U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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

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

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

66–283 PDF 2011

S. HRG. 111–967 

REVIEWING THE NATIONAL BROADBAND PLAN 

HEARING 

BEFORE THE

COMMITTEE ON COMMERCE, 

SCIENCE, AND TRANSPORTATION 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

APRIL 14, 2010 

Printed for the use of the Committee on Commerce, Science, and Transportation 

( 

(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

JOHN D. ROCKEFELLER IV, West Virginia, Chairman 

DANIEL K. INOUYE, Hawaii 

JOHN F. KERRY, Massachusetts 

BYRON L. DORGAN, North Dakota 

BARBARA BOXER, California 

BILL NELSON, Florida 

MARIA CANTWELL, Washington 

FRANK R. LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas 

CLAIRE MCCASKILL, Missouri 

AMY KLOBUCHAR, Minnesota 

TOM UDALL, New Mexico 

MARK WARNER, Virginia 

MARK BEGICH, Alaska 

KAY BAILEY HUTCHISON, Texas, Ranking 

OLYMPIA J. SNOWE, Maine 

JOHN ENSIGN, Nevada 

JIM DEMINT, South Carolina 

JOHN THUNE, South Dakota 

ROGER F. WICKER, Mississippi 

GEORGE S. LEMIEUX, Florida 

JOHNNY ISAKSON, Georgia 

DAVID VITTER, Louisiana 

SAM BROWNBACK, Kansas 

MIKE JOHANNS, Nebraska 

ELLEN L. DONESKI, Staff Director 

JAMES REID, Deputy Staff Director 

BRUCE H. ANDREWS, General Counsel 

ANN BEGEMAN, Republican Staff Director 

BRIAN M. HENDRICKS, Republican General Counsel 

NICK ROSSI, Republican Chief Counsel 

(III) 

C O N T E N T S 

Page 

Hearing held on April 14, 2010 .............................................................................. 1 

Statement of Senator Rockefeller ........................................................................... 1 

Statement of Senator Hutchison ............................................................................ 3 

Prepared statement .......................................................................................... 5 

Statement of Senator Ensign .................................................................................. 7 

Statement of Senator Dorgan ................................................................................. 17 

Statement of Senator Johanns ............................................................................... 19 

Statement of Senator Isakson ................................................................................. 22 

Statement of Senator Begich .................................................................................. 23 

Statement of Senator Pryor .................................................................................... 25 

Statement of Senator McCaskill ............................................................................. 27 

Statement of Senator Klobuchar ............................................................................ 29 

Statement of Senator Snowe ................................................................................... 31 

Statement of Senator Nelson .................................................................................. 33 

Prepared statement .......................................................................................... 33 

Statement of Senator Cantwell .............................................................................. 35 

WITNESSES

Hon. Julius Genachowski, Chairman, Federal Communications Commission ... 9 

Prepared statement .......................................................................................... 11 

APPENDIX

Hon. John F. Kerry, U.S. Senator from Massachusetts, prepared statement .... 43 

Response to written questions submitted to Hon. Julius Genachowski by: 

Hon. John D. Rockefeller IV ............................................................................ 44 

Hon. Daniel K. Inouye ...................................................................................... 45 

Hon. John F. Kerry .......................................................................................... 49 

Hon. Byron L. Dorgan ...................................................................................... 56 

Hon. Maria Cantwell ........................................................................................ 58 

Hon. Frank R. Lautenberg ............................................................................... 62 

Hon. Mark Pryor ............................................................................................... 62 

Hon. Claire McCaskill ...................................................................................... 63 

Hon. Amy Klobuchar ........................................................................................ 64 

Hon. Tom Udall ................................................................................................ 65 

Hon. Mark Warner ........................................................................................... 68 

Hon. Mark Begich ............................................................................................. 73 

Hon. Olympia J. Snowe .................................................................................... 80 

Hon. John Ensign ............................................................................................. 87 

Hon. George S. LeMieux .................................................................................. 89 

Hon. David Vitter ............................................................................................. 91 

Hon. Sam Brownback ....................................................................................... 91 

(1) 

REVIEWING THE 

NATIONAL BROADBAND PLAN 

WEDNESDAY, APRIL 14, 2010 

U.S. SENATE, COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION, Washington, DC. 

The Committee met, pursuant to notice, at 2:34 p.m. in room 

SR–253, Russell Senate Office Building, Hon. John D. Rockefeller 

IV, Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV, 

U.S. SENATOR FROM WEST VIRGINIA 

The CHAIRMAN. This hearing will come to order. 

We welcome all of our guests, most particularly Julius 

Genachowski, who is Chairman of the Federal Communications 

Commission, which is a seminal job in Washington, D.C. 

Broadband is more than a technology. It is a platform for social 

and economic opportunity. With broadband networks, we can 

change the way we approach job creation, education, health care, 

entertainment, and other things. We can change the way we connect with our communities around the world. 

That is why I fought last year to make sure that the Recovery 

Act included programs designed to bring broadband to everybody in 

this country no matter who they are, and no matter where they 

live. It is an operating principal. 

The Recovery Act included two major initiatives: one, a grant 

program to spur the adoption and deployment of broadband; and 

two, a broadband plan for the Nation developed by the FCC. 

It is the broadband plan that we are here to discuss today. That 

is why we are here: who gets what when, for how long, all of that. 

The FCC released the National Broadband Plan last month, and 

like many of my colleagues, I joined the chorus singing praises for 

this effort. I think the document is a great start, but I have concerns, real concerns. 

Back in October when we held a hearing to discuss the 

broadband grant programs, I spoke about the prospects for the 

broadband plan. I said I wanted to see concrete action on the day 

that the plan is delivered because I believe we need real broadband 

solutions for real people. And we need them now. A mere menu of 

options for the FCC and the Congress with far-off time frames are, 

to this Senator, not good enough. I believed that in October and I 

believe it now. 

The report has over 200 recommendations, but it takes no action 

and suggests no action. It is long on vision, but it is short on tacVerDate Nov 24 2008 13:27 May 12, 2011 Jkt 066283 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\DOCS\66283.TXT SCOM1 PsN: JACKIE
2 

tics. So I am going to challenge the FCC. I am going to challenge 

the FCC to make the hard choices—for them as a commission to 

make the hard choices within, regardless of anything else going on, 

that will help bring broadband to every corner of our country. 

I mentioned to the Chairman outside that I have spent much of 

the last week at a mine disaster in a rural part of West Virginia. 

Amongst all of the horrible things that come out of an experience 

like that, one of the most disturbing was the fact that not one person there—not the rescue people trying to get inside, mine officials, 

miners’ families, and most importantly, trying to call people in Detroit or Akron or wherever they might be—could not do that. There 

is no cell phone service in that part of the State, and it is not even 

the most rural part of the State. That made me angry. 

Putting ideas on paper is just not enough. Just seeking comment 

on a slew of issues is not enough. To me, 10 years after 9/11, it 

is action that counts. Let me tell you why. 

In West Virginia, one in five households lacks access to 

broadband service. As this plan notes, only 71 percent of the State’s 

population has access to 3G wireless service. Every day that goes 

by, communities without broadband in West Virginia—and every 

other State in the country, because there is no State that does not 

have remote and rural parts to it—risks falling father behind. 

In this new century, universal broadband service is the promise 

of a fair shot at economic opportunity. It really is just exactly that. 

It is the promise of educational equality and affordable health care, 

and it opens the door for everyone to participate in our democratic 

dialogue, where people can talk with each other, and hopefully do 

so with dignity, no matter who you are or where you live. Income, 

geography, nothing has anything to do with this. 

Before I conclude my remarks, let me take a minute to mention 

last week’s disheartening decision by the Circuit Court of Appeals 

of the District of Columbia. No doubt, the messy situation that 

Comcast has so generously put us in adds to the complexity of your 

task, Mr. Chairman. No question about it. But for me, two things 

are clear. 

First, in the near term, I want the agency to use all of its existing authority. I do not care how many lawyers you have or do not 

have. I want you to exercise the authority that you do have. 

Comcast and others want to take that away. They love deregulation 

so much, they just cannot even express it. And there are a lot of 

other folks sitting out there who represent companies that feel the 

same way, but at least they did not take it to court. Now that it 

has been taken to court and now that it has been shot down, it 

puts the whole National Broadband Plan at risk, and the Chairman of the FCC ought to be pretty upset about that. I know I am. 

And second, in the long-term, if there is a need to rewrite the 

law to provide consumers and the FCC and industry with a new 

framework, I, as Chairman, will take that task on. That is the option where I think we are probably going to end. 

A lot of people sitting in this room represent companies who love 

deregulation and will do anything to get out of anything to do with 

government. We have had a history in the recent FCC of a lot of 

non-action on issues where action was needed. I just want to say, 

Mr. Chairman, to you that this is a committee, at least so long as 

3 

I am Chairman, that is here to protect people, to protect consumers. Most of the rest of the world can take care of itself. Consumers cannot. People without cell phone service cannot make that 

phone call to the mother of a deceased miner. They cannot do it. 

So that is the way I look at my responsibilities here, and I think 

a lot of us feel that way. 

So in closing, I appreciate the challenges before the FCC. I understand they are much more complicated now. Do not let that discourage you at all. Bend the curve if you have to. 

I look forward to the Chairman’s testimony about how he is 

going to move ahead and how we are all going to do it, in fact, together and bring the wonders of broadband to every community in 

this country. That has to be the end result. 

I call upon the distinguished Ranking Member from Texas. 

STATEMENT OF HON. KAY BAILEY HUTCHISON, 

U.S. SENATOR FROM TEXAS 

Senator HUTCHISON. Thank you, Mr. Chairman. 

Mr. Chairman, first, I want to extend my support for what I 

know is, for every one of us, a concern about that horrible disaster 

that happened in your State. And I know that your being there was 

very comforting for the victims’ families, but also I know that it 

was probably very difficult personally to meet with people who had 

experienced such a loss. So, each of us relate to what you have 

done and said, and we hope that there can be mine safety measures that will protect the people who work in those mines in the 

future. 

I do want to also address the broadband issue, which of course 

is the subject of this hearing, but there is no question that we are 

also going to discuss the recent court decision that is going to have 

a huge impact on, I think, Internet survivability for the future. 

Let me first say that there are some good parts of the broadband 

plan that the Commission has brought to us today, and certainly 

the series of recommendations on the reform of the Universal Service Fund is good because it provides support for low-income Americans to have access to telecommunications capabilities, and lowers 

the cost of building infrastructure in rural areas. 

I also think the focus that the Commission has on making sure 

that anchor institutions such as libraries, schools, universities, and 

hospitals have priority access to broadband is also very key. 

I believe, however, that there are concerns raised in this report. 

I will start with the effort to encourage broadcasters to voluntarily 

give back some of their spectrum. 

We have just completed a digital television transition. It was 

very time-consuming and expensive for broadcasters, but we have 

gotten through it. Some of the spectrum that broadcasters had was 

reclaimed from broadcasters. So asking them to give back more I 

think is probably unfair. 

But, what concerns me even more is the agency’s reference to involuntary measures that might require more from the broadcasters 

after they have already gone though a very expensive transition in 

compliance with the requirements of Congress. So, I know many of 

us will be monitoring the Commission’s activities in this area very 

4 

closely, and I hope that there will not be a heavy hand of government pushing involuntary give-back requirements. 

Further, I am disappointed that there are not enough incentives 

for private investment, such as the measures I suggested in a bill 

that I introduced last year. Such incentives would provide a truly 

voluntary, incentive for broadcasters and traditional communications companies to invest in underserved or rural areas. And I 

think that would allow these providers to be creative and innovative and have an incentive to do it. 

My bill also would provide a review of the large number of Federal programs that support broadband to see if we can streamline 

some of them, and that too was not adequately addressed in your 

report. So, I think taking some of the broadband that is available, 

using it in a better way, and providing investment incentives 

should be a part of any plan going forward in the future. 

The really big concern, however, that I want to address is the 

FCC’s growing regulatory posture. You have just heard the other 

side of the argument from the Chairman, and I am very concerned 

that the Commission is going to overstep its Congressional authority and by means of, ‘‘bending the curve,’’ perhaps to do it. 

I think that if you look at the history of the really soft regulatory 

touch that we have had on the Internet, that has been very positive. It has promoted innovation, and we have seen really a good 

consumer outcome, more consumer choices at a better price because 

we have opened the doors rather than having the heavy hand of 

regulation that would begin to restrict private companies that build 

and maintain a core communications network, and to be able to 

manage their own facilities. 

I am concerned that there are more and more calls for the heavy 

footprint even though we have seen the success of a light footprint, 

which is or has been the FCC’s policy starting in about 2002. 

Now we have the Comcast case, which I think Comcast certainly 

had the right to appeal that the FCC did not have the Congressional authority in the law to say that they could not manage their 

own networks. And the court ruled in Comcast’s favor. 

Now we hear that there is an effort to go into the broadband 

area and really go back to the old kind of regulation that I think 

is going to stifle the evolution that we have seen in the Internet. 

Companies that did not exist 10 years ago are now titans of the 

industry, and I think that we have seen the good effects of that soft 

touch in promoting innovation and growth. 

The proclamations last week that the court decision left the 

broadband market without any consumer protection capability ignore the fact that the most robust consumer protection agency in 

this country, the Federal Trade Commission, has enforcement jurisdiction. Ironically, this jurisdiction was conveyed to the FTC when 

the FCC removed the common carrier regime from these technologies and would be eliminated if the FCC reverses that decision 

and I think, thereby, would harm the consumers by reducing their 

available protections. 

In my judgment, if the FCC were to take the action that Chairman Genachowski and his colleagues appear to be considering, reclassifying broadband as a common carrier service, and if it does 

so without a directive from Congress and a thorough analysis of 

5 

the facts and the potential consequences to investment, the legitimacy of the agency would be seriously compromised. 

I hope, and I am asking you today, to step back and consider the 

consequences of such a decision and whether there are alternatives 

where we can work together to clarify the authority of the FCC 

while preserving the environment that encourages investment and 

creativity, which is the unique quality of American technology. I 

hope that we can find the common ground. 

As the Chairman has said, he is willing to dive into this if he 

believes that you do not have the statutory authority or are not 

able to get it. This will be a vigorous debate, Mr. Chairman, and 

I look forward to having it. I hope that we can do something in a 

way that will achieve the goal that I think all of us have, which 

is more choices at a better price for consumers, and also make sure 

that we do not stifle innovation. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Hutchison follows:] 

PREPARED STATEMENT BY KAY BAILEY HUTCHISON, U.S. SENATOR FROM TEXAS

Mr. Chairman, thank you for holding this important and timely hearing on the 

Federal Communications Commission’s recently completed National Broadband 

Plan. In light of the decision by the U.S. Court of Appeals for the D.C. Circuit last 

week, I would have preferred to have all five of the FCC Commissioners appear before us, but I do welcome Chairman Genachowski back today. 

At the outset, let me complement the Chairman, his staff, and the dozens of volunteers that worked for a year to conduct hearings, seek robust public input, and 

to analyze an extraordinary amount of information. 

We will likely spend time today discussing the court’s decision, its impact on the 

broadband plan, and the idea of network neutrality regulations. But, before turning 

to those matters, I want to note that there are a number of positive provisions in 

the plan that we can work together on in a bipartisan way, here and at the Commission. 

For example, the Commission has made a series of recommendations to reform 

the Universal Service Fund that provides support for low income Americans to access telecommunication capabilities and provides support to lower the cost of building infrastructure in rural areas. Without reform, the program is not sustainable 

in this emerging communications environment. 

I am also pleased that the Commission focuses heavily on making sure that anchor institutions in our communities like schools, universities, hospitals, and libraries have access to very robust broadband services. 

However, I also have concerns with some of the plans’ recommendations. 

While I commend the Commission for focusing on the need that we have to identify additional spectrum, I have concerns with the Commission’s focus on spectrum 

used by broadcasters to provide free over-the-air television to millions of households. 

We just completed the digital television transition where some spectrum was already reclaimed from broadcasters. Although the immediate focus of the Commission will be on ‘‘voluntary’’ give backs of spectrum by broadcasters, the agency has 

reserved the right to move to ‘‘involuntary’’ measures. This is extraordinarily disturbing, and I will be monitoring the Commission’s activities in this area very closely. 

Further, I am disappointed that the plan does not offer ideas to encourage direct 

private investment in new infrastructure in unserved areas. 

Last year I introduced the Connecting America Act, which would provide investment tax credits to providers that undertake investment in unserved areas or that 

make substantial commitments to upgrade their existing networks, regardless of the 

technology they use. My bill would also provide a review of the large number of Federal programs that support broadband to determine if we can streamline them and 

make the money work more effectively, or provide a single application point. 

I hope that Chairman Genachowski and his team will take another look at ways 

to stimulate direct private investment in our unserved areas. It is clear that we do 

not have the public funds to tackle this problem. 

The really big concerns with the plan and the FCC’s growing regulatory posture: 

6 

While I have some concerns about the plan itself, I am much more concerned by 

the aggressive regulatory posture being conveyed by the Commission. 

Investment began to truly flourish in broadband technology when the Commission 

made a decision in 2002 to remove advanced communications technologies from the 

suffocating embrace of common carrier regulation, a nineteenth century way of looking at and regulating commercial activities. In the years that followed, companies 

invested tens of billions of dollars in infrastructure and we witnessed a continuing 

convergence between technologies and more choices for consumers. 

Starting just a few years after the FCC adopted this light touch regulatory approach, however, we began to hear calls for a larger regulatory footprint that restricts how private companies that build and maintain the core communications networks manage their facilities. We first heard of ‘‘net neutrality’’ back in 2006, when 

the issue arose during this committee’s last effort at comprehensive reform. 

We rejected calls to intervene into the Internet arena then, and have consistently 

decided not to pass legislation. Yet, the calls to regulate this technology area persist! 

In 2007, those calls resulted in a decision by the FCC to cite Comcast for a violation 

of the agency’s open Internet principles, the first sign that the Commission would 

actively seek to impose restrictions on how companies manage their networks. 

While Comcast challenged the Commission’s authority to regulate broadband in 

court, Chairman Genachowski started a rulemaking to adopt the open Internet principles set down 5 years ago as rules. I cautioned him last Fall that the case for regulation has not been made, and new rules will likely result in uncertainty and threaten investment. 

Mr. Chairman, that’s the history of the ‘‘net neutrality’’ discussion, which has renewed focus because last week by the Court of Appeals for the D.C. Circuit ruled 

against the Commission and held that the authority cited by the FCC to justify its 

holding against Comcast was not sufficient to justify the Commission’s actions in 

that case. 

In the wake of the court’s decision, the regulatory chorus has grown louder still. 

Claims have been made that the court decision leaves consumers without protections and the agency with no authority to implement the national broadband plan, 

or to promote an open Internet. 

The remedy suggested by a number of parties is to risk the vitality of the 

broadband market by reemploying the outdated common carrier regulatory framework that the Commission reasoned just 8 years ago would stifle the evolution of 

the Internet. 

This rather remarkable suggestion served as a reminder that throughout the entire net neutrality debate the two most important things, reason and facts, have 

been in short supply. If we are going to have a discussion going forward about the 

proper framework for oversight of the broadband market, both must guide our way. 

I begin with the view that the Internet as an open platform for innovation is a 

reality, not an aspiration. Companies that did not exist 10 years ago have emerged 

as titans of industry based almost entirely on the Internet as a means to reach consumers. 

The argument that we need to promote an open Internet seems to both presume 

openness is threatened and that existing authorities and protections are unable to 

address that threat. Neither appears to be objectively true, and regulators have 

failed to demonstrate that there is an exigency requiring additional government involvement. 

I asked Chairman Genachowski last October to provide the Committee with the 

number of alleged violations of the Commission’s ‘‘open Internet’’ principles under 

investigation, or that were the basis of prior Commission enforcement action, in part 

to inform our discussion about whether there is an exigency. Regrettably, the letter 

I received back contained none of the information I asked for. 

The net neutrality discussion has also lacked analysis of existing authorities and 

protections to determine the role they may play in preserving the openness of the 

Internet. For example, are the Nation’s anti-trust laws and the agencies that enforce 

them unable to address the possibility that a company that owns both content and 

the means to distribute it may favor its own content over that of a competition? 

And the proclamations last week that the court’s decision left the broadband market without any consumer protection capability completely ignore the fact that the 

most robust consumer protection agency in this country, the Federal Trade Commission (FTC), has enforcement jurisdiction. Ironically, this jurisdiction was actually 

conveyed to the FTC when the FCC removed the common carrier regime from these 

technologies, and would be eliminated if the FCC reverses that decision, actually 

harming consumers by reducing their available protections. 

7 

We have had this discussion now for almost 4 years without facts and reason. 

This technology marketplace is far too important to the Nation’s commercial health 

to be subjected to uninformed debate or reflexive regulatory actions. 

In my judgment, if the FCC were to take the action Chairman Genachowski and 

his colleagues appear to be considering, reclassifying broadband as a common carrier service, and if it does so without a directive from Congress and a thorough analysis of the facts and the potential consequences to investment, the legitimacy of the 

agency would be seriously compromised. 

I hope that we can take a step back to consider the consequences of such a decision and whether there are alternatives we can work together on to clarify the authority of the FCC while preserving an environment that encourages investment. I 

am confident we can find common ground, but that will not happen if the FCC takes 

this action. 

Mr. Chairman, again, thank you for holding this important hearing. I am sure it 

will not be our last on this subject. I look forward to Chairman Genachowski’s testimony. 

The CHAIRMAN. Thank you very much, Senator. 

And now Senator Ensign? 

STATEMENT OF HON. JOHN ENSIGN, 

U.S. SENATOR FROM NEVADA 

Senator ENSIGN. Thank you, Mr. Chairman, and also thank you, 

Chairman Genachowski, for being here today. 

The plan that you have put forth is an ambitious, thought-provoking document. It aims high and does not side-step the difficult 

politically charged issues. The dedication and tireless effort of the 

FCC staff is on display throughout the plan’s 376 pages. Chairman 

Genachowski, you and your staff are to be commended for all of 

their hard work. 

Despite all that effort, however, I am somewhat disappointed 

with how the plan has turned out. The plan begins by saying the 

Government should play a limited role in the broadband ecosystem, 

but then it follows up with dozens and dozens of recommendations 

to do exactly the opposite. As I learn more about the National 

Broadband Plan, I see a lot more Federal spending, a lot more FCC 

regulation, and a lot more Government involvement in broadband. 

There are billions of dollars for broadband subsidies, a brand new 

digital literacy corps, mandates for cable TV boxes and broadband 

digital labels, and the suggestion that heavy-handed regulations 

like net neutrality and unbundling are needed. 

What I do not see are many recommendations to get the Government out of the way of one of our Nation’s most innovative, successful, and competitive industries. The number of Americans who 

have broadband at home has grown from 8 million in 2000, to nearly 200 million last year. Even in the worst of times, the private sector and Wall Street continue to put money into deploying and improving our country’s broadband networks. By the FCC’s own data, 

broadband providers have invested well over $100 billion in their 

own networks over the last 2 years, in spite of the recession. I simply do not see any signs of a gross market failure that might warrant the Government spending tens of billions of dollars to subsidize broadband, or using a heavier hand to regulate the marketplace. 

And I am not the only one who can see the FCC’s justification 

for all this intervention. The Washington Post editorial board 

8 

agrees with me, saying that, quote, ‘‘such an assessment is premature at best.’’ 

Before it makes a single recommendation, the National 

Broadband Plan admits that ‘‘technology costs and consumer preferences are changing too quickly in a dynamic part of the economy 

to make accurate predictions.’’ That is a direct quote. And I completely agree with it. But then the plan spends the next 300-plus 

pages making predictions about technology costs and consumer 

preferences in order to justify its 200 or more recommendations. 

While I do have concerns with many of the recommendations in 

the plan, I do not want to give the impression that there is nothing 

of value in the report. In particular, I applaud that the plan places 

so much importance on finding more spectrum for wireless 

broadband. Congress and the FCC need to develop a comprehensive, long-term spectrum policy, and the National Broadband Plan 

helps to start that critical dialogue. 

I look forward to working with my colleagues and with the FCC 

in a bipartisan manner to engage all spectrum stakeholders to ensure America keeps pace with the coming mobile revolution. 

The plan would also stop the Universal Service Fund from subsidizing multiple competitors, would reform intercarrier compensation, would increase spectrum flexibility, and has some interesting 

ideas on maximizing infrastructure utilization. I look forward to 

learning more about these recommendations and many others contained in the National Broadband Plan during this hearing and in 

the coming weeks and months. 

And just one last comment on the Comcast v. the FCC decision. 

This clearly has had a major impact on the future of our country’s 

broadband policy. The D.C. Circuit correctly, in my view, upheld 

the view that the FCC does not have unfettered power to regulate 

the Internet, and I hope that the Commission will continue its successful light-touch approach, as was described by my colleague, 

Senator Hutchison, to the Internet and will now abandon what I 

believe was a misguided pursuit of net neutrality regulations. 

I look forward to hearing from Chairman Genachowski on how 

he thinks the decision will affect other parts of the National 

Broadband plan. 

And one last comment to you, Chairman Genachowski, is that 

Nevada is the most urbanized State in the country, and what that 

means is we have the most distance in our rural areas and probably, even though it might not affect a huge population, we have 

a lot of people out there that have tremendous places that do not 

have coverage. Having said that, I do believe that the private sector is more the answer than the Government in trying to reach 

those last parts of our population who are currently underserved. 

I think through the right incentives, that the private sector will 

more than meet the challenge. 

I thank you, Chairman Rockefeller, for holding this hearing. 

The CHAIRMAN. Thank you, Senator. 

Mr. Chairman? 

9 

STATEMENT OF HON. JULIUS GENACHOWSKI, CHAIRMAN, 

FEDERAL COMMUNICATIONS COMMISSION 

Mr. GENACHOWSKI. Chairman Rockefeller, Ranking Member 

Hutchison, members of the Committee, thank you for the opportunity to testify today on the National Broadband Plan. 

The plan, as you know, stems from a Congressional directive that 

the FCC prepare a national broadband plan that, quote, ‘‘shall seek 

to ensure that all people of the United States have access to 

broadband capability,’’ include a strategy for affordability and 

adoption of broadband communications, and also recommend ways 

that broadband can be harnessed to tackle important national purposes. 

The plan addresses these Congressional requirements in a way 

that reflects a strong conviction that, as our Nation rebuilds its 

economy, broadband communications can and must serve as a foundation for long-term economic growth, ongoing investment, enduring job creation, and broad opportunity. 

As a Nation, we have work to do to seize the vast opportunities 

of broadband. The status quo is not good enough to maintain our 

global competitiveness in this rapidly changing world. Millions of 

Americans continue to live in areas that have no broadband at all. 

Studies place the U.S. as low as 18th when it comes to important 

attributes of broadband adoption and speeds. Our records show 

that roughly 65 percent adoption in the U.S. compares to much 

higher percentages, over 90 percent, in other countries in Asia and 

Western Europe. 

One study ranks the U.S. 6th out of 40 industrial countries in 

innovative competitiveness and 40th out of the 40 countries surveyed in the rate of change of innovative capacity. That is unacceptable. 

Second, certain communities within the U.S. are lagging: rural 

Americans, low-income Americans, minorities, seniors, tribal communities, and Americans with disabilities. For these groups, adoption rates are much lower than 65 percent, which is itself not good 

enough. 

Altogether, 93 million Americans are not connected to broadband 

at home, including 13 million children. And 14 million Americans 

do not have access to broadband where they live, even if they want 

it. Again, unacceptable. 

Our FCC plan is a plan for action, a plan that is as strong as 

it is non-ideological and nonpartisan. The plan sets ambitious goals 

for the country, including access for every American to robust and 

affordable broadband service and to the skills to subscribe; 

broadband speed of at least 1 gigabit to at least one library, school, 

or other public anchor institution in every community in the country; affordable 100 megabits-per-second to 100 million households; 

world-leading mobile innovation with the fastest and most extensive wireless networks of any nation; access for every first responder to a nationwide interoperable broadband public safety network. 

In addition to these and other goals, the plan lays out a robust, 

sensible, and efficient action plan for achieving them. It proposes 

a once-in-a-generation transformation of the Universal Service 

Fund from yesterday’s technology to tomorrow’s. It proposes recovVerDate Nov 24 2008 13:27 May 12, 2011 Jkt 066283 PO 00000 Frm 00013 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\66283.TXT SCOM1 PsN: JACKIE
10 

ering and unleashing licensed and unlicensed spectrum so that we 

can lead the world in mobile. It proposes ways to cut red tape, 

lower the costs of private investment, and accelerate deployment of 

wired and wireless networks. It proposes initiatives to foster vibrant and competitive free markets and empower consumers. It 

proposes a road map to tackle vital inclusion challenges so that everyone everywhere can enjoy the benefits of broadband. And it proposes ways in which broadband can be deployed to help solve many 

of our Nation’s major challenges, including education, health care, 

energy, and public safety. 

On public safety, the plan lays out an action plan designed to finally deliver on the recommendations of the 9/11 Commission that 

we have interoperable communications for our first responders, and 

I am pleased that the Chair and Vice Chair of the 9/11 Commission, as well as other bipartisan members, have endorsed the plan 

that the National Broadband Plan lays out. 

Against this backdrop, last week we announced a broadband action plan to implement the broadband plan. I would like to note 

that we started to act even before we did the plan. We adopted 

rules several months ago to give more flexibility to schools, to have 

schools under the E-Rate program be available for broadband, and 

we adopted rules to lower the cost of investment by speeding up 

tower siting for mobile broadband. So we have been acting already. 

In the plan we released last week, which was an unprecedented 

step in both agency planning and transparency, we propose a more 

than robust schedule of issues to consider and actions to take in 

the period ahead. 

Notwithstanding the decision last week in the Comcast case, I 

am confident that the Commission has the authority it needs to implement the broadband plan. Whatever flaws may have existed in 

the specific actions and reasoning before the court in that case, I 

believe that the Communications Act, as amended in 1996, enables 

the Commission to, for example, reform Universal Service to connect everyone to broadband communications, including in rural 

areas and Native American communities; take steps to ensure that 

we lead the world in mobile; promote competition and innovation 

on broadband networks; protect and empower all consumers of 

broadband communications; support robust use of broadband by 

small businesses to drive business expansion and job creation; and 

safeguard public safety and homeland security. 

