Reply Comments on Protecting and Promoting the Open Internet

Yesterday, New America’s Open Technology Institute filed reply comments in the FCC’s Open Internet proceeding. The executive summary is below; download the full comments.

In order to preserve the Internet as a force for innovation, economic growth, and unfettered access, the Federal Communications Commission must create robust and enforceable rules that protect against blocking lawful content, discrimination on the basis of content or type of content or application, and the imposition of access fees by Internet Service Providers (ISPs) to edge providers or other content creators. In these reply comments, the Open Technology Institute (OTI) at New America reiterates and expands upon our initial comments in this proceeding, emphasizing that relying on Title II as the legal foundation for network neutrality rules is neither radical, nor heavy-handed, and is instead a narrowly tailored and bounded approach grounded in sound principles and historical precedence.

OTI has consistently advocated for clear network neutrality protections against blocking, discrimination, and fees for access to or prioritized or enhanced delivery of content into and over the last mile terminating access monopoly. We argue that the Commission’s current proposal does not offer these protections, and as long as the rules are grounded in §706 authority, it cannot adequately protect against these harms. Moreover, §706 is actually the heavy-handed legal approach to network neutrality rules—Title II offers the Commission “light touch” authority for regulation of ISPs, and is based on decades of precedent that is grounded in fundamental principles of common carriage protections. Far from radical, this principle has underscored many industries throughout history, including the communications industry, and reclassification simply allows the Commission to apply common carriage to modern communications networks. Nor will reclassification reduce broadband investment, which actually flourished under Title II regulation in the 1990s and early 2000s, as well as under the Commission’s 2010 Open Internet Rules.

In addition to concerns about discriminatory behavior on last-mile networks, we argue that interconnection disputes present an immediate and serious consumer harm and threaten the open Internet. Preliminary analysis of data collected using the Measurement Lab platform—a public, open data resource for Internet measurement—appears to confirm that high-profile disputes between content providers, transit networks, and the largest ISPs in the United States can lead to massive degradation of Internet service over a period of months and customers held hostage by ISPs in an effort to extract greater fees from edge providers. Consumers pay the price when conflicts between major network providers and their interconnection peers arise, yet the Commission has neither fully considered nor remedied the problem. We therefore urge the Commission to address the risks of harms into the last mile terminating access monopoly as it considers the parallel harms over the terminating access monopoly—which requires reclassifying broadband Internet access services.

In spite of the arguments made by some large ISPs, strong network neutrality rules grounded in sound legal authority will not cause a worldwide upset. Rather, in light of the debates about net neutrality occurring around the world from Europe to Latin America, the Commission has an opportunity to demonstrate U.S. leadership by adopting clear, bright-line rules grounded in a sound legal framework. We argue that any claims that bright-line rules that protect against blocking and discriminatory behavior would make it easier for foreign governments to justify censorship and greater control over the network are without merit. Nor would strong network neutrality rules encourage other types of heavy-handed “over-regulation” of the Internet by foreign countries or diminish American credibility internationally. To the contrary, the policies related to access fee tolls that OTI and others have proposed are actually consistent with what Internet service providers have advocated for in the international context before, particularly in response to a “sender-party pays” proposal made by the European Telecommunications Network Operators prior to the 2012 World Conference on International Telecommunications in Dubai.

Finally, we emphasize that the record demonstrates diverse and widespread support for a common regulatory framework that applies equally to fixed and mobile broadband providers and subject to a reasonable network management exception. It will be increasingly incoherent and unworkable to maintain distinct regulatory frameworks for mobile and fixed broadband access networks, and the record suggests that the only parties opposing a common regulatory framework for network neutrality are the mobile carriers and some of their suppliers. There is a clear consensus among commenters that the Commission’s proposal to largely exempt mobile carriers from open Internet rules would have a disparate and negative impact on minority, low-income and rural communities that rely disproportionately on wireless Internet access. The data and the record in this proceeding are clear that traditionally disadvantaged groups – tens of millions of Americans – are not only much less likely to have a high-speed fixed broadband connection at home, they are also more than twice as likely to rely either solely or primarily on wireless broadband networks for their primary Internet access.