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41–191 PDF 2008

NET NEUTRALITY AND FREE SPEECH 

ON THE INTERNET 

HEARING 

BEFORE THE

TASK FORCE ON COMPETITION POLICY 

AND ANTITRUST LAWS 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

MARCH 11, 2008 

Serial No. 110–95 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

TASK FORCE ON COMPETITION POLICY AND ANTITRUST LAWS

JOHN CONYERS, JR., Michigan, Chairman 

RICK BOUCHER, Virginia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

BETTY SUTTON, Ohio 

ANTHONY D. WEINER, New York 

DEBBIE WASSERMAN SCHULTZ, Florida 

STEVE CHABOT, Ohio 

RIC KELLER, Florida 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

BOB GOODLATTE, Virginia 

CHRIS CANNON, Utah 

DARRELL ISSA, California 

TOM FEENEY, Florida 

LAMAR SMITH, Texas, Ex Officio 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

(III) 

C O N T E N T S 

MARCH 11, 2008 

Page 

OPENING STATEMENTS 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Chairman, Task Force on Competition Policy and 

Antitrust Laws ..................................................................................................... 1 

The Honorable Steve Chabot, a Representative in Congress from the State 

of Florida, and Ranking Member, Task Force on Competition Policy and 

Antitrust Laws ..................................................................................................... 3 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Member, Task Force on Competition 

Policy and Antitrust Laws ................................................................................... 5 

The Honorable Tom Feeney, a Representative in Congress from the State 

of Florida, and Member, Task Force on Competition Policy and Antitrust 

Laws ...................................................................................................................... 6 

WITNESSES 

Mr. Damian Kulash, Lead Vocalist and Guitarist, OK Go 

Oral Testimony ..................................................................................................... 6 

Prepared Statement ............................................................................................. 9 

Ms. Michele Combs, Vice President of Communications, Christian Coalition 

of America 

Oral Testimony ..................................................................................................... 15 

Prepared Statement ............................................................................................. 17 

Mr. Rick Carnes, President, Songwriters Guild of America 

Oral Testimony ..................................................................................................... 21 

Prepared Statement ............................................................................................. 23 

Ms. Caroline Fredrickson, Director, Washington Legislative Office, American 

Civil Liberties Union (ACLU) 

Oral Testimony ..................................................................................................... 27 

Prepared Statement ............................................................................................. 29 

Mr. Christopher S. Yoo, Professor of Law and Communication and Director, 

Center for Technology, Innovation, and Competition, University of Pennsylvania Law School 

Oral Testimony ..................................................................................................... 53 

Prepared Statement ............................................................................................. 56 

Ms. Susan P. Crawford, Visiting Associate Professor of Law, Yale Law School 

Oral Testimony ..................................................................................................... 64 

Prepared Statement ............................................................................................. 66 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Chairman, Task Force on 

Competition Policy and Antitrust Laws ............................................................. 2 

Prepared Statement of the Honorable Lamar Smith, a Representative in 

Congress from the State of Texas, and Ranking Member, Committee on 

the Judiciary ......................................................................................................... 4 

Page

IV 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Member, Task Force on Competition Policy and Antitrust Laws ........................................................................... 95 

Response by Rick Carnes, President, Songwriters Guild of America, to Question from Congressman Bob Goodlatte ............................................................... 96 

Response to Post-Hearing Questions from Christopher S. Yoo, Professor of 

Law and Communication and Director, Center for Technology, Innovation, 

and Competition, University of Pennsylvania Law School ............................... 98 

Response to Post-Hearing Questions from Susan P. Crawford, Visiting Associate Professor of Law, Yale Law School ............................................................ 100 

Letter from Leslee J. Unruh, Founder and President, Abstinence Clearinghouse, et al. to Members of Congress, dated March 10, 2008 .......................... 103 

(1) 

NET NEUTRALITY AND FREE SPEECH 

ON THE INTERNET 

TUESDAY, MARCH 11, 2008 

HOUSE OF REPRESENTATIVES, TASK FORCE ON COMPETITION POLICY

AND ANTITRUST LAWS

COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Task Force met, pursuant to notice, at 2:04 p.m., in Room 

2141, Rayburn House Office Building, the Honorable John Conyers, 

Jr., (Chairman of the Task Force) presiding. 

Present: Representatives Conyers, Lofgren, Jackson Lee, Waters, 

Cohen, Wasserman Schultz, Smith, Sensenbrenner, Goodlatte, 

Chabot, Keller, and Feeney. 

Staff Present: Stacey Dansky, Majority Antitrust Counsel; Benjamin Staub, Professional Staff Member; and Stuart Jeffries, Minority Antitrust Counsel. 

Mr. CONYERS. The Task Force on Antitrust will come to order. 

I am happy to see so many of our friends here. I know that Jack 

and Jill, Incorporated’s national board is here for the annual legislative event and so is its President, Jacqueline Moore Bowles. We 

welcome all of you. Would you just stand up for 1 second? Thank 

you. Very good to see you all. Ladies and gentlemen, over the last 

10 years, the Internet has gone from its infancy through a period 

of exponential growth. Today, over 11⁄3 billion people use the Internet, which is approximately 20 percent of the world’s population. 

In the last 7 years alone, worldwide use has jumped 265 percent. 

The Internet has become the dominant venue for the expression of 

ideas and public discourse. From social networking to get-out-thevote drives, the Internet is now a leading tool for speech and action. 

Web sites like Facebook, MySpace, LinkedIn, and Monster have 

changed the way people of all ages connect socially and professionally. Political candidates raise more money online with each 

election cycle. Newspaper Web sites and independent blogs have 

revolutionized the ways in which news and media are disseminated 

and consumed. And the Internet has opened up new performance 

venues to emerging artists and entertainers. In these and other 

ways, the technological innovation and communication made possible by Internet has made it among the most powerful outlets for 

creativity and for free speech. 

So when it comes to the Internet, we should proceed cautiously. 

Unless we have clearly documented the existence of a significant 

2 

problem that needs regulating, I do not believe Congress should 

regulate. And even in those instances, we should tread lightly. 

Today the open architecture of the Internet is under siege. On today’s Internet, a blogger can compete on a level playing field with 

news giants like CNN or The New York Times; an independent musician can stand equal with a record label; and citizen advocates 

can have as loud a voice as politicians themselves. 

However, some of the Internet service providers, which control 96 

percent of the residential market for high speed Internet access, 

are either monopolies or duopolies in the most of the areas of the 

country. There are either one company or two companies controlling it, and they have proposed now to give favored treatment to 

some Internet content and disfavored treatment to others. Under 

these proposed business models, what treatment you get will be determined by how much you pay or potentially whether the Internet 

service provider approves of the content that you are sending if you 

are sending it over their pipes. Or perhaps the Internet service provider may have a financial interest. The problem is that many of 

the innovations we have enjoyed on the Internet would never have 

occurred under this proposed regime. We never would have had a 

Google search engine or YouTube videos or Daily Kos blogs if paid 

to play had been our national policy. To be sure, if we go in this 

direction it will stifle future innovation on the Internet. And so I 

am concerned that if Congress stands by and does nothing, we will 

soon find ourselves living in a world where those who pay can play 

but those who don’t are simply out of luck, where politicians will 

be able to stifle the voices of citizen activists through deals with 

Internet service providers, where an increasingly consolidated entertainment industry might be able to prevent independent artists 

and filmmakers from being heard. 

Now, if Congress acts, it will not be because we have decided to 

regulate. It will be because the Internet service providers have imposed their own new regulation on the Internet and are interfering 

with its healthy growth. I believe that antitrust law is the most appropriate way to deal with this problem, and antitrust law is not 

regulation. It exists to correct distortions of the free market where 

monopolies or cartels have cornered the market and competition is 

not being allowed to work. The antitrust laws can help maintain 

a free and open market place 

So Congress should help maintain a free and open Internet. So 

this is a very interesting subject and I would recognize our Ranking minority Member, Steve Chabot of Ohio, for his opening comments. 

[The prepared statement of Mr. Conyers follows:] 

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND CHAIRMAN, TASK FORCE ON

COMPETITION POLICY AND ANTITRUST LAWS

Over the last ten years, the Internet has gone from its infancy through a period 

of exponential growth. Today, it is estimated that over 1.3 billion people use the 

Internet—that is almost twenty percent of the world’s population. 

In the last seven years alone, the worldwide use of the Internet has jumped 265 

percent. 

3 

(1) The Internet is speech 

The Internet has become the dominant venue for the expression of ideas and public discourse. From social networking to get-out-the-vote drives, the Internet is now 

a leading tool for speech and action. 

Web sites like Facebook, MySpace, LinkedIn, and Monster have changed the way 

people of all ages connect socially and professionally. 

Political candidates raise more money online with each election cycle. 

Newspaper web sites and independent blogs have revolutionized the ways in 

which news and media are disseminated and consumed. 

And the Internet has opened up new performance venues to emerging artists and 

entertainers. 

In these and other ways, the technological innovation in communication made 

possible by the Internet has made it among the most powerful outlets for creativity 

and free speech. 

So when it comes to the Internet, we should always proceed cautiously. Unless 

we have clearly documented the existence of a significant problem that needs regulating, I do not believe Congress should regulate. And even in those instances, we 

should tread lightly. 

(2) Today, the open architecture of the Internet is under siege 

On today’s Internet, a blogger can compete on a level playing field with news giants like CNN or the New York Times. An independent musician can stand equal 

with a record label. And citizen advocates can have as loud a voice as politicians. 

However, some of the Internet Service Providers, which control 96% of the residential market for high-speed Internet access, and are either monopolies or duopolies in most areas of the country, have proposed to give favored treatment to some 

Internet content and disfavored treatment to other content. 

Under these proposed business models, what treatment you get will be determined by how much you pay or, potentially, whether the Internet Service Provider 

approves of the content you are sending over their pipes or, perhaps, has a financial 

interest. 

The problem is that many of the innovations we have enjoyed on the Internet 

would never have occurred under this proposed regime. 

We would never have had a Google search engine, or You Tube videos, or Daily 

Kos blogs, if ‘‘pay to play’’ had been our national policy. 

To be sure, if we go in this direction, it will stifle future innovation on the Internet. 

(3) Congress should act to preserve Net Neutrality 

I am concerned that if Congress stands by and does nothing, we will soon find 

ourselves living in a world where those who pay can play, but those who don’t are 

simply out of luck. 

Where politicians will be able to stifle the voices of citizen activists through deals 

with Internet Service Providers. 

Where an increasingly consolidated entertainment industry will be able to prevent 

independent artists and filmmakers from being heard. 

Let’s not get confused. If Congress acts, it will not be because we have decided 

to regulate. It will be because the Internet Service Providers have imposed their 

own new regulation on the Internet, and are interfering with its healthy growth. 

I believe that antitrust law is the most appropriate way to deal with this problem—and antitrust law is not regulation. It exists to correct distortions of the free 

market, where monopolies or cartels have cornered the market, and competition is 

not being allowed to work. The antitrust laws can help maintain a free and open 

Internet. 

I look forward to hearing from our witnesses today, and to a meaningful discussion of the various perspectives on this important topic. 

Mr. CHABOT. Thank you, Mr. Chairman. I would like to thank 

Chairman Conyers for holding this hearing today. I would also like 

to thank our witnesses for taking the time to discuss this important issue. Net Neutrality is not a new issue to this Committee or 

to Congress. And debate in the past has been, quite frankly, very 

passionate. I think we can all agree, though, that the Internet has 

changed the way that we communicate, learn, and do business. It 

has changed the way we access and use information and technology. The Internet has flourished in a relatively regulation free 

4 

environment. For example, the Internet tax moratorium first enacted back in 1998, that was recently extended for an additional 7 

years will continue to allow greater public access benefiting everyone from consumers to teachers and students, to the corporate sector and rural and urban areas alike. And it is a free market that 

will continue to allow the best possible service at the best possible 

price. 

Too often Congress sees a problem that it believes it can fix. But 

legislation is not always the right answer. Competition is. Competition drives the market to become as efficient and effective as possible. Providing consumers with the right quantity at the right 

price. It has worked in the past and I believe that it will continue 

to work in the future, particularly as it relates to the Internet. Unbeknownst to many of us, there is an entire network structure that 

manages data traffic, enabling anyone to access virtually anything 

at any time. It is necessary to ensure that the most effective network infrastructure is in place to connect consumers to content. I 

am concerned that the heavy hand of government could deter investment and innovation and technology that will enable networks 

to advance in the future. 