I believe it is vitally important that the Commission act on the 

broadband plan’s road map to protect America’s global competitiveness and help deliver the extraordinary benefits of broadband to all 

Americans. I believe this essential mission is completely consistent 

with the Communications Act, and I can assure the Committee 

that our actions will be rooted in sound legal foundation designed 

to promote investment, innovation, competition, and the interests 

of consumers. 

I look forward to your questions and thank you. 

[The prepared statement of Mr. Genachowski follows:] 

11 

PREPARED STATEMENT OF HON. JULIUS GENACHOWSKI, CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION

Chairman Rockefeller, Ranking Member Hutchison, members of the Committee, 

thank you for the opportunity to testify today on the National Broadband Plan. 

The Plan, as you know, stems from a Congressional directive that the FCC prepare a ‘‘national broadband plan’’ that ‘‘shall seek to ensure that all people of the 

United States have access to broadband capability,’’ include a strategy for affordability and adoption of broadband communications, and also recommend ways that 

broadband can be harnessed to tackle important ‘‘national purposes.’’ 

The Plan addresses each aspect of these Congressional requirements in a way 

that reflects a strong conviction that, as our Nation rebuilds its economy, broadband 

communications can and must serve as a foundation for long-term economic growth, 

ongoing investment, and enduring job creation. 

Broadband is the indispensable infrastructure of the digital age—the 21st century 

equivalent of what canals, railroads, highways, the telephone, and electricity were 

for previous generations. 

Multiple studies tell us the same thing—even modest increases in broadband 

adoption can yield hundreds of thousands of new jobs. 

Broadband communications increase the velocity of information, and the velocity 

of commerce. 

A broad array of people throughout the ecosystem—investors, entrepreneurs, business leaders, labor leaders, consumer advocates and others—agree that if the United 

States has world-leading broadband networks, we will see a powerful new wave of 

innovation, and business and job creation here at home. 

The title of one recent op-ed written by the CEO of a major American technology 

company said it well: ‘‘Fix the bridges, but don’t forget broadband.’’ 

We have work to do to seize the opportunities of broadband. The status quo is 

not good enough to maintain our global competitiveness in this rapidly changing 

world. 

First, studies place the U.S. as low as 18th when it comes to important attributes 

of broadband adoption and speeds. Our record shows roughly 65 percent adoption 

in the U.S. compared to significantly higher adoption percentages—up to 90 percent 

or more—for some countries in Asia and Western Europe. 

One study ranks the U.S. 6th out of 40 industrial countries in innovative competitiveness—and 40th out of the 40 in ‘‘the rate of change in innovative capacity.’’ The 

first of those rankings is enough of a concern. That last-place statistic is the canary 

in the coal mine. 

It shows that we will not succeed by standing still, or even moving at our current 

pace. 

Second, certain communities within the U.S. are lagging—rural Americans, lowincome Americans, minorities, seniors, Tribal communities, and Americans with disabilities. For these groups, adoption rates are much lower than 65 percent. 

Altogether, 93 million Americans are not connected to broadband at home, including 13 million children. And 14 million Americans do not have access to broadband 

where they live, even if they want it. 

Finally, the work of the FCC staff on the broadband plan showed that the costs 

of digital exclusion grow higher every day. Several years ago, not having broadband 

could have been thought by some to simply be an inconvenience. Now, broadband 

access and digital literacy are essential to participation in our economy and our democracy. 

• For example, more and more companies are posting job openings exclusively online. If someone is unemployed and does not have access to broadband, opportunities are passing them by. 

• Children are increasingly given homework and research assignments that require online access Studies show that combining in-person instruction with online learning can significantly improve educational results. Children are at a 

disadvantage if they can’t connect to broadband at home, or are in schools with 

inadequate broadband connections. 

As I believe Congress anticipated when it directed the FCC to prepare a National 

Broadband Plan, the plan that the FCC has submitted is a plan for action, and a 

call to action, that these times demand. 

The staff has produced a plan that is as strong as it is non-ideological and nonpartisan. It was the outcome of an extraordinary process that has been unprecedented in many respects: unprecedented in its openness and transparency; in the 

breadth and depth of public participation; in its professionalism; and in its focus on 

data and its analytical rigor. 

12 

The Plan sets ambitious goals for the country, including: 

• Access for every American to robust and affordable broadband service and to 

the skills to subscribe. 

• Broadband speed of at least 1 gigabit to at least one library, school, or other 

public anchor institution in every community in the country. 

• Affordable 100 megabits-per-second to 100 million households. 

• World leading mobile innovation, with the fastest and most extensive wireless 

networks of any nation. 

• Access for every first-responder to a nationwide, interoperable broadband public 

safety network. 

In addition to these and other goals, the Plan lays out a robust, sensible and efficient roadmap for achieving them: 

• It proposes a once-in-a-generation transformation of the Universal Service Fund 

from yesterday’s technology to tomorrow’s. 

• It proposes recovering and unleashing licensed and unlicensed spectrum so that 

we can lead the world in mobile. 

• It proposes ways to cut red tape, lower the cost of private investment, and accelerate deployment of wired and wireless networks. 

• It proposes initiatives to foster vibrant and competitive free markets and empower consumers. 

• It proposes a roadmap to tackle vital inclusion challenges, so that everyone, everywhere can enjoy the benefits of broadband. 

• And it proposes ways in which broadband can be deployed to help solve many 

of our Nation’s major challenges: including education, health care, energy, and 

public safety. 

On public safety, America’s first responders are on the front lines every day protecting our families and communities. The National Broadband Plan lays out a 

multi-part game plan designed to finally deliver on the recommendation of the 

9/11 Commission that we have interoperable communications for our first responders. 

I am pleased that several bipartisan members of the 9/11 Commission—including 

Chair and Vice Chair, Thomas Kean and Lee Hamilton—have praised the Plan’s 

public safety provisions as ‘‘a clear roadmap for finally reaching th[e] goal’’ of interoperability. 

I am similarly heartened that a broad array of companies—including companies 

that often disagree on key communications policies—as well as non-profits, consumer and public interest groups have voiced strong support for the Plan and for 

moving expeditiously toward implementation. 

If I may pull out one quote, from the CEO of a major technology company in Business Week: 

‘‘The vital communications systems that make our economy work and serve as 

a platform for business innovation and social interactions are second-class. 

Sadly, many of us have accepted that. It’s time to overcome our broadband complacency. The national broadband plan sent to Congress by the Federal Communications Commission is critical to our economic and national security. Without 

a plan, we simply cannot compete.’’ 

I believe the Plan will deliver extremely significant economic and fiscal benefits 

over time, as broadband is harnessed for job creation and new investment. 

And cognizant of the challenging economic times we now confront, the Plan is fiscally prudent. The Plan recognizes the overwhelming primacy of private investment 

in achieving our national broadband goals. And it identifies opportunities for new 

spectrum auctions that could generate billions in revenue, exceeding any funding or 

investments that the Plan suggests for Congressional consideration. 

As we move forward, working with this Committee and all stakeholders, the same 

principles that guided the creation of this plan will guide its implementation, including: 

• Processes that are open, participatory, fact-based, and analytically rigorous. 

• A recognition of the transformative power of high-speed Internet. 

• The essential role of private investment in extending broadband networks 

across our Nation. 

13 

• The profound importance of vibrant competition to bring consumers the best 

services at the best prices, and to spur world-leading innovation and ongoing 

investment. 

• The necessity of tackling vital inclusion challenges and promoting universal digital literacy, so that everyone, everywhere can enjoy the benefits of a broadband 

Internet that is open, safe, and trusted. 

• And a recognition that government has a crucial, but restrained, role to play, 

focusing with laser-like precision on efficient and effective solutions. 

The important point is to act on the challenges and opportunities of broadband. 

Other countries are doing so; they are developing infrastructure to attract technology innovators. A recent New York Times article reported that, for the first time, 

the Chief Technology Officer of a major American tech company, has moved to 

China. In a report from China, the newspaper wrote: ‘‘Companies—and their engineers—are being drawn here more and more as China develops a high-tech economy 

that increasingly competes directly with the United States.’’ 

Against this backdrop, last week we started the essential transition from planning 

to implementation, releasing a detailed agenda laying out a schedule for Commission proceedings and actions over the next year, driving forward on the broadband 

plan. This is an unprecedented step in both planning and transparency. It reflects 

both the importance as well as the magnitude of the workload ahead. 

Notwithstanding the decision last week in the Comcast case, I am confident that 

the Commission has the authority it needs to implement the broadband plan. Whatever flaws may have existed in the specific actions and reasoning before the court 

in that case, I believe that the Communications Act—as amended in 1996—enables 

the Commission to, for example, reform universal service to connect everyone to 

broadband communications, including in rural areas and Native American communities; help connect schools and rural health clinics to broadband; take steps to ensure that we lead the world in mobile; promote competition; support robust use of 

broadband by small businesses to drive productivity, growth, job creation and ongoing innovation; protect and empower all consumers of broadband communications, 

including thorough transparency and disclosure to help make the market work; safeguard consumer privacy; work to increase broadband adoption in all communities 

and ensure fair access for people with disabilities; help protect broadband communications networks against cyber attack and other disasters; and ensure that all 

broadband users can reach 911 in an emergency. 

I believe it is vitally important that the Commission act on the broadband plan’s 

roadmap to protect America’s global competitiveness and help deliver the extraordinary benefits of broadband to all Americans. I believe this essential mission is 

completely consistent with the Communications Act, and I can assure the Committee that our actions will be rooted in a sound legal foundation, designed to promote investment, innovation, competition, and consumer interests. 

Thank you. 

The CHAIRMAN. Thank you very much, Mr. Chairman. 

I will start and be followed, of course, by Senator Hutchison, 

then Senator Dorgan, then Senator Johanns. Then we will go on 

from there in order of arrival. 

As I noted at the outset, Mr. Chairman, the National Broadband 

Plan has more than 200 recommendations, and it is roughly 375 

pages. It has recommendations for the Department of Defense, recommendations for the Department of Transportation, Department 

of Education, Department of Labor, Department of Justice, Federal 

Trade Commission, National Institutes of Standards and Technology, National Academy of Sciences, Food and Drug Administration, and a slew of others. In fact, it says by my count—that I got 

help on—‘‘Congress should’’ 139 times. 

Now, this just simply begs the question. In an effort of this magnitude, what are your priorities for the FCC coming out of this 

plan? 

Mr. GENACHOWSKI. Well, the priorities, I think, are clearly articulated in the plan. One is reform and update the Universal Service Fund so that broadband communications can reach every AmerVerDate Nov 24 2008 13:27 May 12, 2011 Jkt 066283 PO 00000 Frm 00017 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\66283.TXT SCOM1 PsN: JACKIE
14 

ican, including rural areas, which responds to the issues you made 

in your opening statement with respect to both wired and wireless 

broadband; second, making sure that we lead the world in mobile 

by having enough spectrum available to take advantage of the huge 

opportunity for investment, innovation, and job creation that we 

have; third, making sure that we deliver on the 9/11 Commission 

recommendations with respect to a public safety network and that 

our communications networks, our data networks are protected 

against attack; fourth, that we promote vibrant competition on our 

broadband communications networks; and fifth, that we protect 

and empower consumers with respect to broadband communications wherever they live. 

The CHAIRMAN. What I am interested in is actual decisions and 

plans, things that are ready to go. As I indicated at the hearing we 

had some time ago on this, I wanted, when the plan came to us, 

that—you know, we would just be off and running. I do not get that 

impression from this. What I want to see is real changes. I want 

to see that happen for real consumers wherever they live. 

On the FCC’s legal authority, vis-a ́-vis Comcast, as you acknowledge in your testimony, last week the District of Columbia issued 

a decision that creates new complexities for you, for all of us. To 

better understand this, let us go back to the beginning. The case 

before the court began with Comcast customers discovering that 

the company was interfering with their use of certain Internet applications. The FCC then found that Comcast had ‘‘significantly impeded consumers’ ability to access Internet content and applications of their choice.’’ 

So my question is simple. As a result of the court decision, what 

happens if Comcast engages in the same practices today? 

Mr. GENACHOWSKI. Well, Mr. Chairman, the first thing that the 

case reminds us is that requirements to preserve a free and open 

Internet have been in place for quite some time. They were adopted 

by a bipartisan commission several years ago before I got there. 

What we have been seeking to do at the FCC is make sure that 

there is a sound legal foundation under it. There were some process 

issues with that decision, and I think we see the consequences of 

that. We need in my opinion to make sure that the free and open 

architecture of the Internet, the understanding that participants in 

broadband have that blocking, degrading, taking advantage of consumers is unacceptable, that we continue that. These are policies 

that have promoted not only consumer interests but investment, innovation, competition, and I think it is essential that the freedom, 

the openness of the Internet for consumers, for speakers, for entrepreneurs continue. 

The CHAIRMAN. That is impressive, almost elegiac. Where are the 

results? 

Mr. GENACHOWSKI. With respect to—— 

The CHAIRMAN. When are we going to see things happening? It 

is a wonderful report. It has all kinds of wonderful visions of life. 

But I do not see how it helps any of my people in West Virginia 

except as a vision, as a purpose. I do not see action plans. 

Mr. GENACHOWSKI. Mr. Chairman, if I could, we released last 

week something that has been unprecedented for the Commission, 

a detailed plan for over 50 real actions by the Commission that will 

15 

help ordinary Americans. And if I may, even before we released the 

broadband plan, when we found good ideas that we could act on, 

we took them. And so we identified a problem with the E-Rate program where schools could not use their facilities to support people 

in the community. And rather than waiting for the broadband plan 

to be released, we said this is an idea that is ripe. Let us do it. 

In fact, before we issued the broadband plan, we took that action 

and schools are now able to use E-Rate funding for broader purposes to help their communities. 

Similarly with respect to mobile, we identified, over the course 

of the plan, obstacles to mobile companies in some cases building 

out their networks to rural America, and we adopted rules that are 

speeding up the towers that are necessary for mobile broadband to 

roll out. 

So we have already taken actions and the staff of the Commission is hard at work every day to continue to act for consumers, 

to promote investment, to promote innovation, and to extend the 

opportunities of broadband to all Americans. 

The CHAIRMAN. Sounds good, Mr. Chairman. 

My time is up. 

Senator Hutchison? 

Senator HUTCHISON. When you say that you are adopting so 

many different ways to improve the capability for more consumers 

to have Internet access or broadband, why did you not also include 

a recommendation to have an incentive for a private company to 

make these types of investments? Would that not vastly expand the 

opportunities for more service to consumers and could it not be one 

of the many recommendations that you made? 

Mr. GENACHOWSKI. Senator, if I may. The plan contains a number of recommendations to incentivize greater investment. It takes 

a look at right-of-way issues, other obstacles to investment, lowering the costs of investment to incentivize faster investment, 

greater investment. Broader deployment is a core objective of the 

plan, and there are a number of recommendations in the plan designed to do that. I hope we caught them all. If there are any that 

we missed, we would be more than happy to work with you because 

there is no question that private investment will drive the buildout and deployment of broadband networks, that incentivizing that, 

making sure there is competition, is essential. 

Senator HUTCHISON. So you would look at another type, which 

would be an incentive for private companies to make the investment so that the Government would not be the only source? 

Mr. GENACHOWSKI. We would be happy to work with you on that. 

Senator HUTCHISON. Thank you. 

On the issue of the net neutrality rulemaking, I had sent you a 

letter a while back saying, is there really basically a need for this? 

Are there a lot of complaints? Is there something in the records 

that shows there is a real need to start being heavier in the regulatory area? 

My question is, has the Commission conducted an economic analysis that would indicate that there is a need for more regulation 

when the sort of lighter regulatory hand has produced so many 

good results in the last 10 years? 

16 

Mr. GENACHOWSKI. Senator, a bipartisan commission several 

years ago adopted open Internet rules, and since then I think there 

has been large compliance with them. I agree in a light-touch approach, but I think the Commission had already concluded that 

these kinds of steps are essential. We launched a proceeding that 

was designed to address a number of the procedural issues that existed, clarified to bring greater certainty and predictability to this 

area, and to make sure that we preserve the freedom and openness 

of the Internet for competitors, for entrepreneurs, for innovators, 

for speakers. I am confident that we can do that, and I am confident that we can do that in a way that is consistent with a lighttouch approach to adopting rules in this area. 

Senator HUTCHISON. I would agree with you that the Commission policy that was bipartisan was to open it and basically to have 

the light touch. But, I think the Comcast decision by the court 

should be at least a warning flag to the FCC that it is a heavy 

hand and the Commission does not have the authority from Congress to actually use it and that it overstepped its bounds. I would 

just ask maybe what is your interpretation of the court opinion if 

you differ from mine? 

Mr. GENACHOWSKI. Senator, my focus has been on policy principles in this area like promoting investment, innovation; promoting competition; taking seriously the needs of consumers every 

day, and we have developed through the broadband plan and otherwise a set of concrete action steps to get there; reforming Universal 

Service; making sure that we unleash mobile, promoting competition; and promoting the interests of small businesses, the engine of 

job creation and economic growth in our economy. There are a 

whole series of areas that we have been working very hard to identify the policy steps that will promote the global competitiveness of 

the United States and the interests of all consumers. That is what 

I am focused on. 

We inherited a landscape that had more unpredictability and instability in it than I would have liked. The court decision reminds 

us of that. We have an obligation to make sure that as we protect 

and empower consumers, as we promote innovation, as we promote 

investment, that our decisions are on a solid legal foundation. 

There are lawyers, obviously, hard at work on this. I am convinced 

that we can find a way consistent with the light touch in this area, 

but consistent with being very serious about promoting innovation, 

protecting consumers, and promoting investment, that we can get 

to a place that works for the country and that promotes the global 

competitiveness of the United States. 

Senator HUTCHISON. Well, I will just say that many of the commentators are very concerned that all of this process is going to 

mean we are going to spend a lot of money on lawyers, and not as 

much on innovation, and it is going to cause more confusion and 

instability in investment than what I think you are stating. 

And I agree. The goal is to have more investment, more openness, more competition, and more availability for consumers. So, I 

just hope you will keep the light touch as much a part of your 

thinking as all of the process and, by trying to define so much, 

maybe having more money spent on lawyers than innovation. 

Thank you. 

17 

The CHAIRMAN. Thank you, Senator Hutchison. 

Senator Dorgan? 

STATEMENT OF HON. BYRON L. DORGAN, 

U.S. SENATOR FROM NORTH DAKOTA 

Senator DORGAN. Mr. Chairman, thank you very much. 

Mr. Genachowski, first of all, on the broadband plan, I want you 

to make things happen and make good things happen. So I support 

what you are trying to do. I know the devil is in the details, but 

I want you to implement an aggressive broadband plan. 

But I want to talk about this issue of net neutrality, or what I 

call Internet freedom. I am not a big fan of the light touch, as a 

matter of fact. I do not want over-regulation for sure. But you 

know, a decade ago we had regulators come to town boasting about 

a new day with a light touch, and at the end of the decade, we discovered 6, 8, 10 years of willful blindness by referees was not the 

way to deal with the free marketplace. 

The free marketplace is a wonderful place. Free and open markets are important, but you need a referee with a striped shirt and 

a whistle to call the fouls. And the FCC is a referee. And I want 

you to have the touch that is necessary to protect the interests of 

the American people and the citizens who use the Internet. This is 

an unbelievable innovation in our lives, truly unbelievable. 

Let me ask a couple of questions. Is it not the case that the 

Internet was built, developed, and began to flourish under the 

rules that existed, which included the rule of ‘‘nondiscrimination?’’ 

Mr. GENACHOWSKI. Yes. 

Senator DORGAN. And so that nondiscrimination requirement 

represented the way the Internet was created, and the purpose of 

it was to make sure that the marketplace would pick winners and 

losers, not some gatekeeper or not some toll booth that had the 

money and the size. The marketplace would pick winners and losers. Is that correct? 

Mr. GENACHOWSKI. I agree with that, yes. 

Senator DORGAN. And so without nondiscrimination rules, perhaps a Sergei and Larry in a dorm room someplace that 10 years 

later would become Google might never have access to someone in 

Minot, North Dakota who wishes to access that website because 

they perhaps could not afford to pay the toll that someone wanted 

to exact. 

And let me quote Mr. Whittaker, the famous quote, going back 

to AT&T, saying look, these are my pipes. I do not want somebody 

using my pipes free of charge, and so it goes. 

Then the question is, who with their new idea has access to get 

on the Internet or to present their idea to everyone in the world 

without discrimination? 

So now we have a circumstance where the nondiscrimination 

rules are gone because the FCC determined that the Internet was 

a communications service rather than a telephone service and used, 

I believe, Title I. But even when they did that, even that different 

FCC said we are going to establish four principles that are attached to it, but forgot and left out the principle of nondiscrimination, which has persuaded Olympia Snowe, and myself, and others 

to fight very hard to say you cannot possibly go down the road here 

18 

and say that we are against a nondiscrimination policy with respect to the Internet. I mean the opposition to that is to say, no, 

we are for a discrimination policy. That cannot possibly be the public policy piece that we choose. 

And so let me ask the question then about, what does this court 

case mean and what are your alternatives to respond to it? Because 

I want you to respond to it aggressively to the end stage of which 

you are able to develop the principles that recreate the nondiscrimination rules that always existed. 

What we are buying these days as consumers are bundled products, Internet, telephone service, all in a big bundle, and now we 

are told, well, this Internet, this unbelievable innovation in our 

lifetimes, should be over here and not subject to the nondiscrimination rules under which the Internet started and flourished. What 

are your options? 

Mr. GENACHOWSKI. I agree with your description of history and 

the description of what we are trying to do as preserving an openness, a freedom that has existed for a very long time that was 

made binding by the prior commission and that needs to continue. 

To me that is the focus. 

There are legal issues now that we have to address in view of 

the decision. There are lawyers working very hard in good faith on 

identifying the way to move forward that is based on a strong legal 

foundation. I am convinced we have that authority under the Communications Act, and I trust our lawyers are working with all the 

lawyers who have an interest here to identify the strongest legal 

foundation for preserving the freedom and openness of the Internet, and making sure that the next generation of entrepreneurs 

have a fair chance, and that consumers of Internet services are protected. 

Senator DORGAN. Chairman Genachowski, I think there are two 

ways ahead as well. One is using your existing authority. It was, 

after all, the FCC which decided to take Internet out of Title II and 

put it in Title I and thereby abolish the nondiscrimination rules. 

So I mean, I think you have that opportunity. You have a couple 

of other opportunities, and of course, the Congress has an opportunity to address this. But I do not think between now and the end 

of the year it is likely that Congress is going to be addressing it. 

So I think we are going to have to look to the FCC to do it because 

the FCC unraveled it in the first place. So you have the capability, 

I think, using existing authority in several different ways to address it. 

But I did want to, again, just say that I know that there is a lot 

of language around: network neutrality, Internet freedom, all these 

things. It really comes down to the point of the head here that we 

have always had a nondiscrimination requirement, saying that the 

big interests that now can begin to control a lot of this cannot discriminate. So that is the basis of the debate that we are having, 

and Senator Snowe and I have worked on this for a long, long, long 

while. And I hope that the end stage of this is, on behalf of American consumers, to restore the nondiscrimination rules. I do not 

want to in any way injure innovation, the growth of the Internet, 

but the fact is, it was created and grew under the very rules that 

we are trying to reestablish. 

19 

So listen, I hope that you will not shy away from taking the 

tough positions here, or making tough choices of doing what you 

need to do on behalf of the American consumer as a regulator. That 

is the role of the FCC. 

So thank you for being there and thank you for taking my advice, 

I hope. 

[Laughter.] 

The CHAIRMAN. Thank you, Senator Dorgan. 

Senator Johanns, to be followed by—— 

Senator ENSIGN. I thought I was next. I was here when you gaveled. 

The CHAIRMAN. Well, I am not going to get into a fight. I am 

going to call on Senator Johanns, and then I am going to call on 

Senator John Ensign, and then Senator Isakson, and then Senator 

Begich. 

STATEMENT OF HON. MIKE JOHANNS, 

U.S. SENATOR FROM NEBRASKA 

Senator JOHANNS. Chairman Genachowski, thank you very 

much. Chairman Rockefeller, I appreciate the fact that you take on 

these tough issues because this is a tough policy issue. 

Chairman Genachowski, let me, if I might, focus on a statement 

that you have made a couple of times here, and it is in your written testimony. And that statement is that you believe you have the 

power, the authority within the Communications Act, to implement 

the broadband plan. Now, I read a part of that plan that talks 

about net neutrality, which is on page 58 of the plan. 

Now, here is where I am coming from on that. I looked first at 

this Comcast case and there is something in this case in the very 

first paragraph that tells me a lot. The court says, ‘‘In this case, 

we must decide whether the Federal Communications Commission 

has authority to regulate an Internet service provider’s network 

management practices.’’ And it goes on to say in the second sentence of this very lengthy opinion, ‘‘Acknowledging that it has no 

express statutory authority over such practices, the Commission’’— 

and then the Commission goes on to put forth this argument that 

you have incidental authority. 

Now, here is why I cite this section, as I start my questioning 

today. As a former cabinet member, there were many things I 

thought were just and fair and would be well received, but the first 

question I always asked legal counsel was, do I have the authority 

to do this? 

Senator Dorgan and I agreed on payment limits. We might have 

had a different approach, but I did not have the authority to do 

that on my own. 

My first question to you is the Commission has already conceded 

that you do not have that express authority to implement net neutrality under Title I. Is that not the case? 

Mr. GENACHOWSKI. I do not agree with that, sir. 

Senator JOHANNS. Well, where is the authority? Why did the 

Comcast court not find that authority? 

Mr. GENACHOWSKI. The Comcast court found a series of problems 

with the process and reasoning by the Commission in the Comcast 

case, which is clearly spelled out in the opinion. 

20 

Let me say that there are a series of very important public policy 

objectives: extending broadband to rural America, protecting and 

empowering consumers, making sure that small businesses—but 

these go together. And it is essential for our competitiveness, for 

our economy, for all Americans that we take an approach to the 

Communications Act that is consistent with the purposes of the 

Communications Act and the statutory language. 

To your point about legal counsel, I completely agree. We will not 

do anything that is not supported by counsel where we cannot 

make a decision and go to court and say this is within our authority under the statute. 

Senator JOHANNS. And under Comcast, you have already been 

told. I mean, this case is very, very specific in saying you do not 

have the authority to do this. Even some of your own Commissioners, your fellow Commissioners, are acknowledging, well, if we 

do not have the authority here, we will go under Title II. Is that 

not the case? 

Mr. GENACHOWSKI. Well, you would have to ask my colleagues, 

but I can assure you that anything that we do in all of the areas 

concerning communications will have a solid legal foundation. That 

is our goal. And I completely agree with you that that is our responsibility. 

Senator JOHANNS. OK. 

The second piece of this—and let me zero in, if I might, on Title 

II because one of the Commissioners, as you know, said, well, let’s 

just go down the Title II route. Here is my problem with that. 

I have reviewed the orders of the Commission. 2002, Cable 

Modem Order. 2005, Wireline Broadband Order. 2007, Wireless 

Broadband Order. And the 2005 Brand X case that again makes it 

very, very clear to me that there is no way legally that you could 

proceed under Title II to try to regulate broadband in a way that 

would establish firm legal authority. Would you agree with that? 

Mr. GENACHOWSKI. Our counsel is in the process of evaluating, 

working with all of the outside counsel who are interested, and I 

understand that there are a number of different options and possibilities. But I do not believe that prior decisions have closed the 

door on solid bases in the Communications Act to proceed on Universal Service, on small businesses, on consumers, on promoting 

competition and innovation. 

Senator JOHANNS. Here is the difficulty, and already I have run 

out of time and my hope is that we will have another round of 

questions because this is fundamental stuff. 

But here is where you are, I think. I think you have been handed 

your hat in your hand by the Comcast case. I think under your own 

prior rulings, the Commission’s rulings, and under the Brand X 

case, you cannot proceed under Title II. It would be like remaking 

the world. But the bottom line is this: if you want to make policy, 

then what you need to do is pay the filing fee, do a lot of parades, 

raise money, and start at this end of the table. It is just a situation, I believe, where Congress has not given you the power that 

you are attempting to assert under portions of this broadband plan, 

and we in Congress should tell you that. So any court that may review this record should understand that as a Senator, I do not believe you have the power, and I think the courts are telling you 

21 

that. The only solution to that is, therefore, to come back and work 

with us and try to work through these differences of policy implications. 

Does that make sense to you? 

Mr. GENACHOWSKI. Well, I would look forward to working with 

you and the Committee on a path forward that accomplishes what 

I think are broad goals that we have been discussing. So, yes. 

Senator JOHANNS. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. 

And now Senator Isakson? 

Senator HUTCHISON. I think you said Ensign. 

The CHAIRMAN. Ensign. Ensign. See, you spooked me. It says Ensign right here. 

Senator ENSIGN. Thank you. 

I think it is important for us to drill down a little further on Title 

I versus Title II. Are you currently considering switching 

broadband from Title I to Title II? 

Mr. GENACHOWSKI. I have instructed our lawyers to take the recent decision seriously, to take all decisions seriously, and to evaluate what our options are. So I have instructed them to look at the 

policies that I think Congress and the Commission have been clear 

about and determine a solid legal foundation and a path to move 

forward. 

Senator ENSIGN. Obviously, I disagree with Senator Dorgan on 

this. I think he wants you to go to Title II because he does not 

think that we have the time here in Congress to do it, and I would 

agree with that. We do not have the time. Once again if you take 

it down that track, I think it is a very dangerous thing to do. My 

personal belief is this is regulation looking for a problem. 

Let us consider a hypothetical. What if you had a large user of 

the network to the point where that large user actually degraded 

somebody else’s chance for getting on the network? Under that scenario, should the network owner be able to manage its network in 

a way that makes sense, that protects the smaller user, and that 

keeps the Internet free? 

Mr. GENACHOWSKI. Well, Senator, we have tried to be clear that 

reasonable network management is appropriate, consistent with 

principles of preserving a free and open Internet. 

