2014 FCC Net Neutrality Rule-Making: Higher Education/Libraries Reply Comments (244130736)

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In July 2014, a coalition of higher education and library groups, including EDUCAUSE, submitted formal comments to the Federal Communications Commission (FCC) regarding its “open Internet” (network neutrality) notice of proposed rule-making. As part of the rule-making process, the FCC also accepted comments through early September that were submitted in response to the initial July filings it had received. EDUCAUSE again joined with other higher education and library organizations to provide such “reply comments,” which focused on further explaining how the FCC might best reestablish strong network neutrality rules utilizing its legal authority under Section 706 of the Telecommunications Act. In particular, the higher education/libraries reply comments: Provided additional examples of the importance of an open Internet for education, research, and learning; Clarified the proposal to establish a no-blocking rule that requires an ISP to fulfill the consumer’s decision to access whatever applications, services, or web sites s/he chooses once the ISP has chosen to provide Internet access to him or her; Elaborated on the proposal that the FCC should adopt an “Internet reasonable” standard (rather than a “commercially reasonable” standard) under Section 706; and Reiterated that the proposed rules should not apply to end-user or private networks, such as campus or library networks, or private networks that serve campuses or libraries.
    Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 In the Matter of ) ) Protecting and Promoting ) GN Docket No. 14-28 the Open Internet ) ) Reply Comments of A MERICAN A SSOCIATION OF C OMMUNITY C OLLEGES  A MERICAN A SSOCIATION OF S TATE C OLLEGES AND U NIVERSITIES  A MERICAN C OUNCIL ON E DUCATION  A MERICAN L IBRARY A SSOCIATION  A SSOCIATION OF A MERICAN U NIVERSITIES  A SSOCIATION OF C OLLEGE &   R ESEARCH L IBRARIES  A SSOCIATION OF P UBLIC AND L AND - GRANT U NIVERSITIES  A SSOCIATION OF R ESEARCH L IBRARIES C HIEF O FFICERS OF S TATE L IBRARY A GENCIES C OUNCIL OF I NDEPENDENT C OLLEGES  M ODERN L ANGUAGE AND THE  N ATIONAL A SSOCIATION OF I NDEPENDENT C OLLEGES &   U NIVERSITIES  September 15, 2014 I.   Introduction The American Association of Community Colleges (AACC), the American Association of State Colleges and Universities (AASCU), the American Council on Education (ACE), American Library Association (ALA), the Association of American Universities (AAU), the Association of College & Research Libraries (ACRL), the Association of Public and  Open Internet Reply Comments of AACC, AASCU, ACE, ALA, AAU, ACRL, APLU, ARL, COSLA, CIC, EDUCAUSE, MLA and NAICU 2 | Page   Land-grant Universities (APLU), the Association of Research Libraries (ARL), the Chief Officers of State Library Agencies (COSLA), the Council of Independent Colleges (CIC), EDUCAUSE, the Modern Language Association (MLA) and the National Association of Independent Colleges & Universities (NAICU) 1  welcome the opportunity to submit these reply comments in response to the Notice of Proposed Rulemaking (NPRM) in this proceeding 2  to protect and promote the open Internet. A.   The Commission Must Take Special Heed of the Importance of An Open Internet for Education, Research and Learning. Our nation’s libraries and institutions of higher education are leaders in creating, fostering, using, extending and maximizing the potential of the Internet for research, education and the public good. As we stated in our initial comments, libraries and institutions of higher education depend upon an open Internet to fulfill their missions and serve their communities. The D.C. Circuit Court of Appeals decision in Verizon v. FCC 3  that vacated the no-discrimination and no-blocking rul es (the “behavioral” rules) causes us great concern. Broadband providers that serve the general public (which we refer to herein as “public  broadband Internet access providers”  , or “ PBIAPs ” ) currently have the financial incentive and the opportunity to sell higher priority access to certain content providers and discriminate against other providers who do not have the resources to pay for enhanced access. If public broadband providers are allowed to prioritize or degrade certain Internet traffic, or discriminate in favor of or against certain content or applications, the future of the Internet as a platform for education, research, learning, innovation and free speech will be put in jeopardy. Our organizations continue to support the adoption of strong, enforceable net neutrality rules. To this end, several library and higher education organizations jointly released a set of “Net Neutrality Principles” on July 10 of this year  that we suggest should be the foundation of the FCC’s decision in this proceeding. 4  We also filed initial comments in this proceeding suggesting several strategies that the Commission could use to protect 1  Brief descriptions of each of these organizations were provided in Appendix B of our initial comments in this proceeding. 2  FCC 14-61, released May 15, 2014. 3  Verizon v. FCC  , 740 F.3d 623 (D.C. Cir. 2014) (“ Verizon ”).   4  See Appendix A of our initial comments in this proceeding.  