**DISSENTING STATEMENT OF**

**COMMISSIONER ROBERT M. McDOWELL**

RE: *Formal Complaint of Free Press and Public Knowledge Against Comcast
Corporation for Secretly Degrading Peer-to-Peer Applications; Broadband
Industry Practices,* *Petition of Free Press et al. for Declaratory
Ruling that Degrading an Internet Application Violates the FCC's
Internet Policy Statement and Does Not Meet an Exception for "Reasonable
Network Management,"* File No. EB-08-IH-1518, WC Docket No. 07-52

First, I'd like to thank the public interest groups who brought this
matter to our attention for doing so. I'd also like to thank the
Chairman for having us all focus on this case. Shining a spotlight on
these issues has helped raise awareness and spark a debate which has
been constructive, at times.

All of us can agree on a few things. The Internet should remain open and
free. Our policies, and the policies of all governments everywhere,
should promote such freedom. We can also agree that network operators
could do a better job of educating consumers regarding the limitations
of their networks and how those networks need to be managed to keep the
Internet functioning. We have seen a lot of improvement in that area in
the past couple of months due, in part, to this proceeding.

I also hope we can agree that applications providers could do a better
job of designing software that works more efficiently on networks that
were designed and built sometimes decades ago. The providers of certain
peer-to-peer (P2P) applications, for example, could do a better job of
making consumers aware that their applications require consumers'
computers to work 24 by 7 in ways that can tie up their computing power
and reduce broadband speeds for themselves and their neighbors.

I think we can also agree --- and in this I concur in Commissioner
Tate's statement --- that it is tremendously important for network
operators to be authorized to guard against unlawful Internet content
such as child pornography, for the Commission to act as a mediator
rather than a regulator when appropriate, and for network operators to
adequately disclose their terms of service.

In that spirit, I am concerned that we are witnessing a deepening
division between some in the application industry and some network
operators. Both sectors are indispensable to our burgeoning Internet
economy. History teaches us that we are all better off if we reject the
rhetoric of the extremes on both sides and resolve technological
disputes through collaboration and negotiation. Looking back through the
long lens of time, it is obvious that the Internet is the greatest
free-market success story of all time precisely because conflicts were
resolved in this manner. Continued escalation of rhetoric serves no one
well, least of all American consumers.

With those introductory remarks, it is time to move on to decide the
matter at hand. Independent administrative agencies are interesting
creatures. We are not part of the executive, legislative or judicial
branches of government, yet we have quasi-executive, -legislative and
-judicial powers. It is primarily our quasi-judicial powers we are
exercising today. Accordingly, we are compelled by statute to examine
the procedural issues before us as well as to weigh the facts against
the current state of the law. Commissioner Tate and I received the
current version of the order at 7 p.m. last night, with about half of
its content added or modified. As a result, even after my office
reviewed this new draft into the wee hours of the morning, I can only
render a partial analysis.

As a procedural matter, what we have before us today is an order
regarding a pleading that was filed as a "formal complaint." Our rules
mandate that formal complaints apply only to common carriers.[^1] As the
Supreme Court held in the *Brand X* case,[^2] and as the Commission has
held on numerous occasions since, cable modem service is not common
carriage but, rather, an information service under Title I of the
Act.[^3]

If the complaint survives this first step, we should next look to see if
we have jurisdiction to enforce our rules. I agree that we do have
jurisdiction, in general, over these areas.[^4] However, we do not have
any rules governing Internet network management to enforce. Since the
Supreme Court's decision in *Brand X*, we have been busy taking
broadband services out of the common carriage realm of Title II and
classifying them as largely *unregulated* Title I information
services.[^5] It does not take a law degree to understand that once we
did that, the rules of Title II would no longer apply to broadband
services.