Senator ENSIGN. Well, I believe that in the world of network neutrality that has been proposed by others, that you can end up with 

a situation of unintended consequences where broadband networks 

can get jammed up. There is more and more technology out there, 

and more and more users on the Internet than ever. 

And so the point that I am making is that I disagree with Senator Dorgan. I think the Internet has been fabulously successful. 

Ever since broadband was taken from Title II to Title I, it has been 

fabulously successful. We have had exponential growth, and I think 

we are going to continue to have that with light touch regulations. 

If we get into heavy-handed rules, if there was a problem out there 

that was specific, if we had the studies showing economic harm to 

our country, it might be a different story. But we are certainly not 

seeing the kinds of widespread problems, or hardly even isolated 

problems, to justify a major policy change such as network neutrality. 

22 

So I just hope that you are very cautious when we move forward, 

and I agree with Senator Johanns that this should be something 

that the Congress should deal with with multiple hearings, make 

it public, and make it the responsibility of policymakers up here instead of doing it at the FCC. 

I appreciate all the work that you all are doing. I know you have 

a difficult job in this very technical area. 

The CHAIRMAN. Is that it? OK. 

Senator Isakson? 

STATEMENT OF HON. JOHNNY ISAKSON, 

U.S. SENATOR FROM GEORGIA 

Senator ISAKSON. Chairman Genachowski, would you favor reclassifying the Internet from I to II? 

Mr. GENACHOWSKI. We have not settled on a path forward. We 

are focused on the policy objectives around rural America and consumers and small businesses that we have been discussing. 

Senator ISAKSON. I know you used the term ‘‘we.’’ I was asking 

the question, do ‘‘you’’ think it ought to be changed from classification I to II? 

Mr. GENACHOWSKI. I have not made any decisions yet. We are 

evaluating the court decision, and my focus has been on policies to 

promote economic growth, job creation, and the issues that we have 

talked about. 

Senator ISAKSON. If—and this is a hypothetical question. If you 

moved Internet access from I to II, would you, to be consistent, 

want to reclassify Internet services and other applications as well? 

Mr. GENACHOWSKI. I am not sure I understand the question, but 

in part, that is because of where we are in our process. My focus 

has been, how do we make sure that all consumers, all small businesses, all investors can have a climate where we maximize the 

benefits to broadband of all Americans. And there are many important issues here, including making sure that rural America has a 

fair chance on broadband, small businesses, consumers. These are 

central issues for us every day. They are central issues on the Communications Act. The Communications Act makes it very clear that 

we should be concerned about rural America, concerned about consumers, concerned about small businesses, concerned about investment and innovation. And in a changing world, these are difficult 

challenges and I acknowledge that. 

Senator ISAKSON. This is just another opinion question. When we 

went through telecommunications deregulation back, I guess, 2 

decades ago now, somewhere along there, it ended up fostering a 

tremendous amount of expansion in new products, new innovations, new companies, and new businesses that exist and flourish 

today because of it. Do you think too much regulation is an inhibitor to getting the benefits from technology like broadband and like 

the Internet? 

Mr. GENACHOWSKI. Yes. I think it is important to make sure that 

any rules and regulations in this area are narrowly tailored, that 

they are designed to promote innovation, to address economic 

issues as we have in rural America, and I do think it is important 

with the Internet and other aspects of broadband communications 

to have the rules that are necessary but no more. 

23 

Senator ISAKSON. Well, I really appreciate all the words of that 

answer, but in particular the word ‘‘promote’’ because the expansion of the wonder of the Internet is what we are looking to in the 

future, both to reach rural people, as well as wireless broadband 

to get to areas where information has never been before. 

I have been reading your report, and on page 273, recommendation 13.6; I will just read the recommendation because I think the 

Commission is saying with this recommendation what I am trying 

to say. It says: ‘‘Congress should consider eliminating tax and regulatory barriers to telework.’’ This is the section where you promote 

telecommunications. Teleworking is something we ought to be promoting to maximize the environmental benefits and everything 

else. But most of our labor laws, overtime laws, and many regulations that come under the Department of Labor or from the Congress today actually are inhibitors to telework and the use of wireless broadband or broadband technology. 

So in your own report, you make reference to the restraints that 

regulation can bring to restrict the expansion and the use of a benefit like Internet access and broadband. So follow that along as you 

go through the decisions that you make. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Isakson. 

Senator Begich? 

STATEMENT OF HON. MARK BEGICH, 

U.S. SENATOR FROM ALASKA 

Senator BEGICH. Thank you very much, Chairman Genachowski. 

Thank you for being here, and I appreciate it. I am not going to 

get into net neutrality, Internet freedom. First, I am not a lawyer. 

I do not intend to debate it and, no offense to my friends who are 

lawyers, I do not intend to ever be one either. I will leave that to 

the process that you are going through. 

I want to be very frank with you, very parochial, and then I have 

a couple of questions I am just going to put on since I have heard 

some of the debate here. 

But first, I know as you move forward on the Universal Service 

Fund, and that is kind of your first stage, I know I have harassed 

you before and I know we have tried to get a schedule. I know you 

have some issues and cannot get there yet. But I would hope that 

you can be in Alaska prior to that because the use of the USF fund 

is pretty critical for us, and I would hope that you can make that 

commitment. Again, I know you are working on it and your office 

is, and we are I think badgering you every week. So to us that is 

important before you move down the path aggressively on the USF 

fund. So if you have a comment on that, I would appreciate that. 

The other is a question in regards to, as you rolled out your plan, 

one of the things you had in there was FCC Office of Tribal Affairs 

and Tribal Seat on the USAC Board. What is your timetable for 

that? 

Mr. GENACHOWSKI. As soon as possible, Senator. Let me get back 

to you with a specific timetable, but it was very important to us 

to identify in the plan the incredible shortcomings on our tribal 

lands of Native Americans with respect to communications, and we 

24 

take it very seriously, and we look forward to working with you on 

moving forward on that quickly. 

Senator BEGICH. Please let us know on the timetable. 

Again, a commitment on coming to Alaska? Yes, no? 

Mr. GENACHOWSKI. Yes, as soon as I can. I am looking forward 

to it. 

Senator BEGICH. Before you go too far down the road on Universal Service Fund reform? 

Mr. GENACHOWSKI. I will do everything I can to get to Alaska as 

soon as I can, and I am looking forward to it. 

Senator BEGICH. We will be on the phone every 3 days then. 

[Laughter.] 

Senator BEGICH. But let me ask you—again, I do not want to get 

into Internet freedom because your plan is much broader than that. 

I mean, you have some great stuff in there on education, health 

care, which again for a rural State like mine, it is going to be very 

valuable, some of the expansions and some of the efforts there. 

But I want to go to the original question that the Chairman 

asked. I know when we do plans, when I was mayor, we would always have ‘‘the plan.’’ Then we would have the work flow with specific timetables. I know you have laid out—I have read the release 

in regard to several things that you are aggressive about. 

Do you have a workflow schedule that can say, for example, item 

A, item B, item C, just as you have laid out in your release I think 

you did last week or the week before that says these are our dates 

and milestones that we are planning to target? I think that is 

where the Chairman was partially going, was the plan has a lot of 

stuff in there. And there will be complaints and considerations that 

we want to give and put on. But when you set these out, a specific 

timetable so we can be honest with you, hold you accountable for 

what you said you would do in this plan. Do you have something 

like that available? 

Mr. GENACHOWSKI. I think the bureau chiefs and office chiefs at 

the FCC either have or are working very hard on specific 

workflows to implement what you saw in the implementation plan. 

But I am very proud of the implementation plan that the FCC 

released last week, unprecedented in the history of the FCC to 

produce a transparent plan with a schedule over the course of a 

year of really quite a significant volume of actions. That was a 

breakthrough for the FCC. I appreciate the work of the staff that 

went into producing that. 

Senator BEGICH. Yes. I do not disagree with you. I just want to 

get dates and times that go with it. For example, I loved one of the 

examples you gave which was the utilization of the services that 

are in schools because that was in Alaska an exempted plan, and 

we thank you for taking that as an example and using it nationally 

because we thought the rules, to be very blunt with you, were foolish when they first were established. You have discovered that now 

in your new role, and now made that a national program, which 

we appreciate. 

So I guess that is what is I am looking for. I just want to see 

that, and I think that is important. 

I have to keep glancing at Mr. Udall’s clock to see where I am 

at. He has a clock. I do not. 

25 

In all these plans, one of the concerns I have—and not only with 

yours but many other Departments and so forth that are developing plans. Do you have a financial match? Meaning you have laid 

out what you want to do. All this takes resources, and as we all 

know, for years gone by and a lot of decisions that have been made, 

we are in a world of hurt when it comes to the budget of this country. Do you have something that corresponds with this that says 

this plan will take this many years and, oh, by the way, here is 

what it will cost for our agency to implement this and here are resources that we hope to tap into? 

And if you do not, I want to give you the answer—if you do not, 

I would highly encourage you to do it because I do not care if it 

is in this committee or my Armed Services Committee or Veterans 

Committee, this is going to be my mantra. We are a trillion-plus 

in debt this year in deficit. Plans are great, but if you do not have 

the money or the resources to implement them, they sit on the 

shelf and we will be back at it again. 

So give me your thoughts then. And I think my time is up. 

Mr. GENACHOWSKI. With respect to resources at the FCC itself, 

this is an issue that comes up when I speak with our bureau chiefs 

about doing more faster. One of the challenges that they each have 

in doing their work are the resources at the FCC themselves. So 

it is obviously something that we pay very close attention to. We 

have a budgeting cycle at the FCC also with respect to Congress. 

With respect to external funding like the Universal Service Fund, 

that is in a different area, and of course, we take that seriously and 

we have issues there. 

But I think your point is very well taken, and I would like to follow up with you on it. 

Senator BEGICH. Absolutely. I look forward to it. Mr. Chairman, 

thank you very much, and thank you for your presentation today. 

The CHAIRMAN. Are you finished, Senator Begich? 

Senator BEGICH. Yes, only because my clock has run out. It is 

only because Mr. Udall moved a cup, so I have to look at it now. 

If I did not see it, I would keep going. 

The CHAIRMAN. Well, it is a pity. 

[Laughter.] 

The CHAIRMAN. Senator Pryor, to be followed by Senator McCaskill, Senator Brownback, Senator Thune, and Senator Klobuchar. 

STATEMENT OF HON. MARK PRYOR, 

U.S. SENATOR FROM ARKANSAS 

Senator PRYOR. Thank you, Mr. Chairman. 

Chairman Genachowski, good to have you before the Committee 

again. I also want to thank you for coming to Arkansas. It was a 

great trip and I appreciate you getting a sense of the lay of the 

land there. 

Let me start with the Universal Service Fund. I support the reform that you are talking about, but I am concerned about the impact it may have on our small companies that offer land line service because they really do depend on USF funding in order to provide the quality and the affordable service that they do. 

So can you walk me through very quickly how the FCC plans to 

ensure that the small local carriers still get what they need in 

26 

order to provide service in rural areas but still that accomplishes 

the goals you are trying to play out? 

Mr. GENACHOWSKI. There was an extraordinary team that 

worked on these issues as part of the plan to find a way where 

broadband communications, high-speed data communications can 

be supported in rural Arkansas and other parts of the country to 

move from where we are now where USF is supporting yesterday’s 

technology, to a world where it is supporting today’s technology, 

but to do it with certainty but without flash cuts that would create 

more problems than it solves. It is obviously a challenge and the 

plan lays out, from beginning to end, starting right away, but over 

10 years doing the conversion, and we believe that we can start 

making progress immediately, that it is important to lay out a 

clear calendar for companies, but finding a way to shift the program to the new communications services that people really need 

without having flash cuts that would disrupt existing reliances and 

dependencies on the program. 

Senator PRYOR. Do you anticipate having to increase USF fees in 

order to do this? 

Mr. GENACHOWSKI. The goal of the plan is to not increase the 

rate of growth of the fund. That would have been the easy thing 

to do, to say, hey, we have this fund. Now let us add to it with 

broadband. And we did not think that was fiscally prudent. We 

also wanted to avoid flash cuts. So the design of the plan is to have 

the shift over a period of time without increasing the growth of the 

fund but also without cutting it back. 

Senator PRYOR. And can you tell the Committee a little bit about 

the mobility fund, and how they are targeted, and how many 

States are considered below the national standard? 

Mr. GENACHOWSKI. Well, this gets to a point that the Chairman 

started with at the beginning. We want to make sure that we are 

focusing on next generation broadband communications but that 

we are not leaving behind basic local services. I have a 18-year-old. 

He is driving and I absolutely want him to have broadband access 

wherever he lives in the country. But if he gets into an accident, 

I want to make sure wherever he is, he can call 911 on his mobile 

phone or call me or call whatever he needs. So the plan sets out 

a path to tackle both of these challenges. 

Not easy, of course. Not easy in a time where fiscal restraint is 

so important. I think it will be an ongoing topic to talk about and 

work on together, but these are both very important goals that I 

personally feel very strongly about. 

Senator PRYOR. This may be my last question because I may run 

out of time. But the old issue of inter-carrier compensation. I know 

that as you go through the reform process, and to me that is one 

of the things that has to be solid throughout the whole process, is 

inter-carrier compensation. You do not want the carriers who are 

providing the services all the way through the system like they are 

supposed to and not being compensated for it. 

So as you are going through this transition and all these 

changes, do you feel like the FCC has a plan and a commitment 

to keep the inter-carrier compensation flowing the way it should? 

Mr. GENACHOWSKI. I think we have a plan and a direction that 

recognizes the multiple interdependencies and the complexities. I 

27 

cannot tell you that have already solved every complex, detailed 

problem that is in here. We will need help from all of the companies involved, all of the stakeholders. But we have a focused staff 

that understands this very well and that is very focused on the 

goals that are laid out in the broadband plan to achieve this, and 

that recognizes that we will need to rely on private companies in 

rural America to continue to deliver these services to people who 

are there. 

But we also are on a track—as you know with the Universal 

Service Fund, if we do not start to reform it, we face the danger 

that the thing itself collapses. So we want to get out ahead of that. 

And we have had very good conversations with local phone companies who are coming in with different ideas and approaches to work 

on a transition. I think they are at the point now, from what I see, 

that they acknowledge the importance of transitioning so that they 

can offer all of their customers modern broadband communications. 

Senator PRYOR. Mr. Chairman, before I relinquish the microphone here, I do want to thank Chairman Genachowski and the 

rest of the Commissioners and all the FCC staff for the hundreds, 

maybe thousands of hours you have put into creating this document because I know it was not easy, very time-consuming, a 

zillion different meetings and different details you worked through. 

But thank you for doing that. 

The CHAIRMAN. Thank you, Senator. 

Senator McCaskill? 

STATEMENT OF HON. CLAIRE MCCASKILL, 

U.S. SENATOR FROM MISSOURI 

Senator MCCASKILL. Thank you, Mr. Chairman. 

I would like to talk about the spectrum. I see how my life has 

changed over the last 10 years as it relates to usage of broadband. 

And recently, very recently, my husband got an iPad for his birthday, and I have had my hands on it more than he has. I will tell 

you that I am confident that there will be massive changes in the 

way that we are entertained, and where we are entertained, and 

how we are entertained by products coming over broadband. I 

looked out a few minutes ago and almost every head was down because they were all typing. The entire audience is transcribing this 

hearing and sending it to whoever they work for or whoever at 

their company is interested. 

Clearly, this is finite. Now, if we have time, we can talk about 

where the 300 MHz of spectrum are going to come from, and how 

upset the TV stations are about the idea that some of it is going 

to come from them. But at the end of the rainbow, when it is all 

being used, and all of a sudden there is no more left, what happens? Do poor people get squeezed out and rich people, who can afford to do what my family does, be big, old hogs when it comes to 

bandwidth, much less the small businesses that have seven servers 

in their basement and are not paying any more than my mom who 

plays bridge and checks her e-mail once a month? What are you envisioning? 

While the plan is great, I do not see you getting to that ultimate 

pressure point. What do we do in this country when we run out of 

spectrum? 

28 

Mr. GENACHOWSKI. Solving this challenge, which I agree is so important for our economy, for small businesses, for consumers, is 

vital. And I do not think there is any single solution. Recovering 

spectrum is necessary, but it is not sufficient. I think that is the 

point of your question. We need to encourage and incentivize new 

technologies that process information over spectrum more efficiently. We need to find ways to do that near-term, and also look 

at our longer-term R&D spend and think about whether there is 

enough spending going into that long-term to solve because it is 

such an important challenge for our country. 

We have to look at all of our spectrum policies to make sure that 

they are promoting the most efficient use of spectrum, promoting 

secondary markets, and we have to make sure that we have a climate and a set of policies that are promoting business models and 

that have the right incentives so that a combination of smart policies in the market and technologies can solve this. If we solve it, 

we can lead the world in mobile and have it be an extraordinary 

engine for job creation, innovation for the United States for many 

years to come. If we do not solve it, we will be looking back in a 

number of years and saying why did those other countries jump 

ahead of us. Right now we know that we can have the best mobile 

innovation world happen here in the United States. I believe we 

have to tackle these problems so that is true in 5 years and 10 

years as well. 

Senator MCCASKILL. I see the end coming, and I hope the technology is developed that allows us to get more out of the spectrum 

we have instead of having to crowd people out of it. This was 

touched on a little bit before. But I am fearful, and I think it is 

something that the FCC really needs to focus on as you look toward the future of our economy in this country and your role in it, 

more importantly, the role of the private sector in developing the 

technology that would do that. 

Let me quickly, because I do not have much time left—I know 

that you are talking about a voluntary giving-up of the spectrum. 

I may have questions in writing on that as it relates to the subject 

of grabbing more spectrum. 

But adoption, low-income adoption. Ninety-five percent of the 

households in America have access to broadband, but only 45 percent of low-income households have it. So there are some things in 

here. Could you briefly talk about what you see as the best things 

in here that are going to help us with—because that really in so 

many ways is a key for economic strength and economic advancement by many, many people in this country is that ability to cross 

that great digital divide to the world of the Internet in these lowincome households. Could you speak to that briefly? 

Mr. GENACHOWSKI. Yes, a very, very important topic. Our work 

showed that there were different reasons for the adoption gap. In 

some cases, it is affordability and in some cases it is relevance and 

digital literacy. So a plan that responds to the actual causes needs 

to tackle all of the above. 

Reforming the Universal Service Fund would involve reforming 

a lifeline program which tackles affordability. Competition policies 

will help with affordability by incentivizing lower prices. There are 

a series of other recommendations in the plan that go to relevancy 

29 

and digital literacy, a digital literacy core, thinking in a very smart 

way about Government services, accelerating E-Rate. A very high 

percentage of the community that are non-adopters are involved 

with some Government programs. And so the faster that we move 

to electronic Government services, we not only save money for the 

Government, but we actually can make a real dent in adoption. 

So I would be happy to follow up with you on this. There are a 

lot of great ideas on the plan, and we need to pursue all of them 

to take us from 65 percent to our goal of 90 percent in 10 years. 

Senator MCCASKILL. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator McCaskill. 

And now Senator Brownback who is not here. Senator Thune is 

not here. Senator Klobuchar is. 

STATEMENT OF HON. AMY KLOBUCHAR, 

U.S. SENATOR FROM MINNESOTA 

Senator KLOBUCHAR. Thank you very much. 

Hello, Chairman. Good to see you again. I, first of all, want to 

thank you for your plan, all the work that you are doing. I think 

it is incredibly important. Like everyone else who mentioned the 

court case and their concerns about it, I am also very concerned, 

but I wanted to focus more on some of the contents of the plan. We 

have got to find a way to get it done, as far as I am concerned. 

The things that I was very interested in, are that you included 

a recommendation that consumers receive more pricing and performance information from their broadband provider. I have authored a bill on this with Senator Begich, the idea of digging once 

when counties or cities or States are tearing up a roadway, that 

you then put the conduit in. And that is something I have done 

with Senator Warner. So we appreciate that. And then finally the 

development of the next generation of 911. I Co-Chair the 911 Caucus with Senator Burr. So I think those are very good things. 

My first focus actually is on cybersecurity and just what parts of 

the plan do you think could be imperiled by this court case, and 

what are the plans for the FCC’s role with the cybersecurity? I just 

see it as the elephant in the room. We questioned Attorney General 

Holder this morning. That was my focus and how we can better ensure the security of the Internet, whether it is identity theft or anything else that may go on and how does this court decision impede 

you from proceeding with that. 

Mr. GENACHOWSKI. Well, I think to your question, we need to, 

and I believe we will find a way to make sure that we have the 

authority we need so that steps that are appropriate for the FCC 

to take with respect to—— 

Senator KLOBUCHAR. And what kind of steps are you looking at? 

Mr. GENACHOWSKI. Some of them go to best practices for networks. Some of them go to issues with respect to outages. For 

many agencies, including ours, there is a focus every day on developing the best set of strategies and tactics to deal with the fastmoving problem. Admiral Jamie Barnett who is heading our Public 

Safety and Homeland Security Bureau, is very focused on this, and 

making sure that we both identify the steps to take and that we 

have the authority to pursue them is essential. 

30 

Senator KLOBUCHAR. Right. Senator Thune and I have a bill on 

peer-to-peer. I could not believe the stories I heard out of Minnesota on this. You know, one employee of a company does some 

work at home one day, does not know that her kid loaded a P2P 

program on there, and all of the company’s—this is a medium-sized 

company—all of their employee records go out onto the Internet 

and are taken by someone, and a bunch of them become victims of 

identity theft. It is unbelievable. I hope you will be looking into 

that as we go forward. 

I thought I would talk a little bit about the focus on promoting 

competition by having transparency and the information available, 

as I mentioned before, so that consumers know how fast their 

Internet is, what the price is. Could you talk about the importance 

of that for developing this competitive marketplace? 

Mr. GENACHOWSKI. Sure. One of the findings of the work we did 

in the broadband plan was that the speeds that consumers actually 

get are much lower than the advertised speeds. 

Senator KLOBUCHAR. Really. 

Mr. GENACHOWSKI. And that there is a lot of consumer confusion. 

One of the things that makes me optimistic about this area is 

that new technologies provide new ways to get information to consumers in better, more efficient ways so that they can make the 

market work. 

Senator KLOBUCHAR. Consumers would probably want to know 

not just what their speed is in a vacuum—that means nothing— 

but what the average is, what speeds are that help you to get certain things. Is that what—— 

Mr. GENACHOWSKI. Yes, and we have already taken steps at the 

FCC in terms of applications that we have released that allow people to measure the speeds that they do have. It is, of course, just 

the beginning, but ultimately it should be easy for a consumer to 

be able to know their speed, other people’s speeds, various competitors’ speeds so that the market can work as effectively as possible. 

Senator KLOBUCHAR. Could you comment—and I know I have 

asked you this before—about the ‘‘Dig Once,’’ bill and what you 

have seen in other parts of the country, if you think this is workable? 

Mr. GENACHOWSKI. Listen, we were happy to include that idea in 

the plan. There are a number of areas where there are some obvious steps that can be taken that will lower the costs of investment, 

and increase the speed and the deployment of wired and wireless 

broadband. This is one. So it is an important part of the plan, and 

I am glad you mentioned it. 

Senator KLOBUCHAR. For the 911 piece of this, what steps is the 

FCC taking to move forward with an IP-based 911 system? Obviously, this is the idea that people who are calling 911 now are not 

just using a land line. In fact, they are not just using a cell phone. 

Most of our 911 call centers have adapted to that. There are still 

some issues. But they will be only texting, and so they are going 

to be stuck on a snowmobile in the middle of Minnesota or Nebraska, and lost or they break their leg, and they can only text it. 

We are not quite ready for that new world. 

Mr. GENACHOWSKI. No. There are many challenges, but I think 

the goal to your point as well, is very clear. Consumers need to be 

31 

able to contact 911 with whatever communications service they are 

using. There are a series of steps that we are going to take, I think 

starting very soon, to make sure that we can move 911 to a place 

that whatever service you are on, you have the ability to contact 

a first responder. 

Senator KLOBUCHAR. And the other piece of this is it really could 

be helpful for, say, downloading a building before the fire fighters— 

the blueprints where a fire fighter walked in, just the potential of 

safety. If you can get pictures from a scene and then send it back 

to first responders, whether they are cops or fire fighters. I think 

all this is going to happen, but we are going to have to figure out 

how to do it the right way with the Internet. 

Mr. GENACHOWSKI. It is critical that we do it and it is critical 

that we have the ability to do and move quickly because we cannot 

afford to wait. 

Senator KLOBUCHAR. Well, thank you. I had some additional 

questions, some concern from some of our local broadcasters. So I 

will put those in writing for you. Thank you. 

The CHAIRMAN. Thank you, Senator. 

Senator Snowe? 

STATEMENT OF HON. OLYMPIA J. SNOWE, 

U.S. SENATOR FROM MAINE 

Senator SNOWE. Thank you. Thank you, Mr. Chairman. 

And thank you, Chairman Genachowski for being here today discussing an array of critical issues with respect to broadband and 

how we are going to deploy broadband in the future. I commend 

you for the work that you have engaged in. 

On the question of net neutrality, because we have heard so 

much discussed here today on both sides of the equation—and as 

you know, I have been a strong proponent of net neutrality legislation. In fact, Senator Dorgan and I have been working on redrafting our legislation from the previous Congress because we do think 

it is important. 

And I think it is so often overlooked about the fact that nondiscrimination requirements have existed in our telecommunications statutes for more than 70 years, a requirement to ensure 

against unjust anticompetitive practices, unreasonable discrimination. And that is what it is all about. In fact, I would say that innovation has really been compatible with those nondiscrimination 

principles since the FCC took actions in 2005. Up until the time 

of the court case, frankly, they co-existed. It did flourish. But the 

point is, we have to make sure that we have the same freedom and 

openness to ensure that all users of the Internet have similar capabilities. 

So that is not surprising then that there is an array of groups 

that support net neutrality: Consumers Union, Christian Coalition, 

Gun Owners of America, moveon.org, Teamsters, Parents Television Council, American Library Association, across the philosophical spectrum because of the concern that if you do not have 

those type of protections, that you do not have the ability to prohibit anticompetitive practices by large carriers, for example, then 

you are going to deny the average person or the small business access to the Internet as we know it today. 

32 

It is not changing it. It is what we have had, what we have had 

historically. 

I would like to hear from you. What are the ramifications if we 

do not incorporate these nondiscrimination principles? 

Frankly, I think we are looking at one side—well, we do not 

want to regulate the Internet. Well, it is not about it. We are trying 

to keep it as it is. That’s the interesting part about it. And I think 

there is even a growing consensus within the industry and with 

stakeholders on this very question. Even those major carriers that 

have opposed net neutrality legislation or approaches in the past 

and protections are now coming around very differently. 

So I would like to have your views taking it from a different perspective, and that is, what would be the ramifications without such 

protections? 

Mr. GENACHOWSKI. I think the ramifications could be that our 

world leadership in innovation and entrepreneurship goes away. It 

is the freedom and openness of the Internet that has created all 

these incredible success stories over the last 10 years, tiny companies started in the garage that now employ hundreds, thousands of 

people that create economic activity that are some of our major exports to other countries. 

My concern is that if we do not preserve the freedom and openness of the Internet that we have had, that other countries will 

move forward and take our mantel as world leaders in innovation 

and entrepreneurship. And that is what I am concerned about. And 

I think to your point, preserving what we have had is all we need 

to do. 

Senator SNOWE. That is exactly right. This is really maintaining 

the status quo in all of this and how best to do it, understanding 

that technology has evolved in very recent years—witness voice 

and video and we have to accommodate that as well. 

The court did not say that you did not have the authority. It was 

that the authority was not tied to any specific statutory provision. 

Is that correct? 

Mr. GENACHOWSKI. Correct. 

Senator SNOWE. So that is what the lawyers are reexamining 

now, as to what authority you might have under the statutes. 

Mr. GENACHOWSKI. That is correct. 

Senator SNOWE. You also have an open proceeding with respect 

to all of this as well. So obviously, you think you do have some options under statute. 

Mr. GENACHOWSKI. Correct. We opened the proceeding because 

we wanted to make sure that there was as much clarity and certainty as possible in this area to maximize the amount of innovation and entrepreneurship and consumer protection that we could 

have. So that proceeding is open. We will be getting comments in— 

we extended it because of the decision—in 2 or 3 weeks. I do not 

remember exactly. But I do hope that can become a vehicle for getting to the point that you mentioned. 

I agree with you that in the last few months, since we started 

an open, inclusive, participatory proceeding, we have seen the area 

of consensus grow in terms of what the FCC should do in the area 

of disagreement narrow. And I think that is a very healthy thing. 

I am committed to continuing to work in that direction so that we 

33 

can preserve the free and open Internet that has been such a boon 

for our country. 

Senator SNOWE. Well, I hope that we also can get to the legislative front, but in the meantime, I think it is going to be important 

for you to be doing the work that you are doing. And hopefully, 

that can work and we can build that kind of consensus in reaching 

that accommodation. 

Does the court decision deny you beyond in the broadband plan 

overall, other areas in which to extend broadband, for example, I 

mean, in emerging technologies or where is it that it is going to inhibit your ability to implement the broadband plan? 

Mr. GENACHOWSKI. It potentially raises questions in a number of 

areas, including Universal Service to rural America, including 

small businesses, including consumers, including public safety and 

cybersecurity. 

That is why I think it is so important that we make sure that 

everything we do has a solid legal foundation. The Communications 

Act, I believe, requires the FCC to adopt policies that protect consumers, promote investment and innovation in communications 

networks, whether they are traditional networks or newer data 

networks. From a consumer’s perspective, they assume that the 

FCC is making sure that consumers are protected, that competition 

is promoted, that innovation and investment are promoted, and I 

believe it will be completely consistent with the Communications 

Act for us to continue to do what the FCC on a bipartisan basis 

has been doing for quite some time. 

Senator SNOWE. Thank you. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator. 

Senator Nelson? 

STATEMENT OF HON. BILL NELSON, 

U.S. SENATOR FROM FLORIDA 

Senator NELSON. Thank you, Mr. Chairman. I would ask that my 

statement be entered in the record as an opening statement. 

The CHAIRMAN. Would I have a chance to read it first before I 

rule on that? 

[Laughter.] 

Senator NELSON. That is up to you. 

The CHAIRMAN. So ordered. 

