**Written Statement**

**Of**

**The Honorable Kevin J. Martin**

**Chairman**

**Federal Communications Commission**

**Before the**

**United States Senate**

**Committee on Commerce, Science and Transportation**

**April 22, 2008**

Good morning Chairman Inouye, Vice Chairman Stevens, and Members of the
Committee. Thank you for inviting me here today to provide my thoughts
on the future of the Internet and the Commission's current role on some
of the issues being discussed today.

Over the past decade, the Internet has had a powerful impact on the
economy and on the lives of American citizens. We have witnessed the
fruits of increased innovation, entrepreneurship, and competition that
this technology has helped deliver. As policymakers, any rules of the
road in this area must maintain an open and dynamic Internet that will
allow it to continue to be an engine of productivity and innovation that
benefits all Americans.

I.  **FCC PRINCIPLES PROTECTING CONSUMER ACCESS TO THE INTERNET**

The Commission has a duty to preserve and promote the vibrant and open
character of the Internet as the telecommunications marketplace enters
the broadband age. In 2005, the Commission adopted an Internet Policy
Statement containing four principles. The Commission's goal was to
clarify how it would evaluate broadband Internet practices on a going
forward basis.

Specifically, the Commission established the following principles:

> To encourage broadband deployment and preserve and promote the open
> and interconnected nature of the public Internet,

-   Consumers are entitled to access the lawful Internet content of
    their choice;

-   Consumers are entitled to run applications and use services of their
    choice, subject to the needs of law enforcement;

-   Consumers are entitled to connect their choice of legal devices that
    do not harm the network;

-   Consumers are entitled to competition among network providers,
    application and service providers, and content providers.

The Commission explicitly noted that these principles were subject to
reasonable network management.

The Commission was seeking to protect consumers' access to the lawful
online content of their choice. The intent of these principles was to
foster the creation, adoption and use of broadband Internet content,
applications, and services, and to ensure that consumers benefit from
that innovation.

II. **FCC's ROLE IN PROTECTING CONSUMERS AND ENFORCING OUR PRINCIPLES**

As the expert communications agency, it was appropriate for the
Commission to adopt, and it is the Commission's role to enforce, this
Internet Policy Statement.

In fact, the Supreme Court in its Brand X decision specifically
recognized the Commission's ancillary authority to impose regulations as
necessary to protect broadband internet access.

I do not believe any additional regulations are needed at this time. But
I also believe that the Commission has a responsibility to enforce the
principles that it has already adopted. Indeed, on several occasions,
the entire Commission has reiterated that it has the authority and will
enforce these current principles.

For example, in 2006 when I appeared before this Committee, then
Chairman Stevens asked me whether the Commission had the existing
authority to take action if a problem developed. And I responded that
the Commission had authority under Title I to enforce consumers' access
to the internet.

Moreover, almost exactly one year ago, the Republican Majority of the
Commission, with the Democrat Commissioners concurring, committed to
enforcing our existing principles and the policy statement.
Specifically, in April 2007, the Commission expressly stated:

> The Commission, under Title I of the Communications Act, has the
> ability to adopt and enforce the net neutrality principles it
> announced in the Internet Policy Statement. The Supreme Court
> reaffirmed that the Commission "has jurisdiction to impose additional
> regulatory obligations under its Title I ancillary jurisdiction to
> regulate interstate and foreign communications." Indeed, the Supreme
> Court specifically recognized the Commission's ancillary jurisdiction
> to impose regulatory obligations on broadband Internet access
> providers.[^1]

Finally, the Commission has already taken enforcement action in response
to other complaints. In the Madison River complaint, the Commission
ordered a telephone company to stop blocking VoIP calls.

Contrary to some public claims about Commission's approach generally,
for the Commission to take enforcement action against a telephone
company for blocking and degrading a particular application but refuse
to pursue enforcement action against a cable company blocking or
degrading a particular application would unfairly favor the cable
industry.

I believe that the Commission must remain vigilant in protecting
consumers' access to content on the internet.  Thus, it is critically
important that the Commission take seriously and respond to complaints
that are filed about arbitrary limits on broadband access and potential
violations of our principles.  Indeed, I have publicly stated that the
Commission stands ready to enforce this policy statement and protect
consumers' access to the internet. 

III. **FRAMEWORK FOR EVALUATING REASONABLE NETWORK MANAGEMENT
     COMPLAINTS**

The Commission should address issues of appropriate network management
using a consistent framework.   There are several factors that I believe
the Commission should use when analyzing complaints and concerns about
network management practices by broadband operators. 

First, the Commission should consider whether the network management
practices are intended to distinguish between legal and illegal
activity.  The Commission's network principles only recognize and
protect user's access to legal content.  The sharing of illegal content,
such as child pornography or content that does not have the appropriate
copyright, is not protected by our principles.  Similarly, applications
that are intended to harm the network are not protected.

Second, the Commission should consider whether the network service
provider adequately disclosed its network management practices.  A
hallmark of whether something is reasonable is whether an operator is
willing to disclose fully and exactly what they are doing. 

Adequate disclosure of the particular traffic management tools and
techniques \-- not only to consumers but also to the designers of
various applications and entrepreneurs -- is critical.   

