U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

21–221 PDF 2017

S. HRG. 113–845 

WHY NET NEUTRALITY MATTERS: 

PROTECTING CONSUMERS 

AND COMPETITION THROUGH 

MEANINGFUL OPEN INTERNET RULES 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 17, 2014 

Serial No. J–113–73 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

JEFF FLAKE, Arizona 

KRISTINE LUCIUS, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 
(III) 

C O N T E N T S 

SEPTEMBER 17, 2014, 10:34 A.M. 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 2 

prepared statement .......................................................................................... 215 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 213 

WITNESSES 

Witness List ............................................................................................................. 37 

Burnham, Bradford, Managing Partner, Union Square Ventures, LLC, New 

York, New York .................................................................................................... 4 

prepared statement .......................................................................................... 38 

Eisenach, Jeffrey A., Ph.D., Visiting Scholar, American Enterprise Institute 

Center for Internet, Communications and Technology Policy, Washington, 

DC .......................................................................................................................... 11

prepared statement .......................................................................................... 69 

attachment I to prepared statement ............................................................... 76 

attachment II to prepared statement ............................................................. 108 

attachment III to prepared statement ............................................................ 159 

attachment IV to prepared statement ............................................................ 181 

Livier, Ruth, Writer, Independent Producer, and Actress, Pacific Palisades, 

California .............................................................................................................. 7 

prepared statement .......................................................................................... 42 

McDowell, Hon. Robert M., Former Commissioner, Federal Communications 

Commission, and Partner, Wiley Rein LLP, Washington, DC ......................... 9 

prepared statement .......................................................................................... 49 

O’Connor, Nuala, President and Chief Executive Officer, Center for Democracy and Technology, Washington, DC ............................................................... 13 

prepared statement .......................................................................................... 201 

QUESTIONS 

Questions submitted to Bradford Burnham by Senator Leahy ........................... 218 

Questions submitted to Jeffrey A. Eisenach, Ph.D., by: 

Senator Grassley .............................................................................................. 225 

Senator Leahy ................................................................................................... 221 

Senator Lee ....................................................................................................... 228 

Questions submitted to Ruth Livier by Senator Leahy ........................................ 219 

Questions submitted to Hon. Robert M. McDowell by: 

Senator Grassley .............................................................................................. 223 

Senator Leahy ................................................................................................... 220 

Senator Lee ....................................................................................................... 227 

Questions submitted to Nuala O’Connor by: 

Senator Leahy ................................................................................................... 222 

Senator Lee ....................................................................................................... 229 

ANSWERS 

Responses of Bradford Burnham to questions submitted by Senator Leahy ..... 230 

Responses of Jeffrey A. Eisenach, Ph.D., to questions submitted by Senators 

Grassley, Leahy, and Lee .................................................................................... 243 
Page

IV 

Responses of Ruth Livier to questions submitted by Senator Leahy .................. 231 

Responses of Hon. Robert M. McDowell to questions submitted by Senators 

Grassley, Leahy, and Lee .................................................................................... 232 

Responses of Nuala O’Connor to questions submitted by Senators Leahy 

and Lee ................................................................................................................. 250 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

ACS Solutions et al., letter to Hon. Penny Pritzker, Secretary, U.S. Department of Commerce, September 9, 2014 .............................................................. 287 

ADTRAN et al., letter to Federal Communications Commission (FCC), May 

13, 2014 ................................................................................................................. 290 

Aeronet Wireless Broadband Corp. et al., letter to Hon. Penny Pritzker, 

Secretary, U.S. Department of Commerce, July 30, 2014 ................................ 283 

Computer and Communications Industry Association (CCIA), statement ......... 273 

Electronic Frontier Foundation, Corynne McSherry, Intellectual Property Director, statement .................................................................................................. 255 

Future of Music Coalition (FMC), Casey Rae, Vice President, Policy and 

Education, statement ........................................................................................... 265 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, and Hon. 

Jim DeMint, a U.S. Senator from the State of South Carolina, Wall Street 

Journal, October 29, 2009, op-ed article ............................................................. 300 

McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky, et al., 

letter to Hon. Thomas Wheeler, Chairman, Federal Communications Commission, May 13, 2014 ......................................................................................... 294 

National Association of Realtors (NAR), Steve Brown, 2014 President, September 16, 2014, letter ........................................................................................ 253 

National Cable and Telecommunications Association (NCTA), Rick Chessen, 

Senior Vice President, Law and Regulatory Policy, May 14, 2014, letter ....... 278 

Szoka, Berin, President, TechFreedom, et al., letter to Hon. Thomas Wheeler, 

Chairman, Federal Communications Commission, September 15, 2014 ......... 296 

ADDITIONAL SUBMISSIONS FOR THE RECORD 

Submissions for the record not printed due to voluminous nature, previously 

printed by an agency of the Federal Government, or other criteria 

determined by the Committee, list ..................................................................... 302 

American Enterprise Institute, Jeffrey A. Eisenach, Ph.D., economic study: 

http://www.aei.org/files/2012/10/17/-broadband-competition-in-theinternet-ecosysteml164734199280.pdf ........................................................ 302 

Eisenach, Jeffrey A., and Ilene Knable Gotts, ‘‘In Search of a Competition 

Doctrine for Information Technology Markets: Recent Antitrust Developments in the Online Sector,’’ paper: 

http://www.techpolicydaily.com/wp-content/uploads/2014/06/InSearch-of-a-Competition-Doctrine-for-Information-Technology-MarketsEisenach-Gotts.pdf ........................................................................................ 302 

Federal Communications Commission (FCC), Electronic Comment Filing System, September 4, 2014, online posting: 

http://apps.fcc.gov/ecfs/comment/view?id=6018327622 ............................. 302 

Federal Communications Law Journal, Jeffrey A. Eisenach and Hal J. Singer, 

June 2013, article: 

http://www.fclj.org/wp-content/uploads/2013/09/65-3-Singer.pdf ........... 302 

Journal of Law and Economics, The, R.H. Coase, October 1959, article: 

http://www.jstor.org/stable/724927 .............................................................. 302 

Social Science Research Network (SSRN), Jerry Brito et al., April 12, 2010, 

article: 

http://papers.ssrn.com/sol3/papers.cfm?abstractlid= 

1587058&download=yes ............................................................................... 302 
(1) 

WHY NET NEUTRALITY MATTERS: 

PROTECTING CONSUMERS 

AND COMPETITION THROUGH 

MEANINGFUL OPEN INTERNET RULES 

WEDNESDAY, SEPTEMBER 17, 2014, 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:34 a.m., in Room 

SH–216, Hart Senate Office Building, Hon. Patrick J. Leahy, presiding. 

Present: Senators Whitehouse, Klobuchar, Franken, Blumenthal, 

Hirono, Grassley, Hatch, Lee, Cruz, and Flake. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, 

A U.S. SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Senator Grassley is on his way, we will begin 

with my opening statement and I will yield to him when he gets 

here. Senator Lee is here, Senator Whitehouse, Senator Klobuchar, 

Senator Franken, and Senator Hirono. 

I appreciate the number of people who are here. I also appreciate 

the almost overwhelming number of people who have emailed me 

or contacted me about this hearing. 

On Monday, the Federal Communications Commission closed the 

public comment period on its proposed rules to protect an open 

Internet. I was not surprised by the number of emails and calls I 

got in my office because the FCC got 3.7 million—Americans made 

their voices heard. The issue is critical to consumers and businesses. An overwhelming number of the comments called on the 

FCC to enact meaningful rules that will protect consumers and 

preserve competition online. I should note I agree, and I believe the 

FCC should heed their call. 

This is the second hearing the Judiciary Committee has convened on this issue. The first hearing, which I chaired in Vermont 

this summer, was an important opportunity to hear voices outside 

of the Beltway. Vermont-based small businesses now have a reach 

they only dreamed of thanks to the transforming power of the 

Internet. For the Vermont Country Store—it has long operated two 

retail outlets and a mail order business, the Internet now accounts 

for a remarkable 40 percent of its business, one third of its employees and they hire several hundred people. Logic Supply is based entirely online and sells industrial computers to consumers around 

the world. 
2 

They both were very honest and said they have reached a point 

and size that they could pay extra to jump over other people, but 

they do not want it to be that way. They said they never would 

have been able to start in the first place had they had to face that 

kind of obstacle. Their testimony was simple, keep the Internet an 

open playing field for small businesses so that they can launch and 

thrive. Cabot Orton from the Vermont Country Store said, ‘‘All the 

small business community asks is simply to preserve and protect 

Internet commerce as it exists today, which has served all businesses remarkably well.’’ He could not be more right. 

Martha Reid, the Vermont State Librarian, testified about the 

important role that libraries play in communities throughout the 

country, particularly those in underserved areas. She said, ‘‘All 

Americans, including the most disenfranchised citizens who would 

have no way to access the Internet without the library, need to be 

able to use Internet resources equally.’’ 

So this testimony and the testimony we will hear today will underscore the importance of why net neutrality matters. It matters 

for our economic growth and competitiveness. I believe the Internet 

is an equalizer. It can help break a lot of cycles of unemployment 

and poverty. It matters because the online world is the ultimate 

tool for free expression and democracy—a tool so powerful that it 

has helped topple totalitarian governments. Think about that. I 

mean this is something even a few years ago, none of us could even 

imagine. If you have the Internet become a two-tiered system of 

‘‘haves’’ and ‘‘have-nots,’’ controlled by a small number of corporate 

gatekeepers, it destroys everything that has made it one of the 

greatest innovations, certainly in history. The FCC must act in a 

meaningful way to protect its openness. 

Meaningful rules would stop so-called ‘‘paid prioritization’’ deals 

that would allow large corporations to drown out smaller competitors. I introduced legislation with Congresswoman Doris Matsui of 

California that would require the FCC to develop rules to stop 

these deals. Regardless of whether our bill passes or not, the FCC 

should act to block this kind of behavior. You have to have rules 

that go beyond the antitrust laws, which play an important role as 

a backstop but alone are not enough to promote and preserve free 

speech and innovation online. 

The FCC’s action will determine whether the Internet as we 

know it stays open, vibrant, and competitive, or whether it is going 

to become a place where only the most powerful have a say. I know 

the outcome the people in Vermont want. 

I thank the witnesses for coming today on Constitution Day. We 

have extra copies if anybody wants it. 

Before I start, one of my friends of decades in the U.S. Senate, 

Senator Grassley of Iowa—today is his birthday. So let us all wish 

him a happy birthday. 

Senator GRASSLEY. Thank you. 

Chairman LEAHY. That faked you out; did it not? 

OPENING STATEMENT OF HON. CHUCK GRASSLEY, 

A U.S. SENATOR FROM THE STATE OF IOWA 

Senator GRASSLEY. Yes. Thank you all. Thanks to everybody in 

the audience who is here. Most importantly, the witnesses who 
3 

have prepared for this and our experts in this area. It is very important that you have a hearing like this, I think a complex topic, 

and I am glad the committee can hear from all sides of the debate. 

I believe that many, if not all of us, share similar goals with respect to the Internet. We all want the Internet to grow. We want 

it to prosper. We all want faster and cheaper Internet access. We 

all want more deployment of broadband technologies, particularly 

the areas that remain without access. We all want more innovations and new avenues by which we can access that information. 

We all want consumers to have more choice and options. 

The FCC is in the process of considering whether to adopt rules 

that would regulate the Internet. Chairman Wheeler claims that 

there is not enough competition in the highspeed broadband marketplace. There are some that dispute that. Rather, these people 

say that we have competitive dynamic Internet right now and the 

push for new regulations is a solution in search of a problem. 

Is the Internet really broken? Broadband and Internet technologies are advancing every day. New products are constantly entering the market. Overall, broadband deployment and speeds, both 

wired and wireless, are estimated to reach 98 percent of the American households with broadband speeds of 10 megabytes or faster. 

82 percent of those households have access to broadband speeds of 

50 megabytes or faster. 

The overall broadband industry—cable, telco, satellite and wire- less—has invested over $1.2 trillion in infrastructure, $60 billion a 

year recently. Further, it is estimated that broadband speeds double every 2 to 3 years. 

So many contend that the FCC and others are just speculating 

about future harms and there is no need to deviate from the current policies that have generated Internet phenomenal growth. 

Morever, many—including this Senator—are highly skeptical about 

the prospects of expansive FCC regulation over every aspect of the 

Internet. The Internet has been successful precisely because of a 

hands-off approach. 

I note that this policy was first implemented under President 

Clinton. The lack of government intervention has allowed competition to flourish beyond wildest imaginations. 

We all want more deployment of technology and infrastructure. 