[The prepared statement of Senator Nelson follows:] 

PREPARED STATEMENT OF HON. BILL NELSON, U.S. SENATOR FROM FLORIDA

I am pleased to hear from Chairman Genachowski today to outline the National 

Broadband Plan. This plan is an important piece of the American Reinvestment and 

Recovery Act, which was designed to create new jobs, spur economic activity and 

make important investments in our Nation’s long-term growth. The National 

Broadband Policy piece seeks to develop policies to ensure that all Americans have 

access to affordable, world-class broadband. I was pleased to support the Act. 

I commend the Chairman, Commissioners, and the FCC staff for putting together 

this comprehensive 377-page plan with ‘‘Internet speed’’ and for developing a plan 

to go forward with implementation with Internet speed. 

I know this report is only the beginning of the process. Some of these plans will 

be the subject of dozens of rulemakings back at the FCC and legislation here in the 

Congress. I will be watching carefully as these plans are developed to make sure 

that the goals of the National Broadband Plan are realized without delay. 

34 

In my home State of Florida, extending broadband pipes to citizens is no longer 

a luxury, it is a necessity. 

• You need broadband to find and apply for jobs. 

• Classroom instruction at all levels—from elementary school to graduate 

school—takes place over broadband lines. 

• Families on military bases need high speed Internet connections to communicate with deployed military service members overseas. 

• Medical records and health histories are being digitized so that our doctors and 

health professionals can have our complete medical history at their finger tips 

to provide us care. 

• Small businesses, the main drivers of employment and commerce in my state, 

need affordable broadband access to stay competitive with larger companies in 

the United States and abroad. 

All of these things are enabled by broadband and are necessary to get folks back 

on their feet and to help regain our leadership in the world. 

Of the many recommendations in the plan, I am eager to hear more about the 

plan to free up chunks of airwaves for wireless broadband devices like smart phones 

and mobile computers. This is, without question, an important goal. 

Although I am encouraged that the recommendations on the airwaves are described as ‘‘voluntary,’’ the devil is in the details. And the details are in the implementation. We need to tread carefully here given that the future of free-over-theair TV depends on how we deal with this issue. 

At a time when the investment in news gathering and reporting is declining, we 

need to ‘‘first do no further harm’’ to the diversity of independent media voices. This 

diversity is critical to our democracy and should not be sacrificed for any reason. 

Senator NELSON. Thank you, Mr. Chairman. 

Mr. Genachowski, your plan has recommendations to provide the 

ultra-high speed Internet to some select military installations. Of 

course, we have quite a bit of military in the State of Florida. So 

share with us what makes large military installations an ideal test 

bed for the ultra-high speed Internet connection. 

Mr. GENACHOWSKI. One of the things that I saw at our Air Force 

base in Qatar when I was over there was how forward-looking the 

military is in understanding that broadband communications can 

serve multiple objectives, keep our troops with their families, 

whether they are at a base in the U.S. or abroad, further distance 

learning, making sure that troops can complete their degrees, advance in the military, further health care-related objectives. When 

I was in Arkansas—Senator Pryor is not here, but I met someone 

from the military who said when he went overseas, he had to take 

his paper medical records with him. So including the military as 

part of our test bed effort, as thinking about the ways that we can 

identify rolling out broadband, sharing the benefits, sharing learning, was a very important part of us. And our friends in the Pentagon was very cooperative in finding a way that they could participate in making sure that all Americans can benefit from 

broadband. 

Senator NELSON. And if we can ever get it sufficiently secure, we 

could also have our military, even in the field, be able to vote while 

they are overseas on assignment. We have been raising that issue 

because when you find out exactly how many military ballots are 

actually absentee ballots that are counted, you will find it is a pitifully poor percentage of the registered voters. Something for your 

consideration. 

Small business. What initiatives do you have to move forward 

with immediately boosting the small business segment that can 

stimulate investment, innovation, and job creation? 

35 

Mr. GENACHOWSKI. We found that in small business, one, the opportunity is huge for small businesses to get on the Internet, expand their markets, grow their businesses, reduce their costs by 

using services that are in the cloud with a real result of greater 

revenue, lower costs, more profits, and more jobs. 

We found that there are two obstacles, essentially, to small businesses in broadband. One involves literacy, understanding what is 

out there, and the other involves affordability. 

On the literacy/understanding piece, we have already announced—Chairman, I forgot to mention this before—a program 

with the Small Business Administration to immediately start providing better information to small businesses about the opportunities, how to get on broadband. Administrator Mills has been a 

great partner in this. 

With respect to affordability, there are a series of competition 

issues that we need to address. We have heard many complaints 

from small businesses that they do not feel their choices are adequate, they feel their prices are too high. So that is an area that 

we are moving forward on at the Commission. It is complex but it 

is important that small businesses understand the opportunity of 

broadband and that they have real choice. 

Senator NELSON. Now, in your recommendations to reallocate the 

spectrum from various uses, including TV broadcasting, to commercial wireless uses like smart phones and high-speed wireless Internet, the question is are you going to treat public TV broadcasters 

like you would the commercial TV broadcasters? 

Mr. GENACHOWSKI. Well, the plan that we have suggested is a 

voluntary one where it is focused on commercial broadcasters that 

increases their options to share spectrum with another station in 

the market, participate in an auction, and get benefits. Public 

media has been extraordinarily important in the country, I think 

even more so as the commercial sector has had to deal with the 

awful economy and that has had certain consequences on programming. So public media becomes incredibly important, both with respect to traditional television—many Americans still just receive 

over-the-air TV—but also making sure the public media can reach 

the next generation of audiences where they are on the Internet, 

on mobile phones. We found the public television and radio community to be very interested in a partnership on the best, most effective way that they can serve their audience and their important 

mission in the 21st century. 

Senator NELSON. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Nelson. 

Senator Cantwell? 

STATEMENT OF HON. MARIA CANTWELL, 

U.S. SENATOR FROM WASHINGTON 

Senator CANTWELL. Thank you, Mr. Chairman. 

And Chairman Genachowski, it is good to see you. I know that 

the FCC is holding a workshop on its notice of proposed rulemaking on net neutrality in Seattle coming up here later this 

month. So, I know you are going to hear a lot about what we think 

about in the Northwest as how fundamental it is to the future of 

36 

broadband in the United States to make sure there is an open 

Internet. So we appreciate you holding that field hearing. 

And I always am amazed when I see these reports since the decision. You know, 53 percent of the public does not want the FCC 

to regulate the Internet when the issue is the public wants the 

FCC to protect them to make sure that the Internet is not artificially taxed by business, preventing consumers access to content 

without paying more for it. And the notion that somebody thinks 

they can spin this around Washington, I guarantee you, you will 

hear an earful when you get to Seattle. They understand that access to content through the Internet should not be artificially 

taxed. 

One of the things I am curious about is since we had our hearing 

here about the Comcast-NBC merger, we have now had this D.C. 

decision. So the potential combination of Comcast and NBC—how 

will that impact your—I know you cannot speak specifically. I am 

asking you to speak broadly about the Commission in evaluating 

that deal. In the MCI-Verizon, you were able to condition, postmerger, certain conditions be met protecting the consumer using 

that net neutrality. So how will you look at making sure that content is not blocked, you know, things that will be very important 

for that decision? 

Mr. GENACHOWSKI. As you indicate, I cannot talk specifically 

about the transaction, but I take your views and I will make sure 

that they are incorporated in the Commission’s consideration of the 

transaction. 

Senator CANTWELL. Do you have a concern generally that that is 

harder now since the court decision? 

Mr. GENACHOWSKI. I am not sure that it is harder. I think that 

there are many issues, very serious issues, in the transaction that 

we will be taking one by one very seriously and looking at them 

on their own terms. I am sure that these issues will be considered 

very seriously as part of that. We have already heard from people 

on that issue in the transaction. I am sure we will hear from more. 

It will be taken very seriously as part of the review of that transaction. 

Senator CANTWELL. I know also in another decision with the 

Third Circuit’s removing the stay on media ownership that came 

out under Chairman Martin, that there is now an opportunity for 

the Commission to start moving on that process. And so I know you 

have a quadrennial review of media ownership. So to me, it is very 

important that the Commission start moving on this and make 

sure that you consider this in a comprehensive way. Is that part 

of the plan? 

Mr. GENACHOWSKI. Yes. We started the process of the review, the 

2010 review, in 2009. There will be a Commission action in the 

near future to go to the next stage, and we will be tackling the 

ownership issues. 

Senator CANTWELL. Thank you. 

And on the issue of the broadband plan, we are 8-plus years after 

9/11 and yet the notion of interoperability communication systems 

for first responders is still more of a goal than a reality. In your 

broadband plan, you have some objectives to meet certain petitions 

no later than the third quarter of this year. We are very interested 

37 

in the Northwest, Seattle. Particularly in Pierce County and in Seattle, you might have seen this rash of police killings in the news. 

So the law enforcement community is very interested in basically 

getting these public safety spectrum trusts to be able to access for 

building an interoperable public network. 

Mr. GENACHOWSKI. It is a vitally important issue, and it is a real 

action plan to move forward quickly and make sure we get a public 

safety network built. It does require, we suggest, some actions by 

Congress because this is an area where we do not think the private 

sector will get the public safety network built. But we have a series 

of steps to take in connection with that to make sure that networks 

are hardened, interoperable. 

And we have a unique opportunity now that I am very hopeful 

that we can take advantage of. As we are building out our 4G networks, if we can build out the public safety network at the same 

time, we will reduce the costs of that dramatically. If we do not 

move forward with the public safety network now and all the 4G 

network truck rolls and equipment are already out and then we try 

to accomplish exactly the same thing later, the costs will be much, 

much higher. So I agree with you that it is essential to move forward and to move forward on a very fast timetable, and I look forward to working together on that. 

Senator CANTWELL. The plan calls for that by the third quarter 

of this year. So do you think you will make that? 

Mr. GENACHOWSKI. We will make our part. We do not have the 

funding available for the funding part, but we will do everything 

that we need to do on our schedule. 

Senator CANTWELL. Thank you. 

And I would just like to echo my colleagues’ calls about unlicensed spectrum as it relates to the development moving forward 

of Wi-Fi. I know that you guys are looking at 20 megahertz, but 

there is a lot bigger need for this. So I will look forward to asking 

you more about that. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Cantwell. 

We will go to a second round now. Do you have time? 

Mr. GENACHOWSKI. Of course. 

The CHAIRMAN. I was just saying to Senator Hutchison before 

she left, I do not know how many times I have talked here, not just 

in this position but in the 24 years that I have been on this committee, about ruralness, and I always somehow work the name 

‘‘West Virginia’’ in there. It strikes me that I am not doing rural 

America a favor when I do that. 

You talk about a looming spectrum crisis, and then you come up 

with the statement that the Nation needs 500 megahertz of new 

spectrum in the next 10 years. 

But I have this worry, which goes along with what I said at the 

beginning, about you set out a large picture, but then there is sort 

of nothing taking after this 911 thing. Like Senator Cantwell, I am 

so shocked. I am so embarrassed. I mean, you got the blessings of 

the 9/11 Commission, but I am fairly sure they could not have read 

anything about interoperable first responders because really nothing has happened. There have been bits that have happened, of 

38 

course, but nothing fundamental has happened in the most obvious 

homeland security, national safety type issue imaginable. 

Now, I go back to mine disaster that we had. People could not 

call. It was really embarrassing, Mr. Chairman, to see Verizon 

technicians who had been, obviously, up for 5 days trying to string 

wires for land lines out to a place that they rarely had ever been 

to before, if ever. Maybe to the elementary school where the press 

was. But they were out there like crazy. It was almost comical trying to string up wires so that rural America could be heard in a 

genuine matter of life and death, which turned out to be all death. 

Now, I am not satisfied that you really are taking into consideration rural America. I think you are saying it. I think you are postulating it out there, but you specifically define when you are talking about rural America—you say that the looming spectrum crisis—when you are talking about that, it is strictly an urban problem. You refer to it as an urban problem. And that is all of a sudden when I become more than a West Virginian because the Adirondacks, the intersections of California, endless, hundreds of thousands of square miles of New Mexico, Colorado, North Dakota, the 

State of Washington—I mean, every State has enormous rural 

chunks. 

The pattern of the telecommunications industry has been so 

clearly and so blatantly, and so obviously two-fold. One, we pledge 

to cover all your people. How many times I have heard that from 

the different people who have been doing telecommunications for 

the greater part of West Virginia, and they always go right to the 

cities, right to the businesses who will pay their bills on time, and 

right to the sections where the houses have the income level so 

they do not have to worry about it. But do not try and look for 

them in rural West Virginia or in rural Montana or in rural North 

Dakota. They are just not there and they are not going there. 

So when people say—you know, I got sick of this talk. This is 

meant to be about real people getting service. And we got into the 

discussion about light touch versus heavy touch and process and 

Title I and Title II, and all of that is important when it comes 

down to it. But the real problem is getting that service to people 

who need it, and every single State has rural people. And I want 

to know what your plans are for that. 

Mr. GENACHOWSKI. Well, Mr. Chairman, I could not agree more 

with what you are saying. If I could make a couple of points. 

One is the problems in rural America with respect to deployment 

are very serious problems that the plan takes seriously, and it proposes the first-ever mobility fund. 

The CHAIRMAN. I knew you were going to say that. Go ahead. 

Mr. GENACHOWSKI. Well, it is an important step to directly tackle 

the challenges in rural America. 

The CHAIRMAN. When will it be in place? 

Mr. GENACHOWSKI. As soon as possible and we will lay out a 

timetable for you. 

The CHAIRMAN. When? 

Mr. GENACHOWSKI. There is a timetable and I apologize. We will 

get you a timetable to move it forward. 

The CHAIRMAN. Do you have an idea? It is a lot of America. 

Mr. GENACHOWSKI. As quickly as we possibly can. 

39 

The CHAIRMAN. Do you feel the pressure, though? 

Mr. GENACHOWSKI. I certainly do. 

The CHAIRMAN. Not of me but of rural America, of underserved, 

unserved people speaking, needing you. And if you need us to help 

you get the authority that you need, use us. 

I mean, I do not want to get into this thing, but Chairman Powell made your life a whole lot more difficult, a whole lot more difficult. So let us just face facts. If you are going to need help to be 

able to do more, you come to us. And it may be a close vote. It may 

be a partisan vote. I have no idea. But it is a battle worth fighting. 

Getting you out to where you can do what you want to do quickly— 

quickly—that is the President’s main problem and it is also yours. 

Everybody expects him to be able to get everything done in the 

first year and a half: peace in the world, prosperity in America, and 

all the rest. 

You have got some of that problem too, and you asked for it because you are smart, you are aggressive, you tend, I think, to surround yourself sometimes with a rather small group of people. I do 

not know who you listen to from the outside. I do not know what 

your process for setting priorities is and making sure that they are 

done. The work plan that Senator Begich was talking about really 

is the only way that you get anything done. It is not talking about 

a problem. It is doing something about it. 

And I want my people to be able to be treated in exactly the 

same way as those of my family who live in New York City. And 

I am not going to settle for anything less, and I am going to give 

you hard time until that happens. 

Mr. GENACHOWSKI. I completely agree, sir. 

The CHAIRMAN. Thank you. 

Senator Dorgan? 

Senator DORGAN. Senator Rockefeller, thank you. 

The CHAIRMAN. Oh, there is a vote. Is it an important vote, do 

you happen to know? 

[Laughter.] 

Senator DORGAN. I do not know what the vote is, actually. 

The CHAIRMAN. We have got 15 minutes. Go ahead. 

Senator DORGAN. Well, first of all, Chairman Genachowski, 

thank you for, again, your work and for being here. 

The implicit suggestion by some was why do you not get out of 

the way and let the free market work. It is a wonder, and let us 

let the full flower of that wonder of the free market work. I love 

the free market. I think it is the best allocator of goods and services that I have ever seen, but it needs a referee and you are a regulator. You are a referee. 

When I say I am not for the light touch, let me be quick to say 

I do not want over-regulation, but I want you to use the right touch 

to make sure that the referee is doing what the referee must do 

to keep the free market free. 

So with that, I want to send you some questions about the Internet and broadband and American Indians and the Indian reservations and the very significant problems of serving there. They are 

way behind. 

I want to send you some questions about Universal Service reform, including inter-carrier compensation, which is very imporVerDate Nov 24 2008 13:27 May 12, 2011 Jkt 066283 PO 00000 Frm 00043 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\66283.TXT SCOM1 PsN: JACKIE
40 

tant. It is very important that that reform move carefully and 

thoughtfully. 

I am also going to send you some questions about the 100-megabit 2020, which I think is called 100 Squared. And then your plan 

calls for Universal Service speeds at 4 megabits. So my question 

will be, as I send you some questions, what part of America will 

be served with 100 megabits and what will get 4 megabits, and is 

that not, in fact, a very substantial digital divide? And what are 

the consequences of that for economic opportunities in a region? 

But what I want to do is I want to tell you just a very short 

story. I grew up in a town of 250–300 people in a small house with 

two bedrooms and a shed out in front. And I had not been back 

to that house since I was a teenager. Some while ago I went back 

to the house, knocked on the door, and the woman who answered 

in this little town of a couple hundred people—I asked her would 

you mind if I see this home. It was where I grew up. And she said, 

I would be happy to have you come in. 

I came in and as I entered the shed, I saw a bunch of cardboard 

and tape. And as I walked into the kitchen from the shed, I saw 

a camera on the kitchen counter and a little stanchion there with 

a bracelet hanging on an appendage. And I said, what are you 

doing? She said, well, I am taking a photograph of this bracelet. 

It was kind of a pretty gold bracelet. And I said, why are you doing 

that? She said, well, I sell on the Internet. I said, really. Yes. She 

said, I sell on the Internet. I sell jewelry on the Internet that I buy 

from others and then resell on the Internet. And I said, is that 

what the cardboard boxes and the tape are for? She said, sure. 

So here in my home, a very small, home in a small town is a 

woman that reaches the world. She is on the Internet and someone 

from Moscow or Delhi can access what she is selling. I said, how 

are you doing? She said, fine. I supplement my husband that drives 

the gas truck for the Farmers Union Oil Company and I make a 

decent income selling on the Internet. It could not have been possible previously. It never would have happened. She has an international business capability from that little town. 

But she has that capability because no one has the opportunity 

to say you are too small or we are going to impose a fee on you. 

We are going to impose some impediment that does not allow others to see you unless you comply with these three requirements. 

Pay us in order to get on our provider network. No one can do that 

at this point, or at least I should say no one could do that originally 

under the rules of the Internet because it was under Title II and 

included the rules of nondiscrimination. 

That is why this is such an important issue, and it is why I come 

back to it again. I think the genius of the Internet—it is the ultimate democratic tool for everybody in the world to reach everyone 

else in the world without any interference. And when someone of 

significant clout said I do not want this user or that user using my 

pipes, that tells me, wait a second. We are talking toll booths and 

gatekeepers and others that might want to find ways to get revenue off a determination of who can be on the Internet. So that is 

why this is so important. 

I think the firms that are involved in doing innovation, the big 

firms and small firms—God bless them. I support them. I am not 

41 

anti-big or anything of the sort. I want this to remain free and 

open. And I worry. Go back to the financial issue for the last decade or so—in fact, go back a decade and a half and see what happened under blind regulators. We need effective regulation, not to 

retard the innovation of the Internet, but to make certain that it 

remains free and open and to make certain it protects the free market. 

So I just wanted to tell you that story about my little hometown 

because that is replicated all over America, and that is the genius 

of people saying, you know what? I can start a business too right 

here in my kitchen. That is such a wonderful story. 

So let me ask you finally—my time is expiring. It is the case, to 

reaffirm, that the origin of the Internet, the construction of it and 

the growth of the Internet occurred under a series of principles 

which included nondiscrimination. Is that not the case? 

Mr. GENACHOWSKI. I believe that is correct. 

Senator DORGAN. The Chairman indicated that the FCC under a 

different Chairman decided we are going to change the rules and 

redescribe Internet service as something other than telephone service under Title II, which is the way it had been regulated. So that 

was no service to you and, in my judgment, the American people. 

I opposed it at the time. But we need to find a way, in my judgment, to restore that which always existed and has always existed 

with respect to telephone service and previously existed with respect to Internet service. I think it is the right way to protect the 

American people, at the same time to allow the Internet to flourish 

and grow and for the free enterprise system to work the way it is 

meant to work. 

So, Mr. Chairman, thank you for your work and thanks for 

spending as much time as you have with us today. 

Mr. GENACHOWSKI. Thank you, Senator. 

The CHAIRMAN. Thank you, Senator. 

Senator Johanns and Senator Cantwell, just two really good 20- 

second questions. 

Senator JOHANNS. There is not enough time to ask a question, 

but I would like to sit down with you more extensively. 

This is not a question of whether these things are good or not 

good. Much of what Senator Dorgan says, many of us, myself included, could agree with, but the point is this is where we debate 

policy. You are not elected. No one voted for you. And it is very, 

very important that Federal Departments exercise the authority 

granted to them. Comcast has said very, very clearly you exceeded 

your authority. There just is not any way around that opinion. 

The second piece of this, to go back to Title II with the history 

you have here based upon factual determinations and then try 

change the world I think will only buy greater litigation, more lawyers, and you will be stopped in the end also. 

The point, Mr. Chairman, that I want to make, as I wrap up here 

today, is that there is a way to do this in the American system, and 

you are a bright guy and I have so much admiration for your background and your skills. I cannot think of anybody, as said during 

your confirmation hearing, better qualified to do what you are 

doing than you. 

42 

But it is here that this policy is argued out and fleshed out. The 

words exist in the English language to give you the power to do net 

neutrality and manage in that way if we choose to give that to you. 

Comcast said you did not have that power. And under the Title II 

rulings by the FCC itself and under the Supreme Court decision 

relative to one of those rulings, I think the decision has already 

been made that broadband is an information service. It is not a 

telecommunications service. And I think to change that now will 

invite, again, a court to step in and stop you. 

I look forward to sitting down with you and having this great 

discussion. 

Mr. GENACHOWSKI. I look forward to it. 

Senator JOHANNS. Thank you for your patience today. 

The CHAIRMAN. Senator Cantwell? 

Senator CANTWELL. Thank you, Mr. Chairman. 

Two quick questions. Chairman Genachowski, will you decide on 

all open white space issues, you know, the reconsideration of the 

database order for the 700 megahertz no later than the third quarter of this year? 

Mr. GENACHOWSKI. I believe that is right, yes. 

Senator CANTWELL. OK, thank you. 

And I know in the recommendations in the education recommendations, there was some discussion in there about different 

technology choices. Do you believe in neutrality in technology? 

Mr. GENACHOWSKI. Technological neutrality? 

Senator CANTWELL. Yes. 

Mr. GENACHOWSKI. Yes. 

Senator CANTWELL. I think it is very important. There are some 

models, and having neutrality I think is very important. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. 

Thank you, Mr. Chairman. 

This hearing is adjourned. 

[Whereupon, at 4:37 p.m., the hearing was adjourned.] 

(43) 

A P P E N D I X 

PREPARED STATEMENT OF HON. JOHN F. KERRY, U.S. SENATOR FROM MASSACHUSETTS

Mr. Chairman, thank you. 

Chairman Genachowski, I support the National Broadband Plan and consider it 

a national priority to get robust, open, and affordable broadband to every home. 

That infrastructure could serve as a platform for innovation, jobs, growth, and a 

more participatory democracy. But it will not reach its potential if we continue to 

follow the previous Administration’s philosophy that because broadband service is 

carried over the wires owned by telephone and cable we should do nothing. Under 

that philosophy, we fell behind the rest of the world in broadband. And our falling 

behind was not due to a lack of consensus on the goal that we should have the 

strongest broadband platform in the world. It was due to a failure of policy. 

In 2004, both President Bush and I called for affordable universal broadband service by 2006, and I said it needed to be 100 times as fast as it was then. The reasons 

we have not reached those goals are outlined in the National Broadband Plan: 

broadband service is highly concentrated in the hands of one or two providers in 

most markets, wireless broadband is not robust enough to competitively drive improvements in wired broadband service, consumers lack the information they need 

to make well informed decisions, and we have not yet modernized our Universal 

Service Fund to ensure rural America is broadband connected. 

To our industry friends who are rightly proud of the growth in broadband to date, 

I say that yes, it is true that we have seen an Internet fueled revolution in communications over the last twenty years. But that does not mean we cannot nor should 

not be doing better. I find it unacceptable that Americans in big cities like Boston 

don’t enjoy the prices or level of service common in cities in South Korea or Japan. 

It is wrong that seven million Americans in small towns like Monroe and in sections 

of the western part of my State enjoy no broadband service at all. And the fact that 

well over half of our public school kids in Boston do not have Internet service at 

home is hurting their ability to learn and compete. 

Mr. Chairman, I believe that there is a clear role for your agency and Congress 

to play to change these circumstances. But as you know, your authority to do so 

has come into question because a Federal appeals court ruled last week that the 

agency is highly limited in what it can do under the current regulatory classification 

of broadband services. I have not advocated that the FCC reclassify broadband services as a result of this decision because I trust your judgment and want you to explore all options. But I absolutely believe that the agency has that legal authority 

to reclassify the service in order to protect consumers and provide for universal access to affordable broadband. 

According to the FCC General Counsel, the court decision places a number of 

Americans and American communities at risk of being left behind. He wrote recently that the ‘‘decision may affect a significant number of important Plan recommendations. Among them are recommendations aimed at accelerating broadband 

access and adoption in rural America; connecting low-income Americans, Native 

American communities, and Americans with disabilities; supporting robust use of 

broadband by small businesses to drive productivity, growth and ongoing innovation; lowering barriers that hinder broadband deployment; strengthening public 

safety communications; cybersecurity; consumer protection, including transparency 

and disclosure; and consumer privacy.’’ 

On the other side, telephone and cable companies are arguing that they should 

be unregulated and free to deliver broadband service as they wish until a new law 

is written. And I am not opposed to considering a new legal regime of governance 

designed specifically for broadband service. But I do not believe broadband either 

should or needs to go without FCC oversight until then. If the Commission can come 

up with an alternative to reclassification of broadband service for the purpose of fulfilling your mission, then I am open to hearing it. My bottom line, though, is that 

we must ensure that the values that produced ubiquitous telephone service in the 

44 

20th century combined with the market incentives for competition in the 1996 Telecommunications Act are part of the 21st century’s platform for communication. The 

FCC has it within its authority to do that by revisiting the last Administration’s 

regulatory decisions, and if necessary we can supplement those efforts legislatively. 

The Broadband Plan calls for the United States to develop the most robust, widely 

accessible broadband infrastructure in the world by 2020. It states that we can 

achieve that by releasing more spectrum to encourage wireless broadband competition, better informing consumers, and protecting the open Internet. You have also 

suggested modernizing the Universal Service Fund and investing in a wireless network police and firefighters can access and rely on to safeguard their vital communications during emergency situations. Those efforts would respectively result in investments in rural broadband and would ensure that the radio collapses that occurred in the wakes of 9/11 and Hurricane Katrina never happen again. I support 

each of these initiatives. 

I have a number of questions for you today that I hope will help give Americans 

the clearest picture possible of how your recommendations will produce results and 

what we in Congress need to do to help you. And as you pursue those results, you 

can be confident that you have an ally in this, Senator. 

RESPONSE TO WRITTEN QUESTION SUBMITTED BY HON. JOHN D. ROCKEFELLER IV TO

HON. JULIUS GENACHOWSKI

Question. As I noted at our hearing, in the near-term, I want the FCC to use all 

of its existing authority to protect consumers and pursue the broad objectives of the 

broadband plan. How, if at all, would classification of Internet access service as either a telecommunications service or information service affect efforts to address online copyright theft, computer viruses or spam, or cybersecurity? 

Answer. The D.C. Circuit’s opinion in Comcast v. FCC cast serious doubt on the 

legal theory the Commission used for the past few years to support its vital role 

with respect to broadband Internet access. I have shared with my fellow Commissioners a draft Notice of Inquiry for their consideration at the Commission’s June 

17 Open Meeting. This Notice would initiate an agency proceeding to seek public 

comment on how the Commission should best address the challenge that Comcast 

has handed us. It would seek comment on all options, and invite any ideas for how 

the Commission should proceed, including: maintaining the current ‘‘information 

service’’ classification of services such as cable modem and DSL Internet access; 

classifying broadband Internet connectivity service as a ‘‘telecommunications service’’ to which all the requirements of Title II of the Communications Act would 

apply; and a ‘‘third way’’—similar to the highly successful approach that has been 

used for cell phone services since 1993—under which the Commission would identify 

the Internet connectivity service that is offered as part of wired broadband Internet 

service as a telecommunications service and forbear from applying all provisions of 

Title II other than the small number that are needed to implement fundamental 

universal service, competition, and consumer protection policies. 

As you know, Section 1 of the Communications Act explains that the Commission 

exists ‘‘for the purpose of the national defense [and] for the purpose of promoting 

safety of life and property through the use of wire and radio communication.’’ Cybersecurity is a growing concern, and the Commission has recently begun two proceedings to assess our needs in this area: we have launched an inquiry on the ability of existing broadband networks to withstand significant damage or severe overloads as a result of natural disasters, terrorist attacks, pandemics or other major 

public emergencies; and we have begun a proceeding to seek public comment on the 

proposed creation of a new voluntary cybersecurity certification program that would 

encourage communications service providers to implement a full range of cybersecurity best practices. We will examine the records of these proceedings closely, along 

with the record generated in response to the Notice of Inquiry on our legal framework. To the extent that the Commission possessed the necessary authority to address cybersecurity, as well as online copyright theft, computer viruses or spam before Comcast, the ‘‘third way’’ I mentioned above would protect that authority. If, 

on the other hand, the Commission decides to maintain the information service classification, jurisdictional issues would be addressed on a case-by-case basis, in light 

of the particular details of the proposal at issue. 

I welcome your recent announcement that you, along with Chairmen Kerry, Waxman, and Boucher, intend to start a process to develop proposals to update the Communications Act. I welcome that process, and any new ideas that others may propose to address this issue, and the Commission stands ready to serve as a resource 

to Congress as it considers legislative changes in this area. 

