A federal court this week delivered a mixed decision in a key court case—Mozilla et al v. Federal Communications Commission (FCC)—that sought to undo the FCC’s repeal of net neutrality protections. There’s more to come in the net neutrality fight, but the long and short of the decision: it is a loss.
In Tuesday’s 2-1 ruling, an appeals court basically upheld the FCC’s controversial decision to reclassify broadband as an information service, in essence meaning that internet service will no longer be treated like a utility, like phone service. That paves the way for providers to throttle speeds, block websites, or charge more for faster services, or premium content.
But the ruling was not a total victory for the telecom industry. That’s because the court also held that the FCC couldn’t block states from imposing their own net neutrality restrictions—and, in fact, 29 states have already moved to do so, including California, which has actually passed a law adopting stronger rules than the FCC’s previous policy mandated. The New York Times said that part of the decision raises the prospect that “the long-running battle over how best to regulate the infrastructure of the internet will move to statehouses around the country.”
The legal battle is also going back to the trial court, on remand. The Appeals court sent the case back to address three non-core issues: that the FCC failed to properly consider public safety issues; on pole attachments, the court expressed concern that the FCC’s decision harmed stand-alone broadband providers' ability to deploy their services; and to look at the federal Lifeline program, which many low-income users depend on for communications access.
The American Library Association has been on the front lines of the net neutrality battle with the FCC, Congress, and the federal courts for more than a decade, working with other library and higher education organizations, as well as broad coalitions of net neutrality advocates. In Mozilla, ALA joined in filing an amicus brief in support of net neutrality.
In a statement, ALA president Wanda Brown called Tuesday’s decision “another chapter” in the fight to ensure an open internet.
“While today’s decision falls far short of our goal to restore 2015 protections, we are heartened by the court’s ruling that states may fill the gap left by the FCC’s abdication of its broadband authority,” Brown said. “Without strong and clear net neutrality protections in place, there is nothing to stop internet service providers from blocking or throttling legal internet traffic or setting up commercial arrangements where certain traffic is prioritized. The American people know this and overwhelmingly support strong net neutrality protections. ALA and the nearly 120,000 libraries across the country will not stop until we have restored net neutrality protections, whether in the states, Congress or in the courts.”
Slate has an interesting take on where the net neutrality battle is heading. "Now that the court has made it clear that states may pass net neutrality rules of their own, more may try, leading to a patchwork of state laws that will either balkanize how the internet is used across the country, or force internet service providers to not engage in discriminatory behavior nationwide, since applying rules within one state’s lines alone isn’t always feasible when it comes to the relatively borderless internet."
In a typically smart take, Techdirt offers its perspective on a potential "problem of their own making,” for the telecom industries, who could have to deal with 50 state legislatures rather than one set of rules that, in fact, regulated their conduct in a reasonable fashion. “ISPs have, and will continue to whine incessantly about the perils of having to adhere to dozens of state-level net neutrality laws," the article states. “While large ISPs (and the Pai FCC) have tried to frame the FCC's 2015 rules as hugely draconian and restrictive, in reality they were fairly modest by international standards.”
For some background, Vice reported this week on a major study said to undermine a key rationale for the telecom industry's push to repeal net neutrality: that it killed investment. "The problem for the Pai FCC is that while industry may be OK with the agency playing fast and loose with the facts to the benefit of telecom giants, the courts have not been. The FCC has had three different major policy efforts reversed by the courts in as many months for being factually unsound, something that looms large over the net neutrality debate."
On one side of the net neutrality debate, The American Enterprise Institute, had this take on the Mozilla decision. "Overall, this is good news for FCC Chairman Ajit Pai’s vision. The Restoring Internet Freedom Order is premised on the notion that with enhanced transparency protections, consumers can make informed choices about broadband service, and that such information, coupled with consumer protection and antitrust laws, will address many of the potential harms that net neutrality advocates fear. The Mozilla decision blessed the agency’s power to enact this light-touch regulatory approach." The idea that consumers can make "choices" about broadband will be news to many in the country who have one service provider in their area.