In fact, I would like to see more broadband growth and options 

take place in rural America where I live and where the Chairman 

proudly says that he resides. However, it is more likely that we 

will see improvements in this area as a result of innovation and 

investment and not more regulation. 

Because of the fast changing Internet market, rules and regulations could just end up impeding the development and adoption of 

new technologies and services. In fact, they could threaten investment in network upgrades, generate legal and marketplace uncertainty, and ultimately cost jobs, harming the economy. 

It is doubtful that creating an expansive regulatory regime will 

increase broadband deployments, spur innovation and ensure better quality services and consumer satisfaction. 

Supporters of net neutrality do contend that new rules will restore Internet protections and ensure the vitality of the Internet. 

If anything, I am concerned that the imposition of such regulations 
4 

and in particular, expansion of 80 year-old rules designed to regulate old telephone monopolies under Title II might have the exact 

opposite effect. 

There are legitimate concerns about making sure Internet competition and consumers are protected from bad actors. I know about 

them and hear about them quite often. 

No I do not support monopolistic, anti-competitive or predatory 

practices in the Internet marketplace or anywhere for that matter, 

but rather than allow the FCC to impose regulations on an industry that has been so successful under a hands-off regime, antitrust 

and consumer protection laws may provide a better option to ensure consumers and businesses are not harmed by anti-competitive 

conduct in the modern Internet ecosphere. I have been a strong 

supporter of vigorous enforcement of antitrust laws by the Justice 

Department and the Federal Trade Commission to ensure a fair 

playing field in many sectors of our economy—just recently got 

somewhat of a modification in the meat-packing industry of such 

a merger to make sure that that would take place. So you know 

that I am active in the enforcement of the antitrust laws. I hope 

that these people, the Federal Trade Commission and the Justice 

Department, will be paying close attention to this market as well. 

So in conclusion, because the Internet is so important to consumers and to our economy, we should proceed with caution. No 

one wants to undermine the Internet. It is a complex policy debate 

and I look forward to today’s testimony. And who knows? You could 

change my mind. 

Chairman LEAHY. It has been known to happen. 

Senator GRASSLEY. Not often enough. 

Chairman LEAHY. Not often enough. 

[Laughter.] 

Chairman LEAHY. I was showing some of you the picture in rural 

Vermont where I live and the Senator from Iowa has a similar picture of his home in rural Iowa where he lives. An open Internet 

in a rural area is critical. It is similar to what my grandparents 

would tell me about when—in Vermont—they got rural electricity, 

rural telephone, the difference it made. It is something we all take 

for granted today. 

Our first witness is Brad Burnham. He is a cofounder and managing partner of Union Square Ventures, a New York based venture capital firm. He has invested in companies like Twitter, Etsy 

and Kickstarter. Obviously, you know where to invest. 

He previously worked at AT&T in a variety of sales, marketing 

and business development roles. He also worked at AT&T Ventures, the venture capital group. 

Mr. Burnham, please go ahead. 

STATEMENT OF BRADFORD BURNHAM, MANAGING PARTNER, 

UNION SQUARE VENTURES, LLC, NEW YORK, NEW YORK 

Mr. BURNHAM. Thank you, Senator Leahy for the opportunity. 

As you said, my perspective has been shaped by a career spent 

on both sides of the issue, first as a telecommunications executive 

at AT&T and a partner at AT&T Ventures and then later as a 

founding partner of Union Square Ventures. 
5 

I believe we are at a crossroads. The rules the FCC is now considering will shape the Internet ecosystem for many years to come 

and could have a profound effect on our economy, our place in the 

world and ultimately on the nature of our society. Almost everyone 

has benefited from the phenomenal innovation enabled by the 

Internet, but few of us have stopped to think about how all of this 

happened. 

The Internet we know is the direct result of two key characteristics. First, the Internet separates applications from infrastructure, 

making it possible to create a networked application without knowing anything about the underlying network. Second, every applications is immediately available to every consumer. These two characteristics radically lowered the cost of building and distributing 

Internet applications, opening the market to a much larger and 

more diverse pool of creators. 

For the first time, people without money, connections, or corporate backing could create an application and reach a global audience. Facebook was created in a dorm room. Foursquare spent 

$25,000 to reach their first 100,000 users. These companies and 

thousands more started from scratch and grew to reach global audiences. They have since gone on to empower hundreds of millions 

of others—independent craftspeople setting up shop on Etsy, 

filmmakers raising millions of dollars on Kickstarter, and journalists reaching a global audience on Twitter. 

This incredible explosion of innovation happened because it became so cheap to create and distribute an application on the Internet that innovators no longer required permission from a boss, a 

network operator, or an investor to launch a business. If you could 

imagine an application like Instagram, you could build it yourself 

and get it into the hands of thousands or millions of consumers almost overnight. Later, once you had a large audience, you could approach investors from a position of strength to raise money to grow 

your business. This is the model of innovation that powered the 

growth of the Internet, and all of this is about to change. 

Until recently, Internet access providers could not tell if you 

were watching Netflix, playing Angry Birds, or posting on 

Facebook. By default, access to the Internet was open. They have 

now deployed technology that allows them to see what services you 

are using. This will make it possible for the cable and telephone 

companies we use to get to the Internet to charge application developers for faster delivery of packets, slow traffic they decide is less 

important and even block traffic altogether. 

Even as Internet access providers increase their ability to treat 

applications differently, the Internet has remained a relatively 

level playing field because of a combination of FCC enforcement actions and Comcast’s acceptance of net neutrality principles as a 

condition of their merger with NBC. Today, those agreements are 

nearing expiration, and the FCC’s ability to enforce open Internet 

principles has been sharply curtailed by the DC Circuit Court’s decision in the Verizon case. 

Unfortunately, the FCC, in search of a compromise, is not proposing to reclassify Internet access. Instead, they are proposing 

rules that would explicitly allow cable and telephone companies to 

treat Internet applications differently for a variety of business and 
6 

network management reasons. The combination of access provider’s 

new technical abilities and the FCC’s proposed rules will dramatically increase the cost of creating and distributing Internet applications. Applications developers will have to consider the network 

management strategies and even the business interests of cable 

and telephone companies when they design their applications. They 

will also have to change the way they approach investors. 

Every web application developer knows speed is a feature. They 

all work to shave milliseconds off the time it takes to load a page. 

Start-ups will need to raise money up front to buy access to the 

fast lane to succeed, making it impossible to launch first as Tumbler and Foursquare did and then raise money later. No new application will be created in a dorm room. The applications like video 

and voice that compete with cable and telephone companies will 

find it especially hard to raise money. 

It may seem like I am overstating my case, but ask yourself how 

comfortable would you be investing in a company creating a new 

air conditioner if the company that delivered power to that device 

could single it out and throttle its power during busy periods while 

delivering full power to their own air conditioners. What if the 

power company zero-rated their air conditioners, powering them for 

free? 

It seems obvious that allowing electric utilities to discriminate 

between different applications—technically or financially—would 

distort the market for applications. The companies that provide access to the Internet are asking to be able to do just these things. 

Lobbyists for cable and telephone companies like to jump on this 

analogy to suggest that advocates for the open Internet are fuzzy 

headed liberals who want the Internet regulated as a public utility. 

This is a cynical, but effective misdirection. I am a capitalist. I believe in markets. If anything, like many investors, I lean libertarian. I am not suggesting the Internet should be regulated. I am 

suggesting the telecommunications networks we use to get to the 

Internet not be allowed to exploit that bottleneck position to distort 

the market for Internet applications. 

This is not some dangerous new government intervention into a 

free market. We have always recognized that telecommunications 

services were essential services because they are the connective tissue of our entire economy. In fact, until 2004, there was no question that Internet access was a telecommunications service. It was 

only then that cable companies convinced the FCC to treat Internet 

access as an information service. That was a fiction then, and it is 

still a fiction. 

How many of us use our cable or telephone company for anything 

other than access to the Internet? The vast majority of applications 

we use come from independent developers. Many were created on 

a shoestring budget in the last couple of years. I understand why 

cable and telephone companies would like to change that. I understand why it is in their business interests to leverage their ability 

to control access to consumers to advantage their own applications 

or to get paid to advantage other providers’ applications. I do not 

understand why anyone other than the access providers or the 

shareholders of the access providers would think this a good idea. 
7 

There is a way to preserve the key characteristics that enabled 

the emergence of the applications on the Internet. It is possible to 

keep the cost of developing and distributing Internet application 

within the reach of anyone with a computer and a little programming knowledge. All we have to do is admit what we all know, that 

access to the Internet is an essential services. Classify that service 

as a telecommunication service and then immediately forbear most 

of the regulatory overhead of the current telecommunications regulation. This would give the FCC sound legal authority to adopt the 

rules we need to protect innovation and investment on the Internet—rules against blocking? rules against prohibiting applicationspecific discrimination and rules banning access fees. This simple, 

clear, solution is the lightest weight approach possible. Not only is 

it not overbearing government regulation, it is the only way to prevent the distortion of the market for Internet applications which 

would ultimately require much more heavy-handed intervention. 

Chairman LEAHY. Thank you very much, Mr. Burnham. Incidently, everybody’s statement will be placed in the record in full. 

We are going to have to try to keep closer to our time, only because 

I know we are going to have votes on the floor and we will be losing Members when that happens. 

[The prepared statement of Bradford Burnham appears as a submission for the record.] 

Chairman LEAHY. Ruth Livier is writer, independent producer 

and actress. She created the award-winning bilingual web series, 

Ylse, and she is the first member of the Writers Guild of America 

West to join that union solely for work in new media. 

Please go ahead. 

STATEMENT OF RUTH LIVIER, WRITER, INDEPENDENT 

PRODUCER, AND ACTRESS, PACIFIC PALISADES, CALIFORNIA 

Ms. LIVIER. Thank you, Chairman Leahy. 

I am here as a Union actress and as the first person to join the 

Writers Guild of America West via my work in digital Media to 

share about how net neutrality changed my life. 

Minority communities have historically lacked equitable and balanced representation in traditional media. UCLA’s Dr. Darnell 

Hunt, a media diversity expert, testified that business as usual in 

the industry is wholly inadequate for addressing the stagnation in 

Hollywood diversity. A new paradigm is Needed that goes beyond 

symbolic pronouncements and token gestures. This is where net 

neutrality, or the open Internet comes in. 

As an American Latina, I got tired of seeing the disproportionate 

amount of negative stereotypes about my community in traditional 

media. So, in 2000, I wrote Ylse as a TV pilot. It is a bicultural 

dramedy about a modern Latina. 

At a conference designed to nurture Latino talent, I approached 

an executive for advice who said, ‘‘Who are you for anyone to 

produce your show?’’ Others asked, ‘‘Who’s going to watch this?’’ 

Their comments were not based on my writing. They had not read 

a single word. Their immediate objections were based entirely on 

the concept of a Latina-driven show written by someone with no 

track record. 
8 

Who was I to think that anyone would take me seriously? And 

how was I supposed to prove there was a market for my content? 

There was no way in so, I filed the script away. 

Then, years later, everything changed. Technology advanced. 

Camera equipment was no longer cost prohibitive. The Internet 

suddenly put worldwide distribution at our fingertips. It all seemed 

too good to be true, but, it was. And it changed everything. 

We independent artists suddenly had unprecedented access to 

create, produce and distribute our content. In this exciting new 

frontier, anyone, regardless of ethnicity or socio-economic standing, 

could finally tell their stories from our points of view without getting discouraged, derailed or having our visions diluted by corporate gatekeepers. 

So in 2008, I took that old script and reconceived it into the 

award-winning web series, Ylse.net. Our global audience was even 

broader than expected. Our indie series provided jobs for a diverse 

work force in front of and behind cameras. Our minority directors 

earned points toward becoming members of the Directors Guild of 

America and I earned points toward becoming a Writers Guild of 

America member via digital Media. This meant that the open 

Internet was a viable alternative way to build a career and diversify the talent pool of professional writers. It also meant that programming on the web was not up to the same few gatekeepers who 

controlled traditional media where, by all accounts, by every study, 

minorities are still under-represented in the writers’ rooms, Executive positions, and in front of cameras. And Latinos are the most 

under-represented relative to our share of the US population. 

But, with an open Internet, low-budgets and no connections does 

not mean there was no way in. Never again could we be disregarded by anyone who essentially asks, ‘‘Who are you to have 

your story be told?’’ We all deserve to have our stories told. We all 

deserve to be heard, to be acknowledged, and to not have to sit in 

the shadows until someone else decides that our lives are worthy 

of being reflected in the media and to have to wait for someone else 

to get it done. We could now take the reigns in our hands and take 

responsibility for our own destinies. 