45 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. DANIEL K. INOUYE TO

HON. JULIUS GENACHOWSKI

Question 1. I appreciate and support the efforts of the Federal Communications 

Commission (FCC) to provide a special emphasis on the needs of Native Americans. 

Broadband adoption rates by those living on Tribal lands continue to be among the 

lowest of any population group. According to the FCC’s data, fewer than 10 percent 

of those living on Tribal lands have terrestrial broadband available. Factors contributing to this situation include the rural nature of many of these lands and the lack 

of adequate broadband deployment. The plan also notes the similar circumstances 

facing Native Alaskans. I am most pleased with the FCC’s expression that the 

plan’s recommendations addressing Tribal communities are intended to include Native Hawaiians. Do I have your assurance that as you move forward with your efforts to improve broadband deployment and adoption in Native communities, you 

will take into consideration the unique needs of Native Hawaiian communities and 

take appropriate steps to fully address these needs? 

Answer. Yes. As the Commission moves forward in its efforts to improve 

broadband deployment and adoption in Native communities, we will most certainly 

take into consideration the unique needs of Native Hawaiians and work to address 

those needs. The National Broadband Plan is intended to bring broadband to all 

Americans. Many of the recommendations in the Plan will assist communities, including Native Hawaiians, that have fallen behind with respect to broadband deployment and adoption. The Plan also includes a number of recommendations to improve broadband deployment and adoption on Tribal lands specifically. We intend 

for as many of these recommendations to apply to Native Hawaiians as possible consistent with current and future law. 

Question 2. Can you outline the impact that ‘‘repacking’’ the broadcast band would 

have on Hawaii? As you know, Kauai is served by translators. How would the FCC’s 

proposals affect this population? As we saw recently with tsunami warnings, this 

emergency service provided by these translator stations was essential to potentially 

saving lives. Moreover, Hawaii Public Television also serves the entire state with 

translators. Will this service be put in jeopardy? 

Answer. We recognize the value and importance to the public of continuing to 

maintain a viable broadcast television service. For example, as you observe with respect to the tsunami warnings provided by TV translators on Kauai, TV stations 

provide important services that must be preserved. We therefore will seek to limit 

the impact on television service from recovery of spectrum, and no stations will be 

required to cease operations. In order to make spectrum available for new uses, we 

may need some stations to change their channels and/or we may give others the opportunity to share channels. The plan under consideration for recovery of broadcast 

television spectrum would not, however, require that any stations involuntarily 

share or otherwise yield their channels; any such actions would be voluntary on the 

part of station licensees. Like stations elsewhere in the country, stations in Hawaii, 

both full service and low power (including translators) could be required to change 

channels or may seek to share channels. However, no broadcaster would have to go 

off the air. The Commission will carefully consider the interests of television broadcasters and the public as it proceeds with the recovery of spectrum for new 

broadband uses. 

Question 2a. To follow up on this point, what does ‘‘repacking’’ and channel sharing mean for over-the-air HD? I also understand that the majority of Honolulu TV 

stations are multi-casting new content. What would happen to this service? Will my 

constituents need to rescan digital TV’s and converter boxes? If channels are moved 

will my constituents need to purchase new antennas? 

Answer. Re-packing by itself would have no impact on a station’s ability to provide HD or any multicast services it may choose to offer. With respect to channel 

sharing, information gathered in preparation of the National Broadband Plan indicates that two stations sharing a channel should each be able to provide HD, 

multicast SD and mobile program services. Arrangements involving sharing between more than two stations could limit the service options of individual broadcasters in such arrangements to some extent and, in particular, their ability to provide HD and multicast services simultaneously. Any such outcome would be the result of voluntary action by the affected broadcaster, and would not be imposed by 

the re-packing plan recommended in the National Broadband Plan. 

Any rearrangement of television channels, which includes re-packing, would require viewers to re-scan their digital television receivers and converter boxes. Also, 

viewers might need to obtain new antennas in cases where local stations would: (1) 

re-locate to a new transmitter at a site farther away or (2) move to low VHF chanVerDate Nov 24 2008 13:27 May 12, 2011 Jkt 066283 PO 00000 Frm 00049 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\66283.TXT SCOM1 PsN: JACKIE
46 

nels (channels 2–6) and a viewer’s antenna does not already include a capability for 

effective reception of low VHF signals. 

Question 2b. Hawaii broadcasters have expressed some concerns with the voluntary nature of your spectrum proposals. How would the Commission proceed if 

no local broadcasters agree to ‘‘share’’ channels or turn in their licenses all together? 

Answer. For the Plan to work, we don’t need all, or even most licensees to voluntarily reducing use of UHF spectrum by going off the air, channel sharing or moving 

to the VHF band. If a limited number of broadcasters in a limited number of markets relinquish UHF spectrum, our staff believes we can free up a very significant 

amount of bandwidth. I believe, and the staff at the FCC believes, that a voluntary 

approach will work. We do not believe that it will come to the point where we have 

to examine other mechanisms. 

Question 2c. Can you further elaborate on spectrum user fees and how you envision the Commission proceeding with them? 

Answer. The National Broadband Plan calls on Congress to grant the FCC and 

NTIA authority to impose spectrum fees, but only on spectrum that is not licensed 

for exclusive flexible use. In my view, spectrum fees can serve some of the same effects that a well-functioning market produces by compelling spectrum users to recognize the value to society of the spectrum that they use. 

Question 3. The National Broadband Plan (NBP) proposes a goal of having 100m 

homes subscribed at 100 Mbps by 2020 while the leading nations already have 100 

Mbps fiber-based services at costs of $30 to $40 per month and beginning roll-out 

of 1 Gbps residential services, which the FCC suggests is required only for a single 

anchor institution in each community by 2020. This appears to suggest that the U.S. 

should accept a 10 to 12 year lag behind the leading nations. What is the FCC’s 

rationale for a vision that appears to be firmly rooted in the second tier of countries? 

Answer. The National Broadband Plans sets forth a vision for the United States 

to lead the world in the number of homes and people with access to affordable, 

world-class broadband connections. The 100-squared initiative, which is an aspiration goal of providing 100 million homes with access to 100 Mbps download speeds 

by 2020, will help ensure America’s global competitiveness in the 21st century. A 

widespread level of affordable high-speed connectivity will encourage innovators to 

develop the next generation of cutting-edge applications. As a milestone, by 2015, 

100 million U.S. homes should have affordable access to actual download speeds of 

50 Mbps and actual upload speeds of 20 Mbps. 

The Plan also sets forth recommendations designed to spur research and development, which are also key aspects of ensuring that America remains a broadband 

world leader. In particular, the Plan recommends a renewed focus on a Federal 

broadband research and development funding agenda, which includes broadband 

networks, equipment, services and applications. For U.S. companies to continue to 

be leaders in high-value areas of the global broadband ecosystem, they must continue to generate and benefit from scientific innovation. 

Moreover, the Plan’s universalization targets of 4 Mbps download and 1 Mbps 

upload is aggressive. It is one of the highest universalization targets of any country 

in the world. Many nations, such as South Korea and Finland, adopted short-term 

download targets around 1 Mbps. The Plan recommends reevaluting the 4 Mbps target every year so this target may rise over time, which will ensure that Americans 

continue to receive high quality broadband access at an affordable rate, and that 

consumers in rural areas will continue to receive broadband service that is reasonably comparable to the service provided in urban areas. 

Question 3a. 100 Mbps service typically costs $100 per month in the U.S., or about 

3 times that of other countries, and some have claimed that these costs will go up 

under the proposed Plan. We already know that price is one of the barriers to 

broadband adoption in this country. What is the FCC’s vision for how prices in the 

U.S. should compare to other developed nations, and how will this be achieved? 

Answer. One of the goals of the Plan is for every American to have access to robust broadband service at an affordable price. The Commission intends to achieve 

this and other goals through policies that ensure robust competition, and as a result, maximize consumer welfare, innovation and investment. Although the price of 

broadband service is relevant to achieving our goal, no single metric can provide an 

adequate basis for comparison particularly given differences between the U.S. and 

other developed nations in measures of household income, market and political 

structures, demography and geography. 

Pursuant to the Broadband Data Improvement Act, the FCC will continue to assess its international standing as part of the annual report required by Section 706 

of the Communications Act. The report intends to compare the extent of broadband 

service capability, including information about transmission speeds and price, in a 

47 

total of 75 communities in at least 25 countries. Part of this review involves comparing relevant similarities and differences in each community, including their market structures, level of competition, the types of technologies deployed, applications 

and services those technologies enable, the regulatory models, types of applications 

and services used, and information about business and residential use of such services. This information will help the Commission staff evaluate our country’s standing relative to other developed nations based on several parameters, which will provide a more holistic comparison than price alone. 

Question 3b. Is the FCC committed to promoting the availability of symmetric 

broadband services which can enable telework, home-based entrepreneurship, homebased health care and more? 

Answer. The National Broadband Plan included many recommendations meant to 

remove barriers to and promote telework and support entrepreneurship, as well as 

modernize health IT. The Plan recommended that Congress consider eliminating tax 

and regulatory barriers to telework and that the Federal Government should promote telework internally. I welcome the opportunity to discuss any other ideas you 

may have on promoting these home-based options. 

Question 4. While the NBP tasks the FCC with the commendable goal of ensuring 

all Americans have access to broadband, it does not ensure that all Americans will 

receive comparable affordable services. In reality, the 100 squared plan (100 million 

households receiving 100 Mbps) will likely be implemented in urban areas, while 

rural Americans are only assured of a speed of 4 Mbps. Are we no longer committed 

to ensuring that all Americans receive comparable affordable communication services? 

Answer. The Commission remains committed to ensuring that Americans in all 

regions of the Nation have access to telecommunications and information services 

that are reasonably comparable to those services provided in urban areas and at 

rates that are affordable and reasonably comparable to rates charged for similar 

services in urban areas, as required by section 254 of the Communications Act. I 

believe that 4 Mbps broadband service is, in fact, reasonably comparable to the 

broadband service provided in urban areas today. Although the National Broadband 

Plan set an aspirational goal of 100 Mbps, the median speed of broadband service 

purchased by consumers today is 4 Mbps, and only 6 percent of consumers subscribe 

to broadband service that exceeds 10 Mbps. Moreover, it is important to balance the 

cost of funding universal service against the burdens on consumers who contribute 

into the fund. While I believe that 4 Mbps is an appropriate target today, I am committed to revisiting that target every 4 years and adjusting it as circumstances 

change. Doing so will ensure that there is no digital divide in this country. 

Question 4a. Will this lead to a bandwidth divide between urban and rural Americans? 

Answer. As discussed above, 4 Mbps is the median speed of broadband service 

currently purchased by consumers and is therefore an appropriate target today. I 

am committed to revisiting that target every 4 years and adjusting it as circumstances change to ensure that services in rural areas are reasonably comparable 

to broadband services in urban areas. Doing so will ensure that there is no digital 

divide in this country. 

Question 5. Under the NBP, rural communication carriers would be required to 

move from ‘‘rate of return regulation’’ to ‘‘price cap regulation.’’ Under rate of return 

regulation, rural telecommunications providers have been able to invest in the 

build-out of broadband infrastructure that is meeting the growing needs for bandwidth across rural America. Why would it be good public policy to abandon the rate 

of return regulatory system that has already allowed the deployment of broadband 

to many rural, high-cost areas of the country? 

Answer. The National Broadband Plan sets forth a vision to provide broadband 

access to all Americans, regardless of where they live and regardless of the regulatory classification of their carrier. Many providers, including both price cap and 

rate-of-return carriers, have made significant investments in broadband, and the 

Plan outlines ways to reduce costs, such as pole attachment and rights of way reform, to promote further investment to ensure all Americans have access to 

broadband. Yet, the Plan also recognizes that there are some geographic areas that 

lack a private business case to deploy broadband. Doing nothing would lead to a 

growing digital divide, which is not an option. 

As one critical step to achieve the goal of universal broadband, the Commission 

must reconfigure the current High-Cost Universal Service Fund, which is designed 

to support voice service, to a new universal service program, described in the Plan 

as the ‘‘Connect America Fund,’’ that will provide support for broadband networks 

capable of providing voice services. As part of this conversion, the Plan recommends 

48 

moving rate-of-return carriers to incentive regulation. The Plan does not, however, 

specify the type of incentive regulation, such as price cap. 

A shift from rate-of-return to incentive regulation advances both to the general 

goal of ensuring widespread deployment of broadband networks and the specific tool 

of universal service reform. Rate-of-return regulation was implemented at a time 

when monopoly providers offered regulated voice telephone service over copper wires 

in a particular geographic area. Such an era no longer reflects the reality of converging technologies and competition in the 21st century broadband world. Indeed, 

a growing number of rural carriers have voluntarily elected to convert to price cap 

regulation to become more efficient and competitive. Moreover, the conversion to incentive regulation could help limit growth in the legacy High-Cost Universal Service 

Fund while the Commission moves to adopt a more efficient and targeted funding 

mechanism for government support for broadband investment. 

Incentive regulation could take many forms. Indeed, the majority of states have 

already recognized the benefits of moving to some form of incentive regulation—with 

over 30 states having already eliminated rate of return regulation for local rates. 

States have found it possible to craft regimes that provide the necessary stability 

for ongoing investment. The Commission is seeking comment on the recommendation in the Plan, including the proposal to move to incentive regulation. The Commission also asks parties to suggest other alternatives that would allow the Commission to achieve the National Broadband Plan goals of world-leading, affordable 

broadband service for all Americans. The Commission welcomes and encourages all 

interested parties to provide suggestions, data and recommendations in response to 

the Notice. 

Question 6. The NBP says that the FCC should ‘‘include market-based mechanisms to determine the firms that will receive Connect America Fund support and 

the amounts they will receive.’’ Can you give some examples of what this marketmarket based mechanism might be? 

Answer. The National Broadband Plan recommends that the Connect America 

Fund should rely on market-based mechanisms where appropriate to determine the 

entities that should receive support and how much support should be provided. On 

April 21, 2010, the Commission adopted a Notice of Inquiry and Notice of Proposed 

Rulemaking, which sought comment on a procurement auction mechanism proposed 

by 71 economists. In addition, the Commission previously sought comment on competitive bidding, including reverse auctions. Requests for proposals (RFPs) or other 

procurement processes are additional examples of market-based mechanisms that 

could be used to determine which entities should receive support and support levels. 

Question 6a. As changes to the price regulation structure are made, and marketbased mechanisms are implemented to determine which providers will receive support, what consideration has been given to the billions of dollars in loans rural telecommunication providers have borrowed from the Rural Utilities Service (RUS), as 

well as private sector financiers Rural Telephone Finance Cooperative (RTFC), 

CoBank, and others, to continue to expand and improve broadband services to their 

customers in rural America? Do you believe these investments might be put in jeopardy as these policy shifts move forward and create uncertainty in the market? 

Answer. The Commission staff met with RUS and CoBank, among others, on a 

variety of occasions to exchange ideas and get their input as we developed recommendations for the Plan. The recommendations in the Plan call for a staged and 

measured transition to enable the industry time to prepare and make adjustments. 

The Plan recommends the creation of a Connect America Fund to support 

broadband service in areas that otherwise would not have access to broadband because the costs of serving such areas exceed the revenues. In other words, the Plan 

recommends providing support to geographic areas that lack a private sector business case to justify deployment and the provision of service—areas that therefore 

would not have any broadband access absent public support. 

I believe we should ensure that communities that have already have access to 

broadband today continue to have such access in the future. An important component of the Plan’s recommendations is the recognition that some areas will require 

ongoing support from the new Connect America Fund to maintain broadband service. The Commission is in the process of implementing these recommendations and 

looks forward to receiving input from RUS, CoBank and others on how to craft rules 

that will create a stable environment for ongoing investment in rural America. 

Question 7. Please describe the steps that have been taken by the FCC to coordinate with the RUS to ensure that decisions made by the FCC, and its related entities such as the National Exchange Carrier Association (NECA), do not put into 

jeopardy investments made by rural carriers and the underlying loans that made 

such investments possible. 

49 

Answer. The Commission staff had a variety of meetings with the leadership and 

staff at RUS, as well as meetings with NECA and representatives of rural carriers, 

including OPASTCO, WTA and NTCA to receive input on the development of the 

Plan. We will continue to meet with RUS, NECA and other interested stakeholders 

throughout the rulemaking process to solicit input and factual information that will 

enable the Commission to craft workable policies that will ensure that all Americans 

have access to broadband. 

Question 8. Chapter 17 of the plan includes a section on the legal framework for 

the FCC’s implementation of the plan. In your testimony you stated that your counsel, along with interested outside counsel, are evaluating different options and possibilities. Concerns have been raised about the impact that the uncertainty of future 

actions by the FCC would have on decisions by broadband providers to invest in upgrades or expand service. How realistic are these concerns? What actions can the 

FCC take now to allay these concerns and to provide an environment that will continue to create jobs and stimulate investment and innovation? 

Answer. Promoting continued investment and job creation, both in the core 

broadband networks and through Internet-based services and applications that ride 

on such networks, is a key priority for the FCC and a key focus of the National 

Broadband Plan. The private sector is the key to investment and job creation, but 

government policy can help facilitate those outcomes, including through recommendations of the National Broadband Plan to spur broadband deployment and 

adoption, such as universal service reform. Telecommunications policy must take account of current market and technological realities. 

After the National Broadband Plan was released, the United States Court of Appeals for the District of Columbia Circuit released its decision in Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010). The Comcast decision casts serious doubt on 

whether the legal framework the Commission chose for broadband Internet services 

nearly a decade ago is adequate to achieve core broadband policies, which prior 

Commissions thought they had legal authority to implement. To confront this challenge, I have shared with my fellow Commissioners a draft Notice of Inquiry for 

their consideration at the Commission’s June 17 Open Meeting. This Notice would 

initiate an agency proceeding to seek public comment on how the Commission 

should best address the challenge that Comcast has handed us, including how the 

agency can foster predictability and promote innovation and investment. It would 

seek comment on all options, and invite any ideas for how the Commission should 

proceed, including: maintaining the current ‘‘information service’’ classification of 

services such as cable modem and DSL Internet access; classifying broadband Internet connectivity service as a ‘‘telecommunications service’’ to which all the requirements of Title II of the Communications Act would apply; and a ‘‘third way’’—similar to the highly successful approach that has been used for cell phone services since 

1993—under which the Commission would identify the Internet connectivity service 

that is offered as part of wired broadband Internet service as a telecommunications 

service and forbear from applying all provisions of Title II other than the small 

number that are needed to implement fundamental universal service, competition, 

and consumer protection policies. 

As you know, Chairmen Rockefeller, Waxman, Kerry, and Boucher, have announced they will start a process to develop proposals to update the Communications Act. I welcome that process, and any new ideas that others may propose to 

address this issue, and the Commission stands ready to serve as a resource to Congress as it considers legislative changes in this area. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. JOHN F. KERRY TO

HON. JULIUS GENACHOWSKI

Question 1. Writing on the effect of the recent court decision on the National 

Broadband Plan, the FCC General Counsel wrote, ‘‘yesterday’s decision may affect 

a significant number of important Plan recommendations. Among them are recommendations aimed at accelerating broadband access and adoption in rural America; connecting low-income Americans, Native American communities, and Americans with disabilities; supporting robust use of broadband by small businesses to 

drive productivity, growth and ongoing innovation; lowering barriers that hinder 

broadband deployment; strengthening public safety communications; cybersecurity; 

consumer protection, including transparency and disclosure; and consumer privacy.’’ 

Mr. Chairman, given these specific communities and issues that the decision places 

at risk, how long can the FCC examine the decision before taking action? 

Answer. I intend to address the Commission’s legal framework for broadband by 

the end of this year. As you know, after the National Broadband Plan was released, 

50 

the United States Court of Appeals for the District of Columbia Circuit released its 

decision in Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010). The Comcast decision casts serious doubt on whether the legal framework the Commission chose for 

broadband Internet services nearly a decade ago is adequate to achieve core 

broadband policies, which prior Commissions thought they had legal authority to 

implement. To confront this challenge, I have already shared with my fellow Commissioners a draft Notice of Inquiry for their consideration at the Commission’s 

June 17 Open Meeting. This Notice would initiate an agency proceeding to seek 

public comment on how the Commission should best address the challenge that 

Comcast has handed us. It would seek comment on all options and invite any ideas 

for how the Commission should proceed, including: maintaining the current ‘‘information service’’ classification of services such as cable modem and DSL Internet access; classifying broadband Internet connectivity service as a ‘‘telecommunications 

service’’ to which all the requirements of Title II of the Communications Act would 

apply, and; a ‘‘third way’’—similar to the highly successful approach that has been 

used for cell phone services since 1993—under which the Commission would identify 

the Internet connectivity service that is offered as part of wired broadband Internet 

service as a telecommunications service and forbear from applying all provisions of 

Title II other than the small number that are needed to implement fundamental 

universal service, competition, and consumer protection policies. 

I welcome your recent announcement that you, along with Chairmen Rockefeller, 

Waxman, and Boucher, intend to start a process to develop proposals to update the 

Communications Act. I welcome any new ideas that others may propose to address 

this issue, and the Commission stands ready to serve as a resource to Congress as 

it considers legislative changes in this area. 

Question 1a. I was here in 1996 and I can assure you that I never meant for cable 

and telephone broadband Internet service providers to fall outside the authority of 

the FCC to protect consumers, protect against discrimination, ensure that people 

with disabilities are given consideration, or ensure that modern communications are 

available to everyone in America. Given the history of communications policy, would 

it not fall outside of our values to have a central communications service not subject 

to the jurisdiction of the Federal Communications Commission? 

Answer. Congress created the Federal Communications Commission with an explicit mission: ‘‘to make available, so far as possible, to all people of the United 

States . . . A rapid, efficient, Nation-wide, and world-wide wire and radio communications service with adequate facilities at reasonable charges, for the purpose of 

the national defense, [and] for the purpose of promoting the safety of life and property through the use of wire and radio communication.’’ Broadband is increasingly 

essential to the daily life of every American. It is fast becoming the primary way 

we as Americans connect with one another, do business, educate ourselves and our 

children, receive health care information and services, and express our opinions. 

That is why in March, a unanimous FCC said in our Joint Statement on Broadband 

that ‘‘[w]orking to make sure that America has world-leading high-speed broadband 

networks—both wired and wireless—lies at the very core of the FCC’s mission in 

the 21st Century.’’ 

Question 2. Mr. Chairman, some have argued that you should cede authority over 

broadband service to the FTC until and unless the Congress writes a new law. Yet 

the FTC has no clear rulemaking authority to benefit consumers in policy matters 

such as universal service reform, lifeline/link-up for broadband, emergency communications policies, and accessibility for the disabled. And limits to its rulemaking authority make it unlikely the FTC could implement the specific goals of the FCC’s 

national broadband plan, such as increased transparency on broadband service 

speeds, truth-in-billing reform, and increased privacy protections. Also, the FTC has 

no clear proactive rulemaking capability to promote competition policy, through policies such as data roaming, interconnection, or pole attachment rate reform. These 

policies are key components of the FCC’s national broadband plan. Mr. Chairman, 

what do you say to those who argue that the FCC should cede its authority over 

communications over broadband to the FTC? 

Answer. In the decades since Congress created the Commission, the technologies 

of communications have changed and evolved, and with the guidance of Congress, 

the Commission has tailored its approach to these changes. But the basic goals have 

been constant: to encourage private investment and the building of a communications infrastructure that reaches all Americans wherever they live; to pursue meaningful access to that infrastructure for economic and educational opportunity and for 

full participation in our democracy; to protect and empower consumers; to promote 

competition; to foster innovation, economic growth, and job creation; and to protect 

Americans’ safety. While the FCC will continue to work closely with our sister agenVerDate Nov 24 2008 13:27 May 12, 2011 Jkt 066283 PO 00000 Frm 00054 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\66283.TXT SCOM1 PsN: JACKIE
51 

cies including the Federal Trade Commission and the United States Department of 

Justice on issues of mutual concern, I believe the FCC has a unique and vital role 

in achieving these goals. 

Question 3. Mr. Chairman, Section 706 of the Telecommunications Act of 1996 requires the FCC to determine whether ‘‘advanced telecommunications capability [i.e., 

broadband or high-speed access] is being deployed to all Americans in a reasonable 

and timely fashion.’’ If this is not the case, the Act directs the FCC to ‘‘take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications 

market.’’ Mr. Chairman, how does your plan remove barriers to investment and promote competition in the telecommunications market in accordance with the direction 

in the 1996 Act? 

Answer. Many of the recommendations in the National Broadband Plan focus on 

removing or reducing barriers to investment and competitive entry. In particular, 

the Plan focuses in several areas on the key input components of broadband infrastructure and service deployment. For example, this month the Commission is 

scheduled to implement the Plan’s recommendations regarding utility pole attachments, allowing the use of existing infrastructure for the deployment of fiber and 

wireless networks to provide next generation services. Also, the Plan makes several 

recommendations to improve the availability of spectrum, which is a crucial ingredient for many new broadband services. In addition, the Plan recommends significantly reforming the universal service program to ensure that broadband services 

are being deployed effectively and efficiently throughout the Nation. 

Question 4. Nearly 100 million Americans are not connected to the Internet. According to your report, ‘‘they are older, poorer, less educated, more likely to be a 

racial or ethnic minority, and more likely to have a disability than those with a 

broadband Internet connection at home.’’ Cost remains the primary barrier to entry, 

and limited digital proficiency, especially among seniors and the less educated, is 

also cited as a reason for this gap. And children in the inner city and many rural 

areas lack the textbooks, tools and teachers to help improve their readiness for the 

digital economy. I understand that not all Americans will have access to the same 

level of broadband service, but I believe we should be making a basic level of service 

available to everyone at an affordable rate. In the 20th century, we determined that 

Americans needed access to the predominant communications network of that time, 

telephone service, to get a job, to connect with each other, and to be able to access 

health and emergency services. How are those values reflected in your plan for 

broadband service and do Americans need broadband service for those purposes 

today? 

Answer. As more aspects of daily life move online and offline alternatives disappear, the range of choices available to people without broadband narrows. Getting 

a job is more difficult without access to online postings and the ability to submit 

applications online. Students without broadband lack access to the same level of information as their connected peers, and attempts to find medical information without access to online health sources limits patients’ knowledge, choices and care. People without a broadband connection will certainly not experience the potential benefits of broadband—increased earning potential, enhanced connections with friends 

and family, improved health and a superior education. Recommendations in the National Broadband Plan reflect the importance of equality of access to broadband 

service by setting a path to extend broadband networks through public investment 

in privately owned infrastructure. The Plan also includes a variety of recommendations to reduce barriers to adoption of broadband—cost, digital literacy and relevance. 

Question 4a. Mr. Chairman, I am worried about those kids who have no Internet 

service at home even though Comcast serves Boston. And I worry about the towns 

in Western Massachusetts subject to only one provider of service, partially served 

by only one provider, or lacking service all together. What do you say to those who 

argue that you should only focus on those completely without access to the Internet 

and leave the market alone as it relates to competition or urban affordability? 

Answer. The National Broadband Plan addresses all of these issues—connecting 

the unserved, spurring competition, and foster adoption to address cost barriers for 

low-income consumers. To connect the unserved, the Plan sets forth a path to connect everyone to broadband, which include, among other things, transitioning the 

Universal Service Fund to support broadband. But, the Plan is not limited to connecting the unserved. Rather, the Plan contains multiple recommendations that will 

foster competition across the ecosystem. They include the following: 

• Collect, analyze, benchmark and publish detailed, market-by-market information on broadband pricing and competition, which will likely have direct impact 

52 

on competitive behavior (e.g., through benchmarking of pricing across geographic markets). This will also enable the FCC and other agencies to apply appropriate remedies when competition is lacking in specific geographies or market segments. 

• Develop disclosure requirements for broadband service providers to ensure consumers have the pricing and performance information they need to choose the 

best broadband offers in the market. Increased transparency will incent service 

providers to compete for customers on the basis of actual performance. 

• Undertake a comprehensive review of wholesale competition rules to help ensure competition in fixed and mobile broadband services. 

• Free up and allocate additional spectrum for unlicensed use, fostering ongoing 

innovation and competitive entry. 

• Update rules for wireless backhaul spectrum to increase capacity in urban areas 

and range in rural areas. 

• Expedite action on data roaming to determine how best to achieve wide, seamless and competitive coverage, encourage mobile broadband providers to construct and build networks, and promote entry and competition. 

• Change rules to ensure a competitive and innovative video set-top box market 

to be consistent with Section 629 of the Telecommunications Act. The Act says 

that the FCC should ensure that its rules achieve a competitive market in video 

‘‘navigation devices,’’ or set-top boxes—the devices consumers use to access 

much of the video they watch today. 

• Clarify the Congressional mandate allowing state and local entities to provide 

broadband in their communities and do so in ways that use public resources 

more effectively. 

• Clarify the relationship between users and their online profiles to enable continued innovation and competition in applications and ensure consumer privacy, 

including the obligations of firms collecting personal information to allow consumers to know what information is being collected, consent to such collection, 

correct it if necessary, and control disclosure of such personal information to 

third parties. 

Further, the Plan also contains a variety of recommendations to increase adoption, including ways to address cost barriers to broadband adoption and utilization. 

In particular, the Plan recommends that the Commission expand Lifeline Assistance 

(Lifeline) and Link-Up America (Link-Up) to make broadband more affordable for 

low-income households. In addition, the Plan recommends that the Commission consider free or very low-cost wireless broadband as a means to address the affordability barrier to adoption. 

Question 4b. Mr. Chairman, you have repeatedly applauded a cable industry program offering half-priced service for 2 years for low income families with children 

in public middle school. It is called the A+ program. How many communities have 

signed up for that program and what could be done to make it more attractive? 

Answer. The cable industry has proposed the Adoption Plus (A+) program as a 

two-year pilot of a public-private partnership that would be designed to promote 

sustainable broadband adoption for middle-school aged children in low income 

households that do not currently receive broadband service. The cable industry suggested that the Federal Government provide funding to implement the pilot. 

The A+ proposal provides an example of private industry taking initiative and offering solutions to partner with other stakeholders and provide comprehensive solutions for overcoming multiple barriers to adoption for low-income school children. 

This program has not yet been implemented, so many details of the program may 

need to be refined to make sure that it is attractive for communities, competitively 

neutral, and effective. 