Open Internet Reply Comments of AACC, AASCU, ACE, ALA, AAU, ACRL, APLU, ARL, COSLA, CIC, EDUCAUSE, MLA and NAICU 3 | Page   and promote an open Internet. We believe adoption of these principles and strategies will go a long way toward preserving the openness of the Internet for education, research and learning. We are not aware of any commenters who disagreed with the importance of an open Internet for education, research, and learning. In fact, the New America Foundation specifically recognized the importance of an open Internet for schools, libraries and other public institutions. 5  At the same time, few commenters called attention to these needs, and the NPRM does not focus on these issues as much as it could. As an example, we note that the opening paragraph of the NPRM released on May 15, 2014, does not use any of the words “education,” “research” or “learning.” 6  As another example, we also noted in our initial comments, the proposed ombudsman should be explicitly chartered to look out for the interests of libraries and higher education in addition to small businesses and innovators. Recognizing the important public interest in education, research and learning throughout the FCC’s final order will help the Commission orient its net neutrality policy in a way that recognizes these cherished public interest values. B.   Overview of these Reply Comments. Rather than re-stating our initial comments, we will spend most of our effort in these reply comments further clarifying some of the concepts that we believe will help the Commission develop a net neutrality regime that is both principled and flexible. We begin by noting that the Verizon  court found that the PBIAPs ’  service to edge providers constituted a service separate and distinct from the service PBIAPs provide to 5   See Comments of New America Foundation, p. 7 (“Finally, the open Internet is necessary for schools, libraries, and other public institutions —  which play an increasingly important role in bridging the digital divide in the United States — to continue to serve as 21st century hubs of connectivity.”).   6   The opening two sentences of the NPRM say “The Internet is America’s most important platform for economic growth, innovation, competition, free expression, and broadband investment and deployment. As a ‘general purpose technology,’ the Internet has been, and remains to date, the preeminent 21st century engine for innovation and the economic and social benefits that follow.” The words “research and   learning” could be easily added into the first sentence, and the word “educational” could be added into the second sentence after “economic”.    Open Internet Reply Comments of AACC, AASCU, ACE, ALA, AAU, ACRL, APLU, ARL, COSLA, CIC, EDUCAUSE, MLA and NAICU 4 | Page   consumers. 7  Thus, to preserve the openness of the Internet, the FCC must develop  behavioral rules governing “consumer access” and behavioral rules governing “edge provider access.”  T he nature of the PBIAP’s relationship with the “consumer” is somewhat different from its relationship with “edge providers.” The PBIAP usually has a direct billing relationship with the consumer and provides a particular level of service purchased by that consumer. The “edge provider” side may be quite different. The PBIAP might, for instance, connect generally to an Internet peering point or backbone and may not have a direct relationship with any particular edge provider. In other cases, the PBIAP may have a specific contractual relationship with certain edge providers, or it may have a contractual relationship with another transmission provider (a transit provider, for instance) used by a particular edge provider or providers. As a result, the rules established to govern the “consumer access” side may take on a somewhat different form than the rules governing “edge provider  access, ”  even though the Commission must set policies governing both relationships in order to protect an open Internet. 8  Our views about Title II and Section 706 are set forth in our initial comments in this proceeding. We are focusing our discussion in these reply comments on how the Commission might effectively utilize its Section 706 authority. In particular, these reply comments will a.   provide additional examples of the importance of an open Internet for education, research and learning.  b.   r egarding “consumer access,” clarify our proposal to establish a no -blocking policy under section 706 that requires the PBIAP, once it has chosen to provide Internet access to a consumer, to fulfill the consumer’s decision to access whatever applications, services or web sites the consumer chooses; and 7  The Verizon   court stated as follows: “Because broadband providers furnish a service to edge providers, thus un doubtedly functioning as edge providers’ ‘carriers,’ the obligations that the Commission imposes on broadband providers may well constitute common carriage  per se regardless of whether edge providers are broadband providers’ principal customers.” Slip op.  p. 51. 8  We note that libraries and higher education, as well as many others, both consume and produce information and thus are both consumers and edge providers. Nonetheless, we understand that the Commission must adapt its rules to the Verizon   court’s interpretation and suggest rules governing each set of relationships –  to both consumers and to edge providers.  
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