Court Deals Blow to FCC Net Neutrality Rules

January 15, 2014

By Elizabeth Holland

On Tuesday, a federal appeals court struck down the Federal Communication Commission’s (FCC) effort to require broadband providers to treat all Internet traffic equally and give consumers equal access to content, a principle known as net neutrality. The U.S. Court of Appeals for the District of Columbia Circuit said in its ruling the FCC could not apply anti-blocking and nondiscrimination rules to broadband providers, as it did in its 2011 Open Internet Order. The ruling means that companies could block or slow down any website, application, or service, as well as create a tiered pricing structure for Internet access. The decision threatens law libraries’ ability to provide users with a consistent, uncensored, and reliable way of accessing online legal information.

While the decision is a real loss for Internet users in the United States, the ruling strongly suggests that Internet access services and neutrality rules are well within the FCC’s purview; the agency’s legal problems stem from the decision to classify broadband Internet as an “information service,” rather than “telecommunications service.” In his recent remarks in Silicon Valley, FCC Chairman Tom Wheeler expressed strong support for Internet neutrality and reaffirmed his commitment to the open internet in a statement responding to yesterday’s ruling.  The FCC will “consider all available options, including those for appeal, to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans.” Should the FCC reclassify broadband as a telecommunications service, net neutrality rules would stand on much firmer legal ground.

AALL strongly supports net neutrality, which protects the unique, open nature of the Internet, and promotes innovation, competition, and intellectual freedom. Without net neutrality, libraries may be unable to afford the imposed fees for preferred access, and thus could not provide equal access to the online legal information their users need. Following the D.C. Circuit’s decision, AALL will continue to work to advocate for net neutrality and will lobby policy-makers to take the necessary steps to restore the important principle of an open Internet.


Senate Rejects Net Neutrality Measure

November 10, 2011

In a victory for net neutrality, the Senate today voted against S.J. Res 6, the resolution that would have overturned the Federal Communications Commission’s recent net neutrality rules. Thank you to all of you who called your Senators to urge them to vote No on this problematic resolution!

Earlier in the week, the White House released a Statement of Administration Policy (SAP) reiterating President Obama’s support for net neutrality and pledging that the President would veto S.J. Res 6 if it came to his desk. The SAP states:

Disapproval of the rule would threaten those values and cast uncertainty over those innovative new businesses that are a critical part of the Nation’s economic recovery. It would be ill-advised to threaten the very foundations of innovation in the Internet economy and the democratic spirit that has made the Internet a force for social progress around the world.

The Senate voted 52-46, along party lines. Senator Daniel Inouye (D-HI) and Senator John McCain (R-AZ) did not vote.

The FCC’s rules are scheduled to take effect on November 20, but several pending lawsuits may delay their implementation. We will keep you updated as developments occur.


Contact Your Senators NOW – Ask Them to Vote NO on Net Neutrality Resolution, S.J. Res 6

November 7, 2011

[This post was updated on November 8]

The Senate is expected to vote this week on a resolution of disapproval, S.J. Res 6, which would repeal the Federal Communications Commission’s (FCC) net neutrality rules and strip the FCC of its authority to implement net neutrality.

Please call your Senators today and ask them to vote NO on S.J. Res 6. Because of the short notice, it is important that you call, rather than email, your Senators. The Government Relations Committee and Government Relations Office have posted a new one-pager on why net neutrality matters to law libraries.

The House passed an identical resolution (H.J. Res 37) in April. The FCC’s net neutrality rules are set to take effect on November 20. It is very important that you contact your Senators now to ask them to vote NO on S.J. Res 6. The vote is expected to be very close, so your calls will make a difference.


House Energy and Commerce Subcommittee Approves Resolution Opposing Net Neutrality Rule

March 10, 2011

On March 9, the House Energy and Commerce Subcommittee on Communications and Technology held a hearing and markup on H.J. Res 37, which would prohibit the Federal Communications Commission’s (FCC) net neutrality rule adopted by the agency on December 21, 2010 from having any force or effect. The resolution was approved along a party-line vote of 15-8, and will now go before the full committee for a vote.

Witnesses at the highly anticipated hearing included Tom DeReggi, President, RapidDSL & Wireless; Shane Mitchell Greenstein, PhD,The Elinor and Wendell Hobbs Professor, Kellogg School of Management, Northwestern University; Anna-Maria Kovacs, PhD, Strategic Choices; James Cicconi, Senior Executive Vice President-External and Legislative Affairs, AT&T; Robin Chase, CEO, Buzzcar; and S. Derek Turner, Research Director, Free Press. Free Press coordinates the SavetheInternet.com Coalition, of which AALL is a member.

