying broadband as a Title II common carrier service. This classification would allow the FCC to regulate broadband services in the same manner as telephone services. The bill, H.R. 4752, would define Internet access as an information service, and would not allow an information service to be classified as a common carrier.
Senate Judiciary Committee chair Patrick Leahy (D-VT) and Rep. Doris Matsui (D-6th-CA) introduced the Online Competition and Consumer Choice Act. This bill would require the FCC to ban broadband carriers from selling Internet fast lanes. This ban would apply only to the connections between consumers and their internet service providers, the part of the Internet governed by the FCC’s proposed net neutrality rules.
FCC Announces New Proposed Rulemaking for Net Neutrality Rules
The FCC launched a rulemaking on new open Internet/net neutrality rules at an Open Meeting on May 15. The agency must re-write its 2010 net neutrality rules since a DC Circuit Court of Appeals struck down the anti-blocking and anti-discrimination parts of the rules in January.
The current rulemaking asks “What is the right public policy to ensure that the Internet remains open?” The rules propose to:
- Enhance existing transparency rules about ISP practices
- Define the legal standard of “commercially reasonable” and create rules to enforce it
- Enforce effective rules to protect innovators, startups, and consumers
PAA is in support of an open Internet that preserves a level playing field for all users to educate, express themselves, and innovate. The FCC is accepting public comments on the rulemaking until July 15, and reply comments until September 15. The agency has compiled a Fact Sheet about the proposed rulemaking available on its website.
Chairman Wheeler “Sets the Record Straight” on Proposed Rulemaking
On the FCC’s official blog, Chairman Wheeler addresses the Commission’s notice of proposed rulemaking (NPRM) on the new net neutrality rules to be created after the U.S. Court of Appeals for the District Columbia Circuit struck down parts of the rules the FCC established in 2010. In the post, Chairman Wheeler states that the NPRM will not change the net-neutrality principals such as anti-discrimination and anti-blocking of lawful content. Chairman Wheeler states his intention to have in place enforceable open internet rules by the end of 2014.
New rules will be considered on May 15.
Chairmain Wheeler’s Statement on Open Internet Rules
FCC Chairman Tom Wheeler issued a statement on the FCC’s Open Internet Rules. The statement addresses the Verizon v. FCC decision, in which the United States Court of Appeals for the District of Columbia Circuit struck down certain parts of the Open Internet Rules. In the statement, Chairman Wheeler announced that the FCC will propose new rules regarding improper blocking and discrimination of content and also transparency for how ISPs manage traffic. Follow the link above to read the full statement.
The FCC also released today an “Open Internet Explainer,” answering questions regarding the rules that were struck down by the DC Circuit court of appeals in January 2014.
Federal Court of Appeals Strikes Down Net Neutrality Rules
U.S. Court of Appeals for the District of Columbia struck down two net neutrality rules that the FCC put in place in its Open Internet Rules of 2010. The court struck down the FCC’s anti-blocking and anti-discrimination rules which prohibit broadband providers from blocking legal content, applications and services, and prohibit non-mobile broadband providers from discriminating among legal Internet traffic. The court’s order was based in part on the manner of regulations the FCC has authority to impose on broadband carriers. You can read the full text of the court’s decision here.
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