Several other efforts, such as Computers for Youth and Computers for Families, 

provide comprehensive solutions targeting low-income school-aged children and their 

families, and these programs could also serve as models for a national pilot program. 

Question 4c. The City of Boston applied for a BTOP grant to have municipal 

broadband service delivered to poor communities. It was rejected because there is 

cable modem and DSL service available there. But your study cites that cost remains the primary barrier to service for the working poor. If the private sector is 

not making some level of service available to low income consumers at a very low 

price or for free, shouldn’t cities and municipalities have the opportunity to provide 

those services? 

53 

Answer. The Commission is not involved with the evaluation or review of the 

Broadband Technology Opportunities Program (BTOP) so the Commission is unable 

to comment on the specifics of the City of Boston’s application or the merits of their 

proposal. Concerns regarding the BTOP process should be directed to NTIA. The 

Plan recommends that Congress make clear that state, regional, and local governments can build broadband networks. Though municipal broadband has its risks 

and may discourage private investment, the Plan suggests that in the absence of 

private investment sufficient to meet local needs, towns and cities should have the 

right to move forward and build networks that serve their constituents as appropriate. 

Question 5. Mr. Chairman, both the DOJ and the NTIA submitted comments for 

the plan explaining that very few firms control the market for high-speed Internet 

access in the U.S. Most people have at most a choice of two providers who use 

broadband service to leverage the sale of a bundle of other services. The Harvard 

Berkman Center also submitted a study as part of your deliberation that concluded 

it was necessary to open incumbent telephone and cable networks for wholesale use 

by new entrants that want to provide competing services to people’s homes. I know 

that this is a highly contentious issue and I think it speaks to the moderate approach you took to the construction of this plan that the issue is not directly addressed in your report. I agree that we should try better consumer disclosure and 

more wireless competition first, but how will the Commission determine whether 

and in what form it might be necessary to open the wires up to competition if the 

spectrum and disclosure policies you have proposed do not drive higher speeds and 

more competitive services? Is there anything different about the market of 

broadband services for small businesses that requires more heightened consideration of competition issues? 

Answer. The Commission, through its implementation of various provisions in the 

Communications Act, already requires many incumbent local phone companies to 

share certain inputs from their networks with competitors. The National Broadband 

Plan recommends that the Commission review the hodgepodge of requirements for 

network sharing and develop a comprehensive framework to ensure that broadband 

inputs, particularly for small business services, are widely available. As a part of 

this review, the Commission will also consider a variety of proposals for access to 

incumbent facilities. The Commission plans to review the needs of small businesses 

separately from those of residential users as the needs and services available to 

meet those needs may differ. 

Question 5a. In wireless, given the dominance of two carriers in the market today, 

what is your benchmark for success in making the wireless broadband industry 

more competitive? 

Answer. There are few areas in communications that present greater promise for 

our country than mobile—in terms of driving our economy and delivering broad opportunity for all Americans—and our goal must be for America to lead the world 

in mobile. To promote this goal, we must ensure that American consumers have access to competitive broadband data communications services whenever they want 

and wherever they are, and also ensure that the United States has the fastest and 

most extensive mobile networks in the world. 

Competition is important for many reasons, including, of course, that it produces 

low prices and high quality for consumers. Competition also drives invention and 

innovation which makes it especially important in a fast-changing marketplace like 

communications. 

For its 14th Annual Mobile Wireless Competition Report, we have undertaken a 

broader and more comprehensive analysis of the wireless industry than the Commission has conducted in years past. The Commission’s competition policy will be 

fact-based and data-driven, and intended to support innovation and investment in 

the manner that best serves American consumers. 

Question 6. I am committed to doing whatever we need to do and spending what 

we need to spend to ensure that if another natural or terrorist disaster hits the 

United States our first responders are not left unable to communicate. Did the FCC 

propose a system that will require police, fire, and emergency service agencies to 

rely on commercial carriers for their mission-critical broadband communications 

needs because commercial carriers have provided you with some assurance that it 

will be made open for use by public safety officials? What is the advantage of going 

commercial rather than allocating it directly to public safety officials? As you know, 

scores of public safety agencies have expressed concern with that proposal. 

Answer. The National Broadband Plan proposes a comprehensive strategy for creating a nationwide interoperable broadband network for our Nation’s police, fire and 

emergency services agencies. Under the Plan, these agencies will have full use of 

54 

the 10 megahertz of dedicated 700 MHz spectrum that has already been allocated 

for public safety broadband services. This spectrum will meet public safety communications needs during normal operations and during most emergencies. In the rare 

cases where additional capacity is required, public safety users will have priority access to commercial networks, including in the 700 MHz D Block. This overall strategy is the best means of providing public safety users with adequate broadband capacity while enabling them to leverage 4G commercial deployments in the 700 MHz 

band to significantly reduce costs. 

Question 7. Pending at the Commission are more than one dozen waiver requests 

filed by small and large jurisdictions, including Boston, that want to start constructing such a network right now. These jurisdictions seek to use the 10 MHz of 

spectrum already in the hands of the Public Safety Spectrum Trust, dedicated specifically to public safety in a manner that will be compliant with the Commission’s 

broader public safety policies and standards. Chairman Genachowski, can you provide the Committee with your opinion on these waiver requests and when you expect the Commission to act on them? 

Answer. The Commission recently released an order granting conditional waivers 

for early deployment to twenty-one petitioners, including Boston. Each waiver recipient is required under the order to adhere to certain technical specifications, such 

as mandatory use of the LTE 3GPP Release 8 air interface, which is the version 

that major carriers have announced they will be deploying starting this year, and 

to submit detailed plans for achieving interoperability with other networks. We also 

expect that such submissions will include a discussion of any specialized equipment, 

features description of any specialized equipment, feature or application, and how 

it will be used to further public safety purposes, and how its use will conform to 

the Commission’s stated interoperability goals. This order will enable the waiver recipients to move forward with their broadband deployment plans while preserving 

the Commission’s long-term goals for nationwide interoperability. 

Question 8. Mr. Chairman, if I understand correctly, you have suggested a program by which you have indicated that some broadcasters would submit spectrum 

that they have licensed but not allocated in exchange for some portion of auction 

receipts, thereby creating a win-win for them and wireless broadband users. And 

there is some room there for consideration. In the top 10 TV markets, a median of 

20 channels out of 49 are directly being used by full-power broadcasters or to put 

it another way 120 out of nearly 300 MHz are occupied and the rest are lying fallow. 

As you know, the broadcast spectrum proposal has met with much skepticism and 

my broadcasters back home are no exception. I know that this spectrum is the 

equivalent of beachfront property on the airwaves. But I cannot support moving forward until I hear from my broadcasters that it is workable and truly a win-win. 

Can you elaborate more on channel sharing proposals in your plan? From what my 

broadcasters say, channel sharing would strip consumers of the ability to watch HD, 

multi-cast and mobile TV programming over-the-air. Is this accurate? 

Answer. As discussed below, channel sharing would not limit consumers’ ability 

to watch HD, multicast, and mobile TV programming over-the-air. Under the approach described in the National Broadband Plan, channel sharing would be a voluntary option for broadcasters to reduce their operating costs and provide a potential source of capital for investment into programming. If a broadcaster chose not 

to participate, their broadcast services would not change from what they are today. 

With respect to station services under channel sharing, information gathered in 

preparation of the National Broadband Plan indicates that two stations sharing a 

channel should each be able to provide HD, multicast SD, and mobile program services. Channel sharing arrangements between more than two stations could, however, limit the service options of individual broadcasters in such arrangements to 

some extent and, in particular, their ability to provide HD and multicast services 

simultaneously. 

Question 8a. Mr. Chairman, my understanding is that the Plan recommends that 

the FCC ‘‘repack’’ the broadcast television bands in an effort to free up additional 

spectrum. Would re-scanning of TV’s and converter boxes be necessary after repacking, would that create consumer confusion, and would this effect future multicast 

and HD programming? 

Answer. Viewers in markets where local stations were re-packed to new channels 

or changed channels as part of a sharing arrangement would need to re-scan their 

digital television receivers and converter boxes. We also anticipate that there would 

be a period of time before the re-pack would take place. To avoid consumer confusion, information would be provided in advance advising viewers of the need to and 

the process to re-scan their receivers and the date on which the channel changes 

55 

would take place. Re-packing by itself would have no impact on a station’s ability 

to provide HD or any multicast/mobile services it may offer. 

Question 8b. Mr. Chairman, as you know, Commissioner Clyburn has expressed 

concerns about the effect this proposal would have on diversity in broadcasting and 

on local journalism. We also had a hearing on the future of journalism earlier this 

Congress. Where is the FCC on their inquiry in this arena? 

Answer. On January 21, 2010, the Commission issued a Public Notice announcing 

its examination of the Future of Media and Information and the Needs of Consumers. The objective of the review is to assess whether all Americans have access 

to vibrant, diverse sources of news and information that will enable them to enrich 

their lives and communities, as well as our democracy. The Public Notice set out 

a number of questions for which public comment was sought, and those comments 

were due on May 7, 2010. In addition to those submissions, project staff is reviewing 

existing studies, the records of other proceedings and other resources for pertinent 

data. Staff also is reaching out to industry, advocacy and public interest groups, academics and others to participate in the proceeding, through written filings or meetings. A Future of Media workshop on commercial media was held on March 4, and 

another, on public and other noncommercial media, on April 30. The project plans 

to issue a report by the end of the year which provides an assessment of the current 

media landscape, analysis policy options and, as appropriate, policy recommendations to the Commission, as well as other government entities and parties. The Inquiry will be conducted with great sensitivity to the First Amendment and the need 

to protect free speech and an independent press. Any recommendations will be crafted in furtherance of the longstanding public interest goals of the Commission’s 

media policy, including diversity, localism and competition. 

Question 9. In the National Broadband Plan, the FCC makes several recommendations regarding wholesale competition regulations for broadband services 

provided to small businesses. One proposal under consideration by the FCC is a petition which seeks access to local fiber facilities in order to provide broadband services to small business customers. It is my understanding that the Small Business 

Administration Office of Advocacy supported that petition. Are multiple broadband 

providers competing to serve small businesses now and what can you do to encourage broadband service delivery and packaging for the unique needs of small businesses? 

Answer. I’m certain that there is a great deal of variability among small businesses throughout America regarding the competitive choices each has available to 

serve its unique needs. With a proper regulatory framework and suitable data necessary to implement that framework, we can better ensure that small businesses 

have sufficient competitive alternatives to meet their evolving needs. In response to 

the Plan’s recommendations, we are undertaking a review of existing policies and 

development of just such a competitive framework. 

Question 10. Mr. Chairman, though this debate today has broken largely along 

partisan lines, it should not. Neither network neutrality nor ensuring that our communications network is accessible to everyone are partisan issues. The Christian 

Coalition’s Vice President of Communications, Michele Combs put it best in testimony before your Commission when she said that ‘‘We believe that organizations 

such as Christian Coalition should be able to continue to use the Internet to communicate with our members and with a worldwide audience without a phone or cable 

company snooping in on our communications and deciding whether to allow a particular communication to proceed, slow it down, block it, or offer to speed it up if 

the author pays extra to be on the ‘fast lane.’ ’’ She went on to say, ‘‘Any threat to 

the ability of organizations and groups to reach the American public at very low cost 

without permission is simply unacceptable and strikes at the heart of an engaged 

citizenry and well functioning democracy in the 21st century.’’ Mr. Chairman, in 

your review of the comments on an Open Internet and network neutrality, have you 

noticed a disconnect between what those who use the Internet like the Christian 

Coalition on one of the political spectrum and Daily Kos on the other or are users 

largely united on this question? 

Answer. Staff review of the comments in the Open Internet proceeding is ongoing; 

we received reply comments from tens of thousands of people and entities at the 

end of last month. Commenters from across the political spectrum have expressed 

support for the proposed open Internet principles, with a particular emphasis on the 

benefits of the principles for promoting free speech and innovation, and enabling 

new and/or traditionally marginalized voices to participate online. 

56 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. BYRON L. DORGAN TO

HON. JULIUS GENACHOWSKI

Question 1. Reforming intercarrier compensation and the Universal Service Fund 

is a difficult but critical undertaking. Transitioning from a regime that supports 

voice telephony to one that supports broadband is not an easy task. The National 

Broadband Plan suggests that the current size of the fund can be used to bring fast 

and affordable broadband to the Nation. How do you plan to make these changes 

without growing the current size of the fund? 

Answer. Universal service resources are finite and contributions have grown significantly over the last decade. The contribution factor is at its highest ever level 

at more than 15 percent. To keep the overall size of the Universal Service Fund 

within baseline projections, the Commission will need to eliminate inefficient funding of legacy voice service and refocus Universal Service Funding to directly support 

modern communications networks that will provide broadband as well as voice services. 

The National Broadband Plan recommends a 10-year transition to ensure that 

service providers that rely on universal service to provide voice service to their communities can make the migration to broadband successfully. During this transition, 

the Plan recommends that the Commission establish a Connect America Fund to 

support broadband and a Mobility Fund to provide one-time support to consumers 

in states that significantly lag the national average for 3G service. During this same 

period, the Plan also recommends that the Commission reduce spending under the 

legacy high-cost support mechanisms and target the savings to the Connect America 

Fund and other recommendations in the National Broadband Plan. On April 21, 

2010, the Commission adopted a notice of inquiry and notice of proposed rulemaking, which sought comment on: (1) moving rate-of-return companies to incentive 

regulation, (2) retargeting interstate access support to a new Connect America 

Fund, and (3) eliminating funding for competitive eligible telecommunications carriers over a five-year period. The Plan recommends that by the end of the transition, 

the Commission eliminate the legacy high-cost support mechanisms and all support 

will be provided through the Connect America Fund. 

Question 2. Today, according to one survey, North Dakota ranks 42nd out of fifty 

states in broadband speed. Your goal for ‘‘100 Squared’’—100 million households 

with 100 megabits-per-second download speeds—by 2020 is laudable. Yet the plan 

also calls for a reformed Universal Service Fund that supports broadband offerings 

at 4 Mbps. How can your universal service plan get us to ‘‘100 Squared’’? How will 

you structure the policies to meet these goals in a way that doesn’t exacerbate the 

existing digital divide? 

Answer. The National Broadband Plan sets forth a path for the United States to 

lead the world in the number of homes and people with access to affordable, worldclass broadband connections. The Plan includes a goal of connecting 100 million U.S. 

homes with affordable access to actual download speeds of at least 100 Mbps and 

actual upload speeds of at least 50 Mbps by 2020. The Plan recommends encouragement of private sector investment to realize this goal by, among other things, fostering competition, driving demand for increased network performance and lowering 

the cost of deploying infrastructure. These will help inform consumers about 

broadband performance, expand services and infrastructure, and reform access to 

rights-of-way to lower barriers to entry for firms. 

At the same time, ensuring all people have access to broadband requires the Commission to set a national broadband availability target to guide public funding. An 

initial universalization target of 4 Mbps of actual download speed and 1 Mbps of 

actual upload speed, with an acceptable quality of service for interactive applications, would ensure universal access. The 4 Mbps is the median speed received by 

residential consumers today, and what many consumers are likely to use in the near 

term, given past growth rates. A universalization target of 4 Mbps download and 

1 Mbps upload is aggressive. It is one of the highest universalization targets of any 

country in the world. Many nations, such as South Korea and Finland, have already 

adopted short-term download targets around 1 Mbps. 

To ensure that consumers in rural areas receive broadband speeds reasonably 

comparable to urban areas, the Plan also recommends reevaluating this 4 Mbps 

funding target every 4 years and adjusting it as appropriate to reflect changing consumer use and demand. Doing so will ensure that there is no digital divide in this 

country. 

Question 3. Many of the goals laid out in the plan focus on mobility and the need 

for fast, extensive wireless networks. But I do not believe the plan addresses the 

issue of handset device exclusivity and its effect on competition. Chairman 

Genachowski, at a hearing in the Commerce Committee last June, you committed 

57 

to reviewing the exclusive arrangements between wireless carriers and cell phone 

manufacturers. What is the current status is of the petition for rulemaking on 

handset device exclusivity filed in May of 2008? 

Answer. On May 20, 2008, the Rural Cellular Association filed a petition requesting that the Commission initiate a rulemaking proceeding examining ‘‘exclusivity 

arrangements between commercial wireless carriers and handset manufacturers.’’ 

The Commission collected a record on the petition last year. In addition to assessing 

the record submitted, Commission staff are meeting with interested parties and are 

independently monitoring and evaluating the availability of handsets to consumers, 

and to smaller service providers, in the mobile wireless marketplace. 

Question 4. There are a number of departments and agencies that work on 

broadband issues. How will the FCC work with those partners to improve 

broadband access and availability in Indian country? 

Answer. The NBP includes a number of recommendations to improve coordination 

across Federal departments and agencies that work on broadband issues. In particular, Recommendation 9.14 urges the Executive Branch to establish a FederalTribal Broadband Initiative specifically for this purpose. Once this Initiative is established, the Commission will work closely with its Federal partners on the Initiative to improve broadband access and availability on Tribal lands. 

We are already in the process of implementing other recommendations that will 

enable the Commission to more effectively coordinate with Federal partners. For example, we are creating an Office of Native American Affairs, which will work with 

other Federal departments and agencies to coordinate cross-agency efforts for helping Tribes. We expect to appoint a Director to this Office shortly. We are also in 

the process of establishing an FCC-Native Nations Broadband Task Force, which 

will include senior staff from all FCC Bureaus and Offices. This Task Force will ensure that Tribal concerns are considered in all broadband-related discussions and 

initiatives involving the Commission and other Federal departments and agencies. 

Question 5. The National Broadband Plan proposes establishing a Federal-Tribal 

Broadband Initiative, a FCC-Tribal Broadband Task Force and an Office of Tribal 

Affairs. How will these entities coordinate with tribes and with each other to assist 

tribes in improving broadband access? 

Answer. We envision that all three entities will coordinate with each other in a 

close and integrated manner. The Office of Native American Affairs will be led by 

a new Director, who will lead a staff focused exclusively on Native American issues. 

In addition to having dedicated staff support, the Director will also be able to leverage the full expertise and resources of the Commission through the FCC-Native Nations Broadband Task Force, which will be led by the Director and will include senior staff from all the Bureaus and Offices. Once the Federal-Tribal Broadband Initiative has been established, the Director and the Task Force will represent the 

Commission on the Initiative. 

With respect to coordinating with Tribes, the Office of Native American Affairs 

will engage in regular and meaningful communication with Tribal governments, organize outreach activities and events, and serve as a resource and partner to Tribal 

governments. In addition, both the FCC-Native Nations Task Force and the FederalTribal Broadband Initiative will include elected or appointed leaders of Tribal governments, which will enable and facilitate direct coordination with Tribes. The Task 

Force will also develop a formal FCC consultation policy for consulting with Tribal 

governments. 

Question 6. The lack of data is a consistent problem for most Indian issues, and 

broadband is no exception. I applaud your recommendations aimed at better 

broadband data collection on tribal lands. How can this data assist the FCC and 

others in increasing access to broadband for tribes? 

Answer. The lack of data regarding broadband deployment and adoption on Tribal 

lands renders it difficult to understand the true scope of the challenge, formulate 

intelligent policy, and address specific needs across Tribal communities. For example, we do not have a clear understanding of the amount of additional funding that 

would be needed to deploy broadband infrastructure to all Tribal lands. The lack 

of data also complicates efforts to measure the efficacy of adoption efforts and initiatives. With better data, we could begin the process of identifying needs, developing 

tailored approaches, and working with Tribes to implement real solutions. 

58 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. MARIA CANTWELL TO

HON. JULIUS GENACHOWSKI

Question 1. Almost eight and one half years after 9/11, an interoperable communications system for our first responders remains a goal rather than a reality. There 

are some actions the FCC can take in the immediate term to improve public safety 

communications. Pending at the FCC are waiver requests from several cities that 

want to start immediate construction of an interoperable public safety network. Seattle is one of the cities. Seattle is proposing to use spectrum already in the hands 

of the Public Safety Spectrum Trust in a manner that will be consistent and compliant with the Commission’s broader public safety policies and standards. 

Public safety organizations in neighboring communities in Pierce County want to 

expand Seattle’s proposed interoperable network southward once it is up and running. Last year, there were five police officers murdered in Pierce County. In one 

incident, law enforcement officials told me that its lack of interoperable communications across jurisdictions slowed down their manhunt to track down the perpetrator. 

Do you believe the Seattle waiver request is consistent with the public safety objectives of the national broadband plan? 

Answer. We recently released an order granting conditional waivers to twenty-one 

petitioners, including Seattle. This order will enable Seattle and the other waiver 

recipients to move forward with their broadband deployment plans while preserving 

the Commission’s long-term goals for nationwide interoperability. 

Question 1a. The Commission’s proposed broadband plan agenda indicates it will 

act these on petitions no later than in the third quarter this year. Can you assure 

me that the Commission will keep to this schedule? 

Answer. We have already released an order acting on these petitions. 

Question 2. The D Block auction during Chairman Martin’s watch was a complete 

failure. The National Broadband Plan recommends licensing the D Block for commercial use, with options for public safety partnerships. That is a change from the 

earlier plan for the D block auction winner to build out a joint network for public 

safety and commercial use. 

There are some who argue that the spectrum should be given directly to local public safety. Most emergencies tend to be either local or regional in nature. Under this 

scenario, the local government would negotiate with a local carrier to operate the 

network. Why do you believe the approach described in the National Broadband 

Plan will be more successful than providing the spectrum directly to public safety 

in cities and regions and allowing them to negotiate with local telecommunications 

providers? 

Answer. The public safety broadband spectrum is licensed to the Public Safety 

Spectrum Trust (PSST), which includes on its board representation from a number 

of national public safety organizations. With regard to the commercial D Block adjacent to the public safety broadband spectrum, the Commission must auction the D 

Block for commercial use in order to comply with current law. Notwithstanding the 

legal requirement to auction the D Block, our analysis indicates that mere reallocation of the D Block to public safety would not ensure deployment of a nationwide, 

interoperable public safety broadband wireless network that is reliable and resilient. 

The National Broadband Plan’s approach, on the other hand, will achieve this goal 

by providing public safety users with 10 megahertz of dedicated spectrum, priority 

access to 700 MHz commercial spectrum when they need it (providing significantly 

more capacity), and the ability to leverage commercial deployments—including in 

the D Block—to reduce their overall costs significantly. Making the D Block available for commercial use will also ensure there is a market for consumer-priced ‘‘off 

the shelf’’ devices that will greatly reduce device costs for public safety, in contrast 

to the current situation where specialized public safety devices often cost thousands 

of dollars per unit. One essential ingredient to a nationwide, interoperable network, 

also recommended by the Plan, is public funding to bring public safety’s chosen 

partners up to public safety standards and to extend the network into rural areas. 

Reallocation of the D Block alone will not ensure a nationwide network. Funding 

is necessary in this regard and the National Broadband Plan’s recommendations 

were based on a detailed cost model. The ability for the National Broadband Plan’s 

recommendations to create a nationwide, interoperable public safety broadband network is a key is reason that the former Chair, Vice Chair and two members of the 

9/11 Commission called the FCC’s plan ‘‘a realistic framework to move forward.’’ 

Question 2a. Is getting the Emergency Response Interoperability Center up and 

running a gating function for building out the public safety network? How do you 

ensure that NIST and DHS will participate fully in ERIC? Will that require legislation? 

59 

Answer. The Commission recently released an order establishing ERIC, which is 

now in the initial staffing phase. The Commission is in the process of negotiating 

Memoranda of Understanding (MOUs) with both NIST and DHS, which should obviate the need for legislation to ensure their participation. We have already been engaged in close coordination with these Federal partners, and my staff and I look forward to working with our Federal partners to make ERIC a success. 

Question 2b. What happens to implementation of the public safety recommenda- tions of the National Broadband Plan if Congress cannot appropriate $6.5 billion 

over the next 10-years for a new grant program to help construct the network? 

Answer. The bottom line is that, without significant public funding, the public 

safety broadband network will be neither nationwide nor fully interoperable. Reliance on commercial partnerships alone, or on the reallocation of the D Block to public safety, cannot guarantee deployment in remote areas or ensure that public safety 

broadband facilities are built to required standards for hardening, reliability and redundancy. The public funding program is therefore a crucial component of the Plan’s 

strategy for creating the network. 

Question 2c. Do you believe the Commission currently has authority under the 

universal service provisions of the Telecommunications Act of 1934 (as amended) to 

have telecommunications providers add a small service charge to customers’ bills to 

help toward the funding of the public safety network’s operations? 

Answer. The Plan recommends that Congress consider enacting legislation to create a funding program to support capital and operational expenses for the public 

safety broadband network. I believe that Congressional action is the best means of 

assuring that the Commission has a clear source of authority to put this mechanism 

into place. The public safety broadband network will thrive only if a sustainable and 

adequate public funding mechanism is established to support the operation, maintenance and continual evolution of the network. 

Question 3. My understanding is that under the National Broadband Plan, the 

over-the-air television broadcasters in certain markets will be provided with incentives to return some spectrum and have their channels moved closer together. I 

imagine the Commission would want to pack the over the air broadcast channels 

in as close together as the interference protection rules allow. If this is the case, 

would the relocation of over-the-air broadcaster’s channels into a narrow band lead 

to a dramatic reduction in the amount of spectrum available for white space in most 

communities? 

Answer. The Commission is currently developing plans for beginning to implement the National Broadband Plan’s recommendation for recovery of a portion of 

the spectrum currently used by over-the-air television stations. In implementing 

that plan, there is potential for impact on the amount of white space, (locally vacant, TV spectrum) that is available for use by unlicensed white space devices. The 

extent of such impact and how it would affect the amount of white space spectrum 

available in different communities would depend on how the spectrum recovery is 

implemented. The National Broadband Plan also recommends that the Commission 

provide additional spectrum for unlicensed devices on a nationwide basis; such additional spectrum could offset any potential unlicensed spectrum that might be reduced through changes in allocation and use the extant broadcast television spectrum. 

Question 4. The broadband plan urges the FCC to complete the necessary actions 

to implement the use of fixed wireless and portable personal devices in the broadcast white space. If Congress were to make the statutory changes to implement the 

spectrum proposal in the plan, how might it impact the current rules regarding the 

use of the broadcast white spaces? 

Answer. The requested statutory changes would facilitate the transfer of spectrum 

from the overthe-air television service to wireless broadband uses. This change could 

reduce the amount of TV white space that is available at individual locations and 

such a reduction could affect certain aspects of the TV white space rules, including 

those governing the spectrum used by fixed versus personal/portable devices and 

perhaps other portions of the rules depending on how the spectrum recovery is implemented. Accordingly, the Commission may need to review its TV white space 

rules in light of any changes it makes in the spectrum that is available for overthe-air television once those changes are complete. 

Question 5. The FCC issued its final order in the broadcast television white spaces 

proceeding in November of 2008. A number of parties have asked the FCC to reconsider its order. Additionally, there are other open issues at the Commission that impact the use of the white spaces such as the database proceeding and the 700 MHz 

proceeding including questions around wireless microphones operating illegally in 

the band. The FCC order has been appealed to the courts and the court case has 

60 

been held in abeyance until the FCC completes its reconsideration proceeding. I am 

pleased to see that your Broadband Agenda has indicated that you plan to issue a 

white spaces Opinion and Order in the third quarter of this year. Will you decide 

all open white spaces issues: the reconsideration, the database order and the 700 

MHz issues no later than the third quarter of this year? 

Answer. As you indicate, there are several matters outstanding that affect TV 

white spaces, including petitions for reconsideration, selection of one or more database administrators and a decision on final rules for wireless microphones. We intend to complete our action on the petitions for reconsideration and wireless microphones in the third quarter of this year. We also expect that we would complete our 

decision on the database manager(s) in the same time-frame or shortly thereafter. 

Question 6. I’ve been a strong advocate for technology neutrality—be it in 

healthcare IT, smart grid, or cybersecurity. My belief is that if we establish a neutral playing field it will allow many options to emerge. Consumers and businesses 

will benefit from a diversity of choices. I believe it is important to clearly describe 

the desired objectives of the National Broadband Plan and ensure that all segments 

of industry can compete in a technology neutral manner to meet the prescribed 

goals. It is important that policymakers refrain from adopting policies that pick winners and losers. The discussion around education software was largely focused on 

touting the benefits of a particular software business model-open source (p. 231). 

I have nothing against this particular business model, but it is critical that the 

government not prescribe which technology or software development business model 

should be adopted—-either when it is a market actor or when it is making policy. 

Do you believe that technology neutrality is important and will this principal guide 

your communications policy decisions in implementing the National Broadband 

Plan? 

Answer. I agree that the Commission should always strive where possible to avoid 

placing its thumb on the scales to favor one technology choice over another. The National Broadband Plan is based on this same philosophy and specifically supports 

‘‘regulatory frameworks that are pro-competitive, transparent and technology-neutral.’’ 

Question 7. The use of advanced metering will contribute to our Nation’s energy 

efficiency and conservation efforts. There is some concern, though, that information 

obtained from advanced metering will allow utilities and third parties to infer patterns from the data they collect of what goes on in a household over the course of 

a day. This stream of information may become another source of revenue for utilities 

and allow them to evolve their business model. There is a question of consumer privacy. The Telecom Act of 1996 created Section 222 of the Communications Act on 

how telecom companies need to treat the privacy of Consumer Proprietary Network 

Information. Do you believe there should be an analogous statute created for the 

smart grid? 

Answer. The National Broadband Plan (NBP) recommends that consumers be able 

to access and control their own digital energy information. Privacy and security are 

critical to the success of the Smart Grid; the NBP stresses that ‘‘security and privacy should be fundamental to both network architectures and everyday business 

processes.’’ 

The NBP recommends that states update their energy data policies, to include privacy and data accessibility rules for the Smart Grid. However, the NBP also recommends that ‘‘if states fail to develop reasonable policies over the next 18 months, 

Congress should consider national legislation to cover consumer privacy and the accessibility of energy data.’’ 

