The following is the executive summary of the comments. Download a PDF of the full comments here.
Strong open Internet protections are needed to ensure that the Internet can continue to serve as a platform for innovation, economic growth, and unfettered communication among all users. Preserving net neutrality contributes to the economic well-being of the United States and the continued growth of the American technology industry. It also ensures that the Internet can continue to exist as a digital public square that fosters free expression, political participation, and access to information, and be the resource that the nation’s schools, libraries, and other public institutions need to continue to play a vital role in 21st century communities.
While the Commission’s 2010 Open Internet Rules provide an appropriate starting place for evaluating potential network neutrality harms, the threats to the Open Internet have also evolved since those rules were enacted four years ago. The Open Technology Institute at New America Foundation, along with Benton Foundation urge the Commission to clearly define the harms it is seeking to avoid and to implement new rules that protect against the full scope of those harms, which include blocking lawful content, discrimination on the basis of content or type of content or application, and the imposition of access fees by ISPs on edge providers or other content creators. It is critical that the Commission consider all of these potential harms as it crafts new rules, particularly any new harms that have emerged in the wake of the 2010 Open Internet Order but which nonetheless would lead to the same effects on a subscriber’s experience. We argue that the rules should protect against all of the harms that exist as a result of the terminating access monopoly that ISPs hold with regard to their end users. Specifically, the Commission’s rules should address the following types of behavior:
- Blocking: The Commission’s rules should adequately protect against the ability of an ISP to prevent its end-users from accessing the content, application or service of their choosing.
- Discrimination: The core harms related to discrimination on which the Commission based its 2010 rules remain relevant today, including discrimination via throttling and direct manipulation of the end-user’s experience, as well as consumer-facing pricing discrimination to differentiate product offerings. The Commission’s rules should ban application-specific discrimination and allow application-agnostic discrimination.
- Access fees: Access fees – whether in the form of tolls for charged by last-mile Internet Service Providers to edge companies or the networks hosting their traffic for access to an ISP’s subscribers, or for network upgrades, or in the form of fees for the prioritized delivery of content to end users – are extremely harmful to consumers and entrepreneurs. To the extent that the fees that last-mile ISPs are charging to edge providers or other service providers are not related to actual costs of interconnection and instead are merely tolls for access to the last-mile ISPs subscribers, they should be banned under the Commission’s rules. The Commission’s proposed rules are based on an unworkable standard that will be impractical to implement, will lead to greater market uncertainty, and are not legally sound. The problem with the Commission’s proposed approach relying on Section 706 as its basis for authority is not that it does not go far enough; it is that it cannot, by design and by inherent limits to the authority recognized by the D.C. Circuit, adequately protect against the full scope of the harms related to the last-mile terminating access monopoly. Indeed, the “commercial reasonableness” standard that the Commission proposes to identify prohibited conduct would be an unworkable standard for edge companies, non-profit content creators, and consumers. The complicated, multi-part commercial reasonableness test the Commission has proposed is legally risky and would result in years of costly litigation rather than clearly defining at the onset what behavior would or would not be permissible. Moreover, Section 706 has the added challenge of being overly broad with respect to the potential behavior it would cover, going beyond the scope of harms created by the terminating access monopoly.
We therefore conclude that the Commission should instead rely on the clearest authority possible to implement legally sound rules that achieve meaningful network neutrality protections. This requires reclassifying broadband Internet access services as Title II services. Title II would allow the Commission to protect against the full scope of harms, and the Commission could implement a bright-line rule that creates a presumption against discrimination as well as either banning access fees outright or requiring that such fees be applied in a manner that is consistent for all parties. While we do not outline a full list of sections from which the Commission should forebear as part of a Title II approach, forbearance from many provisions would be an essential element of this reclassification approach.
We further argue that the Commission’s Open Internet rules, including the non-discrimination rule, must be technology neutral and apply to all broadband Internet access service providers. The public interest is best served by a common regulatory framework for both mobile and fixed broadband, and we believe that this proceeding presents a critical opportunity to return to this fundamental principal and avoid the evolution of two competing Internets. Individuals are and will increasingly be connecting to the Internet primarily using untethered devices that will traverse a variety of fixed and mobile carrier networks depending on location and need. Consumers should have the same freedom to access Internet resources whether their device is connected over Wi-Fi to a wired LAN or to a mobile carrier’s network. In fact, a major change since 2010 is 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. Special rules favoring mobile ISPs would distort competition as advanced mobile services and Wi-Fi networks are marketed as and become potential substitutes for fixed broadband service. The need for 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 on mobile devices and mobile networks for their primary Internet access. And to the extent that temporary capacity limitations in a particular area or some other operational constraint creates a legitimate need to slow or prioritize certain traffic, the “reasonable network management” exception proposed by the Commission is flexible enough to account for differences among the various fixed and mobile architectures and technologies.
Title II offers the best source of authority to achieve a comprehensive framework for strong network neutrality rules that protect against all harms and across all platforms, including mobile and wireless networks. However, in addition to the strong authority under Title II, the Commission has clear and independent authority under Title III of the Communications Act to adopt open Internet rules for mobile broadband service providers, including a non-discrimination rule and basic Carterfone protections against blocking. Thus, while the Commission should classify broadband Internet access over both fixed and mobile networks as a Title II service, the Commission could also rely on its concurrent authority under Title III to impose open Internet protections as public interest obligations on carrier use of spectrum. We also urge the Commission to explicitly apply open Internet protections to commercial operations on unlicensed spectrum by any “broadband Internet access service” (whether primarily fixed or mobile).