Furthermore, the Commission did not intend for the Internet Policy
Statement to serve as enforceable rules but, rather, as a statement of
general policy guidelines.[^6] Based on their remarks at the time, at
least two of my colleagues in the majority agreed.[^7] Indeed, in the
*Wireline Broadband Order*, released the same day, the Commission
clearly contemplated initiating a rulemaking in response to allegations
of misconduct, emphasizing its "authority to promulgate regulations"[^8]
-- regulations not written at that time, or today. Such intentions were,
I thought, reinforced in 2007 when I voted to adopt the *Broadband
Industry Practices Notice*, the first step in a *rulemaking* proceeding
designed to determine whether rules governing network management
practices were necessary.[^9] As I stated at that time, we were taking
"a sensible, thoughtful and reasonable step that should give the
Commission a factual record upon which to make a reasoned determination
whether additional action is justified or not, pursuant to the
Commission's ancillary jurisdiction to regulate interstate and foreign
communications."[^10] The additional action I contemplated was the
logical move from an NOI to an NPRM --- not an unprecedented, and likely
unsustainable, jump to rulemaking by adjudication. Like it or not, no
notice of proposed rulemaking, with a chance for public comment, was
ever issued. Nothing regulating Internet network governance has been
codified in the Code of Federal Regulations. In short, we have no rules
to enforce. This matter would have had a better chance on appeal if we
had put the horse before the cart and conducted a rulemaking, issued
rules and *then* enforced them.

The majority's view of its ability to adjudicate this matter solely
pursuant to ancillary authority is legally deficient as well. Under the
analysis set forth in the order, the Commission apparently can do
*anything* so long as it frames its actions in terms of promoting the
Internet or broadband deployment. The fact that the D.C. Circuit has
affirmed the Commission's exercise of ancillary authority in very
different adjudicatory proceedings and in the absence of regulations is,
in my view, unpersuasive.[^11] The Commission in those cases was acting
pursuant to a provision of the statute that provides the Commission
express grant of authority[^12] or a statutory provision that imposed an
"explicit" obligation on a class of entities that legislative history
indicated was intended to be covered by the statute.[^13] In this case,
none of the sections of the Act identified in the order impose explicit
and relevant obligations on Comcast, or any other broadband network
operator. The Commission likewise overreaches in attempting to justify
this order by extension of sections 1, 201, 256, 257 or 604. The
majority presents no convincing argument that its regulation of a
broadband network operator's management practices is "reasonably
ancillary to the effective performance of the Commission's various
responsibilities" under those sections of the Act.[^14] Thus, in the
absence of rules, neither the general policy goals set forth in sections
230 and 706 of the Act nor the attempt to extend our authority in
sections 1, 201, 256, 257 or 604 provide enough of a legal basis for us
to act. If Congress had wanted us to regulate Internet network
management, it would have said so explicitly in the statute, thus
obviating any perceived need to introduce legislation as has occurred
during this Congress. In other words, if the FCC already possessed the
authority to do this, why have bills been introduced giving us the
authority we ostensibly already had?

For the same reasons, the majority's arguments that the *Adelphia/Time
Warner/Comcast* *Order* somehow constituted notice of the Commission's
intent to adjudicate the Policy Statement,[^15] and that Comcast's
consummation of the merger approved in the *Adelphia/Time
Warner/Comcast* *Order* constituted a waiver of its right to challenge
such an adjudication,[^16] fail. The Commission can not possibly be seen
to have given notice to Comcast (or any other party) of a preference to
adjudicate the Policy Statement because the Commission lacks the
authority to adjudicate the matter in the absence of rules.

Further, although it relies heavily on the Supreme Court's description
of an agency's adjudicatory authority in *Chenery II*, the majority
ignores that same court's admonition to avoid adjudications that may
have a "retroactive effect."[^17]

Additionally, today's order relies on the *Madison River* consent decree
of 2005 to justify today's actions.[^18] The *Madison River* case
differs in significant ways from what we have before us. For starters,
none of the parties involved settled their differences "out of court" as
Comcast and BitTorrent have done here. No arguments regarding network
congestion and management were at play, as they are here. And most
importantly, the Commission clearly relied on its Title II jurisdiction
over Madison River, a rural local exchange carrier, rather than whatever
ancillary jurisdiction it might have had under Title I.[^19]

Perhaps most puzzling of all is the Commission's use of a "strict
scrutiny" type standard to strike down the actions of a private party
engaged in management of its network. The majority is too clever to call
its standard of review "strict scrutiny," and with good reason. It is
unprecedented, and inappropriate, for the Commission to judge the
actions of a private actor by a standard that has generally been
reserved for determining whether the *government* has trampled on the
fundamental constitutional rights of *individuals*. The Commission
certainly has never used it to restrain private parties in their
interactions with other private parties. Using a strict scrutiny
standard in this context, especially one wearing a transparent disguise,
is sure to doom this order on appeal.

