**STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS,**

**CONCURRING**

Re: *In the Matter of 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*,
Report

and Order and Notice of Proposed Rulemaking (CC Docket Nos. 02-33,
01-337,

95-20, 98-10, WC Docket No. 04-242)

My goal as a Commissioner has always been to advance the public interest
as far as I can with the tools at my disposal at the time.  I objected
strenuously to our original reclassification of cable modem and our
tentative reclassification of wireline broadband.  But the Supreme Court
has fundamentally changed the legal landscape.  I personally find the
jurisprudence of Justice Scalia far more persuasive than that of the
Court majority, and I agree wholeheartedly with Justice Scalia's
observation that the previous Commission chose to achieve its objectives
"through an implausible reading of the statute, and has thus exceeded
the authority given it by Congress." 

 

But neither Justice Scalia's opinion nor my personal reading will guide
the Commission's approach going forward.  The handwriting is on the
wall.  DSL ***will*** be reclassified, either now or soon from now,
whether I agree or not.  This is not a situation of my making or my
preference, and I believe that it does not inure to the benefit of this
institution or to consumers across the land.  But when fundamental
responsibilities like homeland security, universal service, disabilities
access, enterprise competition, and Internet discrimination protections
are on the chopping block, I feel compelled to work hard and be creative
to advance the public interest rather than throwing up my hands.  I
therefore will concur in this proceeding to protect our ability to meet
these core responsibilities.

 

As we enter the world of Title I today, we all know what the FCC's goals
must be.  Among other things, we must continue to protect homeland
security.  We must meet our universal service responsibilities.  We must
maintain disabilities access.  We must protect fledgling competition. 
And we must state clearly that innovators, technology companies, and
consumers will not face unfair discrimination on the Internet by network
providers.

 

Our ability to advance these critical goals should progress as we
advance to broadband.  They should not shrink as we fiddle with
legalisms and parse definitions.  This item is not an exercise in
hair-splitting about telecommunications services and information
services.  It is about how promote the deployment of advanced
communications while still staying true to our core values. 
Nonetheless, in recent years this Commission has irresponsibly
reclassified services without addressing the larger implications of its
decisions. 

 

Today we begin to face up to this shortfall.  The Order is far from
ideal.  But our actions today are infinitely better than they otherwise
might have been because of the intensive discussions we have had among
the Commissioners.  We have avoided the unacceptable scenario of
reclassifying DSL and then punting all of the critical responsibilities
listed above to some uncertain future deliberation.  I could not have
been party to that approach.  But in the end, we moved away from that
and made progress on numerous important statutory obligations:

 

        *Homeland Security*:  We ensure that law enforcement officials
will have the tools that they need to protect our country through the
Communications Assistance for Law Enforcement Act and the National
Security Emergency Preparedness Telecommunications Service Priority
System. 

>  

        *Universal Service*:  In addition, we ensure the stability of
the universal service contribution base until the Commission agrees on a
path forward.  Universal service is critical to the Nation and critical
to Congress. It is one of the pillars upon which the Communications Act
is built, and I would never be party to this agency abandoning this
program and the millions of Americans who depend on it. Absent the
*Brand X* decision, we would have more with which to work, but in order
to shield the program in this specific item we put in place a nine-month
stay on any changes to DSL universal service responsibilities, unless
the full Commission agrees on a new system before that time.  If we do
not do so within nine months the Order states that: "the Commission will
take *[whatever action is necessary]{.underline}* to preserve existing
funding levels, *[including extending the period discussed above or
expanding the contribution base]{.underline}*" (emphasis added). That is
a firm and strong commitment from the Chairman and Commissioners that at
the end of this period the program will be protected. We do not often
commit to "take whatever action is necessary" and the promise that we
will even expand the base if needed is a major achievement.  I will
continue to fight to keep rural America connected.

