Impending FCC ruling on: Protecting and Promoting the Open Internet

Tuesday, January 20, 2015

Impending FCC ruling on: Protecting and Promoting the Open Internet
GN Docket No. 14-28
FCC 14-61

Adopted: May 15, 2014         Released May, 15, 2014
Comment Date: July 15, 2014
Reply Comment Date: September 10, 2014

By the Commission: Chairman Wheeler and Commissioner Clyburn issuing separate statements; Commissioner Rosenworcel concurring and issuing a statement. Commissioners Pai and O’Rielly dissenting and issuing separate statements.

Background Summary:

The long-standing battle over regulating the Internet may culminate in February as Chairman Tom Wheeler is likely to circulate an Open Internet Order on February 5th, with voting to take place on February 26th, 2015.  The main issue in the net-neutrality debate is “whether the FCC will shift the authority through which it regulates Internet service providers from Section 706 of the Telecommunications Act (PL 104-104) to Title II of the 1934 Communications Act. The concept of Open Internet is often referred to as Net Neutrality and refers to the principle that consumers should have the ability to make their own choices about what applications and services they want to use.  It is maintained that Open Internet spurs innovation and investment.  However, some businesses would like to charge a fee to users for faster access in effect creating a tiered system of paid prioritization for access. In a confusing way, by regulating the Internet the FCC would ensure that it stays open or neutral.

The White House has weighed in on the subject supporting the principle of Net Neutrality.  It should be noted that the National Congress of American Indians, the national representative body of more than 300 Tribal Nations, has passed a resolution supporting the preservation of Open Internet via regulation.

In 2010, the Federal Communications Commission released the Open Internet Order developing high-level mandates to require transparency (requiring broadband Internet providers to disclose network management practices, performance and terms and conditions of their services) and prohibit blocking, deterring discrimination to protect and support an Open Internet. Verizon challenged this order in Verizon v. FCC and Independent Telephone & Telecommunications Alliance, et. al., Intervenors. The United States Court of Appeals for the District of Columbia Circuit “affirmed the FCC’s authority to regulate broadband Internet access service and the Open Internet” which they argued would encourage broadband investment and deployment (and not inhibit it). “The court upheld the transparency rule, but vacated (cancelled) the no-blocking and no-unreasonable discrimination rules. The court invited the FCC to act to preserve a free and open Internet.”
Protecting and Promoting the Open Internet
On May 15, 2014, the FCC released the Protecting and Promoting the Open Internet (GN Docket No. 14-28) Notice of Proposed Rulemaking (NPRM). Since the docket opened, the FCC has received over 4 million comments in response to the NPRM, making it the largest docket in the history of the FCC. Since its release the docket accelerated discussion about Net Neutrality. A term coined by Columbia Law School Professor, Tim Wu, describes the principle that the Internet should be an open access network that is non-discriminatory and gives the “users the right to use non-harmful network attachments or applications, and give innovators the corresponding freedom to supply them.” Furthermore, proponents of the Net Neutrality debate want to prevent Internet service providers from blocking or slowing websites or creating different speed lanes for service (i.e. fast lanes) via paid priority mechanisms.
Simply put, an Open Internet Order could regulate that Internet service providers treat all content equally, giving users open access for all applications and devices and no content provider would be given preferential treatment (i.e. faster lane), as well as no content could be purposely blocked or charged different rates. Supporters of net neutrality suggest that with usage-based pricing, the digital divide, particularly as it exists in lower socioeconomic areas and on Tribal lands could potentially increase the current divide. Opponents to net neutrality policy and regulation contend that regulation will deter users the potential benefits of more options and increased speeds/traffic, while simultaneously stalling innovation, and competition amongst Internet service providers. 

Goals of NPRM- Protecting and Promoting the Open Internet:

• Develop a legally enforceable framework.
• Secure the Internet as an “engine for innovation and the economic and social benefits to follow.”
• Enhance the transparency rule upheld in the 2010 Order (ensuring consumers are provided full disclosure of services).
• Adopt no-blocking rules so all may enjoy “robust, fast and dynamic Internet access.”
• Prohibit paid prioritization.
• Propose a multi-faceted dispute resolution process.
• Ensure choices for consumers and innovators.
• Seek how” either section 706 or Title II (or other sources of legal authority such as Title III for mobile services) could be applied.”