The open Internet has given the rest of us an opportunity to improve our crafts, provide jobs and a creative outlet for a more diverse work force, define ourselves by creating more varied, complex, positive and balanced portrayals of our demos. It has given 

us instant access to information and reputable data to prove our 

markets and connect with our global audiences. It has empowered 

and motivated historically marginalized communities to take the 

reigns in our own hands and create content, knowing there is a distribution outlet for it. 

This communication platform must not go the way of traditional 

media, since through it diverse voices can finally partake in the national conversation at all levels. But the same companies that distribute traditional media control Internet service and they are advancing an agenda of unenforceable rules that would allow them to 

be the gatekeepers and decide what content is available online and 

on what terms. We cannot allow this to happen. That is why the 

FCC must institute strong rules that ban unjust and unreasonable 

discrimination by Internet service providers. 
9 

I join with the millions who have commented on the FCC’s proposed rules to call on the Commission to reclassify Internet service 

as a telecommunications service, that it may, once and for all, permanently protect Internet openness. Make no mistake, this is a 

civil rights issue and it is my hope that for future generations of 

minority and low-income youth having a platform where they can 

express themselves on an equal-playing field will be nothing out of 

the ordinary because for us it has been nothing short of revolutionary. Thank you. Chairman Leahy. Thank you very much. I do 

appreciate that. 

[The prepared statement of Ruth Livier appears as a submission 

for the record.] 

Chairman LEAHY. Our next witness is Robert McDowell who 

served as a member of the Federal Communications Commission 

from 2006 to 2013. Last week he joined the law firm Wiley Rein 

as a partner. Prior to serving at the FCC, Mr. McDowell worked 

for 10 years at Comptel. It is an association of competitive communication service providers. 

Please go ahead. 

STATEMENT OF HON. ROBERT M. MCDOWELL, FORMER 

COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION, 

AND PARTNER, WILEY REIN LLP, WASHINGTON, DC 

Mr. MCDOWELL. Thank you, Mr. Chairman, Ranking Member 

Grassley and all Members of the Committee. It is an honor to be 

here before you today and thank you for pointing out the resume. 

I will cut that out of my testimony right now. 

I did start at Wiley Rein just last week. Nonetheless, the opinions I will give today are strictly my own and not those of any clients of Wiley Rein. I have to say that to make sure I have a job 

when I get back to the office later this afternoon. 

As was the case during my 7 years on the FCC, my hope is that 

the Internet remains open and freedom-enhancing as it has been 

since its inception, since it was privatized in the mid-1990s. 

As the Net migrated further away from government control, it 

grew beautifully, growing from just under 90 thousand users in the 

late 1980s to approximately 3 billion globally today. Its success as 

the fastest growing disruptive technology in human history was the 

direct result of the Clinton Administration’s bipartisan policy to 

keep the government’s hands, largely, off of the Internet sector. 

The Clinton Administration was expressly vigilant about resisting 

attempts to regulate the Net like an old phone monopoly, as some 

net neutrality proponents desire today. In short, the Internet is the 

greatest deregulatory success story of all time. 

While serving on the FCC, I saw many, many different iterations 

of the net neutrality debate. Without a doubt, the definition of the 

term ‘‘net neutrality’’ keeps morphing by the day. Years ago, new 

rules were offered up, ostensively, to prevent Internet service providers from blocking or degrading the content and applications consumers seek to use. 

Since then, the term has become a sort of Rorschach inkblot to 

mean anything anyone can envision regarding the Internet to benefit their agenda and their interests. For instance, net neutrality 

has evolved from being about the last mile ISPs to the middle mile. 
10 

And for the first time this year, it has grown to include ideas for 

regulation of the Internet backbone. The FCC’s record even contains comments calling for the Commission to have general regulatory over the Internet, including not only networks like those 

built by cable and phone companies, but content and application 

providers at the so-called ‘‘edge’’ as well. At the end of the day, 

some are attempting to use public policy to essentially regulate 

their business rivals. 

I have opposed new rules for many reasons, including, but not 

limited to, these five: (1) nothing is broken in the Internet access 

market that needs fixing; (2) no government agency has conducted 

a bona fide, peer-reviewed market study that has diagnosed any alleged systemic illness; (3) if systemic market failure were to come 

to light, ample laws already exist to remedy the problem, while 

current laws provide a deterrent against anti-competitive behavior; 

(4) retrofitting Title II of an 80-year old statute designed for the 

now-extent dinosaur phone monopolies of the early 20th century 

would be devastating to the entire Internet ecosphere and should 

not be held out as America’s cutting edge 21st century tech policy 

for the world to emulate; and (5) expansion of the government’s 

reach into the operations of the Net is providing cover and encouragement to regimes such as those in China, Iran, and Russia to 

push for multi-lateral, intergovernmental, or as Vladimir Putin 

said 3 years ago, ‘‘international control of the Internet.’’ 

At this critical crossroads, two disturbing trends are emerging at 

the FCC. The first is to subject the Internet to antiquated phone 

monopoly regulations known as Title II. The second is to suffocate 

the competitive, dynamic, vibrant and world-leading wireless industry with new and unnecessary rules. Some technology companies that are pushing for classification of Internet access as a telecommunication service under Title II should be careful what they 

wish for. 

This section of the Communications Act is not only antiquated, 

but it is particularly powerful, prescriptive, far-reaching and it has 

over 1000 requirements. As market forces cause the technical architecture of tech and telecom—as we used to call them—companies to converge, companies that today are calling for the regulation of their rivals and think they will not get swept up in Title 

II regulation themselves could wake up 1 day having to live under 

its mandates. 

As a technical matter and business matter, transmission services 

and information services are quickly becoming indistinguishable. It 

would be impossible to parse the difference between broadband 

service providers and other tech companies that combine transmission with information processing or storage such as content delivery networks or E-reader services. 

Accordingly, across the globe, content and application companies 

are falling under the purview of more and more regulations and 

court orders. The FCC has the potential to stoke a contagion of 

international Internet regulation. 

This scenario becomes even more nettlesome and discouraging 

when it comes to wireless broadband. Since its inception, American 

wireless companies have spent nearly $400 billion on infrastructure. Investment grew more than 40 percent between 2009 and 
11 

2013, and may add up to $1.2 trillion in new economic activity by 

2017. 

Over 90 percent of Americans have a choice of four mobile 

broadband providers. Furthermore, America leads the world in 4G 

build-out and adoption. The wireless market is clearly working and 

consumers are benefiting from it like no other time in human history. 

Most importantly, though, wireless is different. As a matter of 

physics, wireless networks operate far differently from fiber or coaxial cable and require unique management. Subjecting wireless to 

new, unnecessary and one-size-fits-all rules will inject uncertainty 

into a thriving marketplace. Such government action could undermine American global competitiveness as the mobile Internet of everything comes over the horizon to change our world. Brace yourselves, it is coming. 

In conclusion, whether creating new rules or foisting antiquated 

and obsolete laws on new technologies, the end result would be unnecessary and counterproductive while creating uncertainty and 

unintended consequences. A better path if we all share the same 

goal of freedom and choice and openness on the Internet, would be 

to rely on time-tested anti-trust and consumer protection laws that 

have helped make the American economy the strongest and most 

innovative in the world. 

Thank you for the opportunity to testify today and I look forward 

to your questions. 

Chairman LEAHY. Thank you very much. 

[The prepared statement of Hon. Robert M. McDowell appears as 

a submission for the record.] 

Chairman LEAHY. Dr. Jeffrey Eisenach is a visiting scholar at 

the American Enterprise Institute. He directs the Center for Internet, Communications and Technology Policy. He serves as executive editor of Tech Policy Daily.com. He writes on a wide range of 

issues, including industrial organization, communications policy, 

the Internet, government regulations, labor economics, and public 

finance. In his spare time, he comes and testifies here before the 

Congress. 

Go ahead, Doctor. 

STATEMENT OF JEFFREY A. EISENACH, PH.D., VISITING 

SCHOLAR, AMERICAN ENTERPRISE INSTITUTE CENTER FOR 

INTERNET, COMMUNICATIONS AND TECHNOLOGY POLICY, 

WASHINGTON, DC 

Mr. EISENACH. Jack of all trades, master of none, perhaps. 

Thank you for your introduction. 

Chairman Leahy, Ranking Member Grassley, and Members of 

the Committee, thank you for the opportunity to appear before you 

to present my views on net neutrality regulation. I do want to say 

that while I am here in my capacity as a visiting scholar at the 

American Enterprise Institute, the views I express are my own and 

should not be contributed to any of the organizations with which 

I am affiliated. 

My testimony today advances three main points. First, net neutrality would not improve consumer welfare or protect the public 

interest. Rather, it is best understood as an effort by one set of pri-
12 

vate interests to enrich itself by using the power of the state to obtain free services from another, a classic example of what economists term ‘‘rent-seeking.’’ Second, the potential costs of net neutrality regulation are both sweeping and severe, and extend far beyond a simple transfer of wealth from one group to another. Third, 

legitimate policy concerns can be addressed through existing antitrust and consumer protection laws. 

To begin, let us be clear what we mean by net neutrality regulation. The rules favored by net neutrality advocates would ban or 

restrict payments from one type of business, edge providers, to another type of business, broadband ISPS. Now it is easy to see why 

edge providers would lobby for such rules, but difficult to understand how they would benefit consumers or the economy generally. 

Net neutrality advocates offer a variety of justifications starting 

with the idea that broadband ISPs have monopoly power. But the 

monopoly argument has several fatal flaws. First, as the FCC has 

repeatedly noted, broadband ISPs are investing billions of dollars 

to upgrade their networks, prices are falling at a rapid pace and 

broadband speeds are increasing—Senator Leahy, as I think you 

mentioned—at 30 percent or more every year. That sort of performance is not consistent with the ‘‘cozy duopoly’’ theory advanced by 

net neutrality advocates. Indeed, the broadband market is less concentrated than other Internet markets like search engines, social 

networks, and personal computer operating systems. 

Another variant of the market power argument suggests that 

while big, established edge providers might be able to fend for 

themselves against the ISPs, we need to look out for the little guys, 

the new entrants who may be strangled in the crib as a result of 

discriminatory access fees. But what no one can explain, however, 

is why ISPs would want to discriminate against start-up edge providers which pose no competitive threat and which create the applications and content that draw consumers to subscribe to the 

broadband in the first place. Indeed, historically, they have not 

done so. 

The FCC’s case for net neutrality regulation is mostly not based 

on concerns about monopoly power. Instead, its main theory is that 

in the two-sided market in which broadband ISPs operate—with 

edge providers on one side and consumers on the other—edge providers generate so much innovation that they deserve to be subsidized by consumers through a rule that forces consumers to pay 

100 percent of the cost of the network while edge providers pay 

zero. Now, this is a fine theory, but there is not a scintilla of empirical evidence to support it. 

Finally, some argue net neutrality regulations are needed to protect freedom of speech. There are numerous problems with this argument as well, not the least of which is that giving Netflix the 

right to distribute ‘‘Orange Is the New Black’’ over Comcast 

broadband network for free, has nothing to do with protecting political speech or dissenting views. 

When these erroneous arguments are stripped away, what is left 

is the obvious—edge providers big and small and those who fund 

them and profit from their success have a powerful economic interest in getting the government to guarantee them free access to the 
13 

ISP’s networks. Occam’s razor applies, the simplest explanation 

tends to be the correct one and net neutrality is no exception. 

Now if all that were at issue here were a transfer of wealth from 

consumers and ISPs to edge providers and venture capitalists, that 

would be bad enough. But much more is at risk. The regulations 

being considered by the FCC, especially Title II, would replace the 

current dynamic pragmatic business and engineering approach to 

operating the Internet with a static, bureaucratic, politicized regulatory regime. 

Ironically, common carrier regulation would not prevent price 

discrimination, but instead can actually require that rates vary 

across different types of services and customers just as postal rates 

do today. Under a Title II regime, the FCC could easily find itself 

overseeing rate proceedings that look a lot like the perennial scrum 

between first, second and third class mailers over who will pay how 

much for junk mail, magazines, and so forth. That is not the future 

of the Internet any of us want to see. 

Finally, adoption of net neutrality regulation would harm the 

cause of Internet freedom worldwide. By embracing the idea of 

state-control of the Internet, the adoption of net neutrality rules in 

the U.S. would legitimize the efforts of tyrants everywhere to impose far-more repressive forms of statist intervention. 