Burdensome regulations, particularly in this case, may actually 

slow the development of bandwidth, reducing the efficiency and effectiveness of the Internet, ultimately harming consumers. I look 

forward to addressing these concerns with our panel of experts 

today, and again, I want to thank the Chairman for this important 

hearing and I yield back the balance of my time. 

Mr. CONYERS. Thank you. You are welcome. Mr. Smith, the 

Ranking Member of the full Committee, do you have a comment? 

Mr. SMITH. Thank you, Mr. Chairman. Like you, I welcome all 

witnesses here today. I do have an opening statement, but I would 

like to ask unanimous consent that it simply be made part of the 

record. 

Mr. CONYERS. Without objection. 

Mr. SMITH. And I yield back, Mr. Chairman. 

[The prepared statement of Mr. Smith follows:] 

PREPARED STATEMENT OF THE HONORABLE LAMAR SMITH, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF TEXAS, AND RANKING MEMBER, COMMITTEE ON THE

JUDICIARY

Mr. Chairman, thank you for calling this hearing on net neutrality and free 

speech on the Internet. 

Our Committee has always played a vital role in ensuring fair competition in the 

telecommunications industry. We must continue to be vigilant of our jurisdiction in 

the constantly evolving environment of the Internet. 

What has happened in the almost two years since the Judiciary Committee last 

considered this issue? 

Proponents of Net Neutrality point to three episodes in 2007 involving Internet 

service providers AT&T, Verizon Wireless, and Comcast. 

Without going into the details of every case, it seems clear that each company was 

taking these actions to serve a broader public good. In the case of AT&T’s vendor, 

there was an effort to make the broadcast more family friendly. For Verizon, it was 

to block spam text messages. For Comcast, it was to manage their broadband network to provide the best experience for all of its users. 

In every case, there was an acknowledgment that the problem could have been 

handled better or should have not happened at all. 

But the companies took corrective action, issued apologies, and had to accept public criticism. The question is whether these limited examples provide a basis for 

Congress to broadly regulate the Internet. 

5 

Experience suggests not. Both the Department of Justice’s Antitrust Division and 

the Federal Trade Commission have issued reports in the last year urging Congress 

and the Federal Communications Commission to be wary of enacting regulation affecting the Internet. 

DOJ and the FTC point out that competition in consumer broadband is strong and 

growing. 

For example, in each of the markets where AT&T, Verizon Wireless, and Comcast 

compete, they undoubtedly lost some customers to other broadband providers who 

were unhappy with the company’s conduct. 

They also note that network management is an essential function for any Internet 

service provider and that net neutrality regulation could have many unintended 

consequences. 

Proponents of Net Neutrality are now casting this as a First Amendment issue. 

But that argument ignores the fact that not all speech is created equal. 

For example, Congress has protected certain speech—in the form of copyrights— 

to preserve individual’s intellectual property rights. 

As NBC observed in its official comments to the FCC, ‘‘The record . . . confirms 

that fewer than five percent of Internet users consume at least 60 to 70 percent of 

broadband network capacity through peer-to-peer file-sharing and that some 90 percent of this traffic consists of illegal, pirated content.’’ 

Congress attempted to address these concerns with the Digital Millennium Copyright Act of 1998. We should not be undercutting those efforts by implementing new 

laws and regulations that prevent ISPs from utilizing new technologies to deter this 

illegal downloading of pirated materials. 

Similarly, Congress has long recognized that certain pornographic materials—particularly those that exploit children—should be off limits entirely. To that end, the 

Christian Coalition, among others, filed comments with the FCC expressing concern 

that the proposed net neutrality rules ‘‘might make it more difficult for [ISPs] to 

monitor and filter the use of . . . [P2P] networks to facilitate crimes against children. . . .’’ 

These examples highlight how very difficult it is to write rules for how the Internet should grow. Instead of writing restrictive rules to solve this problem, I think 

it would be better to focus our efforts on preserving the application of current antitrust laws to safeguard against anticompetitive practices on the Internet. 

This approach preserves the jurisdiction of this Committee and ensures that we 

don’t put a straightjacket on this important sector of the economy. 

Mr. CONYERS. Jim Sensenbrenner, Chairman Emeritus, have you 

a comment? 

Mr. SENSENBRENNER. A little bit, Mr. Chairman. Thank you very 

much. In the last Congress, when I was Chairman of the Committee, I joined with then-Ranking Member Conyers to introduce 

legislation. And the purpose was based on two principles. One is 

that the antitrust law should apply to the telecommunications industry. That remains my position. And the second was that I believe that it was important that this Committee exercise its jurisdiction in this area because antitrust laws are not regulations in 

that some Federal agency tells you what you can do and what you 

can’t do. But if somebody is aggrieved they can file a lawsuit. And 

if they are able to prove anticompetitive action, then they can win 

triple damages. 

I would hope that the debate on Net Neutrality and what to do 

about telecom and Internet regulation, or lack thereof, goes on in 

this Congress. The current Chairman and Ranking Member at all 

costs moved together to make sure that the Judiciary Committee 

maintains its jurisdiction on this subject because if we allow our 

jurisdiction to go to the Energy and Commerce Committee, I think 

you’ll see a regulatory structure over the Internet that is not going 

to be good for the American public, and it is not going to be good 

for artists and others that use the Internet as an essential means 

of communication such as the witnesses that we have here today. 

Thank you. 

6 

Mr. CONYERS. Thank you, sir. Ric Keller, have you a comment? 

Mr. KELLER. No, I don’t, Mr. Chairman. But thanks for asking. 

I just appreciate all the witnesses being here. 

Mr. CONYERS. Mr. Feeney, welcome. 

Mr. FEENEY. Thank you, Mr. Chairman. This is my first hearing, 

and I am very anxious to hear the various issues explored. I am 

somewhat familiar with the Internet and intellectual property and 

even antitrust. I have heard of horizontal monopolies. I have heard 

of vertical monopolies. I guess when we are talking about wireless, 

I guess it is sort of a ubiquitous monopoly. That is a new thing for 

me to understand. With that I would yield back and listen very 

carefully. 

Mr. CONYERS. Thank you. Our witnesses are Susan Crawford, 

professor; Professor Christopher Yoo; our old friend, Director of 

ACLU, Washington office, Caroline Fredrickson; Rick Carnes, 

President of the Songwriters Guild of America; Michele Combs, 

Vice President of Communications, Christian Coalition of America; 

and, of course, our lead vocalist and guitarist, OK Go, Damian 

Kulash. A vocalist and a musician, a native of our capital, a graduate from Brown University, Kulash formed his organization in 

1999 with three others. His band released 2 albums and won a 

Grammy award for one of its music videos in 2007. They attribute 

their breakthrough in part to the popularity of their videos, which 

the group has uploaded and disseminated, or it looks like he is trying to play them here, disseminated across the world on video Web 

sites like YouTube.com. Welcome, Mr. Kulash. We would love to 

hear, see, and listen to your remarks. 

TESTIMONY OF DAMIAN KULASH, LEAD VOCALIST 

AND GUITARIST, OK Go 

Mr. KULASH. Thank you, Mr. Chairman. Mr. Chairman, Ranking 

Members—I am sorry—Mr. Ranking Member and Members of the 

Committee, it is a real honor to be here. I am a rock singer, so I 

have some experience getting up in front of a microphone, but to 

put it this way, you are not my usual crowd. I am here today because my band, OK Go, is among the first to have truly found success on the Internet. I don’t know if I need to tell all of you guys 

my story or not. I am getting the sense that maybe you guys are 

the ‘‘Cool Rep 2000’’ and ‘‘Chairman Rock’’ that we already see on 

our message boards every day. 

But just in case, I am going to tell you a little bit about our story 

and the videos that we put on the Internet, and I want to show 

you a couple of those videos today. Our band started out the way 

that every band did 10 years ago. The traditional music industry 

was still very much in full swing, and it served a real purpose 

which was to connect musicians who wanted to get their music out 

there in the world, and there were people all over the world that 

wanted to hear that music. 

So a big industry grew to connect those dots. We worked in that 

system. We started out playing shows in Chicago, at local clubs 

where we started. We plastered our posters all over town. We took 

as much time off from our day jobs as we could to go touring and 

eventually we developed a big enough fan base that we landed that 

rare prize, the major label record deal. Our first record, which we 

7 

put out in 2002, did moderately well. We got to about 100 on the 

billboard charts and just barely broke into the top 20 of the modern 

rock radio charts which is something of a feat. 

And to translate these numbers, we basically were in the middle 

of the pack. We were doing much better than most musicians, felt 

very, very lucky to be doing what we love for a living, but we were 

still struggling for every fan we could find and frankly struggling 

to pay our bills as well. So we put out a second record, and this 

time we thought maybe we would add our own promotional ideas 

into the mix a little bit. 

We still did everything that our record label asked us to do, and 

everything that every band would do, you know, the free shows for 

radio stations, the nonstop touring, we would go to the Fox morning news studios and play an acoustic song for the people of Houston. But we also decided we would start our own online campaign. 

So If you don’t mind, I will show you the first video here that we 

put on line. Uh-oh. Well, I thought I would play it. There we go. 

I don’t know if you can hear the song here. But that is us dancing 

in my backyard. My sister helped us choreograph this pretty ludicrous routine as basically as something—let me turn this down. 

This was something we were going to do on stage. It was just 

planned as sort of a way to surprise our fans. There is really nothing more exciting than seeing a rock band in the middle of a show 

just drop their instruments and break into dance. 

All we really wanted was to see, you know, was 500 or a 1,000 

jaws on the floor at the end of the show. So we came up with this 

routine and we were practicing it in my backyard and we shot this 

videotape. And the clip itself, there is just something really compelling about it. And when we saw it, we realized we have got to put 

this out for our fans. So we put it on the Internet thinking, you 

know, just our most hard core fans, you know, the dedicated few 

would see it. And within a month, it had been streamed and 

downloaded, viewed several hundred thousand times. So we realized that more people had actually clicked through to this video 

than had purchased our first record after 18 months of touring. 

So then what was really pretty crazy is—let me go to the next 

video here. The next thing that started happening was our fans 

started posting their own versions of the video. Our fans would go 

and learn the choreography and then tape it themselves and post 

it on the Internet. What I am about to show you, it is pretty crazy. 

This is—a fan of ours found hundreds of these homemade videos 

on line and compiled several of them together, and it is sort of a 

composite video. So here are some of them. We got these videos 

from all over the world. We have gotten them now from 5 or 6 continents. 

We have seen them performed at people’s weddings, in the middle of Wal-Mart. That right there, that is my backyard. They blue 

screen themselves into my backyard. We have—we saw them in 

churches, we saw them in local firehouses. Thousands of people 

were involved in sending us these videos and it really is something 

that never could have happened 5 years ago. I mean, this is a connection to our fans that simply was unthinkable before. You are 

usually held at arm’s length from your fans, but here we were conVerDate Aug 31 2005 10:51 Aug 01, 2008 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6601 H:\WORK\ATRUST3\031108\41191.000 HJUD1 PsN: 41191
8 

nected directly to them and them to us. And that is, you know, a 

really amazing feeling for someone making music. 

But not to be outdone by our fans, of course, we decided we needed to post another video. And so we went to my sister’s house and 

we made this one. Once again, of course, this is just a home video 

that we made and it is just one long shot again. As you can see, 

we are dancing again but this time on moving treadmills. 

For the record, I would like to say that we assume no medical 

liability for any of our fans that may try to duplicate this one. This 

video we figured—we put it on line, it would probably do about 

what the first one had. We thought we had basically done as well 

as anyone can do on line with a video. We had already broken all 

sorts of records. And in the first 2 days, we put this on line, we 

posted it to YouTube, we had 1 million views. As you may have 

seen in the full screen view there, this video now has been—this 

single posting of this video has now been viewed 31 million times. 

Let me stop this. Sorry. So, you know, this video, of course, 31 

million views—I mean, this has taken us all over the world and it 

has been incredible for our band. We can now play in countries to 

thousands of people where our records are not even commercially 

released. And what is most impressive is that we are actually making money for our standard model record label as well. We now license music all over the place and we sell real records, and it is 

clear that our creativity has actually been a success for everyone. 

No matter how you slice it, we are a successful band now. 

So people are wondering if the music industry will benefit from 

Net Neutrality. I don’t think they need to look any farther than us. 

We are musicians and we are part of the music industry. I don’t 

think there is really anyone out there who wants to see this business flourish more than we do. I am here today representing Future Music—excuse me—the Future of Music’s Coalition to Rock 

the Net campaign. There are 800 other bands who have signed up 

with us in the last year, and 125 labels who are on board. 