During the hearing, a number of themes arose: whether or not the FCC’s rules would stifle innovation and competition; whether the FCC was attempting to regulate the Internet; and whether the new rules would increase market uncertainty.

In response to the first theme, Robin Chase, founder and former CEO of the popular car-sharing service Zipcar, said, “Without an open Internet, a company like Zipcar simply would not exist.” She went on to argue that without the FCC’s net neutrality rules, broadband Internet companies have incentives to erect barriers to Internet access, “which would dramatically harm our nation’s ability to innovate and remain competitive in a world marketplace.”

In response to whether the FCC is trying to regulate the Internet, Free Press’s S. Derek Turner pointed to already-existing laws that function to preserve non-discriminatory networks, including the Telecommunications Act of 1996 (P.L. 104-104). He also noted that former FCC Chairman Michael Powell first articulated the “four Internet freedoms” in 2004. These principles served as the basis for the open Internet provisions in the Communications Opportunity, Promotion, and Enhancement Act of 2006 (H.R. 5252), which the House passed during the 109th Congress.

Finally, in regard to whether the FCC’s rules create market uncertainty, James Cicconi said that AT&T believes that the FCC “landed on middle ground” with their rules, and if interpreted narrowly, they “could be good.”

In addition, in response to written questions sent to the National Cable and Telecommunications Association before the hearing, President and CEO Kyle McSlarrow said, “The plain reading of the Order, coupled with some regulatory humility, should [therefore] provide greater certainty than the status quo.”

AALL opposes H.J. Res 37. While we have expressed concerns about the possibility of tiered pricing (also known as pay-for-priority) under the FCC’s rule, as well as the lack of adequate protections for wireless broadband, we are pleased that the FCC has taken positive steps toward preserving net neutrality.

For more background information and the status of net neutrality in the 112th Congress, please see AALL’s Issue Brief, updated by Yale Law librarian Ryan Harrington.


Network Neutrality Issue Brief Updated with Analysis of New Rules

January 6, 2011

Ryan Harrington, Reference Librarian at Yale Law School, has updated AALL’s Network Neutrality Issue Brief with an excellent analysis of the new rules adopted by the Federal Communications Commission (FCC) on December 21, 2010. The rules require transparency of network management practices; no blocking of lawful content; and no unreasonable discrimination. The updated issue brief explains AALL’s concern, shared by many open government groups, that these new rules do not apply to mobile broadband – a significant loophole because increasing numbers of people are opting to use mobile devices to access the Internet.

Please mark your calendars for a timely one hour session on Network Neutrality during AALL’s Annual Meeting in Philadelphia, “Can the FCC Regulate the Internet?” (F2) on Monday, July 25 at 10:45 a.m. Ryan will moderate a lively discussion between Markham Erickson, Executive Director of the Open Internet Coalition, of which AALL is a member, and Dan Brenner, Partner at Hogan Lovells. The speakers will discuss the impact of the new rules on law libraries as well as legal challenges the FCC may face in implementing and enforcing these rules.


As Talks Break Down, What’s Next for Net Neutrality?

August 6, 2010

Talks between the Federal Communications Commission (FCC) and stakeholders on net neutrality fell apart yesterday, amidst reports that Google and Verizon had made a private deal over the management of Internet traffic.

The FCC had been meeting with stakeholders, including the Open Internet Coalition, of which AALL is a member, and industry groups like the National Cable and Telecommunications Association, to try to find agreement on how the FCC should proceed on net neutrality.

AALL supports Chairman Genachowski’s recent proposal to allow the FCC to regulate the transmission component of Internet access. We believe the plan is a sensible approach that would ensure that the FCC could continue to promote a free and open Internet while protecting users from discrimination. Unfortunately, many industry groups have expressed opposition to the plan, claiming that the FCC is attempting to regulate the Internet.

Sen. John Kerry (D-MA), who co-sponsored legislation that AALL strongly supported in the 110th Congress to ensure net neutrality, yesterday urged Chairman Genachowski to move forward with his plan, stating that, “Congressional stalemate is making a legislative solution look increasingly unlikely in the near term.”