 

        *Disabilities*:  But we had to protect more than homeland
security and universal service. We had to craft protections for
Americans with disabilities. I know this much: The disabilities
communities did not fight for so many years to obtain "functional
equivalency" and equal access to technology only to have their hard-won
victories stolen by some regulatory sleight of hand. So I fought to
ensure that the item guarantees accessible technologies for the 54
million Americans with disabilities. 

 

        *Competition*:  We also take significant action to protect
competition. We ensure access to facilities and interconnection so that
small and medium businesses can continue to enjoy the lower prices and
increased choices that competition brings. 

* *

        *Internet Openness*: And critically, for the first time ever,
the Commission has adopted a policy statement with principles that will
guide our effort to preserve and promote the openness that makes the
Internet so great. 

>  

            I am especially pleased at my colleagues' adoption of this
Statement of Policy on Internet openness.  This is something I have been
advocating for nearly two years. This Statement lays out a path forward
under which the Commission will protect network neutrality so that the
Internet remains a vibrant, open place where new technologies, business
innovation and competition can flourish.  We need a watchful eye to
ensure that network providers do not become Internet gatekeepers, with
the ability to dictate who can use the Internet and for what purpose. 
Consumers do not want to be told that they cannot use their DSL line for
VoIP, for streaming video, to access a particular news website, or to
play on a particular company's game machine.  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.  A line has been drawn in the
sand.  I am particularly appreciative of the Chairman's support of this
item.

 

I also want to note that the Supreme Court's *Brand X* decision makes it
clear that the Commission's ancillary authority can accommodate our work
on homeland security, universal service, disabilities access,
competition, and Internet discrimination protections---and more.  But we
have a ways to go.  Today, in addition to our Order, we release a Notice
of Proposed Rulemaking on consumer protection in the broadband age.  I
would have much preferred positive action on this now, but we at least
put these issues squarely on the table and now we have a proceeding to
deal with them.  I believe that a combination of a strong record, good
wide stakeholder input and Commission sensitivity to the priority
Congress places on consumer issues can preserve such protections as
privacy, truth-in-billing, and other safeguards for the communications
tools our citizens rely upon no matter how they may be classified. 
Hard-won consumer protections must never be allowed to erode simply
because we change the classification of the tools people rely upon to
communicate with one another. So I think we come out here with a
framework for consumer protection in a digital world---a framework
accommodating and encouraging the expertise and authority that reside in
our state public service commission counterparts.  I look forward to the
record that develops and to working with my colleagues and all
stakeholders so that we can move ahead without further delay. 

 

Let me sum up by reminding the Commission that we are saying today that
we take the dramatic step of reclassifying DSL in order to spur
broadband deployment and to help consumers.  I want us to test that
proposition a year from now.  If by next year consumers have more
broadband options, lower prices, higher speeds and better services,
maybe this proposition holds true.  If our broadband take-rate reverses
course and the United States begins to climb up the ladder of broadband
penetration rather than falling further behind so many other nations,
then we'll have something to crow about.  If we get no complaints about
higher bills, loss of privacy and diminished access for the disability
communities, we can take a bow.  And critically, if we make progress on
public safety and homeland security, we can be proud of our actions.  So
I hope next year the Commission will put its money where its mouth is
and check to see if its theory yields real world results for American
consumers.  And if it doesn't achieve these results, I hope we'll admit
it.  I plan to keep tabs. 

 

In closing, I want to thank Chairman Martin for not only permitting, but
encouraging, open and genuine Commission dialogue on these difficult
issues.  I want to thank him, and Commissioners Adelstein and Abernathy,
for their contributions to making this a better item.  The Bureau toiled
mightily with this proceeding and we are indebted to their diligence,
hard work and creative thought all along the way.  Our personal staffs
performed with distinction.  And I would be both ungrateful and remiss
if I did not recognize the extraordinary---indeed, often
heroic---exertions of my Legal Advisor Jessica Rosenworcel for helping
***all*** of us navigate these perilous waters and arrive at somewhat
more tranquil shores.