There really is some consensus here that Net Neutrality is good 

for music and good for musicians. It has allowed us to innovate and 

to create in ways that just were never possible before. Keep in 

mind, all of us are businessmen, too. We want to get paid. I mean, 

everybody wants their hard work to be recognized. And what we 

really need is a legitimate digital marketplace for music. The only 

way that is going to happen is if we build on a level playing field. 

So Members of the Committee, Mr. Chairman, I am here to ask you 

today to preserve Net Neutrality and the openness of the Internet. 

I believe it is critical to the future of music. 

Mr. CONYERS. Mr. Kulash, I don’t know how to break this to you, 

but there are a number of people up here that think that we could 

do that too. And it may be better than some of the ones that you 

have seen. 

Mr. KULASH. I don’t doubt it, sir. 

Mr. CONYERS. Would you be willing to accept a Judiciary Committee video showing our steps? 

Mr. KULASH. It will have to be submitted by the same means as 

everyone else, sir, but, yes. 

[The prepared statement of Mr. Kulash follows:] 

9 

PREPARED STATEMENT OF DAMIAN KULASH


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Mr. CONYERS. Well, I was for Net Neutrality when we started 

this hearing. Michele Combs, Christian coalition of America. We 

welcome you. You started in South Carolina as Executive Director 

of America 2000, the Educational Service Corporation, a special 

events company you started in 1992, managed functions for both 

the Republican National Convention and the Democratic National 

Convention. Hopefully not at the same time. And you did something for the late Senator Strom Thurmond. We will find out what 

that—oh, and President George Bush’s inauguration. Which one? 

Ms. COMBS. 2001. 

Mr. CONYERS. All right. We welcome you. And we have your written statement. All statements will be introduced into the record. 

We are anxious to learn more about your position on this subject. 

Welcome. 

TESTIMONY OF MICHELE COMBS, VICE PRESIDENT OF 

COMMUNICATIONS, CHRISTIAN COALITION OF AMERICA 

Ms. COMBS. Thank you. Thank you, Chairman Conyers and distinguished Members of the Committee on the Judiciary. My name 

is Michele Combs, and like Chairman Conyers said, I am the Vice 

President of Communications for the Christian Coalition of America. And thank you for inviting me to testify on this very important 

issue of Net Neutrality. The Christian Coalition of America is the 

largest and the most active grassroots political organization in the 

country. We offer people of faith a vehicle to be involved in shaping 

their government. 

Christian Coalition is a conservative political organization, which 

is made up of pro-family Americans who care deeply about becoming active citizens for the purpose of guaranteeing that government 

acts in ways that strengthen rather than threaten families. Use of 

the Internet has allowed the Christian Coalition to engage Americans in a way that has revolutionized their ability to be heard and 

to engage in the political process. The Christian Coalition Web site 

is visited by millions of Americans every year and in addition, we 

send out e-mail alerts every week to hundreds of thousands of supporters. And have available our voter guides, as many of you know, 

every election cycle. 

Our State chapters also have their own Web sites and many of 

our supporters would not be able to keep up with legislation and 

the legislative process if they were not able to access these Web 

sites on a daily basis. The reason the Christian Coalition is for Net 

Neutrality is simple. Because we believe in freedom of speech on 

the Internet. Organizations such as ours should not be—should be 

able to continue the use of the Internet to communicate with our 

members and with the worldwide audience without a phone or a 

cable company snooping into our communications and deciding 

whether to allow a particular communication to proceed, slow it 

down, or offer to speed it up only if the author pays extra to be 

on the fast lane. Free speech should not stop when you turn on 

your computer or pick up your cell phone. 

The Christian Coalition testified some time ago on this issue, and 

many Members of Congress promised to act if network operators 

blocked political speech. We are here to say the time has come. Recent actions by the Nation’s biggest phone and cable companies 

16 

should be of grave concern to all those who care about public participation in our democracy. 

Consider these recent examples: Last fall, Verizon Wireless 

censored text messages sent out by NARAL. When NARAL protested, Verizon Wireless said not to worry, because the company 

would also block the speech of pro-life advocates such as the Christian Coalition. Now, let me show you—the Christian Coalition and 

NARAL agree on almost nothing here in Washington, D.C., but we 

do agree that Verizon censorship of political speech was wrong. 

Verizon claims it has changed its policy. 

I ask you, should the company have the right to make the decision in the first place? In August of 2007, AT&T censored a Web 

cast of a concert by the rock band Pearl Jam, just as the lead singer started talking about politics. Also in October of 2007, the Associated Press reported that Comcast was blocking consumer’s ability 

to download the King James Bible using a popular file sharing 

technology. And it is also pointed out that Comcast’s discriminatory 

content just so happens to block access to video distribution applications that compete with Comcast’s own programming. 

I ask the Committee, if Comcast created a Christian family channel, would Congress allow it to block access to a competing product 

from the Christian Coalition? If phone companies cannot tell Americans what to say on a phone call, why should they be able to control content or tell us what to say or send a text message or an 

e-mail? 

The Christian Coalition of America does not seek burdensome 

regulations as we prefer less government to more, and we do not 

believe that government should censor speech. But right now the 

telephone and cable companies are invested in the same kind of 

censorship and content discrimination technologies that are being 

used today by the Chinese government to block the Christian Coalition from reaching Chinese citizens. 

Finally, faith based groups are turning to the Internet to promote their political rights, to engage in what Ronald Reagan called 

the hard work of freedom. We should not let the phone and cable 

companies interfere with that work in getting our message out to 

the millions of Americans who want to make this country a better 

place for their children and grandchildren. 

Mr. CONYERS. Thank you very much. 

[The prepared statement of Ms. Combs follows:] 

17 

PREPARED STATEMENT OF MICHELE COMBS


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Mr. CONYERS. Songwriters Guild of America, Mr. Rick Carnes. 

President of Songwriters Guild of America. Twenty-one million 

records have been produced from songs that he has written. Dean 

Martin, Trisha Yearwood, Garth Brooks and Reba McEntire. And 

it goes on and on. Under Mr. Carnes’ leadership, the Songwriter’s 

Guild has become a leading advocate on creative and artistic 

issues. We welcome you to the Committee, sir. 

TESTIMONY OF RICK CARNES, PRESIDENT, 

SONGWRITERS GUILD OF AMERICA 

Mr. CARNES. Thank you, Mr. Chairman, and Ranking Member 

Smith, and Members of the Committee. Thank you for this invitation to discuss the songwriter’s perspective on Net Neutrality proposals and antitrust laws. My name is Rick Carnes, and I am 

President of the Songwriters Guild of America, and this year marks 

my 30th year as a professional songwriter. No issue is more important to songwriters who have seen their livelihoods and professional futures devastated by Internet piracy. Today, the songwriting profession is like a person drowning in quicksand. Some of 

us barely have our heads above the surface, but we are up to our 

armpits, and there is a chance that new technologies to detect and 

deter illegal file sharing might save us. 

But I am concerned that pending regulatory and legislative proposals could discourage the development of those technologies and 

therefore cause my colleagues in my profession to drown. Chairman 

Conyers and Congressman Smith, over the years there have been 

no greater advocate for songwriters than you and your colleagues 

on this Committee. We truly appreciate the responsiveness of this 

Committee to the copyright and technology challenges we have 

faced together over the past 15 years. As the Committee considers 

the competition aspects of the Net Neutrality debate, I wanted to 

provide you with our perspective on how authors, writers, and composers are affected by potential regulation of the Internet. 

As I have testified before this Committee, Internet piracy is damaging the music industry and killing off the songwriting profession. 

As a matter of fact, my own publisher had 12 songwriters on staff 

in 1998, and they have one on staff in 2008. The devastation is almost total now. Recent studies indicate that 70 percent of the volume of the traffic on broadband networks is P2P traffic relating to 

5 percent of the users, and easily 90 percent of that traffic is unlawful. That is the real bottleneck in the Internet now. 

A 2008 U.K. study by the Wiggin Group found that 70 percent 

of those surveyed said they’d stop illegal file sharing if their ISP 

notified them in some way that it had detected their practice. In 

other words, the problem of illegal file sharing is unacceptable and 

the misconduct committed by a small group of people is causing the 

problem, many of whom would stop if there were technology to 

warn them to stop or to make them stop. Some network operators 

such as AT&T are now considering technological means to identify 

and filter illegal content over the Internet. Technology has hurt our 

profession, but at last some more technology might finally save it. 

As a songwriter, I can tell you that my choice is to have my works 

distributed by someone who is invested in trying to stop the digital 

theft of intellectual property. 

22 

Indeed, I would believe it would be to the economic advantage of 

broadband operators to take such steps because the quality of content they distribute would increase and many consumers would 

prefer their service. In other words, there is evidence that the marketplace might finally be working here to reduce Internet piracy, 

so it is with great concern that I read the proposals that would prevent ISPs from managing their networks in order to relieve congestion when that congestion is largely caused by illegal file sharing. 

Some proposals by the Commerce Committee and the FCC would 

prevent ISPs from taking necessary management actions, and I believe those proposals are without justification. But so too should 

this Committee proceed with very great caution on antitrust proposals that would expand the current laws to protect consumers 

against unfair competition on the Internet. Antitrust legislation in 

the prior Congress, HR 5417, would have created a presumption 

that broadband operators were acting unlawfully unless they could 

show that their network management or antipiracy actions were 

nondiscriminatory or fit into certain narrow exceptions. 

I am confident that this legislation did not intend to discourage 

the developing technologies that could counteract the digital piracy 

epidemic, but I am concerned that that might have been the result. 

The last Congress’ antitrust bill could have prevented ISPs from 

discouraging illegal content practices and would have prohibited 

the ISPs from encouraging their customers to patronize sites that 

adopt lawful copyright practices. 

I strongly urge the Committee to think this issue through further 

because that result would be very harmful to songwriters. Here is 

one final thought on legislation and regulation on Net Neutrality. 

It strikes me as odd that the problem of broadband network congestion largely caused by illegal file sharing has been addressed by 

proposing that the ISPs be denied the ability to manage that very 

congestion. The market appears to be addressing the problem now, 

but if regulation or legislation is deemed necessary, then I recommend that Congress consider the heart of the problem first, and 

that is illegal file sharing. Illegal file sharing is the problem, Mr. 

Chairman. And I encourage you and your colleagues to factor that 

issue into your further deliberations. Thank you very much for this 

opportunity to express my views. 

Mr. CONYERS. Thanks so much. 

[The prepared statement of Mr. Carnes follows:] 

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PREPARED STATEMENT OF RICK CARNES


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Mr. CONYERS. Caroline Fredrickson, Esquire, American Civil Liberties Union. You have been before the Committee numerous times, 

you have been General Counsel and Chief Operating Officer for 

NARAL Pro-Choice America, a Chief of Staff to Senator Maria 

Cantwell, a deputy chief to former Senate minority leader Tom 

Daschle, a lawyer from Columbia University, and before that, Yale. 

We are happy to have you. We have got your statement. And now 

we will hear from you. 

TESTIMONY OF CAROLINE FREDRICKSON, DIRECTOR, WASHINGTON LEGISLATIVE OFFICE, AMERICAN CIVIL LIBERTIES 

UNION (ACLU) 

Ms. FREDRICKSON. Thank you very much, Chairman Conyers, 

Ranking Member Chabot, Members of the Task Force. It is a pleasure to be here to talk to you about Net Neutrality and free speech 

on the Internet. The Supreme Court’s ruling in Brand X, and FCC 

inaction in addressing increasing censorship by broadband Internet 

service providers or ISPs are key factors in today’s threat to on line 

free speech. This hearing marks an important step toward ensuring 

that the marketplace of ideas for the 21st century, the Internet, remains the bastion of freedom that it has been since its creation. 

The Internet’s marketplace enhances speech through its decentralized, neutral, nondiscriminatory pipe that carries data from origin 

to destination without interference. Neutrality promotes open discourse; consumers, not gatekeepers, decide what sites to access 

among millions of choices. The Internet structure facilitates free 

speech, innovations and competition on a global scale, providing access to a mass audience at little or no cost. No one owns the Internet. Instead the Internet belongs to everyone who uses it. 

The Internet has become the leading 21st century marketplace of 

ideas because of neutrality rules promoting nondiscriminatory 

speech, association, and content. The Internet was born and flourished under well-established, nondiscrimination protections derived 

from title 2 of the Communications Act of 1934, which grants the 

FCC the authority to regulate telephone companies as common carriers. As early as 1966, the FCC required that data transmissions 

going over the phone lines be provided on a nondiscriminatory 

basis. The Internet blossomed under that protection. 