Net neutrality is a priority for AALL because law librarians are providers, creators and users of digital information, and it is up to law libraries to ensure that everyone has equal access to the information they need. We will keep you updated on the status of net neutrality as developments occur.

For background information, please read our Issue Brief. And make sure you’ve subscribed to our Advocacy Listserv, where you’ll receive alerts and updates on net neutrality in our monthly Washington E-Bulletin!

[Posted by Emily Feldman]


Federal Appeals Court Rules against FCC on Net Neutrality

April 6, 2010

In a very disappointing decision today from the United States Court of Appeals for the District of Columbia, the Court ruled that the Federal Communications Commission (FCC) may not prevent broadband providers from discriminating against certain types of Internet traffic. This is a significant setback for the FCC, which only recently released its ambitious National Broadband Plan to ensure that every American has access to high-speed Internet. President Obama has repeatedly affirmed his commitment to protecting net neutrality as well.

In 2007, the FCC ordered the Comcast Corporation to stop blocking subscribers from accessing BitTorrent, a free, open source peer-to-peer file-sharing application, on the grounds that Comcast was violating the FCC’s Internet Policy Statement FCC 05-151 on broadband Internet access. Comcast initially complied with the Order, but later petitioned for review.

Because the FCC has no express statutory authority to regulate an Internet service provider’s network management practices, the agency needed to prove that barring Comcast from blocking access to BitTorrent was “reasonably ancillary to the…effective performance of its statutorily mandated responsibilities.” The Court found that the FCC failed to make this showing.

Markham Erickson, Executive Director of the Open Internet Coalition of which AALL is a member, said today, “The Court’s sweeping decision eliminates the Agency’s power to either enforce the Internet Policy Statement or possibly to promulgate new open Internet rules to protect consumers and small businesses under Title I. As a result, the FCC is now unable to police the Internet against anti-competitive and anti-consumer behavior by broadband providers, and may not be able to implement many of the elements of the National Broadband Plan.”

As explained in our Network Neutrality Issue Brief, net neutrality is very important to AALL because law librarians are providers, creators and users of digital information. Without net neutrality, law libraries may not be able to afford the necessary fees for access to the “fast lane,” preventing their users from having a consistent and reliable way of accessing important online legal information.

The Government Relations Office will continue to monitor this important issue and keep you updated as developments occur.

[Posted by Emily Feldman]


Senate Committee Addresses “Future of the Internet”

April 25, 2008

On April 22, the Senate Committee on Commerce, Science, and Transportation held a hearing titled “The Future of the Internet.” The hearing addressed consumer expectations and network operation, including network neutrality.

The hearing featured a wide array of witnesses, including Kevin J. Martin, Chairman of the Federal Communications Commission and Lawrence Lessig, Professor of Law at Stanford Law School. Testimony of all witnesses is available on the Committee website.

Professor Lessig, who for years focused his energies on copyright and Creative Commons, recently turned his focus to the influence of money in politics in the form of the Change Congress movement. He has developed a series of video lectures on the project which explain his ideas. Check them out for a great Friday break!

[Posted by Emily Feldman]


Summary of This Week’s Hearings

March 14, 2008

This week, the House held many hearings on issues of interest to AALL. Mary Alice Baish and I attended hearings on network neutrality, orphan works, and EPA library closures. Here are our summaries of those hearings.

Hearing on Network Neutrality

On Tuesday, March 11, the House Judiciary Committee Antitrust Task Force held its hearing on network neutrality. The hearing brought together an interesting set of bedfellows, including Michele Combs, Vice President of Communications Christian Coalition of America and Caroline Fredrickson, Director of the ACLU Washington Legislative Office, who argued that net neutrality is a free speech issue. Damian Kulash, Lead Vocalist and Guitarist of the band OK Go and Susan P. Crawford, Visiting Associate Professor of Law at Yale Law School also testified in support of net neutrality. Christopher S. Yoo, Professor of Law and Communication and Director of the Center for Technology, Innovation, and Competition at University of Pennsylvania Law School, argued against mandating network neutrality, and Rick Carnes, President of the Songwriters Guild of America testified that internet regulation would harm the fight against internet piracy. Testimony is available on the Committee website.

