Post

Here is How to Get Open Internet Rules Right

March 21, 2014

Today Public Knowledge, joined by our allies at Common Cause, submitted comments in the FCC’s Open Internet proceeding.  In the comments we made clear that the Commission must move quickly to establish strong, enforceable open internet rules that can withstand the inevitable court challenge.

Today’s comments flow from the DC Circuit’s decision in January to overturn the Open Internet rules that the FCC put in place in 2010.  In the wake of this decision, the FCC put out a Public Notice essentially asking the public what they should do.  These comments are our answer.  I urge you to take a look at them in their entirety, but just in case you are in a rush on this Friday afternoon, here are some of the high-level points.

The Open Internet is Important.  This may feel somewhat obvious, but it is worth repeating.  An open internet is key to a vibrant cultural, economic, and civic life, and the FCC has an obligation to protect it. That means that it needs to move quickly to put new rules in place.  Beyond that, those rules need to be strong enough to actually protect an open internet (no “open internet lite” masquerading as real open internet rules) and grounded in legal authority that will withstand the court challenge that will come not matter what the FCC does.

Title II is the Best Way to Protect an Open Internet.  Speaking of withstanding a court challenge, the best thing that the Commission can do to make sure that the rules survive is to ground them in strong statutory authority.  That means looking to Title II.  Many of the problems in the internet access market (abuse by termination monopolists, interconnection disputes, information asymmetry, cost of network exclusion) were solved long ago in the Title II context, and those solutions could provide quite helpful going forward.  However, if the FCC decides to test its luck with Section 706 instead – a decision that would be ill-considered – we show it how it has some flexibility to define key terms in a way that minimize any conflict between real open internet rules and prohibitions established by the DC Circuit.

Open Internet is Broader Than Net Neutrality.  The FCC has long described this docket as the “open internet” proceeding, not the “net neutrality” proceeding.  Public Knowledge is ready to accept that these terms are different, and believes that an open internet encompasses more than just net neutrality.  That means that debates as to whether or not interconnection and peering fit within the traditional definition of net neutrality should not really matter for this proceeding.  Disputes that threaten an open internet should be considered within the context of this rule.  For issues like data caps and interconnection with the potential to threaten the open internet, the FCC’s first step needs to be to start collecting data and asking questions.  Without information, it will be impossible for the FCC to determine if these types of issues are truly treats to an open internet.

Phone Principles Can Help Guide Internet Access Principles.  Most major stakeholders have come together to agree that the phone network transition should be guided by a set of fundamental principles.  Public Knowledge has described them as

  • Service to all Americans
  • Competition & Interconnection
  • Consumer Protection
  • Network Reliability
  • Public Safety

We have upheld these fundamentals for the phone network because, for the last century, the phone network has been the critical information network in the United States.  Broadband internet is quickly becoming the de facto basic communications service for this century.  As such, it is reasonable to begin the Five Fundamentals to broadband internet access.

The FCC Should Promote Rural and Municipal Broadband.  This is not directly connected to open internet rules, although it flows from the DC Circuit’s decision and could impact broadband access competition in the future.  Parts of the DC Circuit’s ruling made it clear that the FCC has firm authority to take steps to promote rural and municipal broadband, especially by preempting state laws that limit local broadband solutions.  The FCC should act on that authority and clear the way for more rural and municipal broadband deployment.

Next Steps

There is plenty more in our comments, but those are some of the highlights.  Right now the next steps are not totally clear.  The most likely scenario is that the FCC will take in all of these comments and digest them for a bit.  Sometime in the late spring, we expect to see a more formal Notice of Proposed Rulemaking.  That should outline how the FCC plans to move forward and ask the public to comment on its concrete proposal.  That will be a great opportunity for the public – that’s you – to weigh in with the FCC and tell them to protect an open internet.  Until then, we will keep working to make sure that whatever the FCC proposes is as strong and robust as possible.  And we will keep you up to date right here.