OTI and Benton Foundation Argue for Strong Open Internet Protections Under Title II Authority

Over the past few months, the Federal Communications Commission (FCC) has received over a million net neutrality comments—a reflection of the broad and vocal interest around the country in the debate over the best path forward for strong open Internet protections. Yesterday, New America’s Open Technology Institute added our voice to the conversation, filing joint comments with the Benton Foundation in the Open Internet docket. We urge the FCC to craft strong new rules that protect users against the full scope of harms on all platforms, arguing that reclassifying broadband as a Title II telecommunications service is the clearest and most legally sound way to achieve this important goal.

The Internet is an increasingly integral part of our lives, and strong open Internet protections are needed to ensure that it can continue to serve as a platform for innovation, economic growth, and unfettered communications. Preserving net neutrality is good for the economic well-being of the United States—and particularly the continued growth of the tech industry, which is a major creator of jobs and source of revenue. Net neutrality also ensures that the Internet can continue to be a digital public square that fosters free expression, political participation, and access to information. And it’s necessary for schools, libraries, and other institutions that play a vital role in 21st century communities, providing critical resources to students and teachers as well as lower income and more vulnerable parts of the population.

In our comments, we note that the 2010 Open Internet Rules—which the DC Circuit Court largely vacated in January 2014—are a good, if imperfect, starting place for the FCC in the latest proceeding. But we also describe how the threats to the open Internet have evolved since the FCC first enacted those rules four years ago. The new rules must protect consumers against all kinds of harms, including the blocking of lawful content, discrimination on the basis of content (or the type of content or application), and access fees imposed by ISPs on content creators and other service providers for access to their subscribers. Because ISPs hold a “terminating access monopoly”—meaning they are the only path that allows an edge provider like Netflix or Wikipedia to reach a subscriber—they have powerful gatekeeper status, and their behavior can have a significant negative impact on individuals if the rules are not clear and consistent.

Specifically, we argue that the FCC’s rules should address three types of behavior:

• Blocking: ISPs should not be able to prevent end-users from accessing the content of their choosing.
• Discrimination: ISPs should not be able to discriminate on the basis of specific applications, either through throttling or other direct manipulation of the end users experience, or else by charging consumers different prices to differentiate product offerings.
• Access fees: ISPs should not be able to charge edge providers or other service providers fees that are not related to the actual costs of interconnection, and instead are merely tolls for access to the last mile ISP’s subscribers.

We argue that the rules the FCC has currently proposed—using Section 706 of the 1996 Telecommunications Act as the underlying source of authority—will be impractical to implement, will lead to greater market uncertainty, and are legally risky. The “commercial reasonableness” standard in particular would be unworkable for edge companies, non-profit content creators, and consumers. Instead, we conclude that the FCC should reclassify broadband Internet access services as Title II services, which would give it the clearest authority possible to implement legally sound rules that achieve meaningful network neutrality protections.

We also argue that the new rules should be technology neutral and apply to all broadband Internet access service providers, regardless of whether that service is delivered over fixed wireline or mobile wireless networks. One major change in the broadband market since 2010 has been the rapid convergence of mobile and wireline networks and the emergence of hybrid business models that could soon minimize the practical distinctions between the two types of networks. Individuals should have the same freedom to use and access Internet resources whether their device is connected over Wi-Fi to a wired local area network or to a wireless carrier’s network. A common regulatory framework and strong consumer protections for all Internet access is particularly important considering the increasing and disproportionate dependency of young, low-income, minority and rural populations that use mobile devices and mobile networks for their primary Internet access. Reclassification of broadband Internet access as a Title II service offers the best source of authority to achieve a comprehensive framework for strong network neutrality rules that protect across all platforms. But we also note that the FCC has additional authority under Title III of the Communications Act to adopt strong open Internet rules for mobile broadband service providers.

The full comments from the Open Technology Institute and Benton Foundation are available here.

Danielle Kehl is a policy analyst in the Open Technology Institute at the New America Foundation where she works on technology policy and how it intersects with broader domestic and foreign policy concerns. Her main areas of focus are U.S. broadband policy and Internet freedom. Her writing has been published in a number of outlets, including the Journal of Information Policy, Slate, and The Chronicle of Higher Education.