To conclude, it is true that the economic characteristics of hightech markets throughout the Internet ecosystem result in many 

firms having a form of market power and that such market power 

creates the potential for anti-competitive acts. But these characteristics are not unique to broadband markets or broadband ISPs and 

they cannot justify discriminatory regulation. The appropriate remedy is vigilant, nondiscriminatory enforcement of the anti-trust 

laws. 

Mr. Chairman and Members of the Committee, this completes 

my testimony and I look forward to answering any questions. 

Chairman LEAHY. Thank you very much. 

[The prepared statement of Jeffrey A. Eisenach, Ph.D., appears 

as a submission for the record.] 

Chairman LEAHY. Our next witness, the last one, Ms. Nuala 

O’Connor. She is the president and CEO for the Center for Democracy and Technology, and an internationally recognized expert in 

Internet and technology policy. 

Prior to joining CDT, she held a number of positions in the public 

and private sector, including as the first Chief Privacy Officer at 

the Department of Homeland Security, senior positions at General 

Electric and Amazon.com. She was born in Belfast, Northern Ireland. And I—with a certain amount of pride—mention she is a 

graduate of Georgetown University Law Center many, many, many 

years after I graduated from there. 

Please go ahead. 

STATEMENT OF NUALA O’CONNOR, PRESIDENT AND CHIEF 

EXECUTIVE OFFICER, CENTER FOR DEMOCRACY AND TECHNOLOGY, WASHINGTON, DC 

Ms. O’CONNOR. Thank you, Chairman Leahy, Senator Grassley, 

distinguished Members of the Committee, my esteemed colleagues 

on the panel—I thank you. 
14 

I am honored to be here today to represent the Center for Democracy and Technology. For over 20 years, CDT has worked to 

promote and sustain public policy that protect a free and open 

Internet. Above all, we are dedicated to advancing the individual’s 

interest in a digital world that supports free expression, freedom 

of association, personal privacy, and innovation. 

Both the technology and the policy architectures of the Internet 

must support these individual rights and freedoms while also fostering innovation and the free flow of information—not only within 

the United States, but around the world. The Internet, at just over 

two decades old, is still in its infancy. Sound technical and policy 

choices have brought about an Internet that has supported robust 

expression, creativity and innovation. 

While it is an appropriate time to strengthen the rules governing 

our rights in the digital world, we must be thoughtful about the 

consequences. We must seek to protect an individual’s profound 

need to fully engage in the digital world as speakers, as creators, 

as recipients of rich and diverse ideas at reasonable costs and effective speeds. We must remain dedicated to growth and innovation 

that supports these goals in both public and private policies. 

The Center for Democracy and Technology strongly supports the 

concept of net neutrality. We believe that the Internet is an enabler 

of knowledge, of community, and of Democracy around the world. 

We encourage the FCC to take decisive action to establish clear 

and strong rules that will create a level playing field for consumers. 

We seek new rules that are undergirded by principles of fairness 

and Internet openness and we believe that all options should be on 

the table for the FCC to consider. When the FCC’s open Internet 

rules were adopted in 2010, there was, in fact, even far less agreement on net neutrality than there is today. Most now agree that 

we need strong, open Internet rules that provide clarity for consumers and for businesses alike. Ultimately, strong rules should 

make it clear that the open and free nature of the Internet cannot 

and would not be changed. 

We advocate for a principled and a pragmatic approach to the 

new rules with the following principles guiding any decision: (1) 

there must be no blocking, no censorship allowed; (2) we must have 

transparency about the services and the practices offered; (3) there 

should be low barriers to entry to the market on the Internet not 

only for individuals, but for start-up companies as well, which 

means we must have baseline nondiscriminatory rules; (4) we must 

encourage open technical standards while still allowing for reasonable network management. 

It is through the lens of these principles that we should consider 

all of the options on the table and be open to new ones that we 

have not even considered yet. 

In our comments to the FCC and our written testimony for today’s hearing record, CDT has provided a detailed examination of 

the pros and cons of a number of the authorities on which the FCC 

could base its oversight, including both Title II and Section 706. 

We also explored a number of hybrid proposals that had been suggested. 
15 

While all of these are real options, we remain concerned about 

the limitations inherent in the structure and enforcement of any of 

these solutions and the challenges to speedy and effective implementation. 

Over 3 million comments have been submitted to the FCC in the 

course of this rulemaking process. The vast majority of which call 

for strong rules that protect and preserve an open Internet. While 

the details of these comments vary, citizens have weighed in on 

this issue as never before, largely through online filings and emails 

showing the very nature of the Internet as a vehicle for political 

speech and openness. Many of these comments call for Title II reclassification and all agree that the Internet is a valuable resource 

and a platform and essential to our daily lives. 

While there are some procedural concerns and hurdles that Title 

II must overcome, it nevertheless remains a very significant option 

for the FCC to consider. Other options are also possible. 

A number of companies have called for hybrid proposals involving Title II applied to edge providers and Section 706 to end users. 

Others have suggested that prioritization might be acceptable if it 

is a choice made by the individual end user herself. 

All of these proposals reflect thought and effort and creativity 

and deserve the time and attention of the FCC in crafting a new 

and innovative policy framework, one that matches the speed and 

the innovation and the impact of the Internet on our economy, our 

institutions, and our private lives. 

The Center for Technology and Democracy believes that any regulatory framework adopted by the Federal Communications Commission must promote access, free expression, and the civil rights 

that will enable the greatest number of individuals to fully engage 

in the digital world. Whatever path the FCC chooses to take, it 

must act swiftly to create policy certainty that protects the individual and promotes the future growth and innovation. 

Thank you. 

Chairman LEAHY. Thank you very much. 

[The prepared statement of Nuala O’Connor appears as a submission for the record.] 

Chairman LEAHY. Let me ask a few questions here and then 

yield to Senator Grassley. I have to go back to the floor. I am going 

to ask Senator Hirono to take the gavel after that. 

Mr. Burnham, when you talked about why a free and open Internet is crucial for the businesses that are flourishing online—others 

have raised concerns that if you have strong net neutrality protection, it is going to come at the cost of investment in broadband networks. You worked at a large telecommunications provider. You 

have seen what happens. 

How do you respond to the concerns that net neutrality will come 

at the cost of investment in broadband networks? 

Mr. BURNHAM. First of all, I think that all of us would like to 

see more investment, particularly anyone who lives in any sort of 

rural community would like to see a lot more investment in 

broadband capacity. I think that the important thing to remember 

is that nobody I know in the community that advocates strong network neutrality rules would object to any provider of access to the 

Internet charging whatever they felt they needed to charge in order 
16 

to be able to build out the network. I think consumers would make 

that trade. They would pay more for more speed. 

The problem with allowing access providers to sort of vertically 

integrate up into the applications layer and extract new profits 

from the applications layer in order to fund a build-out is that it 

actually perverts the incentives. If they are going to create fast 

lanes, the incentive is to actually have the rest of the Internet be 

fairly slow to create a market for their fast lanes. 

So I think that in order to see investment, we need to separate 

the infrastructure of the Internet, the actual wires, from the applications layer and we need to manage them separately and regulate 

them separately. So I do think that it is absolutely possible to see 

investment in the network and investment on the network without 

having this vertical integration. 

Chairman LEAHY. Thank you. 

Ms. Livier, we have had a lot of hearings on this. I was struck 

by the fact that you are the first one who has spoken of it as a civil 

rights issue. I am going to ask you the same question I asked a 

number of businesses and others in Vermont when I had my hearing. Could you have launched your own series if the Internet had 

been operating under fast lanes and slow lanes? 

Ms. LIVIER. No, sir. I could have not. I do not have deep pockets. 

I would not be able to pay for a fast lane, so there is no way that 

I would be able to distribute my show. There is no way that I 

would have been able to find an audience or prove my market if 

that existed. 

Chairman LEAHY. Well, now of course, you can have others come 

in and compete against you. Do you want them to have the same 

opportunity you have? 

Ms. LIVIER. Everyone should have the same opportunity. Everyone everywhere should have the same opportunity to do it. 

Chairman LEAHY. You know it is interesting because I asked 

that question at our hearing up in Vermont. We had a couple of 

companies there doing extremely well now. They started off as 

start-ups and were happy they did not have to pay for a fast lane. 

They all said they could easily pay for a fast lane today because 

they have grown so large, but they do not want it. 

Ms. LIVIER. No. It is not fair. 

Chairman LEAHY. Okay. Well, thank you. 

Ms. LIVIER. Thank you. 

Chairman LEAHY. Obviously, you preach to the converted. 

[Laughter.] 

Ms. LIVIER. Thank you. 

Chairman LEAHY. Ms. O’Connor, more than 3.5 million Americans filed comments with the FCC. I think that sets a record. I 

know the comments I have received have just been enormous. 

So I share your belief that the FCC has to adopt strong and clear 

rules to protect the open Internet. What is the best approach to do 

that? 

Ms. O’CONNOR. We are open to not only the Title II approach, 

but the hybrid approaches that have been proposed in a number of 

the filings as well as what is called a Section 706 heavy approach. 

We do think Title II is one of the clearest and most direct paths 

to deal with the issues raised in the overturning of the prior rules, 
17 

but there are a number of policy innovations on the table. We think 

the FCC should consider all of them fully before making a decision. 

I am sensitive to—having worked in the Internet industry for 

many years—concern about heavy-handed regulation, but the time 

is now for the FCC to take action and to settle the playing field. 

I think Mr. Burnham’s comments are quite right when he says 

market certainty will actually help in many ways here. 

So we are really asking for the FCC to take decisive action based 

on the principles of openness and focus on that as their goal. 

Chairman LEAHY. Dr. Eisenach, I know in your testimony you 

said that in a paid prioritization world, the ISPs have an incentive 

to give start-ups a lowest cost access, but what if those start-ups 

are competing with products or services that are being provided by 

those who are paying the higher price? Are they going to have a 

conflict there? 

Mr. EISENACH. Well, certainly, I am glad you asked. I think this 

is precisely where the antitrust laws come into play. A case that 

we are all familiar with and remember—Senator Hatch and I 

talked about this at the time—was a Microsoft case. 

In that circumstance, you had a monopolist which exercised its 

market power to disadvantage a new entrant, Netscape, also JAVA 

at the time, and the antitrust laws were brought to bear successfully. So I think it was always hard to figure out what to do with 

Microsoft when you caught them, but we did finally catch them and 

deterred that behavior and we have not seen it since. 

So that is an example of how the antitrust laws can come to bear 

in precisely the circumstance you are talking about. That is a legitimate concern. 

Chairman LEAHY. Mr. Burnham, how do you feel about that? 

Mr. BURNHAM. That is a very difficult way to solve the problem 

for a start-up. The start-ups in the Internet world come and go in 

a matter of years for sure, but perhaps months. So by the time an 

antitrust procedure works its way through the courts or even an 

FCC 706 procedure, I think that it would be irrelevant for most 

start-ups. 

I think you need clear bright-line rules that start-ups can rely on 

so that they can build their business without having to hire a lawyer and represent themselves either in front of the Department of 

Justice or the FCC. 

Chairman LEAHY. Thank you very much. 

Senator Grassley. 

Senator GRASSLEY. Thank you very much. 

Chairman LEAHY. I would note for everybody, I kept within my 

5 minutes. 

Senator GRASSLEY. All right. I am going to ask Mr. McDowell to 

comment on something that was in Mr. Burnham’s testimony about 

Title II reclassification and the fact that—not concerned about the 

impact on investment in the Internet marketplace. Do you agree 

with that position? Is there any problem in that area? 

Mr. MCDOWELL. No. I do not agree with that position and actually, other analysts do not as well. For instance just this Monday, 

Robert Kaminski from Capital Alpha Partners—investment analysts called Title II classification the nuclear option. Back in 2010, 

when the FCC examined this issue last, Credit Suisse’s Jonathan 
18 

Chaplin said, ‘‘But while it is business as usual now, capital investment will come down if Title II becomes a reality.’’ 

So the investment community has a variety of concerns and like 

a lot of things, where you stand is a matter of where you sit, perhaps. 

Senator GRASSLEY. To you, Dr. Eisenach and Commissioner 

McDowell—both of you do not have to answer this, but if you want 

to—I want an answer on the claim that rural communities will be 

hit especially hard if there is no new net neutrality rules. Do you 

agree and should I—coming from a rural state—have any concern? 

Mr. EISENACH. You absolutely should have concern that net neutrality regulation would deter investment in rural broadband networks. That is precisely what would happen and that is something 

that even the advocates of net neutrality acknowledge. I am 

quoting Tim Wu when I say that, ‘‘The impact of net neutrality regulations, an open question whether in subsidizing one side of the 

market content the welfare gains would be as great as consumers 

would enjoy or the benefit of expanding broadband service to new 

consumers.’’ So in subsidizing edge providers, we are explicitly taxing consumers and the ISPs who we want to be building out rural 

broadband service. 