Today three-quarters of all adults in the United States, 147 million people, use the Internet. And two-thirds of American adults do 

so daily. Neutrality rules have made this dynamic growth possible. 

ISPs ignore this history by wrongly suggesting that nondiscrimination would regulate the Internet. The opposite is true. Nondiscrimination ensures that lawful activity on the Internet remains 

free from regulation by both the government and network providers. And ISP’s first amendment rights are not violated by neutrality rules that would bar an ISP from censoring its customers. 

Aside from the Internet content that they create, edit and maintain, which would not be restricted under neutrality principles, 

ISPs are not speakers. They are merely providing the wires 

through which each of their paying customers accesses the Internet 

in the same manner as telephone companies do for our phone lines. 

That is why the FCC was allowed to regulate ISPs as common carriers until 2005 when the Supreme Court ruled in Brand X that 

28 

they, instead, may be regulated as information services. But ISPs 

exist to provide customer access to the Internet and the expressive 

and associational activities found there free of censorship, akin to 

the role of telephone companies in providing communication services. 

We would not tolerate a telephone company restricting our calls 

to certain numbers based on the content of the call and we should 

not tolerate that type of censorship from ISPs. A vibrant marketplace of ideas on the Internet cannot function with corporate censors any more than it can with government censors. Without neutrality rules, ISPs are engaging in more and more online censorship. Ms. Combs has already done a very fine job of outlining the 

variety of censorship activities that have happened just in the last 

year or 2. So I won’t restate those. 

But the ISPs have established, through their very own actions, 

that Internet censorship is a growing reality and not the speculative hypothetical they claim it to be. Restoration of meaningful 

neutrality rules would simply return us to where we were before 

the Brand X decision in 2005 by prohibiting ISPs from picking and 

choosing which users can access what lawful content through the 

gateways they provide. 

Congress must pass legislation that enforces the four freedoms 

established by the FCC in its 2005 policy statement, including access to lawful Internet content and running applications and services of one’s choice with penalties for violations of those freedoms. 

Otherwise, the Internet will be transformed from the shining oasis 

of speech to a desert of discrimination that serves to promote only 

the ISP’s commercial products, and so much would be lost from 

that change. Thank you very much for your attention. 

Mr. CONYERS. Thank you for being on time, which you always 

are. 

[The prepared statement of Ms. Fredrickson follows:] 

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PREPARED STATEMENT OF CAROLINE FREDERICKSON


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Mr. CONYERS. I am pleased now to turn to Professor Christopher 

Yoo, University of Pennsylvania, who teaches telecommunications 

and intellectual property law, directs the University Center For 

Technology, and prior to his appointment, taught at Vanderbilt 

University Law School. He has published prolifically and has a new 

book coming out this year entitled Networks in Telecommunications: Economics and Law. He clerked with Supreme Court Justice Anthony Kennedy, and is a graduate from Harvard Law 

School, and I am pleased to welcome him at this time. 

TESTIMONY OF CHRISTOPHER S. YOO, PROFESSOR OF LAW 

AND COMMUNICATION AND DIRECTOR, CENTER FOR TECHNOLOGY, INNOVATION, AND COMPETITION, UNIVERSITY OF 

PENNSYLVANIA LAW SCHOOL 

Mr. YOO. Thank you, Mr. Chairman, Members of the Committee 

and the Task Force. I am grateful for the opportunity to be here 

today. The Internet is, perhaps, the first major technological development of the 21st Century. A network that began as a platform 

for e-mail and Web browsing now supports a dazzling array of new 

services. Perhaps the most important of these new services for policymakers is the emergence of Internet video technologies, such as 

YouTube and Vuze. 

These new applications are placing increasingly intense and varied demands on the network and have made network planning considerably more uncertain. For the past 5 years, Internet traffic has 

grown at a rapid but steady rate of roughly 50 to 60 percent each 

year. Some experts estimate that Internet video will cause that 

growth rate to double to 90 percent to 100 percent each year as occurred during the first 6 years of the Internet and is reportedly occurring in Japan. If these estimates are correct, network providers 

must increase their capital investments by over 100 billion dollars 

or else the Internet will slow to a crawl by 2010. The key reason 

that the Internet is—the problems posed by the Internet is that it 

is subject to congestion. 

In other words, the speed you receive depends not only on how 

many network resources you are using, but also how many other 

people are on the system at the same time. Internet technologies 

vary widely in their susceptibility to congestion. For example, 

cable-based technologies are more vulnerable to congestion at the 

neighborhood level than are telephone-based technologies. Cable 

modem service will degrade if as few as 15 of the 300 users in the 

same neighborhood are running BitTorrent. Wireless broadband 

technologies are even more vulnerable to congestion. 

In some respects, Internet congestion arises in much the same 

way as congestion arises on our Nation’s road system. Like on the 

Internet, the speeds that you can attain on the roads depend not 

only on your decisions, but also on how many other drivers choose 

to hit the road at the same time. In addition, like the Internet, congestion on the road system varies from location to location. Therefore, any solution must be tailored to increases in volume that vary 

in time and space. 

There are typically two solutions to congestion. One solution is 

to build more lanes to make sure there is always enough capacity 

to prevent delays when traffic peaks. The problem is that building 

54 

excess capacity is expensive. Maintaining extra resources that are 

only used a few minutes out of every day is typically a bad deal 

for consumers. The increase in capital costs threatens to slow the 

buildout of broadband services for all Americans. And the additional cost will raise the number of subscribers that a broadband 

network will need to break even, which means that the burden 

would fall especially hard on rural Americans. 

In addition, no matter how hard they try, planners’ predictions 

of how much and where to add additional capacity will occasionally 

be wrong. Adding more lanes takes time. So when planners make 

mistakes, adding capacity is not always available as an option. 

Even more importantly, adding lanes often simply stimulates development at the ends of the roads until the new lanes become congested as well. There is a real danger that demand will expand to 

fill all available capacity no matter how many lanes are added. 

The alternative approach to adding capacity is engaging in some 

type of network management. By limiting access to the interstates 

during rush hour, reserving lanes for high occupancy vehicles and 

buses and giving ambulances and other high value traffic priority 

over other traffic. Each of these approaches involves a degree of 

nonneutrality, and yet each is regarded as uncontroversial. 

I do not mean to push the analogy between the road system and 

the Internet too far. There are some critical differences between 

them. For example, Internet traffic is extremely bursty, in that 

long periods of inactivity are punctuated with extremely brief but 

intense periods of heavy bandwidth usage. This makes network 

management considerably more complex and calls for different 

tools. 

Perhaps the most important difference between the road system 

and the Internet is the presence of bandwidth hogs. In the road 

system, each driver cause roughly the same amount of congestion. 

On the Internet, the situation is quite different. Network providers 

estimate that as few as 5 percent of end users represent between 

50 and 80 percent of the networks total usage and many applications are designed to increase the usage as long as capacity is 

available. 

The question in such a world is not whether congestion will 

occur. The question is whether the cost of that congestion will be 

borne by all users or only by those responsible for causing it in the 

first place. Good economics and simple fairness favor placing the 

lion’s share of those costs on those responsible for creating them. 

Any other system would, in effect, require low bandwidth users to 

cross-subsidize the network usage of a handful of bandwidth hogs. 

It is for this reason that every panelist that testified at the FCC’s 

February 26 hearing on network management agreed that some degree of network management is inevitable. The problem is that the 

reasonableness of any particular approach to network management 

varies from technology to technology and within any particular 

technology varies across time and from location to location. The 

problem is complicated still further by the fact that technology underlying the Internet is undergoing constant and rapid change. At 

the same time, the current debate has failed to take into account 

the proper analog to the Internet is not the one-to-one communicaVerDate Aug 31 2005 10:51 Aug 01, 2008 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6601 H:\WORK\ATRUST3\031108\41191.000 HJUD1 PsN: 41191
55 

tions that characterize the telephone system, but rather the oneto-many communications that characterizes the Internet. 

The flood of Internet content—in short, Internet users face an avalanche of content every day and depend on search engines, 

bloggers and other intermediaries to help sift through it. Consumers also depend on them to protect them from undesirable content such as spam, viruses and pornography. The question is thus 

not whether there will be an intermediary. The question is who 

will serve as that intermediary. And, in fact, there are a great deal 

of problems as the Christian Coalition’s position in this—before the 

FCC makes clear, we do depend on network operators to screen us 

against pornography, ring tones with racial slurs, and profanity 

and other forms; and we must be careful that in asking companies 

to serve as intermediaries that we do not stop their ability to do 

that. 

The precise details of which agency and whether agencies or 

courts should enforce are less important than the substance of the 

law. I would urge this Committee not to rule any particular solution off the table. Leaving network providers free to experiment 

with new solutions is the best way to ensure that consumers enjoy 

the full range of the Internet’s tremendous potential in the future. 

Thank you. 

Mr. CONYERS. Thanks so much. 

[The prepared statement of Mr. Yoo follows:] 

56 

PREPARED STATEMENT OF CHRISOPHER S. YOO


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Mr. CONYERS. Professor Susan Crawford, Yale Law School. Also 

has taught at Cardoza School of Law in New York, Georgetown 

University Law Center, Michigan University, a policy fellow at 

Center for Democracy and Technology, and sits on the board at the 

Internet Corporation for Assigned Names and Numbers. We welcome you to the Committee. 

TESTIMONY OF SUSAN P. CRAWFORD, VISITING ASSOCIATE 

PROFESSOR OF LAW, YALE LAW SCHOOL 

Ms. CRAWFORD. Thank you so much, Chairman Conyers, Ranking Member Chabot and Members of the Committee. It is an honor 

for me to be here today and talk to you. I want to leave you with 

just three key points. First is that the stakes are extraordinarily 

high for this discussion because the Internet is becoming the general purpose communications network on which all Americans rely 

for both business and personal reasons. And second, that there are 

clearly insufficient protections in place for both speech and innovation on line. As the Chairman pointed out, we have an unregulated 

duopoly in place providing Americans with Internet access at the 

moment. And they have enormous market power and every incentive to discriminate against speech and new products and new services that they believe are undermining their business plans. Third, 

congressional action is needed to ensure in advance that we have 

an open, neutral Internet to which all of us can have nondiscriminatory access. Just a few words about the context here. We make 

a deal over and over again with the providers of general purpose 

communications networks. Here is the deal. 

In exchange for limiting your liability for the content of the communications that pass over your network, we make them provide 

nondiscriminatory assistance to all customers who are willing to 

pay. We have done this for the telegraph, we have done this for the 

telephone. This is not a new obligation. It has allowed us to put 

our general communication systems in the hands of private, forprofit companies without worrying about discrimination and censorship. 

We are at a constitutive moment in communications history, a 

real turning point. This is like the moment of the arrival of the 

telegraph and the telephone. Now it is the Internet. The Internet 

is the first global, electronic, general purpose communications network. It is triggering economic growth and new ways of making a 

living all around the world. The Internet is not the same thing as 

Comcast cables or Verizon’s wires or even a wireless connection. 

These companies are merely providing one set of connections that 

allow users and businesses to connect to the dynamic interaction 

that the Internet protocol facilitates. 

The stakes for this conversation could not be higher. The difference between a phone, a cable system and television, they are 

all dissolving. The Internet is taking over the functions of all of 

these communications networks we used to use. Each of the 

vertically integrated network access providers in this country sees 

this change as a threat. Telcos want to offer their own premium 

television services, music services and premium Web content, cable 

cos want to offer more channels of cable content. Cable companies 

65 

limit their Internet access services to a very small amount of bandwidth. 

In fact, the real bandwidth hog here is Comcast in many ways. 

Internet access is a tiny portion of their overall bandwidth. The 

rest is devoted to cable content. The open Internet could become 

the greatest competitor these companies have ever seen. Again, it 

is not one competitor, but a general purpose vehicle for thousands 

of entrepreneurs across the country offering innovative new products. Each of these dominant network access providers, as you have 

heard from Professor Yoo’s testimony, wants to act as an editor, an 

editor or a gatekeeper of Internet access for their own commercial 

purposes. They want to call these edited services Internet access, 

but it is not really that. It is much more like more cable content. 

These guys don’t want to be gravel pits. They don’t want to provide 

commodity transport. 

We have a choice right now. Should we have a general purpose 

network available for all Americans to use in a nondiscriminatory 

fashion, like a road from a rural center to a big city, or should we 

have a series of special purpose networks that are much more like 

rides at Disneyland, carefully managed. The whole consumer experience is one that is tailored to the competitive needs of the network access provider. The stakes are very high. This is about the 

future of communications itself. 