Consumer Proprietary Network Information (CPNI) rules are principally about 

privacy and the protection of customer information in telecom. There are separate 

rules, such as Truth-In-Billing, that address the customer’s rights to access his or 

her own data. Other industries, like health care, have integrated protection and accessibility rules. HIPAA, as an example, sets forth national rules to protect personal 

information, to ensure patients can get timely access to their own information, and 

to allow authorized third parties access to patient data. If Congress is going to consider national smart grid legislation about energy data, it would be worth considering including provisions for both the protection and accessibility of the data. 

Question 7a. Do you believe utilities should allow consumers to provide an affirmative consent before it can disclose smart meter information to third parties? 

Answer. Generally yes, but with exceptions. With safeguards, electric utilities 

should be able to conduct certain regulated activities, such as energy efficiency programs, without requiring individual affirmative consent for data disclosure. Imagine, for example, a third-party vendor that helps a utility with its energy efficiency 

programs. Today, this vendor already has to comply with the utility’s existing data 

61 

protection rules—i.e., a consumer’s monthly energy usage data can only be used to 

help the utility offer energy efficiency products/services back to the customer. Requiring utilities to now get individual affirmative consent would have the unintended consequence of lowering the response rate to the utility’s energy efficiency 

programs. 

There are a few other limited scenarios where, with the proper safeguards (e.g., 

anonymization of personal information), utilities should be able to disclose a subset 

of information gathered from smart meters without affirmative consent. The NBP 

offers examples: 

‘‘With reasonable privacy protections, the Federal Government should be granted limited access to utility bills from homes receiving Federal energy efficiency 

funds to better evaluate the government’s energy efficiency programs, such as 

weatherization. Energy consumption data, when aggregated, can be very useful 

to a wide variety of public policy and economics researchers. States should consider how third parties might get access to anonymized datasets for research 

purposes, with strict privacy protections.’’ 

For most other scenarios, however, utilities should require affirmative consent before disclosing smart meter information to third parties. 

Question 8. The broadband plan says the amount of data moving across the Smart 

Grid networks is modest today but is expected to grow significantly over time. No 

one seems to have a good handle at the moment on the Smart Grid’s future bandwidth needs. The plan makes four recommendations related to addressing the future 

spectrum needs for the Smart Grid. How do you see the spectrum needs for the 

Smart Grid evolving? Will it be a combination of commercial wireless spectrum for 

less secure communications and dedicated spectrum for mission critical communications? 

Answer. There are over 3,000 utilities in the U.S. that serve customers across 

very different topologies and regulatory regimes. There is not a single solution or 

a ‘‘representative’’ network for the Smart Grid. Many utilities use a mix of commercial and private networks in the Smart Grid, and will continue to do so. 

Although, generally speaking, electric utilities traditionally prefer to build and 

maintain private networks for mission critical communications, some utilities do use commercial networks for mission critical communications today. Commercial networks can be made secure and resilient, as demonstrated by their use in the Federal 

Government (DOD, DHS, etc.). For some smaller utilities, the lack of internal networking expertise and personnel might have driven the decision to use commercial 

facilities. 

Utilities will need greater communications across the grid, and many are increasingly using wireless technologies, which are often more cost-effective that wired facilities in reaching wide areas or distributed assets. These wireless networks including licensed commercial networks, licensed private networks, and private networks 

operating at power levels where FCC licenses are not required. 

Dedicating spectrum for the Smart Grid would have benefits and disadvantages. 

Potential benefits include: (1) providing another mechanism for the Federal Government to drive national interoperability standards and best practices of cyber-security, privacy, and consumer data access, (2) vendor standardization and competition, 

which could lead to lower equipment prices or more functionality, and (3) a possible 

acceleration of smart grid deployments. Risks/disadvantages to dedicating spectrum 

include: (1) possible sub-optimal use of spectrum, (2) fewer applications and users 

on commercial networks to drive down the cost for all users, (3) the opportunity cost 

to the U.S. Treasury of not auctioning off the spectrum to commercial broadband 

users, and (4) a near-term effect of ‘‘freezing the market’’ while companies re-evaluate their Smart Grid technology road maps. 

Developing a Smart Grid is national policy set forth by EISA 2007, and the NBP 

recommends that the Federal Government continue to explore the issue of providing 

spectrum, recommending that ‘‘NTIA and the FCC should specifically explore possibilities for coordination of Smart Grid use in appropriate Federal bands. Any new 

broadband network built in the identified spectrum should be required to meet 

standards of interoperability, customer data accessibility, privacy and security. Use 

of this spectrum should not be mandated, so that legacy systems are not stranded 

and that commercial, other shared networks and unlicensed wireless networks can 

be used where appropriate.’’ 

It’s important to note that there are a variety of possible models that could be 

employed to provide spectrum to the industry, including a sharing of spectrum with 

Federal users, sharing with public safety networks (also recommended in the NBP), 

dedicating spectrum with specific build-out requirements, and auctioning spectrum 

for critical infrastructure uses (which includes the Smart Grid, but could also inVerDate Nov 24 2008 13:27 May 12, 2011 Jkt 066283 PO 00000 Frm 00065 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\66283.TXT SCOM1 PsN: JACKIE
62 

clude natural gas and water management, among other). Market-based auctions 

pose some challenges for utilities, since approximately 30 percent of the power is 

delivered to customers through non-profit entities (co-operatives and municipals), 

and even among the investor-owned utilities, some have business model or service 

territory incompatibilities to participating in spectrum auctions. 

Question 9. In January, NIST released its Framework and Roadmap for Smart 

Grid Interoperability. There was a short section that touched on models for smart 

grid information networks. It also discussed technologies for standards for smart 

grid communications infrastructure. There was nothing in the broadband plan on 

communications standards issues related to the Smart Grid. For example, one of the 

debates is whether the entire Smart Grid should be IP-based. Do you believe the 

Smart Grid should be IP-based end-to-end? 

Answer. The NBP is technology-neutral and does not recommend one networking 

protocol over another for the Smart Grid. However, the NBP does stress the importance of open standards and uses the success of Internet Protocol (IP) standard as 

an example. The NBP notes that: ‘‘the NIST standards development process should 

continue to draw on lessons from the Internet. Open standards are critically important—Internet Protocol being a prime example.’’ 

NIST has a Priority Action Plan (PAP) focused on the role of Internet Protocol 

(IP) in the Smart Grid. This is the proper forum for the architectural debates about 

how fast and how much IP can be incorporated into the Smart Grid. It is important 

to remember that the Smart Grid includes a wide variety of legacy utility communications systems, some of which are incompatible with IP networks. 

Question 9a. Is there a reason where there was no recommendations relating to 

Smart Grid communications standards in the broadband plan? 

Answer. Establishing and maintaining national Smart Grid standards is critical 

to the success of the Smart Grid (and is national policy under EISA 2007). The NBP 

did not offer specific recommendations to improve or change the NIST Smart Grid 

standards coordination process, but did stress the importance of the process and of 

Smart Grid standards. The NBP states: 

‘‘Standards are critical to the Smart Grid. For example, the faster NIST can accelerate market convergence toward a small number of appliance communications standards, the sooner manufacturers can offer smart appliances that communicate with the rest of the smart home. Standards will help ensure that the 

Smart Grid is ‘‘plug-and-play,’’ encouraging innovation by giving companies a 

large potential market for devices and applications and providing customers 

with the ability to use any of them to take advantage of the grid.’’ 

RESPONSE TO WRITTEN QUESTION SUBMITTED BY HON. FRANK R. LAUTENBERG TO

HON. JULIUS GENACHOWSKI

Question. While we work to bring new communications services to more Americans, New Jerseyans still lack basic TV coverage of local news and events. WWOR, 

New Jersey’s only high-power commercial TV station, has not adequately served the 

people of New Jersey and is operating under a license that expired almost 3 years 

ago. When will the FCC be in a position to act on WWOR’s renewal application and 

concerns about its local news coverage? 

Answer. As you know, a petition to deny the license renewal application of WWOR 

has been filed with the Commission. The petition raises important issues about both 

the quantity and quality of New Jersey specific news provided by WWOR. The petitioner recently submitted additional information which currently is under review in 

the Media Bureau. I hope this matter can be concluded expeditiously. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. MARK PRYOR TO

HON. JULIUS GENACHOWSKI

Question 1. I support the goals of the FCC’s recommendations regarding set-top 

boxes but I understand that the FCC’s proposal would unintentionally change the 

competitive landscape by favoring cable over satellite due to differences in system 

architecture. I am worried that the FCC’s television set-top box proposal will have 

a disproportionately negative impact on rural residents who rely on satellite delivered television. Do you plan on examining that situation further to ensure there are 

no unintended consequences of harming the consumer? 

Answer. Yes, I agree that the Commission should consider differences in system 

architecture to ensure that consumers are not disadvantaged To prevent any unintended consequences, the ‘‘Allvid’’ Notice of Inquiry recently adopted by the CommisVerDate Nov 24 2008 13:27 May 12, 2011 Jkt 066283 PO 00000 Frm 00066 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\66283.TXT SCOM1 PsN: JACKIE
63 

sion includes particular questions to assure that the Commission’s eventual course 

of action does not unfairly burden any subscription video provider. Specifically, the 

Notice of Inquiry seeks comment on network-specific functions that the Commission 

would need to consider as we develop our proposal. In addition, the Notice invites 

commenters to propose alternate methods that would help to achieve retail availability of smart video devices that can access subscription video services. The Commission will consider these comments carefully, and I am confident that this proceeding will conclude with a solution that benefits all subscription video providers, 

device manufacturers, and consumers. 

Question 2. One of the recommendations in the National Broadband Plan is that 

the Federal Government should launch a National Digital Literacy Program that 

creates a Digital Literacy Corps, increase the capacity of digital literacy partners 

and create an Online Digital Literacy Portal. The plan cites the statistic that 22 

percent of non-adopters claim a digital literacy-related factor as their main barrier. 

The rate of broadband adoption is low in my state. In addition to the recommendations in the National Broadband Plan, would incentivizing businesses to offer digital 

literacy programs in low-income areas be an effective mechanism to increase the 

adoption rate of broadband? 

Answer. Digital literacy training can promote broadband adoption and help individuals and businesses gain the skills they need to compete in the 21st century 

economy. Private sector businesses play an important role in digital literacy in several ways. Businesses provide training to their own employees and support local and 

community efforts by creating digital literacy content and training materials, supporting employee volunteers who provide digital skills training to local community 

members or small businesses and providing financial assistance to non-profit groups 

who provide digital literacy training. These efforts can be particular effective when 

they include trusted members of the community providing training to non-adopters 

in comfortable settings and should be encouraged. 

Question 3. The plan recommended that all community colleges should be connected with high-speed broadband. A recent report from the Brookings Institution 

report states that, ‘‘Community Colleges present enormous opportunities for meeting 

national and economic goals.’’ My state is home to 23 community colleges and I 

couldn’t agree more that these institutions should have improved connectivity and 

access to greater technological resources as community anchor institutions. The Federal Communications Commission has indicated that it would require around $350 

million to fund broadband connections for community colleges. In your view, would 

a grant program be an effective mechanism to reach the goal of community college 

connectivity? 

Answer. As you note, the National Broadband Plan recognized the important role 

that community colleges play in preparing students for their place in the 21st century workforce. As the Plan explained, Congress should evaluate the amount of 

funding necessary to connect all public community colleges with high-speed 

broadband after the awarding of funding through the Broadband Technology Opportunities Program. There may be many ways, including grant programs, to successfully allocate and distribute additional funding that can achieve the goal of improving availability of high-speed broadband at Community Colleges. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. CLAIRE MCCASKILL TO

HON. JULIUS GENACHOWSKI

Question 1. The National Broadband Plan proposes to use 2,345–2,360 MHz spectrum for the expansion of broadband wireless communications. That spectrum is adjacent to a band that aerospace companies use radio spectrum in the 2.3 GHz band 

for flight test telemetry. Has the FCC reviewed how test flights will be affected by 

this change? Can you provide any assurance that broadband wireless in the adjacent band to will not cause interference to flight test telemetry? 

Answer. FCC staff issued a public notice on April 2, 2010, inviting comment on 

the specific draft rules, including both the technical standards and interference resolution mechanisms to protect adjacent band services. The FCC staff has thoroughly 

analyzed the record, met numerous times with commercial Aeronautical Mobile Telemetry (AMT) stakeholders, and with the National Telecommunication and Information Administration (NTIA) which represents Federal AMT stakeholders. I am 

committed to working with our counterparts at NTIA to find a solution that adequately protects AMT operations. 

Question 2. The biggest benefit that I see for broadband is the economic development and job growth that it can bring. Wiring towns and building infrastructure is 

64 

paramount to encourage growth in communities and is an investment that will pay 

off in the future. It will also make up more competitive with the rest of the world. 

The Plan talks a lot about public-private partnerships to encourage economic development and job growth. That sounds great and I like the concept in theory—private companies have invested $60 billion in broadband and have created hundreds 

of thousands of jobs, including tens of thousands in Missouri. It is clear that we 

can’t have real growth without private investment buying into the Plan. But how 

do you envision this working? What sort of incentive do private companies have to 

enter into arrangements like this? Have you gotten interest from private companies? 

And are you concerned about overlap with existing programs and companies? 

Answer. Private sector cooperation and investment are important for America to 

achieve continued growth and innovation. The importance of the private sector is 

one reason why the Plan emphasizes the benefits of creating public-private partnerships, particularly in the section dealing with economic opportunity. To date, the 

private sector has shown a willingness to collaborate with the Commission and 

other public institutions in these initiatives. Specifically, the Small Business Association (SBA) and its volunteer resource partner, SCORE, recently announced a 

partnership with 10 leading technology firms to provide digital literacy tools to 

small businesses across the country, as recommended in the Broadband Plan. The 

goal of this partnership is to leverage existing infrastructure and programs SBA and 

SCORE have in place, as well as leveraging existing expertise and resources that 

the private sector firms have in place. In this way, the Commission can seek to 

bring more resources to a broader array of companies and communities, while not 

duplicating past efforts or wasting resources. Moreover, the private sector firms 

stand to gain exposure for their products, a reputation for dedicated involvement in 

local communities, and a broad array of potential new customers as more businesses 

take advantage of broadband and its associated tools and applications. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. AMY KLOBUCHAR TO

HON. JULIUS GENACHOWSKI

Question 1. One of the most discussed aspects of the plan is the transition of spectrum from broadcast television to wireless broadband. Many of my constituents, especially those in rural areas, are worried that they may lose access to over-the-air 

television signals. If the broadband plan recommendations go through, what will 

this mean for consumers’ ability to access broadcast television? 

Answer. If the broadband plan’s recommendations for the broadcast TV spectrum 

are implemented, consumers will continue to access broadcast television using the 

same receivers and antennas that they are currently using. In some cases, depending on how a market is repacked, viewers might need to obtain new antennas in 

cases where local stations would: (1) re-locate to a new transmitter at a site farther 

away or (2) move to low VHF channels (channels 2–6) and a viewer’s antenna does 

not already include a capability for effective reception of low VHF signals. 

Broadcasters will have the option of choosing how to best serve their viewers, including strengthening their financial basis by reducing the amount of spectrum they 

are using while continuing to provide their own unique programming content over 

the air by sharing a channel with another station. Channel sharing by two or more 

stations would not require consumers to use additional equipment; the multiple stations would be received as multicast streams with existing receivers. Viewers would, 

of course, need to re-scan their digital television receivers and converter boxes to 

be able to view stations on their new channels after the channel re-packing was 

completed. We anticipate that various analyses will need to be performed and considered through rule making. However, it is reasonable to anticipate that few, if 

any, changes in the TV allotments will be needed in most rural areas. 

Question 1a. While it is clear that wireless broadband needs additional capacity, 

how can we be sure that broadcast television remains viable? 

Answer. Participation in the channel sharing program would be voluntary, as 

would any decision by a station to vacate its channel pursuant to an incentive auction. In addition, we will make sure that there are sufficient spectrum resources for 

broadcast stations to continue to operate in a viable manner. We also intend to work 

with the broadcast television industry throughout the spectrum recovery process 

and to address their concerns in the various actions that we will take. 

Question 2. Several billion dollars was recently spent on the converter box program to ensure that no viewers were disenfranchised as a result of the digital transition. Will they still be able to access over-the-air television and get a strong signal? 

65 

Answer. The digital television converter boxes would continue to function to provide service from over-the-air signals after the broadcast TV spectrum is re-packed. 

The available television stations may be on different channels in some cases, but 

this could be handled through rescanning of the existing converter boxes (or TV receivers) and consumer education. Signal strengths would only be affected in cases 

where a broadcast station relocated its transmitter and/or combined to share a channel with another station whose service area was different from its own; such cases 

could result in an increase or a decrease in service area, or a change in service area 

with little to no net change in coverage area. Any potential impact on consumer reception of TV signals will need to be considered carefully through rule making and 

minimized to the extent possible. 

Question 2a. Will they have to purchase new equipment or antennas? 

Answer. Consumers will generally not need to purchase any new equipment to 

continue to receive television signals off-the-air if stations are re-packed to new 

channels. As indicated above, a new antenna might be needed if a station in a viewer’s market were to relocate to a channel in the low-VHF range (channels 2–6) and 

the viewer’s antenna did not already include the capability for effective reception 

of those channels. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. TOM UDALL TO

HON. JULIUS GENACHOWSKI

Question 1. Mr. Genachowski, I am pleased that the National Broadband Plan includes recommendations for tackling the digital divide facing our Nation’s Tribal 

lands, where less than 10 percent of residents have access to broadband. 

I know you understand the severity of this problem, and I want to thank you for 

your leadership in addressing this challenge. I strongly support the Broadband 

Plan’s recommendation to establish an Office of Tribal Government Affairs at the 

FCC to improve cooperation and coordination with Tribal leaders on a government 

to government basis. I also support efforts to transition the Universal Service Fund 

for telephone to a ‘‘Connect America Fund’’ for broadband. However, when 

transitioning to a Connect America Fund, how will the Commission ensure that this 

reform effort addresses the unique connectivity needs of Indian Country, where the 

current Universal Service Fund has not yet achieved universal telephone service? 

Answer. The National Broadband Plan contains several recommendations to address the disparity existing in Indian Country. It gives us a roadmap for increasing 

broadband deployment and adoption in unserved or underserved areas, including 

isolated Tribal lands. The availability of broadband service also means the availability of quality telephone service in these areas. 

The Commission has taken the first critical step by beginning the process of converting the Universal Service Fund over time to support broadband, which will free 

up more resources to build modern communications networks including on tribal 

lands. On April 21, 2010, the Commission adopted a notice of inquiry and notice of 

proposed rulemaking to examine near and longer-term processes to target funding 

toward new deployment of broadband networks in unserved areas while considering 

final rules to implement a new Connect America Fund that will efficiently provide 

universal service support for broadband and voice services. The Commission looks 

forward to receiving substantial input for this record from tribal governments, so 

Commission staff can understand and account for unique circumstances present on 

tribal lands. 

Also within the second quarter of this year, the Commission intends to launch the 

new Office of Native American Affairs and the Native Nations Broadband Task 

Force. These initiatives should allow more efficient government-to-government relations with tribal governments, and the means to address more effectively the full 

range of Native American issues. The National Broadband Plan also recommends 

creating a tribal seat on both the Federal-State Joint Board on Universal Service 

and on the Universal Service Administrative Company board of directors, and the 

creation of a Federal-Tribal Broadband Initiative consisting of tribal leaders and officials from across all Federal agencies. I strongly support all of these initiatives, 

and will work hard to put them in place to enhance government-to-government 

interaction with tribal bodies. 

The remote nature of some tribal lands has prevented the residents of those areas 

from gaining even basic telecommunications services. The Commission needs better 

data on these regions, so it plans to issue a broadband data rulemaking proceeding 

toward the end of this year, and coordinate with Native American governments to 

enhance data collection on tribal lands. The Commission also intends to issue a 

spectrum on tribal lands rulemaking proceeding during the fourth quarter of this 

66 

year to examine increasing mobile opportunities in Native American communities, 

and follow with a rural health care reform rulemaking proceeding with an eye toward bringing access to world-class healthcare for tribal and remote regions. 

Throughout the Commission’s activities implementing the National Broadband 

Plan, I intend to keep a watchful eye on how our actions benefit the most remote 

and unserved regions. I look forward to expanded and enhanced coordination with 

tribal governments, and full participation from tribal representatives and stakeholders in this major effort, so we can be assured of addressing the disparity in communications services that has existed on many tribal lands. 

Question 1a. What resources or funding would the proposed ‘‘Tribal Broadband 

Fund’’ need to meet the goal of universal broadband service on our Nation’s Tribal 

lands? 

Answer. Given the paucity of data regarding broadband deployment and adoption 

on Tribal lands, we do not yet have a clear sense of the required funding levels for 

the Tribal Broadband Fund. Submissions from NCAI and other Tribal entities recommend establishing the Tribal Broadband Fund on the level of $310 million. However, the full cost of deploying broadband service to all Tribal lands has been estimated to range anywhere between $1.2 billion to $4.6 billion. The Commission will 

work with other Federal departments and agencies to improve data-collection on 

Tribal lands so that we can develop an accurate assessment regarding the funding 

needs of Indian Country. 

Question 2. The National Broadband Plan recommends that the Rural Utility 

Service (RUS) make a priority of issuing Smart Grid loans to rural electric cooperatives. These rural cooperatives operate 42 percent of our Nation’s distribution infrastructure. The RUS has its roots in President Franklin Roosevelt’s rural electrification program of the 1940s. Given that the agency today already supports electric 

and broadband service in rural America, having RUS support Smart Grid deployment makes sense to me. Could you expand on the National Broadband Plan’s brief 

recommendation number 12.10 regarding RUS loans for Smart Grid? 

Answer. As a major lender to rural electric cooperatives, the Rural Utility Service 

(RUS) has an opportunity to bring the benefits of the Smart Grid to rural America. 

By some statistics, rural electric cooperatives are ahead in selected Smart Grid applications. Smart Meters are an example; it became cost effective to automate meter 

reading sooner in rural communities, where long distances made it more difficult 

or costly to read meters. Advanced metering penetration within rural electric cooperatives has grown quickly, having increased from 3.8 percent in 2006 to 16.4 percent in 2008. In other areas, however, rural electric cooperatives reportedly lag in 

their adoption of Smart Grid applications compared to larger investor-owned utilities. In this respect, RUS has an opportunity to help rural America catch up. In FY 2009, RUS disbursed 209 electric loans and loan guarantees totaling $6.6 billion; the total RUS electric loan portfolio was over $40 billion. Although the RUS 

has not provided the NBP exact numbers, the majority of these loans were for traditional grid improvements, not Smart Grid. RUS has the opportunity to fund more 

deployments of Smart Grid, and to encourage adoption of best practices in cybersecurity, privacy, and data accessibility. 

In a few cases, electric cooperatives are building broadband networks to offer retail broadband services in addition to serving as a smart grid network. The NBP 

encourages RUS to continue to fund these innovative projects. 

Question 3. The National Broadband Plan makes clear the importance of competition in broadband markets. The Plan highlights how wireless broadband providers 

may emerge as important competitors to wireline and cable broadband providers. 

However, some of the largest providers of DSL and fiber to the home broadband also 

have a major presence in the mobile broadband market. How will the FCC help ensure that consumers benefit from robust competition in broadband markets that 

lowers prices and encourages investment in new technologies? 

Answer. The National Broadband Plan recognizes that the Commission will have 

to pay particular attention to its competition policies. For instance, the Plan recommended and the Commission recently embarked on policy changes regarding mobile roaming, to allow smaller competitors the ability to compete by roaming on larger carriers’ networks in some instances. Similarly, the Commission plans to review 

its wholesale competition policies to ensure that investment incentives are balanced 

against the need to ensure competition for broadband services. 

Question 3a. How will rural Americans benefit from lower broadband prices and 

better service if where they live is served by just one provider? 

Answer. While some areas may not see as much competition as others, many of 

the proposals we have advanced would lower the costs for new entrants to deploy 

networks further into rural America. Additionally, the Commission has proposed 

67 

changes to the way in which the universal service program will disburse support 

for broadband networks in rural and high-cost areas of the country. Such changes 

would include speed and service quality standards. 

Question 3b. How will the FCC increase transparency in broadband markets for 

consumers with respect to data on availability and price of broadband service, as 

briefly discussed in the Plan’s recommendation 4.2? 

Answer. The Plan sets forth recommendations to increase transparency in the retail broadband market. Doing so should encourage broadband service providers to 

deliver better value to consumers through better services. 

In particular, the Plan includes four recommendations to increase transparency: 

• The Commission should, in coordination with the National Institute of Standards and Technology (NIST), establish technical broadband measurement standards and methodology and a process for updating them. The FCC should also 

encourage the formation of a partnership of industry and consumer groups to 

provide input on these standards and this methodology. 

• The Commission should continue its efforts to measure and publish data on actual performance of fixed broadband services, and should publish a formal report and make the data available online. 

• The Commission should issue a Notice of Proposed Rulemaking to determine 

appropriate disclosure obligations for broadband service providers, including 

disclosure obligations related to service performance. These obligations should 

include simple and clear data that a ‘‘reasonable consumer’’ can understand, 

while providing more detailed disclosure for more interested parties such as 

tech-savvy consumers, software developers and entrepreneurs designing products for the network. 

• The Commission should develop broadband performance standards for mobile 

services, multiunit buildings and small business users. 

The Commission has already begun implementing these recommendations and 

has launched ‘‘The Consumer Broadband Test’’ (currently in beta) to enable consumers receives real-time information about the quality of their broadband connections. Additional information on the Consumer Broadband Test, including the ability 

for consumers to test their broadband speed, is available at http://www.broad 

band.gov/qualitytest/about/. 

Moreover, the Commission’s Broadband Action Agenda indicates that the Commission will consider a Notice of Proposed Rulemaking to implement the Plan’s transparency and disclosure recommendations in the third or fourth quarter of 2010. 

Question 4. Rural wireless providers in my state tell me that customers cannot 

always use their smart phone’s mobile broadband features when roaming outside 

their home provider’s coverage area. This is due to the difficulty of companies always coming to an agreement on reciprocal data roaming arrangements. How will 

the FCC address data roaming issues—discussed in the Plan’s recommendation 

number 4.11—so that these rural wireless companies can fully serve their customers, who often live in remote areas? 

Answer. In April, the FCC sought additional comment on whether to extend automatic roaming obligations to mobile data services. Comments are due June 14, 

2010, and reply comments are due July 12, 2010. I look forward to reviewing the 

record and working with my fellow Commissioners to determine, in an expeditious 

manner, the path forward that best serves American consumers with a focus on the 

importance of data roaming for rural Americans. 

Question 5. The National Broadband Plan highlights how set top boxes can become more effective gateways to the Internet, especially for those who may have 

cable or satellite television but no computer at home. 

However, I have heard some concerns from satellite television providers that the 

set top box technology they use is not as suitable as similar cable devices for becoming a new, standardized gateway to the Internet. This is potentially more important 

for rural Americans who live in areas served only by satellite TV. How will the FCC 

address this concern when moving forward with efforts to ‘‘open up’’ TV set top 

boxes as a way to promote Internet access for more Americans? 

Answer. I understand your concerns and the Notice of Inquiry recently adopted 

by the Commission regarding devices used by consumers to select and enjoy video 

programming is designed to ensure that our actions serve all Americans who subscribe to television services. The Commission’s goal is to enable a cable subscriber 

in Albuquerque to move to Pie Town (or any other area of New Mexico) and subscribe to satellite service using the same smart video device. Specific questions are 

included in the Notice of Inquiry to assure that the Commission’s course of action 

68 

does not unfairly burden any subscription video provider based on its delivery method and system architecture. In particular, the Notice of Inquiry seeks comment on 

network-specific functions that the Commission would need to consider as we develop our proposal. The Notice also invites commenters to propose alternate methods that would help us achieve retail availability of smart video devices that can 

access subscription video services. The Commission will consider these comments 

carefully, and I am confident that this proceeding will conclude with a solution that 

benefits all subscription video providers, device manufacturers, and consumers. 

Question 6. Chairman Genachowski, everyone seems to agree that spectrum is a 

scarce and valuable resource that we must use wisely to allow consumers to benefit 

from current and new technologies, meet the needs of public safety agencies, and 

preserve our national defense capabilities. In the FCC’s efforts to promote more efficient use of limited spectrum resources, how will the agency protect the quality and 

utility of those spectrum bands that may become more crowded in the future? 

Answer. The manner in which spectrum is allocated, licensed (or unlicensed) and 

made available for use, and how interference is defined, disputes are adjudicated, 

and band-sharing is administered, will have a profound impact on how the wireless 

marketplace develops. The Commission is careful to evaluate technical considerations, including reducing the potential for interference, prior to allocating or licensing spectrum. Commission staff works closely with Federal partners, commercial licensees and industry to identify and address concerns—and corresponding solutions—in advance. We support measures that promote the efficient use of spectrum 

and seek to take advantage of technical advancements, such as dynamic spectrum 

access. We will continue to work closely with Federal partners, licensees, and unlicensed users and consumers to determine what will work best. 

Question 6a. For example, how will the FCC ensure that new mobile technologies 

do not interfere with satellite radio service, which relies on sensitive antennae for 

picking up distant signals? 

Answer. As you may be aware, Sirius-XM asserts that mobile devices transmitting 

continuous video from a vehicle in the wireless communication service (WCS) spectrum will cause harmful interference to satellite radio reception in nearby vehicles. 

Conversely, the WCS industry is concerned that unnecessarily conservative technical constraints will impede its ability to effectively provide mobile video, data, and 

voice service to the public. 

The FCC is sensitive to the importance of maintaining the quality and service levels of satellite radio. Accordingly, the stringent rules the FCC engineering staff is 

recommending are designed to prevent harmful interference to the satellite radio 

service and quickly remedy interference if it should occur. Recently, a public field 

test was performed by the trade association representing the majority of WCS licensees (WCS Coalition). In that test, a device representative of that which would 

be sold to consumers was used to transmit data at rates that would support file 

transfers or video uploads from the user device. Other vehicles equipped with Sirius-XM radios drove or parked next to the WCS-equipped vehicle. Sirius-XM participated in this demonstration and it was open to the public and was witnessed by 

about a dozen FCC engineering staff. Interference received by SDARS receivers 

under this demonstration was insufficient to cause the loss of satellite radio signal 

for more than an inconsequential interval. 