Senator GRASSLEY. Yes. Do you have anything to add? If you do 

not want to, I will go on. 

Mr. MCDOWELL. I would like to go back, actually to something 

Mr. Burnham said earlier, a common misconception that somehow 

before 2004, broadband access was classified as common carriage. 

That is simply not the case. If you look in the attachment to my 

voluminous testimony, there is a May 2010 letter to Congressman 

Waxman which outlines this. 

But you can go back to the 1996 act and also the 1998—what 

was called the Stevens’ Report, named for Senator Stevens—to 

Congress from the FCC where the Clinton era FCC Chairman 

Kennard issued a report to Congress saying, ‘‘Internet access services are appropriately classified as information rather than telecommunication services. The provision of Internet access services 

offers end-users information service capabilities inextricably intertwined with data transport. As such, we conclude that it is appropriately classified as information service.’’ 

They have never, ever been classified under Title II, those services. 

Senator GRASSLEY. All right. Mr. McDowell and Mr. Eisenach, it 

has been argued that antitrust analysis is purely a numbers game 

that does not take into account important non-economic values. Do 

you agree, but more importantly, does an antitrust analysis only 

consider financial and economic values, or can it, in fact, constitute 

a broader consumer welfare-based analysis that looks at other consumer values? 

Mr. MCDOWELL. There is antitrust. There is also consumer protection laws, in general, as well as breach of contract and the Trial 

Lawyers Bar, others who would have a field day if Internet service 

providers, indeed, were to act in anti-competitive way that harms 

consumers. 

But when you have robustly competitive markets that actually 

makes a rising tide that floats all boats, not just economically, but 
19 

socially as well—so let us just take a look back at what has made 

the Internet so fantastically successful. It has been this incredible 

area of freedom that has benefited society in more ways than we 

ever could have imagined 15 years ago. 

Mr. EISENACH. I would just add that we are all very strong supporters of the social benefits that have been created by the Internet 

both here and abroad and those benefits have been created under 

an unregulated regime. The concerns that—those of us who have 

concerns about net neutrality is that bringing regulation into the 

mix will harm rather than benefit those benefits in the future. 

Senator GRASSLEY. Then for the two of you again—and this will 

be my last question—in your opinion, has there been any widespread anti-competitive behavior within the Internet ecosystem 

that would warrant a prescriptive regulator solution imposed by 

the FCC? 

Mr. MCDOWELL. The answer is no. I have long advocated for 

years that the Government do a peer-reviewed market study that 

would be put out for public comment. The last time the Government looked at this was in 2007, the Federal Trade Commission. 

It was not a peer-reviewed market study, but they unanimously on 

a bipartisan basis found there was no market failure and they 

warned against the unintended consequences of new rules. 

Mr. EISENACH. Yes. I think what we have seen is some occasional 

accusations, but the accusations have not been borne out. Most recently, Netflix—I think—has been making wild accusations with 

respect to Comcast and other ISPs. In a current filing at the Federal Communications Commission in the past few days, it has acknowledged that it was the one that was throttling traffic and then 

turned around and used the slow delivery of some of its traffic to 

some of its customers as an excuse to try to seek regulation of the 

ISPs. 

So I think there is the potential for lots of back and forth. That 

is what we are worried about. But there have not been any 

bonafide antitrust problems that we know of. 

Senator GRASSLEY. Thank you. Those are all my questions, but 

I have some materials I would like to enter into the record. 

Senator HIRONO. Certainly, without objection. 

[The information referred to appears as submissions for the 

record.] 

Senator HIRONO. Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, Madam Chair. 

Thank you for holding this important hearing to Senator Leahy, 

Senator Grassley. 

The open and equal nature of the Internet has been incredibly 

important for economic development in the U.S. and I do not think 

people always think of it that way, but it has been. 

In our state of Minnesota where Senator Franken and I serve, 

online sales represented more than 36 billion in revenue for local 

businesses just last year. And in the wake of recent court decisions, 

it has become clear that the FCC needs to pursue new rules. 

The record three million comments received by the FCC—I believe the website went down a number of times—are proof that 

Americans recognize the impact of these decisions and the importance of our careful deliberation. 
20 

Legitimate concerns have been raised about the FCC’s May 2014 

rulemaking proposal regarding what authority the agency is seeking to use and what regulations may include or what types of business arrangements would be allowed. 

As Chairman of the Senate Judiciary Antitrust Competition Policy and Consumer Rights Subcommittee, I have a strong interest 

in ensuring robust competition for all users of the Internet. And as 

I wrote the FCC earlier this summer, antitrust law alone is not 

sufficient to regulate the Internet. We need a clear set of rules for 

a fair playing field. 

Mr. Burnham, one of the most central elements of the Internet 

is its ability to foster new and creative developments like Yahoo 

and Google, Facebook, they have all resulted from literally students 

using the open and free Internet to create billion dollar companies. 

As a venture capitalist in this field, what is the most important 

idea for encouraging this type of innovation, how will investment 

in tech and Internet companies change if FCC rules do not sufficiently protect and promote the open Internet and competition? 

Mr. BURNHAM. It will change. And so we are really debating here 

investment in the Internet or in the infrastructure that delivers the 

Internet and investment on the Internet. 

The problem with investing on the Internet, you know, the opportunity that we have had is to invest in any idea that could reach 

any consumer in a completely free and open way with no discrimination. The minute you begin to allow the infrastructure, the wires 

that deliver that service to consumers to reach up into that layer 

and either manage it for network management purposes or extract 

some kind of rents from that layer, it distorts that market. And so 

we as investors would have to then consider what kind of relationship they had with a provider. 

If you want to get a hint of what this looks like, think back to 

all of the applications that were created and distributed by cell 

phone operators on their cell phone before the iPhone. How many 

of those actually became businesses? How many of those did you 

actually use? 

Those services were controlled by the carriers and distributed by 

the carriers. And you had to get permission of the carrier to launch 

that service. Once we opened that up, the world changed. 

Senator KLOBUCHAR. Right. Exactly. Mr. Eisenach, do you not 

you think this paid prioritization could affect this investment that 

I was just discussing with Mr. Burnham? 

Mr. EISENACH. Well, two points. The first point is that he is 

right. This is a question over who will pay for the network. And 

the proposal, as Mr. Burnham said very clearly is that consumers 

pay 100 percent of the cost of the network and rich venture capital 

firms like Mr. Burnham’s and their companies that they invest in 

pay zero. 

Now, there is no shortage of investment going into Internet startup companies. Mr. Burnham’s company has invested hundreds of 

millions of dollars and returned billions of dollars on those investments, and that is in the absence of net neutrality regulation. 

There is simply no basis for thinking net neutrality regulation is 

needed. 
21 

This is my second point, the phenomenon Mr. Burnham just described which is the death of vertically integrated cell phone applications and the rise of this very vibrant mobile applications economy happened in the absence of any kind of net neutrality regulation. It happened through the free market. 

Senator KLOBUCHAR. Can I go to Ms. O’Connor because you have 

heard Ms. McDowell and Dr. Eisenach talking about how antitrust 

laws could be used effectively and I want to know what you think. 

Do you believe that antitrust law is sufficient to address potential 

Internet distribution issues, the things that would harm competition and consumers and what do you think needs to be done? 

Ms. O’CONNOR. Well, the short answer to that question is no. 

After almost 20 years of practicing law, I have seen few areas of 

the bar short of their ability to solve the problem than the antitrust bar, maybe second only to the telecom bar. But I do not think 

it works in this context. 

First of all the analysis is largely economic and commercial, but 

it is also ex post. So it would not solve for the issue Mr. Burnham 

has raised, and that is a very real one, the ability of a small independent start-up or an individual user to get online absent interference. To ask those individuals to apply for antitrust relief after 

the fact would basically prevent individual freedom and opportunity in getting into the Internet economy, into the Internet space, 

into the digital world. So it is not an effective and it is not a complete solution to the problem we are facing of a truly open and vibrant digital life. 

Senator KLOBUCHAR. Thank you. 

Senator HIRONO. Senator Lee. 

Senator LEE. Thank you, Madam Chair, and thanks to each of 

you for being here today and for your thoughtful testimony. The 

issue of an open Internet has attracted a lot of attention from a lot 

of Americans. A considerable amount of public attention. Now, regardless of where any American stands on this issue, whether 

someone views herself as in support of or against what is commonly known as net neutrality, Americans are sending a consistent 

message which is, do not break the Internet. Do not mess with it. 

Do not mess with the most vibrant, expansive, even explosive area 

of our economy because it has worked and it has worked well, and 

it has brought enormous benefits in terms of economic growth to 

our great country and it has played an important role in bringing 

more information, more education, more entertainment, more opportunities generally to people not only throughout our great country, but throughout the world. 

Subjecting the Internet to heavy-handed regulations, the type of 

regulations that were designed to regulate the railroad industry in 

the 19th century and designed to regulate Ma Bell in the 20th century could threaten to do precisely that. 

Unwise regulation in this area would do nothing, I fear, but stifle 

much-needed innovation in Internet service and would, in the process, make it harder in the long run for consumers to be able to secure better service and ultimately have a real choice, more choices 

than they currently have about who delivers their Internet service. 

Anyone who has ever had an hour-long frustrating phone call 

with their cable company’s customer service representative knows 
22 

that consumers certainly could use more choices rather than fewer 

choices, particularly in this area. The proposed regulations of the 

sort that we are talking about today, would, I fear, do nothing to 

make the underlying problem better, but instead, I fear, would 

make it much, much worse. 

So I have a few questions. I would like to talk to you first, Dr. 

Eisenach. Rent-seeking is often defined as a process in which someone devotes money and other resources to lobbying government so 

that they can take in a greater share of wealth that is already been 

produced without actually generating wealth on their own. Would 

you agree basically with that definition? 

Mr. EISENACH. I think that is correct. 

Senator LEE. Do you think we should be concerned about the 

possibility that the sort of FCC regulation that we are talking 

about today will lead to more rent-seeking behavior than it would 

solve the problems for which it was purportedly designed to solve? 

Mr. EISENACH. Absolutely. The FCC has a long history and an 

unfortunate history in the rent-seeking department. Ronald Coase 

who won a Nobel Prize for helping to develop the theory of rentseeking won it in part for an article titled ‘‘The Federal Communications Commission’’ which was about the lobbying and political 

influence that went into the allocation of broadcast licenses back 

during the 1950s and 1960s. That same kind of activity, and I 

spent an unfortunate amount of my time in and around the Federal Communications Commission and a tremendous amount of activity, as Rob knows better than anyone, goes into precisely that 

sort of lobbying and everyone who is paying a lobbyist to be there 

on all sides of the argument is there defending the interests—their 

economic interests—in these arguments. Senator Lee. So when government gets involved in picking winners and losers in the marketplace, the winners end up being not necessarily those who provide 

the best service at the best price to consumers, but rather those 

with the most effective context perhaps with the best relationships 

to government decisionmakers. I would like to ask you briefly 

about a point that was made earlier, I believe, by Mr. Burnham. 

An analogy was made to an air conditioner. Let us take that analogy a step further, let us explore it a little bit more. Let us suppose 

that someone installed a particular type of air conditioner that consumed an extraordinary amount of electric power, so much power 

that it made it very difficult for the electric utility in question to 

supply adequate electricity to other customers in the area. Would 

there be anything extraordinary about the electric power company 

perhaps charging a higher rate for that consumer who chose to use 

that particular air conditioning system? 

Mr. EISENACH. No, nor would there be anything wrong with the 

electric company turning around and saying to manufacturers of 

air conditioners, you know, our network, our ability to serve our 

customers efficiently depends on your making more efficient air 

conditioners. We would like to give incentives for you to use less 

energy in the air conditioners that you manufacture. Both of those 

would be good things and would result in more efficient markets. 

Senator LEE. And one follow-up to that. If the electric utility 

company in question decided to get into the business of providing 

its own air conditioning equipment to its rate payers, if it did that 
23 

and then engaged in practices that favored its own system as compared to others, would not antitrust laws be equipped to handle 

that? And so too here, to the extent that we have Internet service 

providers that start to compete with content providers, if they use 

their position in the marketplace in an anti-competitive manner, 

are our antitrust laws not there for that very reason? 

Mr. EISENACH. Absolutely. That story is called Microsoft and 

Netscape. And one can easily imagine that story replaying itself in 

this environment. And one can easily imagine the antitrust laws 

being responsive to that. 