Even if the complaint was not procedurally deficient and we had rules to
enforce, the next step would be to look at the strength of the evidence.
The truth is, the FCC does not know what Comcast did or did not do. The
evidence in the record is thin and conflicting. All we have to rely on
are the apparently unsigned declarations of three individuals
representing the complainant's view, some press reports, and the
conflicting declaration of a Comcast employee.[^20] The rest of the
record consists purely of differing opinions and conjecture. As the
majority embarks on a regulatory journey into the realm of the
unknowable, the evidentiary basis of its starting point is tremendously
weak, to the point of being almost non-existent. In a proceeding of this
magnitude, I do not understand why, in the absence of strong evidence,
the Commission did not conduct its own factual investigation under its
enforcement powers. The Commission regularly takes such steps in other
contexts that, while important, do not have the sweeping effect of
today's decision.[^21]

Additionally, the majority does not address the issue of motive. The
allegations before us boil down to a suspicion that Comcast was
motivated not by a need to manage its network, but by a desire to
discriminate against BitTorrent and similar technologies for
anticompetitive reasons. If Comcast intended to harm its competitors,
would it not have targeted other online video providers? Americans
download more than eleven billion Internet videos per month, yet the
record contains no evidence that Comcast is interfering with sites like
YouTube which do not use pipe-clogging P2P software. The record also
does not speak to the fact that other prominent video sites, such as
Joost, use more efficient P2P software that does not cause the same
congestion problems as BitTorrent. As a result of their use of software
that works better on existing networks, virtually no network management
is needed. The majority's silence on this key exculpatory point is
deafening.

Finally, even if this case were not procedurally and legally deficient
in so many regards, we must address whether the policies the majority is
adopting today are in the public interest. And the answer is no.
Ironically, today's action by the FCC may actually result in *slower*
online speeds for 95 percent of America's Internet consumers. That is
because, up until this point, engineers made engineering decisions, not
unelected bureaucrats. Although I have a tremendous amount of respect
for each of my colleagues, none of us has an engineering degree.

As a result, the practical effect of today's order requires *all*
network operators -- cable, telcos and wireless providers -- to treat
all Internet traffic equally. That sounds good if you say it fast. But
the reality is that the Internet can function only if engineers are
allowed to *discriminate* among different types of traffic. Now, the
word "discriminate" carries with it extremely negative connotations, but
to network engineers it means "network management." Discriminatory
conduct, in the network management context, does not necessarily mean
anticompetitive conduct. And this is where a lot of the
misunderstandings come into play. As human beings, we do not tolerate
delay or interference when it comes to certain kinds of applications.
For instance, we expect our online movies to be clear and not distorted
by competing data coming over the same Internet connection. For us to
enjoy online video without interruption or distortion, video bits have
to be given priority over, say, email bits. But now that all traffic
must be treated equally, that is going to change. The new regime is
tantamount to a congested downtown area without stoplights. Gridlock is
likely to result.

The majority is creating regulatory uncertainty for engineers. Under the
new regulatory rubric of the undefined term "reasonable network
management," engineers do not know if they are allowed to manage your
Internet experience so you can watch online video without distortion,
pops, and hisses. Similarly, they now do not know what the government
will allow them to do, or not do, to manage the growing flood of
peer-to-peer applications. Here's the problem: If you use cable modem or
wireless broadband services, you may not know it, but you share
bandwidth with your neighbor. That's just the nature of these networks,
many of which were built long before P2P became popular. If your
neighbor uses more bandwidth, that leaves less for you to use. This is
especially true when your neighbor uses peer-to-peer applications. Many
P2P applications consume as much bandwidth as they can find. In fact,
only five percent of all Internet consumers are using 90 percent of the
bandwidth due to P2P. Some estimate that seventy-five percent of the
world's Internet traffic is P2P. As a result of increased P2P usage,
many consumers' "last mile" Internet connections are getting clogged.
These electronic traffic jams slow down the Internet for the vast
majority of consumers who do not use P2P software to watch videos on
YouTube or surf the Web. In short, this flood of data has created a
tyranny by a minority. By depriving engineers of the freedom to manage
these surges of information flow by having to treat all traffic equally
as the result of today's order, the Information Superhighway could
quickly become the Information Parking Lot. The regulatory law of
unintended consequences is sure to prevail.

While we at the FCC are trying to spur more competitive build-out of
vital last-mile facilities, especially fiber and wireless platforms,
this congestion problem will not be resolved merely by building fatter
and faster pipes. In fact, according to Japan's government, P2P
congestion is creating similar network management problems there even
though that country advertises broadband speeds far in excess of ours.