Second, there are clearly insufficient protections for speech on 

line. As the Chairman clearly outlined, we do not have a functioning competitive market for Internet access in this country. Instead we have regional duopolies, offering either DSL service or 

cable modem service to 96 percent of the country. A third of Americans have, at most, one choice of high-speed Internet access provider. This lack of competition provides the opportunity for discrimination with respect to Internet access services and that discrimination, in turn, serves the goal of these large carriers. It is so 

easy to come up for explanations for discrimination after the fact. 

Arbitrariness by itself is enormously threatening to speech, and innovation and has the potential for suppressing particular points of 

view as the Christian Coalition points out. 

So congressional action is needed. That is my final point. All of 

these Internet access related questions are being dealt with under 

the SEC’s assertion of ancillary jurisdiction. There is simply no express congressional mandate for how to deal with Internet access. 

We should not allow a key source of America’s economic growth to 

be subjected to such ad hoc authority. Congressional oversight, particularly from this Committee, is needed. Thank you very much. 

Mr. CONYERS. Thank you. 

[The prepared statement of Ms. Crawford follows:] 

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PREPARED STATEMENT OF SUSAN P. CRAWFORD


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Mr. CONYERS. Professor Yoo, you are in a tough place here. Because you are between two female lawyers. Steve Chabot and I are 

wondering what would happen if we left you, you know, to your 

own devices and see what would happen. Now, over here, we have 

got two songwriters. And is this new school versus old school on 

this situation? 

Mr. KULASH. No, it is not, sir. 

Mr. CONYERS. Oh, it isn’t? 

Mr. CARNES. He is the Future of Music Coalition. I guess that 

makes me the past. 

Mr. CONYERS. And then Attorney Fredrickson and Ms. Combs 

have rarely agreed on anything, and they come together in harmony this afternoon. Isn’t that amazing? So your Chairman wonders what would you say, Mr. Kulash, to Mr. Carnes and what 

would our two lawyers say to Professor Yoo? 

Mr. KULASH. I will take the Kulash question. There is no reason 

that the law shouldn’t apply on the Internet. What we are looking 

for is a vibrant, realistic digital market place for music and I think 

that can only happen if we let the innovators come up with the system instead of deciding right now that one of the two companies 

existing can make that system happen. 

Mr. CARNES. To which I would reply, when you say Net Neutrality, the Internet is not neutral now. It is set up for the benefit 

of the 5 percent of bandwidth hogs that are using 70 percent of the 

bandwidth, 90 percent of which is illegal content. In terms of freedom of speech, I would like to remind you that this copyrighted— 

it is all copyrighted material that is being stolen and the Supreme 

Court has said that copyright is the engine of freedom of free expression. 

Mr. CONYERS. Well, you know, this Committee has just put out 

a pro IP bill with all kinds of additional protection. 

Mr. CARNES. And we appreciate that. But they also removed the 

civil enforcement from the bill by the FBI, which is in the Senate 

version but it is not in the House version, which is really critical 

for us. 

Mr. CONYERS. Are you a lawyer, as well? 

Mr. CARNES. You know, I am not—— 

Mr. CONYERS. I am just inquiring. Now, Professor Yoo, do you 

have any last comments before we leave you to the people on your 

immediate right and left? 

Mr. YOO. Thank you for allowing me that, Mr. Chairman. 

Mr. CONYERS. It is like making your last statement before you 

are executed. 

Mr. YOO. I guess if I were to leave—make one point at this point 

is that I do believe that the competitive market can work here in 

ways that are unappreciated. The Chairman—you mentioned that 

there is a duopoly. There is actually tremendous opportunity for a 

much more competitive environment. From having zero subscribers 

in 2004, wireless broadband by the end of 2006 signed up 21 million subscribers. And by the end of 2007, they estimate it will have 

doubled again to 45 million subscribers. What we find from the 

record in the FCC proceedings is things like network management, 

which we regard as nonneutrality, are critical for wireless subVerDate Aug 31 2005 10:51 Aug 01, 2008 Jkt 000000 PO 00000 Frm 00082 Fmt 6633 Sfmt 6601 H:\WORK\ATRUST3\031108\41191.000 HJUD1 PsN: 41191
79 

scribers to survive to introduce the very competition that the antitrust task force recognizes as essential for a long-term solution. 

And, in fact, one of the points made by a very small rural wireless carrier named LARIAT run by a gentleman named Brent 

Glass says that he has got such limited bandwidth and his cost 

margins are so tight that the only way he can survive is by cutting 

down on a handful of BitTorrent users on the moments that the 

volume peaks. And the reality for him is if we do not allow him 

to manage the network in that way, the kind of competition which 

we are saying is the goal will not occur. 

Mr. CONYERS. Well, what do you say, ladies? 

Ms. FREDRICKSON. Well, I think from our perspective, the essential factor here is free speech and the ability to communicate. And 

whether or not the ISPs need to engage in some kind of network 

management I think is a question for technologists more than it is 

for those of us on this panel, except to the extent that it is nondiscriminatory that should be the major focus of this Committee 

and of legislation to ensure that whatever network management, as 

Professor Crawford has noted, not be used as an after-the-fact justification for discrimination. 

So that is why I think it is critical that the Committee consider 

legislation that would set up neutral rules from the beginning to 

ensure that no discrimination takes place and network management not be used as cover to eliminate certain types of content. 

Ms. CRAWFORD. And just a follow-up on Ms. Fredrickson’s remarks. We did this successfully in the ’60’s. We kept the phone 

business out of the business of data processing. They were quarantined out of that business. And that was a very successful way 

of not having to get engineers into writing legislation but just keeping an old industry from controlling a new one. And that is the risk 

we are facing here. Now, a lot of this is talking about money. I understand that for about a dollar per subscriber per month, a cable 

system could roll a neutral network. It saves them, I understand, 

Comcast something like 10 cents per subscriber per month to do 

the kind of traffic shaving they are doing. This is not about that. 

This is about, from their perspective, the risk of a precedence that 

they be treated like a general communications carrier when it 

comes to Internet access. They should upgrade their networks. 

Ms. LOFGREN. [Presiding.] Ms. Combs, are all of the ladies on 

this panel in agreement this afternoon? 

Ms. COMBS. Yes, we are. 

Ms. LOFGREN. I thought so. Well, on that note, we will take a 

brief recess for a vote, and we will be right back and recognize 

Steve Chabot. 

[Recess.] 

Ms. LOFGREN. The hearing may resume. We are now at the part 

of our agenda where we will ask Mr. Chabot to begin his questions. 

Mr. CHABOT. Thank you very much, Madam Chair. 

This question is to any or to all of the witnesses, whoever would 

like to respond. 

The relationship between the Internet Service Providers and content providers, isn’t it mutually beneficial—and practically speaking, consumers cannot access content without a network, and a network serves no purpose without content to distribute and consumer 

80 

demand. How does government involvement help this already quite 

successful relationship? How would the consumer be impacted by 

changes in that dynamic at this time? Yes, Professor. 

Ms. CRAWFORD. It is an interesting question. You would think 

that the two would be mutually helpful to each other. Actually, 

there is economic evidence by our colleagues Barbara Van Shelich 

and Brett Frischmann, a joint paper, making clear that network 

access providers have every incentive actually to discriminate 

against content, not their own, in order to further their own business plans. Again, the idea is you have got an incumbent with an 

existing powerful business that it wants to protect at almost any 

cost even if it might be better for the network as a whole if they 

collaborated with content providers. 

A second point is that the Internet is not just content being passively sent to subscribers. The greatness of the Internet is that this 

is an interactive, often user-generated network that allows for a lot 

of other communications that cannot be described as content. 

Mr. CHABOT. Okay. Thank you. Professor Yoo. 

Mr. YOO. They are mutually beneficial for the most part. It is one 

of these things that is actually reflected in Supreme Court precedent going back to the vertical integration between networks and 

content providers, all the way back. The Supreme Court used to be 

extremely hostile toward the idea and were thinking, oh, this 

would be big—having the network own the content could lead to all 

of these harms. Well, what is happening in the Supreme Court doctrine with regard to vertical integration and vertical restraints is 

it has become much more permissive. Why? Because this is often 

extremely efficient behavior. Particularly with the Internet, sometimes a very tight integration between the content and the network 

can actually increase the functionality of the network. 

The best example I know of is the wireless industry. One of the 

things—if I were walking across this room, I would pass through 

hot spots and cold spots as I walk through depending on the bandwidth I get. What the wireless industry will often do is to give me 

my voice communications constantly all the way through as I walk 

through the room. If I am at a cold spot, it will hold my e-mail. 

Why? I cannot stand my voice traffic being interrupted for even a 

third or a quarter of a second, or else I will not use it. Now, when 

I get to a hot spot, they will dump me all of my e-mail at once. 

Is that neutral? No. Does it require a very tight integration between the content, the device, and the application of the network? 

Absolutely. It is a way to yield real benefits to consumers in ways 

that are very concrete. 

You see this in an empirical study that is fascinating. They have 

done two large studies by the FTC staff as to when that kind of 

tight integration yields benefits. One looked at 17 full studies that 

always increased consumer welfare. In the other study, 16 out of 

17 times it increased consumer welfare. If you look over the last 

21⁄2 years, the FCC has examined it and has said this is not a problem despite the filings in every single case in five major regulatory 

matters. Is there a small theoretical possibility of some harm? Yes. 

It depends on very specific empirical conditions, which is why I 

think a case by—I have always supported a case-by-case analysis 

instead of saying this is not a problem and it should go away, but 

81 

we should make sure that the circumstances for that anticompetitive conduct exists before we stop these kinds of practices which 

can yield real benefits to consumers. 

Mr. CHABOT. Thank you. 

Does anybody else want to touch on it or should I go to another 

question? I will go to another question. 

How do networks deal with innovation? How would technology be 

impacted by additional government involvement? Would consumers 

benefit from more regulation? Anybody is welcome to it. 

Ms. Fredrickson. 

Ms. FREDRICKSON. Well, I think our perspective is that Net Neutrality rules are less regulation. They allow the Internet to flourish 

in a very free fashion, but you have to set some basic, nondiscriminatory policy to so that those ISPs cannot control and limit the 

content. 

I think Ms. Combs, as I said earlier, has already laid out numerous examples of where there has already been discrimination undertaken by ISPs. So I would differ with Professor Yoo and say 

that it is not theoretical. It is not hypothetical. It actually exists. 

Therefore, we need to ensure that the Internet remains unconstrained and free and foments innovation and competitiveness 

rather than limits it by allowing ISPs to shut down competing services and content that they might disfavor. 

Mr. CHABOT. Thank you. 

Professor Yoo and Professor Crawford, if you could, answer very 

quickly because my time is over. 

Ms. CRAWFORD. Just very quickly, we are talking about telco incumbents. One of their last great innovations was call waiting. We 

have not seen a lot of innovation coming from the network providers. What has been happening is an explosion of innovation at 

the edge, and it is that innovation that Net Neutrality furthers. 

Mr. CHABOT. Thank you. Professor Yoo. 

Mr. YOO. As to the story that Ms. Fredrickson told about the 

early days of the Internet, I assume you are talking about the 

Computer Inquiries and the first generation of regulation. What is 

fascinating is we did have nondiscrimination rules, but the telcos, 

when they had a new development, constantly had to come asking 

for waivers. For example, in shifting from analog transmission to 

digital transmission, you had to change the network, and all of a 

sudden the things that were digital did not communicate with the 

things that were analog anymore. When we had a restrictive rule 

in place that defined nondiscrimination in a very particular way, 

any time a network needed to innovate they had to come get a 

waiver and get a special dispensation. Call waiting was retarded by 

the fact that they had to get a special waiver because call waiting 

is provided by the computer processing in the switch. That is the 

cheapest way to do it. Well, that was nonneutral because the telephone company had an advantage, but it was a natural advantage 

in the technology. We had these battles under that rule where they 

were constantly fighting over what was permitted under the rules 

until finally we shifted the regime to saying the FCC said we 

should get out of this. The real solution here is competition. 

Mr. CHABOT. Thank you very much. 

My time has expired, and I yield back the balance of my time. 

82 

Ms. LOFGREN. The gentleman yields back. 

I have, really, a question. I was interested—I am sorry. I ran 

over to vote, and I did not get to hear your testimony, but I did 

read the testimony, Professor Crawford. I have a concern with 

Comcast’s recent issues with BitTorrent. I was just thinking. 

Where does this lead if you regulate uploads or charge for uploads? 

You know, what does that do to the innovation that we are finding 

on the Internet? Does that pose, in your judgment, pretty severe 

first amendment issues? 