One point very quickly on the speed with which regulation 

versus antitrust can be brought to bear. We are a decade into the 

net neutrality saga. We do not have enforceable rules. Whatever 

the FCC does, we will not have enforceable rules for three to 5 

years while this round of regulatory gamesmanship plays itself out 

in the courts. In the meantime we could have had five rounds of 

antitrust cases. 

So the notion that regulation is a faster way of getting to the 

right end I think is upside down. 

Senator LEE. Okay. Thank you, sir. 

I see my time is expired, Madam Chair, thank you. 

Senator HIRONO. Thank you. Senator Franken. 

Senator FRANKEN. Thank you, Madam Chair. 

I think there is a fundamental misunderstanding here. Net neutrality is not about regulating the Internet. Net neutrality is about 

preserving the Internet as it is. Net neutrality has been the architecture of the Internet from the very beginning. 

Innovation has not just happened while net neutrality has been 

in place. It has happened because net neutrality is in place. Let me 

just talk about one example so everybody who is listening and 

watching can hear. 

Before YouTube there was a thing called Google Video. It was 

not very good. The guys who started YouTube did it over a pizza 

place in San Mateo, California. It was superior to Google Video. 

And because it was allowed to travel at the same speed, people preferred it and it replaced Google Video as the medium that people 

watched videos on. And Google ended up buying it for $1.6 billion. 

This is about innovation that has taken place because of net neutrality. What the FCC has proposed, paid prioritization—that represents a change. That is why 3.5 million people have commented— 

because they understand this. This is not about new regulation; 

this is about preserving the structure that we have had. The 

Occam’s razor here is do not change what we have. 

Ms. O’Connor, can you speak to that? 

Ms. O’CONNOR. Thank you so much, Senator Franken and thank 

you so much for your leadership on this issue. That is exactly right, 

there has always not only been rules and regulation, but there has 

been the specter of enforcement by the FCC and the FTC for the 

entire lifetime of the Internet. 

We are looking at it not only obviously as an economic empowerment issue and as an opportunity for growth and innovation, and 

small business empowerment, we are looking at it as a need of the 

individual to engage in digital life in every aspect of their world: 
24 

in their communications with their spouses, with their employers, 

with their schools, with each other. 

The example that Jeff gave about antitrust law versus net neutrality regulation I think actually proves the point. In the case he 

cited, Microsoft v. Netscape, millions of dollars of legal fees were 

spent on both sides. No small business is going to have the resources to engage in that kind of fight. But 3.5 million individual 

citizens of this country were able to comment on this proceeding at 

the FCC. That proves the point that regulation is a more democratic opportunity here, and this is the path we need the FCC to 

take. 

Senator FRANKEN. And it is just preserving the way it has been 

the whole time. So all this innovation you have cited, all this investment you have cited has happened while there has been net 

neutrality. 

Mr. Burnham, I have met with some small businesses in Minnesota and start-ups who tell me that net neutrality is just crucial 

for them. They are making applications to do all kinds of things 

ranging from a company called ‘‘thisCLICKS,’’ which helps companies manage their employees’ time sheets. That is in St. Paul. A 

Minnesota company called ‘‘Sport Ngin,’’ which is now employing 

about 300 people, has tripled their number of people in the last 

year, connecting people who want to join recreational sports 

leagues. 

Now these companies are growing and they are innovating and 

there are thousands and thousands of companies like them. Now, 

if under pay prioritization they were made to compete with bigger, 

deep-pocketed entities, they could not do that, but let us say they 

did. Let us say they got on, they paid for pay prioritization. What 

they told me is that the apps that they use—the software that they 

use to run their app—unless those subcontractors pay for pay 

prioritization, their thing would not work. Is this not all about 

these pay prioritizations? Is this not about squelching the kind of 

innovation that we have all been celebrating, all five witnesses? Is 

that not the way it has been and aren’t these pay prioritization 

lanes going to squelch that? Is that not a huge change? 

Mr. BURNHAM. It is a huge change. And as I pointed out in my 

testimony, it is only in the last few years that the Internet access 

providers have even had the technology to figure out what you are 

doing online and therefore to be able to discriminate between that. 

So not only do we have the threat of FCC enforcement, but we also 

had the lack of technology in place. That is what has changed. The 

technology is in place and the FCC has proposed a new set of rules. 

You bring up a very interesting point which is, it is not just the 

application that you see that matters, it is all the applications that 

they use. So, for instance Tumblr runs their application in their 

own data center, but they store all of their images at Amazon. And 

so in order to load a Tumblr page, you go to the Tumblr data center, but you also send a call out to the Amazon data center. If Amazon is not paying for paid prioritization, that page will not load. So 

there is a whole ecosystem of services that are built on top—or 

rather underneath—the services that you see that would also be affected. 
25 

Senator FRANKEN. Well, speaking of Amazon, all the companies 

that are like Amazon: DropBox, eBay, Facebook, Google, Microsoft, 

Netflix, Reddit, Tumblr, Twitter—they are all saying we need this. 

These are the innovators. And I just want everybody to understand 

that this is about preserving the Internet the way it is. That is 

what net neutrality is about. 

Thank you, Madam Chair. 

Senator HIRONO. Senator Hatch. 

Senator HATCH. Well, thank you, Madam Chairperson. Net neutrality is not a new issue. Congress has been debating this issue 

for year. As Chairman of the Senate Republican High Tech Task 

Force I co-authored a Wall Street Journal op-ed in the fall of 2009 

when then FCC Chairman Julius Genachowski and his Democratic 

colleagues first proposed their net neutrality rules. My op-ed entitled ‘‘Who is Going to Build the Information Superhighway’’ is just 

as applicable today as it was then. 

Here is what I wrote in 2009. ‘‘If there is any sector of our economy where competition is so fierce, and where the pace of innovation is so rapid that government interference would only get in the 

way, it is the Internet and telecommunications market. The Internet has grown because of the virtuous and mutually beneficial circle. 

‘‘Network operator provide ever-increasing speed and bandwidth. 

Content providers one-up each other with game changing innovations and consumers adapt and adopt at lightning speed. Yet despite an overwhelming record of innovation and customer satisfaction Washington wants to replace the judgment of consumers with 

that of politicians and bureaucrats. Net neutrality may sound like 

fairness, but it is actually the opposite. Bandwidth is finite like the 

finite number of lanes on a highway network providers must innovate in order to accommodate the burgeoning traffic. As they invest 

billions of private dollars in new and improved networks they 

should right expect to set prices and manage those networks as 

they see fit. 

‘‘If the FCC takes control of the Internet, we will have the inevitable result of all poorly designed regulations, business decisions 

prejudiced by politicians and political decisions prejudiced by corporations. Keep in mind we are talking about the most competitive, 

efficient, and consumer-driven industry in the global economy.’’ 

Now, I did not write those words 5 days ago, but 5 years ago. 

I ask unanimous consent to enter the entire Wall Street Journal 

op-ed into the record at this point? 

Senator HIRONO. Without objection. 

[The op-ed referred to appears as a submission for the record.] 

Senator HATCH. Although 5 years have past, those statements 

are just as true today. We have been the recipients of an explosion 

of apps, products, and services that directly result from broadband 

and Internet growth. 

Without government regulation the Internet is growing. So what 

is the problem? What is broken? What is it that needs to be fixed? 

An unregulated Internet has spurred innovation and economic 

growth all around the world. Yet despite all these successes, some 

argue we need to regulate the Internet. I cannot disagree more. 
26 

Let me just ask Mr. McDowell and Mr. Eisenach to answer a 

simple question. If so, what is it that needs to be fixed here? If you 

could answer that question. 

Mr. MCDOWELL. Senator, you raise an excellent point which is 

nothing is broken that needs fixing. And we have the open and 

freedom enhancing explosive and amazingly bountiful Internet 

today precisely because of market forces and the laws that already 

existed before there were any formal net neutrality rules which 

really did not even start happening until 2008. We had Facebook, 

eBay, all those great companies had already blossomed into giants. 

Senator HATCH. They did not do that because of net neutrality 

rules. 

Mr. MCDOWELL. It was long before then. 

Senator HATCH. Right. Mr. Eisenach. 

Mr. EISENACH. Well, Senator, absolutely. So what you have in 

the Internet echo system is you have lots of firms who are creating 

value and they share in the creation of that value. So edge providers and networks and applications providers all have to get together. They get together on the screen of your iPhone to produce 

something of tremendous value and they fight about how they are 

going to share that value creation. All right. Every day on the 

Internet is a battle over who is going to—— 

Senator HATCH. I want to keep that fight going. 

Mr. EISENACH. And that fight should happen between private 

companies in private bargaining as opposed to being a complaint 

before the Federal Communications Commission every time two 

parties disagree. 

Senator HATCH. Well, let me ask you both again, do you think 

that the Internet today would be characterized by the current level 

of innovation if it had been subject to common carrier regulation? 

Mr. MCDOWELL. No, sir. What folks are calling for is what is 

called ex-ante regulation, before the fact, or what some call ‘‘Mother May I,’’ which is that then starts to prompt companies that may 

have thousands of miles of fiber optics and servers and routers that 

offer voice, video, and data services, those could be tech start-ups. 

Those are going to be tech companies, not what we think of as 

cable or phone companies. 

Senator HATCH. Let me ask you—— 

Mr. MCDOWELL. They would have to file petitions for declaratory 

ruling at the FCC for permission to innovate. 

Senator HATCH. Sure. Now, what will be the global impact if the 

FCC reclassifies the Internet as a utility under Title II of the Communications Act? 

Mr. EISENACH. The International Telecommunications Union has 

been trying to get its hands on the Internet since the mid-1990s 

when the Clinton administration said no. And that is precisely 

what would happen. They would ultimately be successful in doing 

what they would like to do which is regulate the Internet as a public utility internationally. 

Senator HATCH. One last question and this just needs a yes or 

no from both of you. In your view would investment and innovation 

increase or decrease if the FCC subjects broadband services to common carrier regulation? 
27 

Mr. MCDOWELL. I think the right answer is decrease, not yes or 

no, but, yes, decrease. 

Mr. EISENACH. Technological innovation would decrease; lobbying 

innovation, however, would grow. 

Senator HATCH. What are we talking about here. I mean, to me, 

I cannot understand why my friends on the other side love this 

type of regulation so much when I think it will wind up really fowling up the whole Internet. 

Well, thank you, Madam Chairman. 

Senator HIRONO. Thank you. 

We have heard a lot about the antitrust laws as being adequate 

to provide consumer protection in this area. I am curious to know 

from either Mr. Burnham or Ms. O’Connor who I assume you have 

practiced in this area, you understand antitrust law. So, Ms. Livier 

has said that if we did not have net neutrality it would be highly 

unlikely that you would have been able to get your show on the 

Internet. So I am curious to know what kind of—in her situation 

looking at that kind of start-up, Mr. Burnham or Ms. O’Connor, 

what kind of antitrust claim would lie that she could pursue? Are 

we talking about price fixing? Are we talking about time? What are 

we talking about? What would she be able to proceed under to go 

forward? 

Mr. BURNHAM. Well, I am not a lawyer and I am not practiced 

in antitrust law, so I am going to turn it over to Ms. O’Connor. 

Ms. O’CONNOR. Having been in the Internet law and policy space 

again my entire career almost working in front of the Federal 

Trade Commission and in this area, there would be precious few 

remedies available under antitrust law. Your point is incredibly 

well taken. The limitations for a small individual artist or start-up 

company or individual end user to avail themselves of redress 

under the law would be quite limited. And the phrase that keeps 

coming to mind is, your antitrust law is not good enough for my 

Internet. It is just not comprehensive enough to protect the needs 

of the individual end user, the rights of the citizen. 

Again, it is a fallacy to say the Internet has not been regulated. 

I was at a company in the late 1990s that had not only an FTC 

investigation, but 21 class actions, 12 attorney general investigations, a slew of regulatory oversight for the idea—the scintilla of 

an idea about a data matching project. It is wrong to say the Internet has not been regulated by the FCC and the FTC for years. 

To not act right now would actually be the change. Senator 

Franken is right, to not act would be the absence of the playing 

field that is open and accessible to the individual end user. 

Senator HIRONO. Thank you. I appreciate, Mr. Burnham, your 

pointing out that the technology has changed, so now our providers 

can figure out what the consumers are accessing. I think that is a 

very powerful piece of information for providers. And this is why 

I believe that the landscape is changing and why we are here 

today. 

Now, Ms. O’Connor, you mentioned that—and several of you 

mentioned Title II is really probably not terribly applicable because 

Title II is a public utility. And we regulate public utilities up the 

kazoo. So this is not necessarily where we want to go. 
28 

You also mentioned that maybe we should look at Section 706. 