The Internet has faced several congestion "crises" like the current one
over the years. Each time, groups comprised of engineers, academics,
software developers, Internet infrastructure builders and others have
worked together to fix the problems of the day. Over time, some of these
groups have become more formalized such as the Internet Society, the
Internet Engineering Task Force and the Internet Architecture Board.
These groups have remained largely self-governing, self-funded and
non-profit -- with volunteers acting in their own capacities and not on
behalf of their employers. No government owns or regulates these groups;
rather, governments can act as observers and collaborative partners. The
Internet has been governed in a bottom-up "wiki" manner rather than a
top-down government-knows-best style. The Internet has flourished as a
result.

For quite some time now, these and other groups have been working on the
P2P congestion problem, and they have been producing positive results.
Since the Internet's inception, similar work has progressed without a
government mandate or regulatory framework. Now that era had ended.

For the first time, today our government is choosing regulation over
collaboration when it comes to Internet governance. The majority has
thrust politicians and bureaucrats into engineering decisions. It will
be interesting to see how the FCC will handle its newly created power
because, as an institution, we are incapable of deciding any issue in
the nanoseconds of Internet time. Furthermore, asking our government to
make these decisions will mean that every two to four years the ground
rules could change depending on election results. Internet engineers
will find it difficult, if not impossible, to operate in a climate like
that. Today's action is raising many questions across the globe. Is the
next step for the FCC to mandate that network owners must ask the
government for permission before serving their customers by managing
surges of information flow? As a result of today's actions, Internet
lawyers around the country are likely advising their clients to do just
that. Will the FCC be able to handle *that* case load? Will other
countries like China follow suit and be able to regulate American
companies' network management practices, with effects that could be felt
here? How do we know where to draw the line given that the Internet is
an interconnected global network of networks? Given the Internet's
interconnectivity, are we now starting a global race to the lowest
common denominator of maximum government regulation all in the name,
ironically, of Internet *freedom*? Keep in mind that societies that
regulate the Internet less tend to be more democratic, while regimes
that regulate it more tend to be less democratic.

I am being asked these and many other questions, and I don't have
answers to them. No one does. But two things are for sure, this debate
will continue, and the FCC has generated more questions than it has
answered.

A better model for the majority to have adopted today would have been to
allow the long-standing and time-tested collaborative Internet
governance groups to continue to produce the fine work they have
successfully put forth for years. If they find themselves unable to
agree (which has never happened -- not even in this case before us),
then the government should examine the situation and act accordingly.
Perhaps the FCC could have created a new role for itself by spotlighting
complaints of potentially nefarious network practices and conveying them
to the IETF for collaborative review and action. Sometimes merely
shining sunlight on controversies can produce amazingly beneficial
effects.

In that vein, some have argued that without the complaint, the
Comcast/BitTorrent matter would never have been settled last March. They
may be correct. In the law, we call this a litigation strategy. Courts
encourage litigants to settle their disputes before trial. Once settled,
courts dismiss cases as part of a policy to encourage future
settlements. Here the majority is doing the opposite. Even though
Comcast and BitTorrent settled and pled for no further "government
intervention," the majority has gone forward with this adjudication. The
net effect punishes those that settle and discourages future
settlements.

So today, for the first time in Internet history, we say "goodbye" to
the era of collaboration that served the Internet community and
consumers so well for so long; and we say "hello" to unneeded regulation
and all of its unintended consequences. Accordingly, I respectfully
dissent.

[^1]: *See* 47 USC § 208 (". . .complaining of anything done or omitted
    to be done by any common carrier subject to this Act . . . ."); 47
    C.F.R. § 1.711.

[^2]: *National Cable & Telecoms. Ass'n v. Brand X Internet Services*,
    545 U.S. 967 (2005) (*Brand X*).

[^3]: *Id.*, 545 U.S. at 968. I also note that the format and content of
    the complaint were deficient in a number of ways, including a
    failure to cite to any sections "of the Communications Act and/or
    order and/or regulation of the Commission alleged to have been
    violated." *See* 47 C.F.R. § 1.721(a)(4). Additionally, our rules
    require dismissal in instances such as this one where a "document
    purporting to be a formal complaint . . . does not state a cause of
    action under the Communications Act." 47 C.F.R. § 1.728(a). The
    complaint does not state a cause of action under the Communications
    Act because the Commission does not, in this case, have the
    authority to act in the absence of relevant rules.