Ms. CRAWFORD. Thank you, Congresswoman. It is a wonderful 

question because the great value add of the Internet comes from 

the ability to upload, not just to be passive consumers of content 

for all of us without asking permission to create our own movies, 

our own new applications, our own new ways of making a living. 

Having an asymmetric network like the one that Comcast has intentionally built is very destructive to that kind of innovation. I 

will note that in Japan and in France and all over the world they 

are building symmetric networks that are moving for uploads at 

100 times the speed we have available in the United States. So, 

just as a matter of national pride as well as innovation, we should 

care about our ability to upload. 

Ms. LOFGREN. All right. Professor Yoo, do you disagree? 

Mr. YOO. Well, I do think it is important, but what is fascinating 

about the Comcast example is that it is not just about uploads. I 

mean consider OK Go’s success on YouTube. YouTube is not a peerto-peer technology. It is a classic server technology where it is all 

hosted in one place. So, in a way, what Comcast is not trying to 

do is to go against user-generated content. What they created was 

a very nicely crafted world in which they did not block it across 

any application across the whole network. They found a handful of 

nodes at certain times where they were bogging down with congestion and found a way to slow down the uploads when there was no 

human being on the other end. The beauty of BitTorrent is that it 

probably did not even hurt the people who were attempting to 

download at the same time because the genius of BitTorrent is it 

will go get those bits someplace else. So it was actually potentially 

a very finely crafted idea. 

I agree with Professor Crawford that the user-generated content 

world is very exciting, but in many ways, things like what Comcast 

did to BitTorrent is essential to preserving the YouTube style of 

file server user-generated content and in making sure that the 

peer-to-peer style does not congest the entire Internet. 

Ms. LOFGREN. You know, this Net Neutrality debate is not a new 

one for the Congress. Last year, we went through this. As a matter 

of fact, I was telling my staff that I sort of toyed with the idea of 

playing the ‘‘Ask a Ninja: Net Neutrality video’’ rather than actually asking the questions, but I was discouraged from doing so. 

I do have a concern that if you start allowing the pipes to really 

decide who gets to see what, you end up sort of cablizing the Internet in a way that is not the way we have had the Internet. I met 

with Vint Cerf last week out at Google. You know, the Internet is 

to be free. It has always been that way, and it has only been 

threatened recently. 

83 

Do you think the concern about turning the Internet into cable 

is overblown, Professor? 

Ms. CRAWFORD. No, I do not, Congresswoman. As I said, I think 

we really stand at a turning point. A visual picture I often use is 

that it is as if the sidewalk has gotten tired of being a sidewalk 

and wants to rise up and take a little ‘‘ca-ching’’ and monetize the 

conversations we are having, if they are particularly valuable or if 

they think they can price discriminate with respect to that sidewalk. 

As a society, we need basic infrastructure. We need to invest in 

it. We need to move forward as a country with this basic infrastructure. Communications policy should be part of our industrial 

policy and move us forward as a country. Net Neutrality is a central part. This is a Sputnik moment for us, and I think Vint Cerf 

would agree that. Just as the fear of what was going on with the 

Russians drove us to create the Internet, we have now got an internal Sputnik development which is our own market, powerful ISPs 

controlling innovation on the Internet. 

Ms. LOFGREN. I will just close by thanking all of the witnesses. 

It was fun to talk to Mr. Kulash. 

I did not get a chance to talk to you, Mr. Carnes. I appreciate 

your coming all this way. 

I also wanted to say something, Ms. Combs, to you because I respect that a conservative person such as yourself would say that 

you agree with somebody with whom you completely disagree on 

the issues to stand up for free speech. Doubtless, there are many 

things on which we do not agree, but I really do respect that you 

are here standing up for the first amendment here today. It is a 

very honorable thing that you are doing. Thank you very much. 

Mr. Keller. 

Mr. KELLER. Thank you, Madam Chairwoman. Let’s see. 

Professor Crawford, you made the analogy about having one road 

rather than the many-tiered system like at Disneyland, and you 

caught my attention there since I represent Disney World in Orlando. So let me ask you a pretty basic question. 

One of the concerns that has been raised is that ISPs want to 

provide tiered service to consumers that utilize higher amounts of 

bandwidth, and the DOJ in its comments to the FCC said—and I 

will just quote it—mandating a single uniform level of service for 

all content could limit the quality and variety of services that are 

available to consumers and discourage investment and new facilities, close quote. 

Are you in favor of a tiered service or do you feel that a single 

tier is always the best for consumers? 

Ms. CRAWFORD. Let’s be clear about our terms here, Congressman. I think that no one would disagree on the Net Neutrality side 

that it makes sense to charge consumers for use of bandwidth and 

that discriminating against consumers in that way seems appropriate. If you are using more, charge more. It is that business 

model that our current ISPs do not want to move towards. What 

I am against is the idea of discriminating against particular applications because of what they do or particular sources or the content 

of packets. I am also personally concerned about trying to draw categories of applications and say, you know, with your video, you go 

84 

at X speed; all video goes at that speed. Here is the problem with 

drawing those categories. 

The ISP is in the position of being the line drawer and will have 

all kinds of new things that will appear in the world. We do not 

want to give these very consolidated entities the power to decide 

who falls in what category. 

Mr. KELLER. All right. Professor Yoo, let me follow up with you. 

You were at Vanderbilt at the same time I was at Vanderbilt, I see, 

and you gave me a ‘‘C’’ in antitrust, and now I have some questions 

for you. No. Just kidding. I did not take your classes when I was 

there. They were too hard of classes. Let me begin with you, Professor Yoo. 

If a broadband provider chooses to degrade certain content, do 

consumers have other options to turn to for their broadband service? 

Mr. YOO. I think the wireless option tells us yes. We have a 

world in which that is a real possibility for the first time, and there 

is wonderful data coming out of Europe and OECD that is looking 

at the impact that nondiscrimination and access requirements have 

on building out new networks, which is the real goal. We discovered that it is retarding it actually. If you look, it is correlated 

when you have those sorts of access requirements. You get less new 

broadband extended to new areas, and that is an enormous problem. 

If I may, the one reaction I had to what Professor Crawford said 

is that it is often said that the bloggers will be hurt by the fast 

lane and the slow lane. What is fascinating to me is I actually 

think that has it backwards. Creating a fast lane and a slow lane 

is a way to protect the bloggers. Why? People who are just sending 

text do not need the fast lane. It is the video that needs the fast 

lane. If right now we are charging all a certain price, if we are 

going to upgrade the network at all, we can either charge everyone 

a higher price for the upgrade or we can create a tiered service 

where the bloggers can still keep the price they are getting and 

only charge the people who need the faster service for video for 

what they are getting because this is a way to keep people like the 

bloggers online, not to hurt them. 

Mr. KELLER. Let me get back with you, but let me touch on the 

piracy issue just a little bit, and then we will give both of our artists a chance. 

Mr. Carnes, what is the relationship between online piracy and 

network congestion? 

Mr. CARNES. Well, I said previously that 5 percent of the users 

on the Internet are using up 70 percent of the broadband network, 

and 90 percent of that is illegal P2P, so congestion is actually piracy. You know, piracy is the disease, and network congestion is 

just a symptom of that disease. 

Mr. KELLER. All right. Mr. Kulash, I know that you got your big 

break from the video that you showed, from the famous treadmill 

video. Let me ask you: 

Did you get that video on the first take or did that take a while? 

Mr. KULASH. Take 13, sir. 

Mr. KELLER. Take 13. All right. 

85 

Tell me, since you are an artist who—obviously, I know you get 

your revenue from at least some performance royalties. Do you 

have concerns about preventing online piracy? 

Mr. KULASH. Absolutely. You know, I believe, as every songwriter believes and as, I think, everyone believes, that musicians 

should be paid for their work. I am certainly not advocating anything that I think will lead to piracy. The question is who is going 

to build that new system for music distribution, for how we listen 

to music, for how we get to make music. It seems to me that the 

telcos are not the people I want building that system. 

Mr. KELLER. Okay. Professor Crawford, you wanted to respond. 

Ms. CRAWFORD. Just very briefly with a couple of empirical 

points. 

When we talk about competition from the wireless sector in this 

country, we should remember that those companies are owned by 

the same companies that control DSL access. Then we have a very 

highly concentrated market when it comes to Internet access as a 

whole. The same actors. 

Also, on the video point, we need a larger principle moving forward for this entire discussion. We cannot focus ourselves on what 

is going on with Internet video right now. We have got 100 years 

ahead of us for Internet history, and we have to set the terms now. 

Also, finally on the filtering point here, I think it will be, as Mr. 

Kulash has said, inappropriate for the ISP to be the level where 

filtering takes place. The content application providers can do this. 

They will have some knowledge of who they are having license arrangements with, and they can respond to notices and take-down 

procedures under the DMCA. We have set up this structure, and 

it can work. 

Thanks. 

Ms. LOFGREN. The gentlelady from Florida. 

Ms. WASSERMAN SCHULTZ. Thank you, Madam Chair. I want to 

thank all of you for being here today and for helping us to tackle 

this very thorny issue. 

Obviously, everybody is concerned about the Internet and its ever 

evolving status, and we want to continue to see it be a source of 

innovation and a strength for our economy, which is a little bit 

shaky right now. I supported network neutrality in the 109th Congress because I was really concerned that there was not enough 

competition in the marketplace to start cornering off sections of the 

Internet and adding a premium to the price of that section. I mean, 

to me it made sense to do that, to prevent that from happening 

through network neutrality so that you do not have ISPs striking 

up deals in favor of one set of providers over another and limiting 

the competition and making choices for consumers, because that is 

counterintuitive to what the Internet is supposed to be. 

You know, we are Members of this Antitrust Task Force, but we 

are also Members of the Judiciary Committee, and we deal with 

legislation related to crime as well. The concern that I have about 

network neutrality is that you would never want to force ISPs to 

actively ignore conduct that is unlawful or speech that they know 

is unprotected. What I mean by that is piracy or child pornography. 

I mean, I sponsored legislation that some of you may be familiar 

with that would address the 500,000 known individuals in the 

86 

United States who are trading and trafficking in child pornography 

on the Internet. We are talking about images of young children 

being raped and victimized. These are crime scene photos. Those 

are being shared through peer-to-peer file sharing all over the 

country every single day, and law enforcement knows who they are, 

knows where they could find them, but they are just overwhelmed 

and outnumbered. 

The legislation that I sponsored and that was adopted unanimously out of this Committee—excuse me, out of the Congress, not 

unanimously. It was with two ‘‘no’’ votes. Let me be accurate. It 

was designed to make sure that we could get those resources into 

the system and go after people who are breaking the law and who 

are going well beyond the bounds of speech. So the question that 

I have—you know, we want to include socially responsible behavior 

from Internet Service Providers, but we want to make sure that 

they manage their networks in such a way that they can eliminate 

piracy and the spread of child pornography over peer-to-peer networks. 

So that is a long preface to my question, and I would like any 

of you to answer it. 

How do we fashion principles that will continue Internet innovation but also will not prohibit corporations from addressing this 

kind of unlawful activity or unprotected speech? Because I want 

ISPs to be able to corner off access to that kind of peer-to-peer file 

sharing. When they identify where these people are and can shut 

off their access, I do not want network neutrality to prevent them 

from being able to do that. 

Ms. CRAWFORD. Congresswoman, if I could respond briefly, the 

creation of child pornography is the most heinous behavior we 

know of around the world. It is incredibly destructive. The closest 

thing we have, actually, to a global norm is an abhorrence of child 

pornography. We need to remember, though, that we are addressing two different things—behavior on the one hand and technology 

on the other. The behavior of child porn creators we always prosecute, and we make sure we go after them. Fashioning technology 

in advance to look for a particular flesh tone or for a particular action in a packet crossing an ISP network is going to be both incredibly difficult and probably destructive to some sense of innovation. 

So here is my response to you. 

The ISPs cooperate quite closely with law enforcement all the 

time, and it is in facilitating that cooperation that we go after the 

behavior without punishing the technology that makes so much 

else that is good and positive in the world—— 

Ms. WASSERMAN SCHULTZ. I can understand pursuing the behavior. We cannot just leave it to punishing the behavior here. We 

have to make sure that you limit the market. If you limit access 

to the market, the market will shrink, and the reduction in the 

competitive exchange will cause less need for the market to be fed 

by more crime. 

Ms. CRAWFORD. I agree with you. I think it is just a question of 

timing. I am saying that ISPs cooperate with law enforcement, 

hear about what is going on and then act and then act to either 

take off subscribers—— 

87 

Ms. WASSERMAN SCHULTZ. But a child has already been victimized when you do it that way. We are talking about children who 

are being raped—— 

Ms. CRAWFORD. Right. 

