On Monday, April 26, reply comments were submitted to the Federal Communications Commission (FCC) concerning preservation of the open Internet and the broadband industry. The comments were submitted for the International Documentary Association, Film Independent, University Film & Video Association, Independent Filmmaker Project, IFP / Chicago, IFP Minnesota and National Association for Media Arts and Culture (NAMAC).
The comments were prepared by Jack Lerner, Annie Aboulian and Daniel Senter of the USC Intellectual Property and Technology Law Clinic, under the guidance of attorney and former IDA Board President, Michael Donaldson.
The following is a summary of the reply comment filed with the FCC. A PDF of the complete 59-page document can be downloaded here:
SUMMARY
The Internet must remain open if there is to be a future for independent and documentary film. In recent years, the open architecture of the Internet has revolutionized independent and documentary film: it has fostered the development of new and innovative promotion and distribution channels, provided unprecedented access to rich source material, and made self-distribution of independent and documentary film feasible for the first time ever. To preserve the Internet as the preeminent platform for independent and documentary films, and the diverse, creative and often marginalized voices they bring to light, the Commission must promulgate clear and meaningful open Internet rules. As written, however, the proposed rules contain significant flaws that will undermine this objective and erect the same barriers to entry online that afflict documentary and independent filmmakers offline.
Before Internet distribution and promotion were possible, documentary and independent filmmakers had few available channels by which to share their films with the public. A small number of theaters, a few television channels, and the independent film festival circuit presented a very limited number of distribution and consumption outlets for documentary and independent film. In recent years, these opportunities were further limited by vertical integration and consolidation between and among studios, broadcast networks and cable channels. The Internet has lowered or removed many of these barriers to entry, and filmmakers have been able to extend the reach and run of their films in ways never before possible.
This sea change for documentary and independent film is critical to the preservation of free speech, investigative reporting and in-depth analysis, especially at a time when the traditional news industry is in decline and traditional media sources continue to consolidate and vertically integrate. Whether through an entertaining, character-driven narrative about the human condition, or through an investigation into corporate or political malfeasance, documentary and independent films reveal hidden truths, provide windows into our diverse experiences and cultural identities, and inspire the type of civic engagement and dialogue that is critical to democracy. If documentary and independent film is to continue to have this role, we must preserve the openness of the Internet.
We strongly support the goals that the Commission has articulated for this rulemaking and the adoption of the six proposed rules set forth in the Notice of Proposed Rulemaking (NPRM). We are concerned, however, that the Commission might exclude a broad and virtually undefined class of "managed services" from the open Internet rules and that it would impose an overly broad "reasonable network management" exception, both of which would undermine the very openness that it seeks to preserve and that has been so critical to the Internet's success.
Furthermore, we are concerned that the proposed transparency rule does not require Internet Service Providers (ISPs) to disclose their network management practices, and we urge the Commission to establish a discrete complaint procedure that is user-friendly, meaningful and efficient. If these provisions are not modified, documentary and independent filmmakers will again face an uneven playing field, and in the long run, the public will have far less access to documentary and independent film. We therefore offer four recommendations to remedy these deficiencies and to strengthen and clarify the rules proposed by the Commission.
First, we urge the Commission not to exclude a broad and undefined class of "managed services" from the purview of this rulemaking. To leave this category of services undefined is a recipe for misuse and abuse, and opens the door to the virtual elimination of competition online. To begin with, it is not clear that a pressing need exists for an exclusion of any kind, because the current best-effort delivery system has worked adequately thus far. Before the Commission establishes such an exclusion, it should wait until more research has been conducted to determine if further regulation is needed. More importantly, a vague or loosely defined exclusion would enable ISPs to institute a pay-for-priority regime in which content and applications from those with deep pockets would get a pass to a fast lane, while films and other content produced with little or no money for marketing and distribution would be relegated to the slow lanes. If a class of "managed services" is to be excluded from this rulemaking, the Commission should at the very least make clear that any such class must be defined based on the function of the services (e.g. video, teleconferencing, etc.), and not on who is paying for them. Finally, the Commission should require that managed services programs must be reviewed and monitored by the Commission on a case-by-case basis.
Second, the exception for "reasonable network management" (RNM) as written would severely undermine the six open Internet principles. The proposed exception would allow ISPs to ignore any of the rules promulgated here in order to "prevent the transfer of unlawful content; or prevent the unlawful transfer of content"-even though no adequate technology exists that can reliably determine at the ISP level whether content is lawful. Any rule that permits ISPs to install filtering or any other technology designed to ferret out infringing content under the guise of reasonable network management would inevitably cause significant amounts of lawful content, such as fair use material, to be blocked or slowed down. Worse, such technology is vulnerable to manipulation and may allow ISPs to engage in a range of non-neutral or anti-competitive activities under the banner of "reasonable network management." As copyright holders ourselves, we care deeply about the protection of copyrighted work--but this is the wrong way to go about it. We recommend that this exception be focused on technical efforts to promote network efficiency, and that the standard for what constitutes "reasonable" in the RNM definition turn on whether the activity is narrowly tailored to address a critically important interest.
Third, the Commission's proposed transparency rule should be made more robust by setting forth minimum standards for adequate transparency. We propose that ISPs be required to provide clear, comprehensive and easy-to-understand disclosure of any network management activity that may interfere with a user's service so that documentary filmmakers, independent filmmakers and others can quickly and easily determine whether or not transmission of their films has been throttled, slowed or blocked. Furthermore, we urge the Commission to remove the term "subject to reasonable network management" from the proposed transparency rule because that language would allow ISPs to avoid disclosing important information in a wide range of circumstances in the name of network management.
Fourth, the Commission should establish a complaint process that is user-friendly, meaningful and efficient. We recommend that the complaint procedure be simple and accessible via the websites of both the Commission and the ISPs, and it should apply uniformly to all broadband Internet providers. If a party making a complaint can make a reasonable showing of a violation, we propose that the burden should then shift to the ISP to demonstrate that its practice qualifies as reasonable network management. Finally, we suggest that the process require the Commission to respond to complaints within a set timeframe.
We understand that the Commission is reviewing its jurisdictional authority over matters related to this rulemaking in light of the recent Comcast Corporation v. Federal Communications Commission decision. The Commission is the appropriate agency to ensure that the Internet remains free and open, and we submit this Reply Comment under the assumption that the Commission either already has, or will be granted, the authority to conduct this rulemaking.