[^4]: *See Brand X*, 545 U.S. at 976, 996.

[^5]: *See, e.g.*, *Appropriate Framework for Broadband Access to the
    Internet Over Wireline Facilities; Universal Service Obligations of
    Broadband Providers; Review of Regulatory Requirements for Incumbent
    LEC Broadband Telecommunications Services;* Computer III *Further
    Remand Proceedings: Bell Operating Company Provision of Enhanced
    Services; 1998 Biennial Regulatory Review --- Review of* Computer
    III *and ONA Safeguards and Requirements; Conditional Petition of
    the Verizon Telephone Companies for Forbearance Under 47 U.S.C. §
    160(c) with regard to Broadband Services Provided via Fiber to the
    Premises; Petition of the Verizon Telephone Companies for
    Declaratory Ruling or, Alternatively, for Interim Waiver with Regard
    to Broadband Services Provided via Fiber to the Premises; Consumer
    Protection in the Broadband Era*, WC Docket Nos. 04-242, 05-271, CC
    Docket Nos. 95-20, 98-10, 01-337, 02-33, Report and Order and Notice
    of Proposed Rulemaking, 20 FCC Rcd 14853 (2005) (*Wireline Broadband
    Order*), *petitions for review denied*, *Time Warner Telecom, Inc.
    v. FCC*, 507 F.3d 205 (3d Cir. 2007).

[^6]: *Appropriate Framework for Broadband Access to the Internet over
    Wireline Facilities; Review of Regulatory Requirements for Incumbent
    LEC Broadband Telecommunications Services;* Computer III *Further
    Remand Proceedings: Bell Operating Company Provision of Enhanced
    Services; 1998 Biennial Regulatory Review --- Review of Computer III
    and ONA Safeguards and Requirements; Inquiry Concerning High-Speed
    Access to the Internet Over Cable and Other Facilities; Internet
    Over Cable Declaratory Ruling; Appropriate Regulatory Treatment for
    Broadband Access to the Internet Over Cable Facilities*, CC Docket
    Nos. 02-33, 01-337, 98-10, 95-20, GN Docket No. 00-185, CS Docket
    No. 02-52, Policy Statement, 20 FCC Rcd 14986 (2005) (*Internet
    Policy Statement*).

[^7]: *See* Chairman Kevin J. Martin, Comments On Commission Policy
    Statement, News Release (rel. Aug. 5, 2005) ("While policy
    statements do not establish rules nor are they enforceable
    documents, today's statement does reflect core beliefs that each
    member of this Commission holds regarding how broadband Internet
    access should function."); *Wireline Broadband Order,* 20 FCC Rcd at
    14980, Statement of Michael J. Copps, Concurring ("While I would
    have preferred a rule that we could use to bring enforcement action,
    this is a critical step. And with violations of our policy, I will
    take the next step and push for Commission action.").

[^8]: *See* *Wireline Broadband Order*, 20 FCC Rcd at 14904 n. 287
    ("Federal courts have long recognized the Commission's authority to
    promulgate regulations to effectuate the goals and accompanying
    provisions of the Act in the absence of explicit regulatory
    authority, if the regulations are reasonably ancillary to the
    effective performance of the Commission's various
    responsibilities*"*).

[^9]: *Broadband Industry Practices*, WC Docket No. 07-52, Notice of
    Inquiry, 22 FCC Rcd 7894 (Apr. 16, 2007) (*Broadband Industry
    Practices Notice*).

[^10]: *See* *id.*, 22 FCC Rcd at 7909, Statement of Robert M. McDowell.

[^11]: *See* Order n. 163.

[^12]: *See, e.g., New York State Comm'n on Cable Television v. FCC*,
    749 F.2d 804 (D.C. Cir. 1984) (*New York State Comm'n on Cable
    Television*). *New York State Comm'n on Cable Television* noted that
    the Commission based its authority on the federal interest in "the
    unfettered development of interstate transmission of satellite
    signals," which in turn was found to flow from Title III of the Act.
    *See id.* at 808 (*citing Earth Satellite Communications, Inc.*,
    Declaratory Ruling, 95 FCC 2d 1223 at paras. 15-16 (1983).

[^13]: *CBS, Inc. v. FCC*, 629 F.2d 1, 26 (1980).