Ms. WASSERMAN SCHULTZ [continuing]. Children who are being 

victimized. So waiting until after that has happened hurts children. 

Ms. CRAWFORD. How could we do it before? How would you know 

where the file was before this happened? 

Ms. WASSERMAN SCHULTZ. Well, they already have the technology to know where the file is, to know the servers that are on 

there. I mean, if we have the resources, they can go and find—I 

do not know—the digital fingerprints. From what I understand, 

they have the technology to lift those now and find them, and it 

is only due to the lack of resources. Like I said, I am a proponent 

of network neutrality, but I certainly am not a proponent of network neutrality’s benefiting the promotion of illegal activity, and 

after the fact is not okay when it comes to harming children. 

Mr. CARNES. Congresswoman, basically—I mean I am certainly 

in total agreement that the illegal activity that is going on on the 

Internet needs to have some cap, some control in some way. In 

terms of Net Neutrality, they are talking about like having a level 

playing field. That sounds really nice, but what we have got now 

is not a level playing field. We have got a playing field that is tilted 

just like you are saying. These people are overwhelmed. They cannot begin to control 500,000 different cases. The network is set up 

right now tilted in favor of—— 

Ms. LOFGREN. The gentlelady’s time has expired. I will turn now 

to the former Chairman of the Judiciary Committee, Mr. Sensenbrenner, for 5 minutes. 

Mr. SENSENBRENNER. Thank you very much. 

Ms. Combs, I was interested in your comments about the blocking of a political message during a performance that was streamed 

over the Internet and the analogy to the same type of blocking of 

religious messages by the thought police in the People’s Republic 

of China. 

Could you amplify a little bit more about how these actions were 

similar? 

Ms. COMBS. Do you mean the Pearl Jam concert? 

Mr. SENSENBRENNER. Yes. Please turn your mike on or bring it 

a little closer. 

Ms. COMBS. Oh, sorry. 

I just think they are both examples of discriminatory behavior on 

the Internet because even though we as an organization do not 

agree probably with what Pearl Jam was saying in their concert—— 

Mr. SENSENBRENNER. Neither do I. 

Ms. COMBS. No, but it is just an example of discriminatory behavior in that they did try to stop the concert, and we believe it 

is the exact same discriminatory behavior that is being used by the 

Chinese Government to block our message to getting to the Chinese citizens who would like to see and hear some of our messages 

that we are trying to put out. We just do not want that to happen. 

We are constantly sending out e-mail blasts. We are constantly getting our message out to our thousands of supporters across the 

88 

country, and we do not want Comcast or Verizon or one of the large 

companies to do that to our organization. 

Mr. SENSENBRENNER. Well, as you know from my opening remarks, my interest in Internet neutrality has been more focused on 

the antitrust and on the monopolistic aspects of nonneutrality than 

the content that has been intercepted, jammed, blocked or whatever, because a free market economy, in my opinion, is based upon 

healthy competition. America was the first country in the world to 

pass antitrust laws, largely aimed at busting up the Standard Oil 

trust. Those antitrust laws, I think, have worked fairly well to protect consumers in the United States, contrasted to antitrust laws 

in Europe and elsewhere that are designed to protect competition. 

That said, what do you think Congress should do to protect consumers such as those who wish to receive your message, whether 

they be in the People’s Republic of China or elsewhere, or somebody who wishes to get a brief political message from Pearl Jam? 

Ms. COMBS. We just believe that every organization out there, 

whether they be NARAL or the Christian Coalition or the ACLU— 

we do not believe that Comcast and Verizon and these companies 

should have the ability to block our message. 

Mr. SENSENBRENNER. Now, do you think that a better way to police that principle is through having the FCC or another Federal 

agency regulate content on the Internet or by giving you or other 

aggrieved parties the right to sue the ISP for treble damages if 

they are engaging in monopolistic practices that prevent the people 

who wish to receive your message from getting it? 

Ms. COMBS. We just believe that there should be a free and open 

Internet to all consumers and that they should have the right to 

receive any e-mails coming from any organization. 

Mr. SENSENBRENNER. My question, with all due respect, Ms. 

Combs, is what is the best way to do it, because that is what the 

debate is here in the Congress, whether we should be utilizing the 

antitrust laws, which will get you some money if you end up being 

aggrieved upon or having to go to the Federal Communications 

Commission or to another agency to try to get them to say that 

somebody broke the regulations. 

Ms. COMBS. Right. I am not familiar with all of those laws. Is 

it okay if Professor Crawford answers this question? 

Mr. SENSENBRENNER. Okay. This is now a 50-yard punt. 

Ms. Fredrickson. 

Ms. FREDRICKSON. I think, with all due respect, Mr. Sensenbrenner—well, first off, I would also like to say that Ms. Combs 

and I—the ACLU and the Christian Coalition—have worked together on many issues, not simply on Net Neutrality, so I wanted 

to set the record straight on that. I think the issue here is—the 

concern is that with all the many small players on the Internet, the 

variety of content producers who are filming videos in their backyard or who are putting up their own Web sites or who are doing 

things that are very small in scale but that can reach a very wide 

audience, I think that the burden of trying to sue is a heavy one 

to bear and that there should be—whatever the framework is, 

there should be some neutrality principles that govern from the beginning, from the outset, that ensure that there is some level playing field. 

89 

Mr. SENSENBRENNER. Okay. Thank you. My time has expired. 

Ms. LOFGREN. The gentleman yields back. 

The gentlelady from Texas is recognized for 5 minutes. 

Mr. JACKSON LEE. I thank you very much, and I thank the presiding Chair, and I thank Mr. Conyers as well for this ongoing series of important discussions and debates about the utilization of 

this technology and this question that is before us. Let me start. 

First of all, I find it fascinating—and I think you are absolutely 

right, Ms. Fredrickson—that I have seen the Christian Coalition 

and the ACLU work together, and I think it is important to note 

that the ACLU is known for finding the most prickly of adversaries 

and for working with them. You are to be commended for it, seriously, that you circle the wagons around issues and not around the 

views of others. 

Ms. Combs, I am not suggesting in any way that you are prickly. 

I do not want the record to reflect that, and it should not, because 

I appreciate the advocacy for which you stand. 

I am going to probe Professor Yoo to give him a fighting chance 

to try to understand because the one thing I like about this task 

force is that we try to strike a reasoned balance. I am moved, however, by the words of Professor Crawford in that the perspective 

that she might take would foster more competition. You are arguing that you could promote competition by, in essence, having this 

managed care system on the Internet. Help me understand that. 

Mr. YOO. There are new technologies out there that do not operate like the old Internet technologies. We are used to thinking of 

the Internet’s growing up in a telephone world. A person I had 

mentioned earlier in this hearing, who was here during the vote, 

is here. He is doing wireless broadband. His name is Brett Glass. 

He represents a company called LARIAT from Laramie, Wyoming. 

He is not one of the big existing players. Even among the big existing players, there are four wireless players. They depend on being 

really smart about how they route their traffic so that, one, they 

can provide the kind of services that consumers—— 

Mr. JACKSON LEE. Let me stop you for a moment. 

What you are suggesting is that a jammed-up system means nobody can get on to a certain extent? 

Mr. YOO. Correct. 

Ms. JACKSON LEE. So competition goes down because those who 

you voice cannot manage access or content. It is overloaded? 

Mr. YOO. It is a system that is overloaded. No one will use it, 

and you will go out of business. You will lose your subscribers, and 

you will go out of business. Being able to provide a quality service 

that people will actually pay for instead of buying from one of the 

existing options is what they need to survive. 

Part of the way that wireless players are doing it is by figuring 

out which applications are extremely time sensitive and by giving 

them priority over the stuff where, if it waits for a second or two, 

it will not be—— 

Mr. JACKSON LEE. Give me an example which is time sensitive. 

What would that be? 

Mr. YOO. Voice or streaming video. If there is a hiccup in the 

video, you will stop watching it. If your voice service has a delay 

of a third of a second, the studies show you will stop using it. 

90 

Mr. JACKSON LEE. That means a telephone by cable. 

Mr. YOO. Yes, an Internet telephone, the IP telephony. There are 

other examples. Virtual worlds like Second Life. Video online 

games. 

Mr. JACKSON LEE. So, Mr. Kulash, you consider him as having 

the ability to wait? 

Mr. YOO. It is interesting. What he is doing is a streaming technology that is actually—you can buffer it, and it is less sensitive 

than realtime applications. In other words, when you launch 

YouTube to download Mr. Kulash’s video, it is running ahead of 

where you are watching, and it is actually storing it, and it tends 

not to be extremely sensitive. The things that are very sensitive 

are games where you make a move or if you are talking—— 

Mr. JACKSON LEE. And you need a response. That is what I am 

saying. Mr. Kulash, in your view, could function and have a success 

if he waited? 

Mr. YOO. No. I am saying that the network is smart enough to 

make sure that download applications like YouTube do not have to 

wait in general. In fact, there are certain applications which can 

use other situations to get around the waiting problem whether by 

storing it locally or by giving it different means, but the networks 

really—— 

Mr. JACKSON LEE. I think I have got you. I see my time going. 

Let me get right to the first amendment. 

Is Professor Yoo pulling the wool over our eyes by what he is 

suggesting? Because I think we should entertain the question of 

competitiveness. How does Professor Yoo’s reasonable perspective 

interfere with the first amendment? 

Professor Crawford and then Ms. Fredrickson and Mr. Kulash. 

Ms. CRAWFORD. Just very briefly, Congresswoman, given the 

highly concentrated market we have right now for high-speed 

Internet access, these gatekeepers are in the position of choosing 

speech, of choosing winners and losers and of backing up. That is 

the principle that we are worried about. 

Ms. LOFGREN. Very quickly. The time has expired. 

Ms. FREDRICKSON. Yes. In some ways, I was going to say that 

there is a little bit of apples and oranges because I think, as Professor Crawford has already suggested, limiting access based on 

bandwidth or on other nondiscriminatory means could be considered as a way of managing a network, but what really cannot be 

allowed is doing so based on content. 

Ms. LOFGREN. The gentlelady’s time has expired. 

The gentleman from Utah is recognized for 5 minutes. 

Mr. CANNON. Thank you, Madam Chair. 

Mr. Carnes, you said earlier that 5 percent of the users are using 

70 percent of the bandwidth and are downloading peer-to-peer material. My sense is—and I do not know this, but I do a lot of 

YouTube. I mean there is just some really interesting stuff on 

there. We put up YouTube in my office. My sense is that those 

numbers have changed. I ask that question because what I am 

really going at is that it seems to me that the Internet and the nature of what we are doing on the Internet has been changing very 

rapidly and that the rate of change is going to increase. 

91 

So when were those numbers validated that you gave us, and are 

they current or are they a couple of years old? 

Mr. CARNES. Those are the most recent numbers I have. 

Mr. CANNON. Was it like a couple of years ago or a year ago, do 

you know? 

Mr. CARNES. You know, I could not tell you exactly. 

Mr. CANNON. Does anybody know? My sense is that there has 

been a huge transformation as to how bandwidth is used. 

Mr. Yoo. 

Mr. YOO. Those numbers have been validated within the last 6 

months from at least 5 sources. They vary, obviously. I have seen 

50 to 80 percent. The most extreme number is 5 percent in 70 or 

80, maybe as much as 1 percent in 50. If you take an even smaller 

slice of it, it might be even more intense. 

Mr. CANNON. Great. Is that all peer to peer and mostly pirating 

or is the mix changing? 

Mr. YOO. That number that we are talking about, 5 percent and 

80, is peer to peer. The mix of peer to peer is 90 percent piracy. 

So the vast majority—you can do the math. 70-ish percent is piracy. 

Mr. CANNON. Yes. Ms. Crawford, please. 

Ms. CRAWFORD. Those uses are also changing, Congressman. We 

are seeing a lot of use of BitTorrent for sending around security 

patches for laptops. A lot of use of BitTorrent is for making sure 

that developers stay in sync. It is a very efficient way of using the 

network so that you are not depending on central servers and on 

one piece of bandwidth. Everybody is sharing the bandwidth in the 

storage. 

Mr. CARNES. But you know, in the Grokster case—I think it was 

in 2005—the figure is almost exactly the same. It was still 90 percent illegal. So they may be doing more, but apparently the illegal 

is growing, too. The ratio is still the same. 

Mr. YOO. If I may, it brings up a wonderful question, though, 

which is what is the future going to be? For the last 4 years until 

the last year, peer to peer was outstripping downloads every year, 

and it looked like that was the shape of things to come. Last year, 

because of YouTube, downloads made a comeback, and they have 

now passed peer to peer. The entire industry is staring at this. 