On the other side, the EFF: "We’re disappointed. The FCC is supposed to be the expert agency on telecommunications, but in the case of the so-called “Save the Internet Order,” it ignored expertise and issued an order based on a wrong interpretation of the technical realities of the Internet. But we’re very pleased that the court’s ruling gives states a chance to limit the damage."
Reserve Reading
From American Libraries, the inestimable Miguel Figueroa has a great recap of OCLC's Library Futures Conference, which was held this week in Phoenix, Arizona. "OCLC President and CEO Skip Prichard opened the day by outlining the five Cs that libraries need to catalyze their communities. Libraries contribute, developing unique offerings that help make them indispensable. Through those contributions, they forge connections. Catalysts create, introducing big changes and little shifts. They compete, constantly pushing themselves forward. And they ultimately choose, from all the goals that they can pursue, the ones most important to their communities."
OCLC spokesperson Bob Murphy told PW that the event featured more than 160 library leaders, including OCLC Americas Regional Council delegates, who were on hand to hear speakers from different types and sizes of libraries "share their experiences in leading major change."
Among the speakers, Pam Sandlian Smith, Director, Anythink Libraries in Adams County, Colorado, described how her library transformed into one of the nation’s most recognized library brands. “This library is all about supporting people,” she said. “The wonderful thing about working in a library is that you have this huge amount of latitude. We are creating experiences and helping people to learn—whether it’s reading a poem, or listening to music, or coming together—this is what a library is today. It’s helping our community be successful.”
Other speakers included Alyce Sadongei, Project Coordinator for the American Indian Language Development Institute (AILDI) at the University of Arizona, who spoke about the importance of protecting, preserving and making accessible Native American history and culture; Keith Webster, Dean of University Libraries at Carnegie Mellon University, who spoke about building the library of the future and leveraging OCLC Research models; Doug Ulman, President and CEO, Pelotonia, a rapidly growing non-profit that funds lifesaving cancer research, who talked about unlocking the power of community; and Retha Hill, Executive Director of the New Media Innovation and Entrepreneurship Lab at the Walter Cronkite School of Journalism and Mass Communication at Arizona State University, who talked about hacking the future of libraries.
“These regional meetings bring us together to share thoughts around common themes,” said Debbie Schachter, ARC Chair 2019-2020, and University Librarian, Capilano University. “They offer us a chance to explore big ideas in smaller groups and to learn new approaches and practices that we can take back and use in our libraries.”
If Macmillan executives are betting that librarians will soon move on once their two-month window kicks in, they may be in for a rough ride. The issue continues to generate editorials, and is getting traction with readers. Among the national coverage of the issue this week, the Seattle Times has an editorial co-authored by Seattle Public Librarian Marcellus Turner and King County librarian Lisa G. Rosenblum. "Macmillan’s plan will have a serious impact on library users, especially those with the fewest resources and the most barriers," they write. "For library users who count on us to provide them with the latest books and materials, it means that wait periods will be the longest just when demand is the highest."
Meanwhile, as of this writing, an ALA petition circulated by librarians urging Macmillan to reverse its embargo has topped 81,000 signatures.
From Inside Higher Ed, a report that students value their libraries for more than books.
ALA announced this week that it has received a $2 million grant from Google.org "to develop library entrepreneurship centers and enable libraries across the country to double down on their support for people looking to start a new business." Google CEO Sundar Pichai announced the funding for ALA as part of a $10 million pledge to help entrepreneurs from low-income and underrepresented groups start new businesses via access to training and capital. The $2 million grant to ALA builds on Google’s ongoing support of ALA and libraries, including the Libraries Lead with Digital Skills collaboration funded by Grow with Google, which gave ALA $1 million to help libraries provide digital skills training to their patrons. ALA officials say that initiative, announced earlier this year, has already supported 130 libraries across 18 states and will continue to all 50 states in 2020.
From the New York Times, a report on an EU court decision that could force Facebook to take down content not just in the EU, but globally, setting "a benchmark for the reach of European laws governing the internet."
How does this happen? We've reported on the rave reviews that the new Hunters Point library in Queens has drawn, but it's not all raves. Gothamist reports this week that three fiction book sections in the library are accessible only by stairs.
The Week in Libraries is a weekly opinion and news column. News, tips, submissions, questions or comments are welcome, and can be submitted via email.