[^14]: *United States v*. *Southwestern Cable Co.*, 392 U.S. 157, 178
    (1968).

[^15]: Order at para. 35 (citing *Applications for Consent to the
    Assignment and/or Transfer of Control of Licenses, Adelphia
    Communications Corporation, (and Subsidiaries,
    Debtors-In-Possession), Assignors, to Time Warner Cable Inc.
    (Subsidiaries), Assignees, Adelphia Communications Corporation, (and
    Subsidiaries, Debtors-In-Possession), Assignors and Transferors, to
    Comcast Corporation (Subsidiaries), Assignees and Transferees,
    Comcast Corporation, Transferor, to Time Warner Inc., Transferee,
    Time Warner Inc., Transferor, to Comcast Corporation, Transferee*,
    MB Docket No. 05-192, Memorandum Opinion and Order, 21 FCC Rcd 8203,
    8298, para. 220 (2006) (*Adelphia/Time Warner/Comcast Order*)).

[^16]: *See* Order at para. 27.

[^17]: Further, "such retroactivity must be balanced against the
    mischief of producing a result which is contrary to statutory design
    or to legal and equitable principles." *SEC v. Chenery Corp.*, 332
    U.S. 194, 203 (1947) (*Chenery II*). *See also Heckler v. Cmty.
    Health Servs. of Crawford County, Inc.*, 467 U.S. 51, 60 n. 12
    (1984) (recognizing that "an administrative agency may not apply a
    new rule retroactively when to do so would unduly intrude upon
    reasonable reliance interests"). The D.C. Circuit, the court to
    which this order most likely will be appealed, has identified five
    non-exclusive factors useful for determining when the retroactive
    effect of an adjudicatory decision is invalid. *See Retail,
    Wholesale and Department Store Union, AFL-CIO v. NLRB*, 466 F.2d
    380, 390 (D.C. Cir. 1972) ("(1) whether the particular case is one
    of first impression, (2) whether the new rule represents an abrupt
    departure from well established practice or merely attempts to fill
    a void in an unsettled area of law, (3) the extent to which the
    party against whom the new rule is applied relied on the former
    rule, (4) the degree of the burden which a retroactive order imposes
    on a party, and (5) the statutory interest in applying a new rule
    despite the reliance of a party on the old standard.") The
    majority's application of the criteria described by the 9^th^
    Circuit in *Pfaff* is thus arguably inappropriate and, I believe,
    incorrect. *See* Order at paras. 33-36 (*citing Pfaff v. U.S. Dep't
    of House. & Urban Dev.*, 88 F.3d 739, 748 (9th Cir. 1996)).

[^18]: *Madison River Communications, LLC and Affiliated Companies*,
    File No. EB-05-IH-0110, Order, 20 FCC Rcd 4295 (2005) (*Madison
    River*).

[^19]: *Id.*, 20 FCC Rcd at 4296, para. 1 ("The Investigation was
    undertaken pursuant to sections 4(i), 4(j), 218, and 403 of the
    Communications Act."). It is also worth noting that the consent
    decree did "not constitute either an adjudication on the merits or a
    factual or legal finding regarding any compliance or noncompliance
    with the requirements of the Act and the Commission's orders and
    rules." Id., 20 FCC Rcd. at 4298, para. 10.

[^20]: The only signed declaration in either File No. EB-08-IH-1518 or
    WC Docket 07-52 is that of a Comcast employee. *See* Declaration of
    Mitch Bowling, Senior Vice President & General Manager of Online
    Services and Operations, Comcast Cable Communications, LLC, *filed
    with* Letter from Kathryn A. Zachem, Vice President, Regulatory
    Affairs, Comcast Corporation, to Marlene H. Dortch, Secretary, FCC
    (July 21, 2008).

[^21]: *See e.g., Zaria*, Order to Show Cause, Notice of Opportunity for
    Hearing and Hearing Designation Order, EB Docket No. 03-152, 18 FCC
    Rcd 14938 (2003) (Commission field offices conducted investigations
    to determine veracity of allegations made in informal objections to
    broadcast license renewal applications); *New Jersey Broadband, LP
    and New Jersey Broadband, LLC*, File Number EB-05-PA-12621, Consent
    Decree, 21 FCC Rcd 12466, 12468 (Enf. Bur. 2006) (Enforcement Bureau
    investigation of potential violations of the Act and Commission
    rules included "inspections" and "direction finding measurements").