But that may not fit either. So my question to either Mr. Burnham, 

or you, Ms. O’Connor, is should we be talking about a new title? 

Ms. O’CONNOR. We would welcome that kind of policy innovation 

from Congress or from the Federal Communications Commission. 

The Internet is a precious and valuable space for the individual 

and for the end user and for small business innovation. And I am 

sympathetic to those claims that these are old titles that were 

based in historical parts of the economy that are very different. 

And we do not want to slow down the speed of the Internet economy and growth. But given the options on the table, we encourage 

the FCC to explore all of the options, all of the opportunities. And 

we have seen some very creative hybrid approaches proposed by 

policy groups and by companies, things that would combine 706 

and Title II to get the enforcement abilities of both. And we encourage the FCC to consider those. 

Senator HIRONO. Well, possibly in the best of all worlds that we 

would be coming up with a very clear new title, but in the absence 

of that happening, which will very likely be the case, that you are 

saying that the FCC—and I assume that Mr. Burnham agrees— 

that they have the authority to proceed under either Section 706 

or Title II—— 

Ms. O’CONNOR. Yes. 

Senator HIRONO [continuing]. To protect consumers? 

I mean, clearly consumers feel that net neutrality is important 

because all of us have heard from hundreds, and hundreds, and 

hundreds of our constituents who have said, make sure that we are 

not going to create an environment where they are going to have 

to pay differential rates for access to the Internet. 

So my time is fast expiring and I would like to—well, Senator 

Flake. 

Senator FLAKE. I will go quickly. I find it interesting, I heard one 

of my colleagues say that the purpose of these net neutrality rules 

is to maintain the Internet as it is. Imagine if any tech company 

said, we are going to succeed by maintaining our company as it is. 

If Apple prior to launching iPhone 6 or the Apple watch said, we 

are just going to maintain as it is. I do not think if the Internet 

stays as it is, that it will be prepared for the future innovations 

that we are going to need to advance. 

I hear the same kind of arguments with regard to pharmaceuticals or drug companies. I think with regulation we can make 

current drugs cheaper. You can, but you do not get the innovation 

you need to grow and progress and to go into other areas. So, I am 

always wary when we want to maintain something as it is especially something as dynamic as the Internet. 

But just one question. I know we have votes going on. Dr. 

Eisenach, you have done some work in this area, can you discuss 

the University of Pennsylvania, Professor Chris Hugh’s work on 

Europe and investment in broadband and Internet compared where 

they have regulatory regime perhaps similar to what we would be 

moving to here compared to what we have here? What is the difference between investment there and in the United States? 

Mr. EISENACH. Thank you, Senator Flake. As Christopher Hugh 

has written as Richard Bennett at the American Enterprise Insti-
29 

tute has written in a new study available from the 

TechPolicyDaily.com. The Europeans have followed a much more 

regulatory course than the U.S. and five or 10 years ago there was 

a debate about how wise a course that was. There was a debate 

about whether the U.S. was ahead or behind in broadband infrastructure. There is no debate today. The Europeans have recognized that the U.S. course was the wiser course. There is almost 

no fiber availability, virtually no fiber availability from telephone 

companies and very little from cable companies in Europe. The Europeans are a generation behind now on wireless broadband access, 

LTE only covers about a quarter of the population of Europe versus 

virtually 100 percent of the U.S. 

So the regulatory course proved to be disastrous for Europe. And 

I think has the potential—we talked about leaving things the same 

versus changing them. The Internet has not been regulated. Net 

neutrality is a proposal to regulate it, I think it is that simple. 

Senator HIRONO. We need to vote now, so I would like to call a 

brief recess and ask the witnesses to remain until I return. And I 

am also expecting Senator Blumenthal to return so he can pose his 

questions. 

Recess. 

[Whereupon at 12:08 p.m., the Committee recessed.] 

[Whereupon at 12:15 p.m., the Committee reconvened.] 

Senator BLUMENTHAL. We are now back in session. Thank you 

very much for being so patient. I was going to apologize for voting, 

but we should not be apologizing for voting. We should be applauded for moving forward. Thank you. 

Let me ask, I have a few questions and then I understand Senator Cruz is coming back. Mr. Burnham, as you know better than 

anyone, the Internet’s incredible economic success has been made 

possible because it is an open platform where anyone with a good 

idea can connect and consumers across the globe can compete on 

a level playing field for their business. And it is the relevance of 

an entrepreneur’s product, the consumers are not sort of their 

sweetheart deals with large broadband providers that determine 

success. After launching their business start-ups frequently come to 

you, they want to be financed. They need capital. And they pitch 

their ideas to secure additional funding that would take their ideas 

to the next level. 

Without net neutrality start-ups may not even be able to launch 

their products without turning to you for funding first. And it 

seems like to be successful in a paid priority context, you would 

want to know whether they have a deal with Comcast or AT&T. 

They would have to come to you with that sort of sweetheart deal 

first. Can you tell me how the content of start-up pitches would 

change in a world without the net neutrality rules? How do your 

criteria as an investor change? 

Mr. BURNHAM. Well, we would need to understand the relationship between what they were doing and the interests of the companies that they depended on for distribution. And so that would— 

you know, we would stop focusing on the innovation and start focusing on the deal that they had struck. And that would make it 

very difficult. 
30 

I think, you know, contrary to what Mr. Eisenach has said about 

venture capital, this actually is not so bad for venture capital. If 

we end up in a paid prioritization regime because every start-up 

would now have to come to us first. They would have no negotiating leverage and we could extract a fairly big chunk of the company in exchange for taking the risk to fund them in this new 

riskier environment. 

The way the world works today, start-ups launch, they get to 

scale, and they have real engagement with users, real traction, and 

then they farm out, you know, they basically shop that opportunity 

and venture capitalist compete with each other to do that deal because they have already proven that it works. That is a much better situation for entrepreneurs and start-up and any creator. It is 

not so great for venture capital, but we would prefer to see the 

world favoring entrepreneurs. 

Senator BLUMENTHAL. So it might be better for some of the 

sources of financing, but worse for the start-ups, worse for the entrepreneurs? 

Mr. BURNHAM. Yes. 

Senator BLUMENTHAL. Ms. O’Connor, the antitrust laws are intended to prohibit business practices that unreasonably deprive 

consumers of the benefits of competition and that result in higher 

prices for goods and services. These important laws are crucial to 

America’s success today by prohibiting collusion, conspiracy, monopoly power, and they evaluate combinations and agreements to 

preserve competition. But really what is at stake here is more than 

just questions of the economic benefit, it has also harmed the customers and freedom of speech. It is the speech that is made possible as a core component of our democracy. 

In a world of pay prioritization, for example, NBC’s website could 

tap into its affiliation with Comcast to make sure that its news 

reaches Comcast subscribers faster than Fox’s website. Or we could 

see one Presidential candidate pay a broadband provider so that 

content on his or her website loads faster than the other candidates. Consumers and content providers alike would be affected. 

And these are effects in noneconomic ways. So my belief is that to 

safeguard free speech in the 21st century and the infrastructure 

that prevents interference with free speech, we ought to make sure 

that net neutrality is preserved. And maybe you can tell us a little 

bit more about how net neutrality affects those values of free 

speech? 

Ms. O’CONNOR. Senator Blumenthal thank you so much for raising what we think is the fundamental question. It is important to 

address the antitrust laws and the appropriate authorities the FCC 

should consider. But it is the voices of the individual citizen, the 

voices of the artists like Ruth. The voices of the entrepreneur, the 

start-up technology who has the tiny kernel of an idea. Those are 

the voices we are concerned about, not only in the United States, 

but around the world. 

And the concern, first of all, internationally that by taking some 

action we will be sending the wrong signal to the rest of the world, 

we are concerned about that too at CDT, but we think the signal 

we would be sending is that free speech is a fundamental right. It 

is the most important right, and the Internet is the greatest engine 
31 

and the greatest platform that history has known for the individual’s voice to be heard. 

An independent artist like Ruth can suddenly reach millions of 

viewers overnight. A small company like the ones Senator Leahy 

talked about can suddenly reach customers all around the world. 

Without strong open Internet protections, those voices will go to 

the back of the line. This is simply unacceptable and undemocratic. 

It is the fundamental reason I am here today. 

Thank you. 

Senator BLUMENTHAL. Well, thank you for that strong statement. 

I agree completely with you because it highlights the non-economic 

benefits, but those non-economic benefits in turn produce enormous 

value throughout our society. It is the reason that entrepreneurs 

want to come here. And scientists want to invent and that great 

writers want to be here. The value of free speech is what distinguishes America, our protections for free speech. 

Let me ask Commissioner McDowell, you know, I know from 

what I have been told that you have spoken about the efficiency 

and effectiveness of the market and competition apart from the net 

neutrality rules. Two weeks ago FCC Chairman Wheeler said, and 

I am quoting, ‘‘Meaningful competition for high speed, wired 

broadband is lacking and Americans need more competitive choices 

for faster and better Internet connections.’’ He went on to say that 

‘‘between three-quarters and 82 percent of consumers lack choice 

depending on the service.’’ 

Why do you believe that broadband is a competitive market that 

will correct itself in light of what Chairman Wheeler has said? 

Mr. MCDOWELL. Thank you, Senator, and it is a privilege to be 

before you today. Excellent question. I think the Commission is 

looking at the broadband market too myopically. We have wireless 

broadband. We also have unlicensed wireless. Senator Klobuchar 

and I have worked very closely together on the proliferation of that. 

If you look at market data, I also look at my children, my young 

kids, the number one screen now is becoming the mobile screen. 

And that is causing a wonderfully disruptive element to the marketplace. So that is, I think, disrupting things in a way we could 

not have imagined 10 years ago. 

Back to your Comcast and NBC analogy though, there are a 

number of complaints, thinking as a lawyer, that could be brought, 

not just in the antitrust context that would prevent that from happening or deter that from happening like exclusionary conduct and 

raising rivals’ costs, but also breach of contract and tortious interference with contract and state attorneys general of which you 

were one, would have a field day if that type of behavior were to 

happen. That is also a deterrent, I think, in the marketplace. 

Senator BLUMENTHAL. Thank you. Well, I want to thank all of 

you for giving us the benefit of your wisdom and insight on this 

very, very important issue. It has been very valuable testimony. I 

am going to turn back to Senator Hirono if she has additional questions. And, again, many thanks for being here. 

Senator HIRONO. Thank you. I understand that Senator Cruz is 

on his way back. So I would like to give him the opportunity to 

come back in time to ask his questions. So that being the case I 

have a question for Ms. O’Connor. 
32 

Chairman Wheeler has proposed evaluating certain practices of 

broadband providers under a commercially reasonable standard. 

Can you explain your concerns with that standard and why it 

would be a poor fit for preserving open Internet? 

Ms. O’CONNOR. Thank you so much, Senator. The commercially 

reasonable standard was only a relatively recent creation of the 

Federal Communications Commission and it certainly goes to the 

commercial qualities of any agreement between various providers 

on the Internet. But we think it misses the mark in an open Internet proceeding that is, we wish, to protect the interests of the individual end user and the entrant to the market, not the established 

players. We seek a standard that looks more like something that 

protects the qualities of an open Internet or does not degrade services to the individual. So we think that not only the language, but 

kind of the theory underpinning commercially reasonable, while 

perhaps and completely applicable in other contexts under FCC jurisdiction is not the right standard for a rulemaking proposal that 

seeks to protect the qualities of a flat Internet structure that allows 

for low barriers to entry and a free market—and a market that is 

open to all. 

Senator HIRONO. Thank you. Mr. McDowell, you have testified 

that the antitrust laws would be adequate to protect the consumers. So there has been discussion about the antitrust laws as 

basically protecting an economic argument. So if the Internet providers now know what customers are accessing, it would be a way 

for them to determine without net neutrality rules in place that 

they would want to have differential pricing based on what the consumer is accessing. So in that kind of circumstance, do you think 

that the antitrust laws are adequate to protect the consumers’ 

right to access whatever programming and applications the consumer wants to access? 

Mr. MCDOWELL. I do. And as I explained in greater length in the 

appendices to my testimony more about that. But not just the antitrust laws, but general consumer protection laws, Section 5 of the 

Federal Trade Commission Act, for instance, you have state laws 

and other Federal laws. As I was explaining to Senator 

Blumenthal, breach of contract, tortious interference with contract. 