Should we design our entire networks because peer to peer is the 

answer or is YouTube the new thing? Even if we redesign it today, 

what is the next thing coming down? It is important to understand 

that it is extremely uncertain what you have to do right now. 

There is more than $100 billion at stake. They are going to have 

to make a gamble, and that is what they are paid to do. 

Mr. CANNON. Just following up, when you say that they need to 

make a gamble, you have got very different architectures out there, 

and the gamble is gambling future investments in architectures 

that are dissimilar. What is the effect of a mandate from government on those decisions about what architecture to choose? 

Mr. YOO. In a free market economy you let business people take 

chances. Some of them will work guaranteed; some of them will 

not. Our normal system is to allow individual consumers through 

their individual buying decisions to determine the winners and the 

92 

losers and not to have a centralized authority, whether government 

or private business, decide what that architecture is going to be. 

Mr. CANNON. Yes, Ms. Crawford. 

Ms. CRAWFORD. Just very briefly, the follow-up to that is that it 

would be good if we had a functioning free market in Internet access, but we really do not in this country. 

Mr. CANNON. Yes. One of the things I would like to see happen 

is that we stimulate the possibilities of what that infrastructure 

will be rather than our limiting the possibilities, because we have 

seen an increase in the availability of bandwidth. 

Yes, Mr. Carnes. 

Mr. CARNES. From the songwriter’s perspective, we have had 10 

years of dumb pipes as the Internet, and it has hurt us. We are 

just hoping that an intelligent network can help us. 

Mr. CANNON. One of the things I am hoping is that we can prosecute people who steal and then bring down the price enough so 

that people are incented to do other things. Time Magazine had an 

editorial on its last page about Rob Reid’s doing an experiment 

with Rhapsody where he charges 25 cents per song. Instead of getting four songs, in other words, being equal, he got six songs sold 

for the same. So the 25 cents per song resulted in a 50 percent increase in revenues, and I am hoping that people who have content 

will sort of look at that model and will realize that by bringing the 

price down two things happen. One is you get more revenue. Two 

is why would you steal if you can pay a reasonably low price? 

Along the lines of how we have a system that actually accommodates more movement, we have what I call the Super Bowl syndrome. If everybody downloads the Super Bowl over the same 

pipes—and in a neighborhood, you have got 300 households sucking the Super Bowl independently through the same pipe—you are 

going to have a problem with speed. If you use a model like 

Comcast and distribute that locally, then the backbone is not totally wiped out. In that environment, how we use the radio frequency, another spectrum, seems to be very important to me. 

Are any of you familiar with the M2Z project? Does that give us 

an opportunity to see how we can use bandwidth a little more effectively? 

Mr. YOO. There are a number of fascinating projects underway, 

and we have no idea which are going to work. There is a P4P 

project that is going on. All of these different solutions are brewing 

out there, and technology is going so fast that we do not ultimately 

know which one is going to win. I would love to see a wonderful 

battle between these different technologies unfold. The only way we 

can allow that is if we give them breathing room to experiment 

with new ways of doing business. 

Mr. CANNON. Madam Chair, I recognize that my time has 

passed, but I actually intended that question for Ms. Crawford. I 

thought that she would have an answer. If she could have the time 

to answer—— 

Ms. LOFGREN. With unanimous consent, the gentleman is given 

another minute so Ms. Crawford may respond. 

Ms. CRAWFORD. Here is the point. Here is the point. We need a 

playing field for innovation. That is the point of Network Neutrality. Keeping the conduit players as conduits does not limit our 

93 

opportunities as a Nation for the future. All it is going to do is to 

make sure that developers can attract investment because they can 

predict the kind of Internet on which they will be able to run their 

new applications. Right now we have uncertainty, which is clouding innovation, making it difficult to invest. Yes, we have to weigh 

benefits and burdens to different populations. As a society, social 

welfare will be served by a neutral Internet in a way that it will 

not be served by making sure that these very few private companies are able to monetize the Internet in the way they would like. 

Ms. LOFGREN. The gentleman’s time has expired. 

As you have noticed, we have been called for a vote on the floor 

of the House, and we are out of questions for Members. So we will 

be adjourning this hearing, with terrific thanks to each one of you. 

A lot of people do not realize that our witnesses are volunteers and 

that you are here just to help us do the right thing and to make 

sure that our country’s future is protected. So we do very much appreciate your participation in this hearing. 

This hearing is now adjourned. 

[Whereupon, at 4:04 p.m., the task force was adjourned.] 

(95) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS, AND MEMBER, TASK FORCE ON COMPETI- TION POLICY AND ANTITRUST LAWS

Thank you, Mr. Chairman, for your leadership in convening today’s very important hearing on net neutrality and free speech on the internet. I would also like to 

thank the ranking member, the Honorable Steve Chabot, and welcome our panelists. I look forward to their testimony. 

This hearing could not be more timely, Mr. Chairman. Over the past few years, 

the internet has become a dominant venue for the expression of ideas and public 

discourse. The internet provides a powerful medium for its users to use their First 

Amendment rights. From social networking to get-out-the vote drives, the internet 

is a powerful tool for speech. Technological innovation on the internet has made it 

among the most powerful outlets for creativity and free speech. 

The internet’s importance in promoting free speech has caused proponents of net 

neutrality to raise concerns that a lack of competition among broadband access provides allows providers to stifle and censor speech. In this hearing, the Judiciary 

Committee’s Task Force on Competition Policy and Antitrust Laws will explore how 

network neutrality principles, government enforcement of policies, and private business practices currently protect and inhibit the freedom of speech. 

The term ‘‘network neutrality’’ is the term used to describe the concept of keeping 

the internet open to all lawful content, information, applications, and equipment. It 

refers to the fundamental architecture of the internet that allows for user-to-user 

communications that are uninhibited and are not regulated based upon content. All 

network content is to be treated equally under ‘‘network neutrality.’’ 

The debate over net neutrality has arisen as broadband network providers became 

increasingly vertically integrated. For example, cable companies began to expand in 

the areas of television services, land-line phone lines, wire-less phone services, and 

high-speed internet services. Questions arose over how the stratified communications legal regime would apply to new, conglomerated companies offering services 

that traversed the regulatory law spectrum. 

The concept of net neutrality has been supported by entertainment companies, 

providers of internet-based applications, software companies, content providers, and 

device manufacturers. These groups advocate argue that net neutrality fosters technology and innovation. These groups also argue that network providers have a clear 

incentive to discriminate. 

On the other hand, network service providers, i.e., the cable or telephone companies, claim that statutory mandated net neutrality undermines their ability to effectively manage their networks. Net neutrality has arisen as an issue for this Congress to address for several reasons. 

First, there have been instances of broadband access providers blocking certain 

content. 

Second, Subcommittee Chairman Markey has introduced a net neutrality bill, 

H.R. 5353, the ‘‘Internet Freedom Preservation Act of 2008,’’ which would require 

the FCC conduct proceedings to assess whether broadband providers violate net 

neutrality principles. H.R. 5353, also requires the FCC to hold eight public 

broadband summits to assess competition, consumer protection, and choice related 

to broadband. 

Third, the FCC has begun considering complaints from entities claiming that the 

broadband service providers have been violating the FCC net neutrality principles. 

The FCC held its first public hearing on the issue in Boston on February 25, 2008. 

The FCC indicated that it was ‘‘ready, willing, and able’’ to take action against ‘‘improper practices.’’ 

96 

The internet has also allowed its users to have access to billions of people. The 

internet can be used for communication or commerce. It is available to anyone with 

access to the internet. 

The internet has been used to get people to vote and as a means of communication 

between organizations and their supporters. The internet is increasingly used for 

the proliferation of mass media content to millions of people. As the internet becomes increasingly more accessible and important in the global marketplace, questions arise regarding the role the communication carriers and the internet service 

providers should play in shaping the content they deliver to consumers. 

Increasingly, there have been reports that internet service providers are limiting 

various groups from accessing the internet based upon the content of the communication. One such example of abuse occurred with Verizon Wireless. 

On September 27, 2007, the Associated Press broke the story that Verizon Wireless rejected requests from NARAL Pro-Choice America to use Verizon’s mobile network for text-messaging. Verizon temporarily barred NARAL from using a service 

known as ‘‘short code.’’ Consumers generally receive text-messages on cellular telephones with traditional ten-digit phone numbers. When organizations transmit messages to their users’ ten-digit numbers, they rent shorter five and six digit numbers, 

called ‘‘short codes,’’ from which to send and receive messages. Verizon denied 

NARAL access to a short code that would have enable NARAL to contact its supporters with Verizon phones. 

In its denial to NARAL, Verizon asserted that it did not accept text-messages 

from any group seeking ‘‘to promote an agenda or distribute content that, in its discretion may be seen as controversial or unsavory to any of our users.’’ Amid mounting pressure against censorship from activist groups, Verizon discontinued its activities within days of the initial news report. This was not the first time that Verizon 

has engaged in such conduct; there are other instances of content based blockages. 

An abuse such as this would ordinarily correct itself in a typical, competitive marketplace because users dissatisfied with their service would switch providers. However, in a non-competitive marketplace, there are few options for change. Broadband 

controls 96 percent of the U.S. residential market for high-speed internet access. 

Most consumers have very limited choice in which company provides service. Net 

neutrality advocate that without competition, providers will have both the power 

and the influence to determine whether speech will happen. 

The providers argue that net neutrality regulations would limit innovation and 

technological advances because the presence of emerging technologies thwart discriminatory behavior. The providers argue that where censorship has occurred, like 

that between Verizon and NARAL, those instances of censorship are quickly resolved without government intervention. 

The providers also assert that the FCC already has jurisdiction to regulate the 

internet and that the FCC has not intervened. The network providers argue that 

net neutrality statutes would impede efficient network management strategies because the regulations will further complicate how the companies distribute their 

limited amounts of bandwith among their different customers. The network providers argue that new regulation would negate the advancement and development 

of new technologies and consumer technologies. 

I welcome the panelists’ insight on this very time subject. Thank you, Mr. Chairman; I yield the remainder of my time. 

f 

RESPONSE BY RICK CARNES, PRESIDENT, SONGWRITERS GUILD OF AMERICA, TO

QUESTION FROM CONGRESSMAN BOB GOODLATTE

The Songwriters Guild certainly welcomes your concern about the theft of billions 

of copies of songwriter creations on the Internet each year. For the past six years, 

I have come to Congress on numerous occasions to testify and meet with Members 

on that very issue, and on the financial devastation that has occurred in the songwriting community due to music piracy. It is the sad truth, however, that, despite 

widespread recognition of the problem, the piracy situation has only gotten worse. 

In fact, we have now lost over half of the professional songwriters in America; Internet theft has simply made it impossible for many of us to earn a living practicing 

our craft. 

It is against this backdrop that SGA has been speaking out against enshrining 

the often lawless structure that currently exists on the Internet. The Internet now 

is in no way ‘‘neutral,’’ at least insofar as songwriters are concerned. In many cases 

it has become no more than a playground for intellectual property thieves. In my 

97 

view it will remain so if no one is allowed to manage the networks in a way that 

identifies and filters pirated content. 

With respect to Mr. Kulash’s concerns, I would emphasize that SGA is far more 

concerned at the moment with illegal content on the Internet and in encouraging 

efforts and technological advances to alleviate that. If any ISP wants to filter illegal 

files from its network in order to make that network safe for legal music, obviously 

we strongly support that. However, we also do not object to sensible regulation that 

would prevent discrimination between types of legal content, to the extent that such 

discrimination is not already barred by current law. 

f 

98 

RESPONSE TO POST-HEARING QUESTIONS FROM CHRISTOPHER S. YOO, PROFESSOR OF

LAW AND COMMUNICATION AND DIRECTOR, CENTER FOR TECHNOLOGY, INNOVATION, 

AND COMPETITION, UNIVERSITY OF PENNSYLVANIA LAW SCHOOL


B-1.eps
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B-2.eps
100 

RESPONSE TO POST-HEARING QUESTIONS FROM SUSAN P. CRAWFORD, VISITING

ASSOCIATE PROFESSOR OF LAW, YALE LAW SCHOOL


C-1.eps
101 


C-2.eps
102 

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C-3.eps
103 

LETTER FROM LESLEE J. UNRUH, FOUNDER AND PRESIDENT, ABSTINENCE

CLEARINGHOUSE, ET AL. TO MEMBERS OF CONGRESS, DATED MARCH 10, 2008 

Æ 


D.eps