Considerations for Tribal Nations and communities:

• As the Internet becomes a utility, what does this mean for individual Tribal members or Tribal Nations What does it mean for Tribes without a land-base or Tribes in Tribal Statistical Areas? There are many considerations with regard to Tribal populations and Nations.
• With regard to Tribal telecommunications operators and/or Internet service providers, what challenges and opportunities might be expected if the Internet is regulated?
• Broadband penetration and deployment is significantly less than that of the general American population making Indian Country one of the most vulnerable populations in the digital age. How might Open Internet support or discourage efforts to bring Indian Country to parity in digital connectivity and access?
• How might the possibility of “fast lanes,” “slow lanes,” and “blocking” in limit Tribal populations to unequal access to the Internet?
• Could usage-based or “metered or capped” broadband services potentially could increase a larger digital divide in Indian Country where access, connectivity, innovation and content is already limited or doesn’t exist?
• Indian Country utilizes mobile and mobile broadband services in high rates that warrant transparency. Can the proposed rules further protect vulnerable populations who utilize mobile services, especially in areas where connectivity is lacking or non-existent and if so, how?
• As Indian Country continues to wrestle with creating more effective and efficient Tribal economies, how is Open Internet critical to allowing for innovation and economic opportunity to spark in many of the most rural crevices in Indian Country? Whether it is through business development, economic or social development or supporting efforts in education and health, an Open Internet is a part of a larger discussion on connectivity and access to exercising self-determination—what does Open Internet mean for your community?
• As technology progresses, it has become exceedingly important to consider how issues of broadband, telecommunications, connectivity, become critical to preserving and expanding language and culture and exercising sovereignty and self-determination.

Please consider the current state of you and/or your Tribe, Nation or community’s needs and access to the Internet, broadband and telecommunications services, or lack thereof and provide comment before January 29th, 2015. Engaging in these discussions and contributing comments ensures your voice from Indian Country to be included in part of the record.

• Review the NPRM Protecting and Promoting the Open Internet (GN Docket No. 14-28) with your community and/or leadership
• Provide comments to the FCC through the Electronic Comment Filing System (ECFS).

Comments sought:

Provide your own comments or provide comments in response to the areas below:

• Re-adoption of the 2010 no-blocking rule and allow individualized bargaining above a minimum level of access to broadband provider’s subscribers and be consistent with commercial reasonableness. What effects might occur on broadband network infrastructure and technologies. How to define minimum level and commercial reasonableness.
• How would treating mobile broadband differently from fixed broadband affect consumers in different demographic groups and those who rely solely on mobile services?
• Adoption of a case-by-case approach in analyzing commercially reasonable legal standard.
• Should the Commission impose flat bans on pay-for-priority practices or some of them?
• Should the Commission be able to identify specific services that would be treated separately from the application of the commercially reasonable legal standard? (i.e. potential safe harbors)
• Under Title II, should the Commission revisit the classification of broadband Internet access service as an information service or separately identify and classify it as a telecommunications service, a service that “broadband providers furnish to edge providers.”
• Other legal limitations and barriers to adoption of the rules, including the First Amendment and Due Process considerations.

Other perspectives to consider:

In Support of Net Neutrality (Open Internet)

• National Congress of American Indian
• Color of Change
• National Hispanic Media Coalition
• Native Public Media
• National Organization for Women 

Against Net Neutrality (Open Internet)

• National Association for the Advancement of Colored People (NAACP)
• National Urban League
• Rainbow/PUSH Coalition
• League of United Latin American Citizens
• Minority Media and Telecommunications Council


• Protecting and Promoting the Open Internet (GN Docket No. 14-28) (FCC 14-61).
• National Congress of American Indians (NCAI) Resolution #RAP-10-007. Call for Support of Non-Discrimination and to Preserve Open Internet or Network Neutrality.
• Net Neutrality: President Obama’s Plan for a Free and Open Internet.
• Open Internet Order (GN Docket No. 09-191) (FCC 10-201).
• American Civil Liberties Union: What Is Net Neutrality?
• McMillian, Robert. “What Everyone Gets Wrong in the Debate Over Net Neutrality.” Wired. Enterprise. June 23, 2014.
• Former FCC Commissioner Michael Copps on Net Neutrality: Net Neutrality is a Civil Rights Issue
• FCC Consumer Guide on Promoting Open Internet
• Wihbey, John. "The Net Neutrality Debate and Underlying Dynamics: Research Perspectives." Journalist's Resource: Research on Today's News Topics. November 10, 2014.