You have to remember that every major ISP has in their terms of 

service, their contracts essentially, with their customers these 

types of protections. If they were to breach them, the plaintiffs’ bar 

would have a field day. That is a huge deterrent right there. But 

let us look at what has worked. What has worked in this country 

to have a wonderfully, you know, blossoming Internet ecosystem 

are the laws that are in place, that were in place before net neutrality came about as a government action which was only 2008. 

You know, the iPhone came about in 2007. And the ap community 

started to—the ap industry started to explode. 

So that is what has made it wonderful is the marketplace, market forces, and these general, flexible, more nimble rules that are 

in place that, as Nuala pointed out before, in the 1990s she was 

at a company or knew of a company that was investigated by the 

Federal Trade Commission, state attorneys general, and all the 

rest. What is better than creating a new body of law which would 

create uncertainty and years of litigation, as Dr. Eisenach pointed 
33 

out, would be for the Government to sit down and sort of assemble 

a war council. I called for this for years. You could have the Federal Trade Commission, you could have the FCC, you could have 

the Department of Justice, state attorneys general, consumer 

groups, the plaintiffs’ bar, all sit down and say, hey look, any of 

you, whether you are ISPs, or you are search engine giants, if you 

act in an anti-competitive way that harms consumers, then we are 

going to come down on you. We are going to launch this avalanche 

of rules. 

But I also agree and wanted to speak to the fact that we sorely 

need to rewrite the Communications Act of 1934. We need to start 

over and look at all of this through the lens of consumer protection, 

knock down the silos that regulate based on your technology 

whether it is copper, or coaxial cable, or fiber, or wireless. All those 

are regulated differently. From the consumers’ perspective, they 

just want their stuff when they want it and generate it, right? So 

they do not really care what the laws are behind the scenes. They 

are antiquated, they need to be rewritten. I hope in the next Congress we can get that done. 

Senator HIRONO. I see our witnesses nodding their heads. So 

there seems to be general agreement that we probably should 

amend the 1934 law so that it is up with the times. So pretty much 

you agree? Well, maybe we can work on that. 

I see that Senator—I am sorry, Ms. O’Connor, did you want to 

say something? 

Ms. O’CONNOR. I could not agree more that consumers want 

what they want when they want it. And they do not really differentiate how they get their Internet whether it is on their mobile device, or on their home computer, or in the air. 

And I would like us to consider banning the phrase ‘‘Internet of 

things.’’ This is not the Internet of things. This is the Internet of 

people. So we want what we want when we want it, but we also 

want a level playing field to get in the game. 

Senator HIRONO. Thank you. Senator Cruz. 

Senator CRUZ. Thank you, Madam Chairman. And I want to 

thank each of the witnesses for being here today to discuss a critical issue that impacts the desire of all of us to keep the Internet 

free and open, a marketplace of competition and an oasis that historically has been beyond the unnecessary reach of government 

regulators. 

This is by no means the first time the issue of so-called net neutrality has been raised. And every time it stirs up an interesting 

debate between government regulation versus to some the terrifying freedom of the Internet. I think the American people do not 

find that freedom all that terrifying at all. 

The FCC’s latest adventure in net neutrality in my view would 

only serve to stifle innovation, and would potentially subject the 

Internet to nanny state regulation from Washington. 

Internet freedom has produced robust free speech for billions 

across the world. And a wide open incubator for entrepreneurs to 

generate jobs and to expand opportunity. 

Back in May, FCC Commissioner Ajit Pai said this is, ‘‘not for 

us five unelected individuals to decide. Instead it should be resolved by the people’s elected representatives, those who choose the 
34 

direction of the Government and those whom the American people 

can hold accountable for their choice.’’ I could not agree more. Although in Washington there are a lot of folks in Congress who are 

fans of pushing difficult decisions off to unelected members of our 

Government to insulate themselves from accountability at the voting booth. 

And I fully agree with Commissioner Pai that a five-member government panel should not be dictating how Internet services will 

be provided to millions of Americans. More than $1.2 trillion has 

already been invested in broadband infrastructure since 1996. And 

that has led to an explosion of new content, applications, and Internet accessibility. 

The FCC should not be endangering future investments by needlessly stifling growth in the online sector which remains one of the 

few bright spots in an economy that is otherwise struggling. 

Net neutrality is a wolf in sheep’s clothing. It is a set of government directives disguised, as they always are, as concerns about 

consumers and competition. That is the justification for nanny 

state regulations over and over again, whether it is the Mayor of 

New York telling us that our glass of Coke is too big, or the FCC 

deciding here is how the Internet should be governed. 

We must keep in mind that when government imposes new regulations, inevitably the cost of them is easily absorbed by the large 

dominant companies, by the major players, and those who bear the 

brunt of it, those who are fatally strangled so often by these regulations are the little guys or the start-ups or the ‘‘mom and pops.’’ 

The Internet has grown and flourished in ways we never could 

have imagined from back in the days when Al Gore invented the 

Internet. And a big part of the reason has been that Washington 

has left the Internet alone. 

Now, that used to be a bipartisan commitment. Back in 1996, 

President Clinton said, ‘‘Governments can have a profound effect 

on the growth of electronic commerce. By their actions they can facilitate electronic trade or inhibit it.’’ 

Government officials should respect the unique nature of the medium and recognize that widespread competition and increased consumer choice should be the defining features of the new digital 

marketplace. 

We are seeing this growth in nanny state regulation in many 

contexts. One is net neutrality and the push to bring Washington 

into the day-to-day, online world. Another is a bill that Congress 

is considering and that I fear Congress will try to push through in 

the lame duck session and that is, namely, extending an Internet 

sales tax to millions of ‘‘moms and pops’’ who are selling their 

goods online who are starting small businesses and who if Congress has its way will be forced to collect taxes for 9600 jurisdictions nationwide. The big guys will be benefited by that. But the 

little guys, the young people, the Hispanics, the African Americans, 

the single moms, the people just filled with hopes and dreams 

wanting the American dream will find their lives made harder if 

we begin taxing the Internet, if we begin regulating the Internet. 

Instead, I believe we should protect the freedom of the Internet. 

And that should be something that brings us together across partisan lines, across the country, keep the Internet free that protects 
35 

our speech. It protects our economy, and most importantly it protects opportunity for those who are struggling and want a better 

life. 

Thank you, Madam Chairman. 

Senator HIRONO. Thank you, Senator Cruz. Thank you to our 

witnesses. This hearing is adjourned and the record will stay open 

for 1 week. 

[Whereupon, at 12:36 p.m., the Committee was adjourned.] 

[Additional material submitted for the record follows.] 

(37) 

A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
38 

PREPARED STATEMENT OF BRADFORD BURNHAM
39 
40 
41 
42 

PREPARED STATEMENT OF RUTH LIVIER
43 
44 
45 
46 
47 
48 
49 

PREPARED STATEMENT OF HON. ROBERT M. MCDOWELL
50 
51 
52 
53 
54 
55 
56 
57 
58 
59 
60 
61 
62 
63 
64 
65 
66 
67 
68 
69 

PREPARED STATEMENT OF JEFFREY A. EISENACH, PH.D. 
70 
71 
72 
73 
74 
75 
76 

ATTACHMENT I TO PREPARED STATEMENT OF JEFFREY A. EISENACH, PH.D. 
77 
78 
79 
80 
81 
82 
83 
84 
85 
86 
87 
88 
89 
90 
91 
92 
93 
94 
95 
96 
97 
98 
99 
100 
101 
102 
103 
104 
105 
106 
107 
108 

ATTACHMENT II TO PREPARED STATEMENT OF JEFFREY A. EISENACH, PH.D. 
109 
110 
111 
112 
113 
114 
115 
116 
117 
118 
119 
120 
121 
122 
123 
124 
125 
126 
127 
128 
129 
130 
131 
132 
133 
134 
135 
136 
137 
138 
139 
140 
141 
142 
143 
144 
145 
146 
147 
148 
149 
150 
151 
152 
153 
154 
155 
156 
157 
158 
159 

ATTACHMENT III TO PREPARED STATEMENT OF JEFFREY A. EISENACH, PH.D. 
160 
161 
162 
163 
164 
165 
166 
167 
168 
169 
170 
171 
172 
173 
174 
175 
176 
177 
178 
179 
180 
181 

ATTACHMENT IV TO PREPARED STATEMENT OF JEFFREY A. EISENACH, PH.D. 
182 
183 
184 
185 
186 
187 
188 
189 
190 
191 
192 
193 
194 
195 
196 
197 
198 
199 
200 
201 

PREPARED STATEMENT OF NUALA O’CONNOR
202 
203 
204 
205 
206 
207 
208 
209 
210 
211 
212 
213 

PREPARED STATEMENT OF CHAIRMAN PATRICK J. LEAHY
214 
215 

PREPARED STATEMENT OF RANKING MEMBER CHUCK GRASSLEY
216 
217 
218 

QUESTIONS SUBMITTED TO BRADFORD BURNHAM BY SENATOR LEAHY
219 

QUESTIONS SUBMITTED TO RUTH LIVIER BY SENATOR LEAHY
220 

QUESTIONS SUBMITTED TO HON. ROBERT M. MCDOWELL BY SENATOR LEAHY
221 

QUESTIONS SUBMITTED TO JEFFREY A. EISENACH, PH.D., BY SENATOR LEAHY
222 

QUESTIONS SUBMITTED TO NUALA O’CONNOR BY SENATOR LEAHY
223 

QUESTIONS SUBMITTED TO HON. ROBERT M. MCDOWELL BY SENATOR GRASSLEY
224 
225 

QUESTIONS SUBMITTED TO JEFFREY A. EISENACH, PH.D., BY SENATOR GRASSLEY
226 
227 

QUESTIONS SUBMITTED TO HON. ROBERT M. MCDOWELL BY SENATOR LEE
228 

QUESTIONS SUBMITTED TO JEFFREY A. EISENACH, PH.D., BY SENATOR LEE
229 

QUESTIONS SUBMITTED TO NUALA O’CONNOR BY SENATOR LEE
230 

RESPONSES OF BRADFORD BURNHAM TO QUESTIONS SUBMITTED BY SENATOR LEAHY
231 

RESPONSES OF RUTH LIVIER TO QUESTIONS SUBMITTED BY SENATOR LEAHY
232 

RESPONSES OF HON. ROBERT M. MCDOWELL TO QUESTIONS SUBMITTED

BY SENATORS GRASSLEY, LEAHY, AND LEE
233 
234 
235 
236 
237 
238 
239 
240 
241 
242 
243 

RESPONSES OF JEFFREY A. EISENACH, PH.D., TO QUESTIONS SUBMITTED

BY SENATORS GRASSLEY, LEAHY, AND LEE
244 
245 
246 
247 
248 
249 
250 

RESPONSES OF NUALA O’CONNOR TO QUESTIONS SUBMITTED

BY SENATORS LEAHY AND LEE
251 
252 
253 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD
254 
255 
256 
257 
258 
259 
260 
261 
262 
263 
264 
265 
266 
267 
268 
269 
270 
271 
272 
273 
274 
275 
276 
277 
278 
279 
280 
281 
282 
283 
284 
285 
286 
287 
288 
289 
290 
291 
292 
293 
294 
295 
296 
297 
298 
299 
300 
301 
302 

ADDITIONAL SUBMISSIONS FOR THE RECORD

A list of material and links can be found below for Submissions for the Record not 

printed due to voluminous nature, previously printed by an agency of the Federal 

Government, or other criteria determined by the Committee: 

Journal of Law and Economics, The, R.H. Coase, October 1959, article: 

http://www.jstor.org/stable/724927. 

Federal Communications Law Journal, Jeffrey A. Eisenach and 

Hal J. Singer, June 2013, article: 

http://www.fclj.org/wp-content/uploads/2013/09/65-3-Singer.pdf. 

Social Science Research Network (SSRN), Jerry Brito et al., April 12, 2010, 

article: 

http://papers.ssrn.com/sol3/papers.cfm?abstractlid= 

1587058&download=yes. 

American Enterprise Institute, Jeffrey A. Eisenach, Ph.D., economic study: 

http://www.aei.org/files/2012/10/17/-broadband-competition-in-theinternet-ecosysteml164734199280.pdf. 

Eisenach, Jeffrey A., and Ilene Knable Gotts, ‘‘In Search of a 

Competition Doctrine for Information Technology Markets: 

Recent Antitrust Developments in the Online Sector,’’ paper: 

http://www.techpolicydaily.com/wp-content/uploads/2014/06/In-Searchof-a-Competition-Doctrine-for-Information-Technology-Markets-EisenachGotts.pdf. 

Federal Communications Commission (FCC), Electronic Comment Filing 

System, September 4, 2014, online posting: 

http://apps.fcc.gov/ecfs/comment/view?id=6018327622. 

Æ