While members of OK Go were up on the Hill, they sat down to talk with Rep. Edward Markey (D-MA-7), Chairman of the House Subcommittee on Telecommunications and the Internet, about why net neutrality is important to them and why they support Chairman Markey’s recently introduced net neutrality bill (H.R. 5353). OK Go has relied heavily on the internet, especially YouTube, to popularize their music videos, and one of their videos, “Here it Goes Again,” won a Grammy in 2007. “This video certainly would not have gotten out if it weren’t for Net Neutrality,” Kulash said.

Hearing on Orphan Works

On Thursday, March 13, the House Judiciary Committee’s Subcommittee on Courts, the Internet, and Intellectual Property held an important hearing on “Promoting the Use of Orphan Works: Balancing the Interests of Copyright Owners and Users.” The term orphan works refers to the large volume of works that are likely still protected by copyright although their owners cannot be located after a reasonable effort. This is not a new issue for us. Following a 2005 investigation on orphan works by the U.S. Copyright Office, they published a report and recommendations that led to the introduction of the Orphan Works Act of 2006 (H.R. 5439). AALL strongly supported H.R. 5439 and many of you helped get cosponsors by responding to our action alert. Unfortunately, that bill did not move because of concerns raised by textile manufacturers and photographers.

Both groups were represented by witnesses at yesterday’s hearing who raised their continued concerns with the 2006 bill. Speaking on our side in support of the need for orphan works legislation were Register of Copyrights Marybeth Peters; Karen Coe, Associate Legal Counsel for the U.S. Holocaust Memorial Museum; and Allan Adler, Vice President of Legal and Government Affairs for the Association of American Publishers. Testimony of all witnesses is available on the Committee website. It was clear from the hearing that the Subcommittee wants to move forward on a new bill while at the same time responding to concerns from the photographers and textile manufacturers. Stay tuned for next steps and, hopefully, the introduction of a new orphan works bill shortly.

Hearing on EPA’s Library Closures

Also on Thursday, the House Committee on Science and Technology Subcommittee on Investigations and Oversight held a hearing titled, “EPA Library Closures: Better Access for a Broader Audience?.” The hearing was a lively one, and Chairman Brad Miller (D-NC) criticized the Environmental Protection Agency for its failure to talk to stakeholders and the public before closing the libraries and its continued failure to engage stakeholders on its plan to reopen the libraries, as authorized by the FY 2008 appropriations omnibus bill. EPA began closing regional libraries and its Headquarters library in 2006.

Witnesses included John Stephenson (GAO), Charles Orzehoskie (American Federation of Government Employees), Francesca Grifo (Union of Concerned Scientists), Jim Rettig (President–Elect of the American Library Association), and Molly O’Neill (Assistant Administrator for the Office of Environmental Information (OEI) and Chief Information Officer at the Environmental Protection Agency). Witness statements are available on the Committee website. AALL signed on to ALA’s statement.

The FY 2008 appropriations omnibus bill gave a $1 million order to the EPA to restore its library services across the country. The order included a direction to EPA to produce “a report on actions it will take to restore publicly available libraries to provide environmental information and data” to the Appropriations Committee by March 26. The report will include an explanation of EPA’s plan and progress for reopening the libraries.

AALL has been involved in this issue since February 2006, and we are pleased that at long last, the GAO report, “EPA Needs to Ensure That Best Practices and Procedures Are Followed When Making Further Changes to Its Library Network” has been released. We applaud its findings.

[Posted by Emily Feldman]

 


House Hearing on Net Neutrality

March 10, 2008

Tomorrow at 2:00pm, the House Judiciary Committee will hold a hearing titled Net Neutrality and Free Speech on the Internet” in the Rayburn House Office Building, Room 2141. A live webcast will be available. The Witness List is not yet available, but should be posted to the Judiciary Committee website later today.

As reported in the February Edition of the AALL Washington E-bulletin, AALL supports legislative efforts that assure the continuation of an open and non-discriminatory Internet where all providers and users of information have equitable access to the diverse content and innovations of the Internet. Two recently introduced bills would affirm this principle in law and would prevent network operators from discriminating against certain types of Internet traffic. In January, Sen. Byron Dorgan (D-ND) introduced the Internet Freedom Preservation Act (S.215) which amends the Communications Act of 1934 to ensure net neutrality. On February 12, Rep. Edward Markey (D-7-MA) introduced a House version of the bill (H.R. 5353).

AALL is a member of the SavetheInternet.com Coalition, which bands individuals, non-profit organizations, businesses and bloggers together to support net neutrality.

[Posted by Emily Feldman]


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