Application designers need to understand what will and will not work on
a particular network.  For example, does an application developer know
that the operator may actually insert reset packets during a session
masking the network operator's identity?

Consumers must be fully informed about the exact nature of the service
they are purchasing and any potential limitations associated with that
service.   For example, has the consumer been informed that certain
applications used to watch video will not work properly when there is
high congestion? 

           

Particularly as broadband providers begin providing more complex tiers
of service, it's critical to make sure that consumers understand whether
broadband network operators are able to deliver the speeds of service
that they are selling.  For example, if Internet access is sold as an
unlimited service, do consumers understand that if they use too much of
it they can still be cut-off?    

            Finally, the Commission should consider whether the network
management technique arbitrarily blocks or degrades a particular
application.  Is the network management practice selectively identifying
particular applications or content for differential treatment?   If so,
I believe that we should evaluate the practices with heightened
scrutiny, with the network operator bearing the burden of demonstrating
that the particular practice furthered an important interest, and that
it was narrowly tailored to serve that interest. 

Such an approach would not mean that any action taken against a
particular application would automatically be a violation.  Rather, it
would trigger a more searching review of both the particular concern and
whether that network management solution was tailored to resolve the
particular harm identified to the network in as narrow a manner as
possible. 

In a manner similar to the way in which restrictions on speech are
analyzed, network management solutions would need to further a
compelling or at least an important/legitimate  interest and would need
to be tailored to fit the exact interest.  Such practices should not be
overly broad in their application so that they become over or under
inclusive.  For example, if the concern is about stopping certain
illegal content, a network provider should not block a particular
application to all users if that application transmits both legal and
illegal content. 

Such an analysis would recognize the importance of legitimate network
management techniques while giving the Commission the framework to
analyze carriers actions on a case-by-case basis.   As we move into an
era in which network operators are taking particularized actions against
individual applications and content, the Commission should evaluate such
practices under sufficient scrutiny to ensure that whatever actions the
operators are taking are actually furthering a legitimate purpose and
are narrowly tailored to serving that legitimate purpose. 

IV. **PENDING COMCAST COMPLAINT**

Consumers have alleged that certain operators, and specifically Comcast,
are blocking and/or degrading consumers' access to the Internet by
distinguishing between applications.

The Commission has heard from several engineers and technical experts
who have raised questions regarding the network management techniques
used by Comcast for peer-to-peer traffic.

The Commission is still investigating these complaints and we have not
yet determined whether the actions violated our principles protecting
consumer access to the Internet.  However, Comcast appears to have
utilized Internet equipment from Sandvine or something similar that is
widely known to be a relatively inexpensive, blunt means to reduce
peer-to-peer traffic by blocking certain traffic completely. In
contrast, more modern equipment can be finely tuned to slow traffic to
certain speeds based on various levels of congestion.

Specifically, this equipment (1) blocks certain attempts by subscribers
to upload information using particular legal peer-to-peer applications
by pretending to be the subscriber's computer and falsifying a "reset"
packet to end the communication, and (2) degrades the corresponding
attempts to download information using the same peer-to-peer
applications. 

Based on the testimony we have received thus far, I think it is
important to clarify a few points. 

Contrary to some claims, it does not appear that cable modem subscribers
had the ability to do anything they wanted on the Internet. 
Specifically, based on the testimony we have received thus far, some
users were not able to upload anything they wanted and were unable to
fully use certain file sharing software from peer-to-peer networks.  

Contrary to some claims, it does not appear this network management
technique is "content agnostic."  Indeed, Comcast has publicly stated
that it will migrate to a "protocol" (content) agnostic approach to
traffic management in the future, and thus conceded that the techniques
currently in use are not "content agnostic."

Contrary to some claims, it does not appear that this technique was used
only to occasionally delay traffic at particular nodes suffering from
network congestion at that time.  Indeed, based on the testimony we have
received thus far, this equipment is typically deployed over a wider
geographic or system area and would therefore have impacted numerous
nodes within a system simultaneously.  Moreover, the equipment
apparently used does not appear to have the ability to know when an
individual cable segment is congested. It appears that this equipment
blocks the uploads of at least a large portion of subscribers in that
part of the network, regardless of the actual levels of congestion at
that particular time.

Finally, contrary to some claims, it is not clear when they will
actually stop using their current approach.  They claim that they will
deploy this new solution by the end of the year but it is unclear
whether they will be finished deploying their solution or just starting
that migration.  Indeed the question is not when they will begin using a
new approach but if and when they are committing to stop using the old
one.  

V.  **NEXT STEPS**

As the Commission continues its investigation into the complaints before
it, the most important and first step that we can take in fulfilling our
responsibility is to make sure that we are fully informed. At the very
least, we need to obtain greater information to more fully understand
what is happening and what impact operators' actions are having so that
we may better evaluate the reasonableness of any network management
practices at issue.

[^1]: *Broadband Industry Practices*, WC Docket No. 07-52, Notice of
    Inquiry, 22 FCC Rcd 7894, 7896, para. 4 (2007) (internal footnotes
    omitted).