To ensure the most complete and specific participation and analysis possible, 

Commission staff put on public notice for comment by the parties and the public 

detailed proposed rules that were informed by the observations at the demonstration. The proposed rules include technical and operational restrictions for WCS and 

a requirement that WCS licensees cooperate in good faith in the selection and use 

of new stationsites and new frequencies to reduce interference and make the most 

effective use of the authorized facilities. Under the proposed rules, licensees of stations suffering or causing harmful interference must cooperate in good faith and resolve such problems by mutually satisfactory arrangements. We will be further guided by the specific information and arguments submitted in response to those proposed rules to ensure the continued reception of satellite radio service by the public. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. MARK WARNER TO

HON. JULIUS GENACHOWSKI

Question 1. There has been a great deal of discussion about the possible reclassification of broadband services under Title II of the Communications Act. I recognize 

the FCC is considering multiple options in response to the ruling and I think it is 

important for consumers to be able to continue enjoying all the Internet has to offer. 

Do you think it is possible to institute a technology-neutral regulatory framework 

69 

that includes nondiscrimination protections and provides for reasonable network 

management? 

Answer. Yes, but the Commission must carefully consider the legal framework on 

which it implements those protections. The decision of the United States Court of 

Appeals for the District of Columbia Circuit in Comcast Corp. v. FCC, 600 F.3d 642 

(D.C. Cir. 2010), casts serious doubt on whether the legal framework the Commission chose for broadband Internet services nearly a decade ago is adequate to 

achieve core broadband policies, which prior Commissions thought they had legal 

authority to implement. To confront this challenge, I have shared with my fellow 

Commissioners a draft Notice of Inquiry for their consideration at the Commission’s 

June 17 Open Meeting. This Notice would initiate an agency proceeding to seek 

public comment on how the Commission should best address the challenge that 

Comcast has handed us. It would seek comment on all options, and invite any ideas 

for how the Commission should proceed, including: maintaining the current ‘‘information service’’ classification of services such as cable modem and DSL Internet access; classifying broadband Internet connectivity service as a ‘‘telecommunications 

service’’ to which all the requirements of Title II of the Communications Act would 

apply; and a ‘‘third way’’—similar to the highly successful approach that has been 

used for cell phone services since 1993—under which the Commission would identify 

the Internet connectivity service that is offered as part of wired broadband Internet 

service as a telecommunications service and forbear from applying all provisions of 

Title II other than the small number that are needed to implement fundamental 

universal service, competition, and consumer protection policies. As you know, 

Chairmen Rockefeller, Waxman, Kerry, and Boucher have announced they will start 

a process to develop proposals to update the Communications Act. I welcome that 

process, and the Commission stands ready to serve as a resource to Congress as it 

considers legislative changes in this area 

Specifically on open Internet issues, we will continue to work with stakeholders 

to find the best approach to preserving the open Internet, and Commission staff is 

currently reviewing the tens of thousands of comments in the Open Internet proceeding. We look forward to reviewing the responses generated by the Notice of Inquiry on our legal framework for broadband as well. 

Question 2. Is it possible to accomplish this under the provisions of the 1996 Act 

or have we come to a point where Congress should start considering updating telecommunications law to create a better system that incents business development, 

provides for reasonable network management—where like forms of traffic are treated similarly—and also maintains open access to the Internet for consumers? 

Answer. As you know, Chairmen Rockefeller, Waxman, Kerry, and Boucher have 

announced they will start a process to develop proposals to update the Communications Act. I welcome that process, and any new ideas that others may propose to 

address this issue, and the Commission stands ready to serve as a resource to Congress as it considers legislative changes in this area. 

Question 3. Although I have always believed all Americans should have access to 

broadband, I’m also concerned about broadband affordability. Commerce Department data shows that while the broadband adoption rate is just 64 percent, availability is much higher—95 percent of U.S. households have access to broadband. Do 

you think the plan does enough to provide affordable service to Americans? Is it 

enough to just expand the existing Lifeline program and to build out more services? 

Answer. The National Broadband Plan recommends significant changes be made 

to the Lifeline and Link Up universal service low-income programs that would 

greatly enhance broadband affordability. Currently, Lifeline discounts offset eligible 

low-income consumers’ recurring monthly telephone charges, while Link Up discounts reduce eligible low-income consumers’ one-time telephone connection/installation charges. If both Lifeline and Link Up discounts are expanded to apply to service packages that include broadband, as the National Broadband Plan recommends, 

eligible low-income consumers would be eligible for discounts for both recurring 

monthly charges and installation charges for broadband service. Specifically, the 

National Broadband Plan recommends that: (1) the Commission and states should 

require eligible telecommunications carriers to permit Lifeline customers to apply 

Lifeline discounts to any service or package that includes basic voice telephone service; (2) the Commission should integrate the expanded Lifeline and Link Up programs with other state and local e-government efforts; and (3) the Commission 

should facilitate pilot programs that will produce actionable information to implement the most efficient and effective long-term broadband support mechanism. 

Question 3a. Completing the infrastructure build out is very important to me, but 

should we be thinking more innovatively in terms of long-term service affordability? 

70 

Answer. The National Broadband Plan recommends expanding Lifeline discounts—which currently offset eligible low-income consumers’ recurring, monthly 

telephone charges—to include discounts for service packages that include 

broadband. This expansion of Lifeline discounts to broadband offerings, if adopted 

by the Commission, would help ensure that broadband service is affordable on an 

ongoing basis to eligible low-income consumers. Additionally, the National 

Broadband Plan recommends that the Commission integrate the expanded Lifeline 

program with other state and local e-government efforts which may provide low-income consumers with additional ongoing broadband discounts. 

Question 4. As a former Governor who helped bring more broadband to Virginia, 

the issue of improving rural coverage is a priority for me. Coverage has improved 

in rural Virginia over the last 10 years but the broadband plan does not appear to 

address the dead spot issue, which is a huge investment barrier for wireless carriers. What should we be doing in rural areas with spotty coverage, particularly 

given the problem in using and sharing data service? These spotty areas normally 

have lower tier data speeds, not up to par with those available in urban areas. 

Answer. I think that there area number of steps that we can take to address these 

issues in rural areas. Rural areas often present special and unique challenges due 

to environmental or other factors, such as access issues, or topography. Often the 

biggest challenge in deploying networks in rural areas is cost, due to greater distance between facilities and very low population density over which to spread the 

cost of buildout. 

The Commission has already put in place two initiatives that should provide more 

information regarding the scope of ‘‘spotty service’’ and ‘‘dead spots’’ or ‘‘dead zones’’ 

with respect to broadband services. The Consumer Broadband Test (Beta) and the 

Broadband Dead Zone Reporting Form are now available via the Commission’s 

broadband website. The purpose of the Consumer Broadband Test (Beta) is to give 

consumers and the Commission additional information about the quality of their 

broadband connections and to create awareness about the importance of broadband 

quality in accessing content and services over the Internet. The Commission will be 

able to use the data collected from the Consumer Broadband Test (Beta), along with 

submitted street addresses, to analyze broadband quality and availability on a geographic basis across the United States. 

Additionally, consumers have the ability to report dead zones through the 

Broadband Dead Zone Reporting Form, which provides interested parties with the 

opportunity to voluntarily participate in the FCC’s effort to pinpoint areas in the 

United States where Americans are unserved or underserved by broadband access. 

The National Broadband Plan also recommends spectrum access models that 

could be beneficial to rural deployment, including a new contiguous band for unlicensed services. Just as rural WISPs have been able to successfully deploy affordable Wi-Fi networks in their communities, more unlicensed spectrum may allow for 

greater bandwidth and coverage using similar models. Also, the Plan recommends 

the creation of a Mobility Fund to provide one-time support for deployment of 3G 

networks, to bring all states to a minimum level of 3G (or better) mobile service 

availability. 

In addition, the Plan recommends a number of steps to make sure sufficient 

microwave spectrum is available to help meet current and future needs for 

backhaul. One of the factors affecting the cost of rural buildout is the cost of 

backhaul to carry traffic between facilities. Rural carriers in particular are making 

increasing use of microwave links for backhaul. The Plan recommends revising the 

Commission’s rules to allow for spectrum sharing among various point-to-point services where technologically feasible in order to increase the amount of spectrum 

available for backhaul by facilitating the efficient use of spectrum by multiple, compatible users. Further, the plan recommends revision of the technical rules for 

microwave services to allow increased flexibility, for example by modifying minimum throughput rules to allow for modulation techniques that would increase 

range. While I am heartened by an increasing number of technological solutions to 

increase the deployment of broadband and the quality of that deployment in rural 

areas, it is critically important that we pursue all possible avenues to facilitate quality broadband service in rural areas. 

Question 4a. The plan gives the government 10 more years in which to devise a 

plan to build a public safety network. Can we be more aggressive in deploying this 

much-needed network? 

Answer. The Commission has begun implementing the Plan’s comprehensive 

strategy for building out a nationwide interoperable public safety wireless 

broadband network. We recently established the Emergency Response Interoperability Center (ERIC) and the Commission currently has under consideration a 

71 

waiver order that would enable early deployments in the public safety broadband 

spectrum. In upcoming months, the Commission will undertake a series of 

rulemakings that will address roaming and priority access, auction of the D Block, 

and other elements of the Plan’s comprehensive strategy. The Commission is committed to following the aggressive schedule we have set to ensure that our Nation’s 

first responders soon have the nationwide network they deserve. 

Question 4b. Are you optimistic that we will have a nationwide interoperability 

standard in place before we try to build out a nationwide system? It seems like this 

is a prerequisite if we want to make sure first responders are able to communicate 

with one another, but it’s also disappointing that 9 years after 9/11 we still have 

not worked out a standard or built the network. 

Answer. The Commission has already taken important steps to promote interoperability on the public safety broadband network. Under my proposed Order addressing the public safety broadband waivers, the Commission will require states and localities engaged in early deployments to use a common air interface and to adhere 

to an initial set of interoperability requirements developed by the recently established ERIC. These requirements will be further refined as ERIC develops a more 

detailed interoperability framework, which will ensure seamless communication on 

the nationwide network from the start of its development. 

Question 5. Another issue that has been raised by public safety groups relates to 

priority access to the network in times of crisis. Some in the public safety community seem to be very concerned that under the FCC’s plan, priority access may not 

be provided when it is needed most. How would you respond to these concerns? 

Answer. Under the Plan, public safety agencies will have full use of the 10 MHz 

of dedicated 700 MHz spectrum that has already been allocated for public safety 

broadband services. This spectrum will form the foundation of the nationwide public 

safety broadband network, and will always be available to public safety for its highest-priority communications. In addition, the Commission will soon commence a 

rulemaking to ensure that public safety users can obtain quick and reliable roaming 

and priority access to commercial broadband networks in major emergencies where 

additional capacity may be required. Commercial 4G technologies can support a variety of newer forms of priority access that can fully meet public safety needs in 

such emergencies, far beyond anything possible on traditional circuit-switched networks that offer Wireless Priority Service. These 4G technologies also can enable 

public safety users to prioritize their own traffic more effectively, to ensure that the 

most vital communications are given the highest priority. 

Question 6. The FCC also included some significant language in the broadband 

plan regarding the need to fulfill one element of the 1996 Act by providing greater 

competition in the set-top box market. Why do you think it is important to the deployment and use of broadband? 

Answer. Innovation in the communications device and application market has 

driven Internet connectivity and use since the days of dial-up access. Since the early 

1990s, computer hardware and software have become more sophisticated and capable of handling higher data rates and web browsers have provided more intuitive 

user interfaces, both of which have led consumers to subscribe to Internet services 

and use increasing amounts of data. More recently, innovative mobile devices have 

increased the adoption and use of wireless broadband. Increased competition in the 

set-top box market will lead to innovative internet-connected devices that consumers 

can connect to their televisions, thus encouraging further adoption and use of 

broadband. Indeed, consumer demand for online video already is beginning to increase, and consumers are showing interest in devices that can access that video 

over a broadband connection. For example, Netflix recently reported that 55 percent 

of its 14 million subscribers streamed more than 15 minutes of a movie or television 

show in the first quarter of 2010, up from 36 percent last year—each of those subscribers accesses that video over a broadband connection. While these numbers are 

encouraging, they pale in comparison to the more than 95 million households that 

subscribe to multichannel video services. Unfortunately, a combination of technical 

and economic factors has discouraged competition in the subscription video device 

market, which makes it difficult for companies to introduce competitive innovative 

video devices that appeal to those 95 million households. If the Commission can encourage retail competition for devices that can access subscription multichannel 

video services, device manufacturers will begin to offer retail products that integrate 

traditional and online video content. Consumers who purchase those devices specifically for the subscription video also will want to access the full array of services that 

their devices can provide, which will encourage broadband adoption and use. 

Question 7. Intellectual property protections do not appear to be clearly discussed 

in the broadband plan. Does the FCC intend to look at these issues and how might 

72 

these issues intersect with privacy concerns and ISP content management or network management issues? 

Answer. Under the Communications Act, the FCC has a limited role with respect 

to intellectual property policy, but we recognize that our actions can affect the 

transmission of intellectual property over communications networks. Our rules must 

respect the careful balance Congress has created between creating strong incentives 

for creators to create and disseminate their works online, and promoting the lawful 

use of copyrighted works and protecting consumers’ privacy rights. For example, 

Open Internet principles only apply to lawful content, applications, and services— 

not to activities like unlawful distribution of copyrighted works, which has serious 

economic consequences. The enforcement of copyright and other laws and the obligations of network openness subject to reasonable network management can and must 

co-exist. 

Question 8. The plan lays out an aggressive timeline for the spectrum components. How do you intend to adhere to the timelines you laid out and when do you 

expect to complete the final rules for TV white space devices? 

Answer. We are currently taking the steps necessary to prepare a decision on the 

white space petitions for reconsiderations this summer. That action, which will complete our rules for TV white space devices, is part of our Broadband Action Agenda 

plan. 

Question 8a. Are you open to making changes to those rules which would provide 

more flexibility for rural broadband applications, such as higher power limits? 

Answer. We are looking at all possibilities for providing more flexibility for rural 

broadband applications, including the option of allowing increased power limits that 

may facilitate service in rural areas. 

Question 8b. Can this happen within the existing timeline? 

Answer. We recognize that the timelines laid out in the NBP are aggressive, and 

we will need the support of the full Commission, as well as Congress and other Federal, state and local agencies, and industry, in order to meet those deadlines. 

Question 9. Regulatory certainty and regulatory flexibility are paradoxical concepts for entrepreneurs, but they are both critically important to the development 

of new technologies. What kind of assurance can you provide to entrepreneurs and 

investors who are looking to the FCC to carry out a pro-innovation agenda? For example, will there be increased opportunities for new dynamic spectrum access technologies and ‘‘smart’’ radios or other new technologies? 

Answer. It is clearly apparent to all of us that the increasing demands for a finite 

amount of spectrum will necessitate ever more efficient ways to utilize spectrum, 

which will have to include new techniques, some already developing, some in development, and some yet to be thought of. Obvious among these is spectrum sharing 

by compatible devices or services, and fundamental to many such arrangements 

would be the utilization of ‘‘smart’’ radios, ‘‘smart’’ antennas and other ‘‘opportunistic’’ devices and technologies that can provide for instantaneous spectrum access 

where and when it is determined to be unused and available at any moment in time 

at a particular location and over a given transmission path. Nearly 10 years ago, 

the Commission recognized this direction in modifying its equipment rules to accommodate the earliest versions of software radios. More recently, developments of 

these technologies was fundamental to our adoption of new rules to open the Television White Spaces to new devices. We remain committed to continuing in this direction as these technologies evolve and made this is an important element of the 

National Broadband Plan. 

We have already publicly committed to initiating a proceeding later this year to 

look further into ways of increasing opportunities for opportunistic use of spectrum. 

Initial ideas in this area include identifying frequency bands that could be used for 

innovation in cognitive technologies such as spectrum sensing and ‘‘smart’’ radios 

and examining ways to expand the use of geo-location databases to identify available spectrum indifferent frequency bands. In conducting this future proceeding, we 

are committed to working with the industry, including entrepreneurs, to strike the 

right balance between providing a level of certainty and allowing for innovation and 

flexibility to allow nascent technologies to flourish, while at the same time recognizing and protecting the services provided to consumers by incumbent operators 

and devices. 

Question 10. In my experience, spectrum allocation debates can take a very long 

time to resolve. If broadcasters choose not to voluntarily relinquish spectrum, have 

you looked into alternative regulatory options such as spectrum sharing? 

Which kinds of alternatives are you considering and how will the Commission balance the interests and expectations of current spectrum users with the demands of 

consumers and the emergence of new technologies? 

73 

How are you planning to facilitate or rely on negotiated solutions among the interested parties? 

Answer. For the Plan to work, we don’t need all, or even most licensees to voluntarily reducing use of UHF spectrum by going off the air, channel sharing or moving 

to the VHF band. If a limited number of broadcasters in a limited number of markets relinquish UHF spectrum, our staff believes we can free up a very significant 

amount of bandwidth. I believe, and the staff at the FCC believes, that a voluntary 

approach will work. We do not believe that it will come to the point where we have 

to examine other mechanisms. 

To the second part of the question, one attractive feature of the voluntary approach is that it gives broadcasters additional financing options, which could help 

fund production of local news and other community-based programming, and/or investment in advanced broadcast technologies that would allow broadcasters to take 

advantage of emerging mobile and compression technologies. 

To the third part of the question, transparent bidding open to all potentially interested parties is likely to find a better solution than deal-making that is limited to 

self-selected parties, which often are forced to act with less information than they 

would have in an auction. Direct negotiations among parties may have a role with 

respect to technical issues such as interference or coordination. 

Question 11. Do you believe that the Commission should expand on Recommendation 5.5 in the plan? Does the FCC support the spectrum relocation process improvements outlined in legislation before Congress, namely H.R. 3019? 

Answer. Recommendation 5.5 of the National Broadband Plan (‘‘Plan’’) outlines 

some revisions for Congress to consider in the Commercial Spectrum Enhancement 

Act (CSEA) to facilitate relocation of incumbents from Federal spectrum that could 

be licensed for broadband deployment. These recommendations focus on expanding 

the definition of reimbursable costs to provide Federal agencies adequate incentives 

to vacate Federal spectrum. 

I agree that the Federal spectrum relocation process can be improved, leading to 

more efficient use of available spectrum resources while enhancing wireless 

broadband availability. The CSEA funding mechanism was essential to the relocation of Federal incumbents from spectrum the Commission auctioned and licensed 

for Advanced Wireless Services (‘‘AWS–1’’). 

Any effort to build upon the success of the CSEA and implement possible improvements in the Federal spectrum relocation process, should consider the elements of 

a successful relocation framework. The objective of a successful framework should 

be not only to facilitate incumbent relocation from Federal spectrum and minimize 

for prospective bidders the uncertainty associated with the Federal relocation process, but also to treat incumbent spectrum users fairly and ensure that vital governmental functions are not adversely affected. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. MARK BEGICH TO

HON. JULIUS GENACHOWSKI

Question 1. In your view, what changes to the Communications Act are needed 

for the FCC to effectively achieve the goals articulated in the plan? 

Answer. The majority of the plan’s recommendations to the Commission are plainly within the Commission’s commonly understood authority. Our authority to implement some, however, is called into question by the recent decision of the United 

States Court of Appeals for the District of Columbia Circuit in Comcast Corp. v. 

FCC, 600 F.3d 642 (D.C. Cir. 2010). The Comcast decision casts serious doubt on 

whether the legal framework the Commission chose for broadband Internet services 

nearly a decade ago is adequate to achieve core broadband policies, which prior 

Commissions thought they had legal authority to implement. To confront this challenge, I have shared with my fellow Commissioners a draft Notice of Inquiry for 

their consideration at the Commission’s June 17 Open Meeting. This Notice would 

initiate an agency proceeding to seek public comment on how the Commission 

should best address the challenge that Comcast has handed us. It would seek comment on all options, and invite any ideas for how the Commission should proceed, 

including: maintaining the current ‘‘information service’’ classification of services 

such as cable modem and DSL Internet access; classifying broadband Internet 

connectivity service as a ‘‘telecommunications service’’ to which all the requirements 

of Title II of the Communications Act would apply; and a ‘‘third way’’—similar to 

the highly successful approach that has been used for cell phone services since 

1993—under which the Commission would identify the Internet connectivity service 

that is offered as part of wired broadband Internet service as a telecommunications 

service and forbear from applying all provisions of Title II other than the small 

74 

number that are needed to implement fundamental universal service, competition, 

and consumer protection policies. As you know, Chairmen Rockefeller, Waxman, 

Kerry, and Boucher have announced they will start a process to develop proposals 

to update the Communications Act. I welcome that process, and any new ideas that 

others may propose to address this issue, and the Commission stands ready to serve 

as a resource to Congress as it considers legislative changes in this area. 

Question 2. Thank you very much for your strong support for deployment of 

broadband on tribal lands and the amount of unserved areas in the U.S. that are 

tribal lands. While we all support more broadband in these areas, many still lack 

basic phone service. How do you propose to balance the needs of expanding all telecommunications services to Alaska and other states that lack basic phone service? 

Answer. The National Broadband Plan contains several recommendations to address disparities throughout the nation, including on tribal lands and Alaska Native 

regions. It gives us a roadmap for increasing the Nation’s standing in broadband 

deployment and adoption, and for unserved or underserved areas, access to 

broadband also means quality telephone service for the first time in too many areas. 

The Commission took the first critical step by beginning the process of converting 

the Universal Service Fund over time to fund modern communications networks 

that support broadband as well as voice service. On April 21, 2010, the Commission 

adopted a notice of inquiry and notice of proposed rulemaking to examine near- and 

longer-term processes to target funding toward new deployment of broadband networks in unserved areas while considering final rules to implement a new Connect 

America Fund mechanism that will efficiently support broadband and voice services. 

The Commission looks forward to receiving substantial input for this record from 

tribal governments, so Commission staff can understand and account for unique circumstances present on tribal lands, including Alaska Native regions. 

The remote nature of some parts of Alaska has prevented the residents of those 

areas from gaining even basic telecommunications services. The Commission needs 

better data on these regions, so it plans to issue a broadband data rulemaking proceeding toward the end of this year, and coordinate with Native American governments to enhance data collection on tribal lands, including Alaska Native regions. 

The Commission also intends to issue a spectrum on tribal lands rulemaking proceeding during the fourth quarter of this year to examine increasing mobile opportunities in Native American communities, and follow with a rural health care reform 

rulemaking proceeding with an eye toward bringing access to world-class healthcare 

for tribal and remote regions. 

Question 3. I commend your sensitivity to the difficulties of serving residents of 

Tribal Lands, including Alaska, following the FCC’s long precedent of policies designed to address the unique and complex deployment challenges of serving these 

areas. Will you continue to work with me to ensure that FCC broadband policies 

recognizing the unique challenges of Tribal Lands are responsive to my constituents’ 

needs? 

Specifically I would like to you to carefully consider keeping the exemption from 

interim cap for tribal lands that was put in place for the high cost fund as the FCC 

moves toward a new model of support. I am very concerned about the impact the 

changes will have on the investment in Alaska infrastructure and the companies 

who work hard to deploy service to some of the most unserved areas of the Nation. 

Answer. As we move forward with universal service reform, including possible 

changes to the interim cap on competitive eligible telecommunications carrier support, the Commission intends to consider unique circumstances present on tribal 

lands, including Alaska Native regions. Indeed, on April 21, 2010, the Commission 

adopted a notice of inquiry and notice of proposed rulemaking, the Commission specifically sought comment on whether there are any unique circumstances on tribal 

lands, including Alaska Native regions, that would necessitate a different approach. 

Question 4. Under Recommendation 9.7, the Plan calls on the FCC to create an 

FCC Office of Tribal Affairs and a Tribal seat on the USAC Board. Are you able 

to give us a timeline of implementation of these specific actions? 

Answer. Launch of the FCC’s Office of Native American Affairs is targeted for 

June 2010. Adding Tribal representation to the USAC Board requires amendment 

of the Commission’s rules. 

Question 5. Many rural Incumbent Local Exchange Companies (ILECs) are concerned with the reform suggestions outlined in the National Broadband Plan. Can 

you direct me to where the plan discusses the level of high-speed broadband now 

available to customers served by rural Incumbent Local Exchange Companies 

(ILECs) vs. those served by Bell Operating Companies (BOCs) and other non-rural 

telecoms? 

75 

Follow-up: Can you ask the broadband staff to prepare this comparison? I anticipate that there is far greater deployment available in areas served by rural telephone companies because of the universal service system and regulatory framework 

applicable to the rural incumbents. I would like to make certain the Commission 

has those facts before them as we go forward. 

Answer. The Plan, as well as a recent technical paper ‘‘The Broadband Availability Gap,’’ provide data on the fraction of unserved housing units that are in 

areas served by a Bell Operating Company, a mid-size price cap carrier, and a rate 

of return carrier. The Plan estimated that: 

• 52 percent of unserved housing units are in census blocks in which one of the 

three Regional Bell Operating Companies (AT&T, Verizon or Qwest) is the incumbent local exchange carrier; 

• 15 percent of the unserved housing units are in census blocks where a mid-sized 

price-cap carrier is the incumbent provider; and 

• One-third (33 percent) of unserved housing units are in census blocks where a 

rate-of-return carrier is the incumbent provider. 

To measure broadband deployment progress, the Commission needs accurate, upto-date data. Moreover, the Commission’s Broadband Action Agenda includes opening a proceeding later this year to improve the data it collects on broadband deployment. At present, the data on availability provide very limited insight as to whether 

any one particular regulatory regime, which provides support for voice services, has 

had an impact on broadband deployment. 

Question 5a. Do you believe that it is generally understood that investment in 

broadband compliant infrastructure in rural areas is driven by the contrasting regulatory regimes in place for rural ILECs and non-rural ILECS? 

Follow-up: I think we all should have quantifiable information as we go forward 

with implementing this plan. With all the time and effort that your broadband staff 

has already undertaken, I hope it won’t be difficult to provide us with a summary 

that demonstrates how extensive broadband high speed deployment has been in 

areas served by rural incumbent carriers subject to common carriage rate of return 

regulation compared to the broadband deployment in rural areas served by price cap 

companies providing high speed Internet as a non common carrier service. 

Answer. As noted in the preceding answer, there are unserved communities in 

areas served by both price cap and rate of return carriers. Absent comprehensive 

reform, many communities in America will never have access to broadband because 

there is no private sector business case to serve these areas. Leaving some communities behind is not consistent with the country’s long-standing goal of universal 

service. This digital divide exists today and will only get worse if the universal service system is not fundamentally reformed. Thus, comprehensive reform to the universal service system is necessary to ensure that all communities have access to 

broadband. The Commission looks forward to gathering more information through 

our rulemaking process to assist us in crafting the appropriate policies in this area. 

Question 5b. If rate of return regulation for rural companies has resulted in rural 

areas obtaining significant high speed broadband availability but price cap regulation for BOCs has resulted in little deployment in the rural areas they serve, why 

does the report propose to end rate of return regulation when it is rate of return 

regulation that has had success in meeting the goals of high speed broadband deployment? 

Answer. The National Broadband Plan sets forth a vision to provide broadband 

access to all Americans, regardless of where they live and regardless of the regulatory classification of their carrier. Both price cap and rate-of-return carriers, have 

made significant investments in broadband. As noted above, the Plan, as well as a 

recent technical paper ‘‘The Broadband Availability Gap,’’ provide data on the fraction of unserved housing units that are in areas served by a Bell Operating Company, a mid-size price cap carrier, and a rate of return carrier. The Plan estimated 

that: 

• 52 percent of unserved housing units are in census blocks in which one of the 

three Regional Bell Operating Companies (AT&T, Verizon or Qwest) is the incumbent local exchange carrier; 

• 15 percent of the unserved housing units are in census blocks where a mid-sized 

price-cap carrier is the incumbent provider; and 

• One-third (33 percent) of unserved housing units are in census blocks where a 

rate-of-return carrier is the incumbent provider. 

76 

As one critical step to achieve the goal of universal broadband, the Commission 

must reconfigure the current High-Cost Universal Service Fund, which is designed 

to support voice service, to a new universal service program, described in the Plan 

as the ‘‘Connect America Fund,’’ that will provide support for broadband networks 

capable of providing voice services. As part of this conversion, the Plan recommends 

moving rate-of-return carriers to incentive regulation. The Plan does not, however, 

specify the type of incentive regulation, such as price cap. 

A shift from rate-of-return to incentive regulation advances both to the general 

goal of ensuring widespread deployment of broadband networks and the specific tool 

of universal service reform. Rate-of-return regulation was implemented at a time 

when monopoly providers offered regulated voice telephone service over copper wires 

in a particular geographic area. Such an era no longer reflects the reality of converging technologies and competition in the 21st century broadband world. Indeed, 

a growing number of rural carriers have voluntarily elected to convert to price cap 

regulation to become more efficient and competitive. Moreover, the conversion to incentive regulation could help limit growth in the legacy High-Cost Universal Service 

Fund while the Commission moves to adopt a more efficient and targeted funding 

mechanism for government support for broadband investment. 

Incentive regulation could take many forms. Indeed, the majority of states have 

already recognized the benefits of moving to some form of incentive regulation—with 

over 30 states having already eliminated rate of return regulation for local rates. 

States have found it possible to craft regimes that provide the necessary stability 

for ongoing investment. The Commission is seeking comment on the recommendation in the Plan, including the proposal to move to incentive regulation. The Commission also asks parties to suggest other alternatives that would allow the Commission to achieve the National Broadband Plan goals of world-leading, affordable 

broadband service for all Americans. The Commission welcomes and encourages all 

interested parties to provide suggestions, data and recommendations in response to 

the Notice. 

Question 5c. Why did the plan settle on the download speed of 4 MB (megabitsper-second) by 2020? It seems a bit modest for a goal. 

Answer. The Commission analyzed consumer usage of broadband speeds to set an 

initial target of 4 Mbps of actual download speed and 1 Mbps of actual upload 

speed, which is quite aggressive. It is one of the highest universalization targets in 

the world. Many nations, such as South Korea and Finland, have already adopted 

short-term download targets around 1 Mbps. In addition, the 4 Mbps is comparable 

to the median speed received by residential consumers today, and what many consumers are likely to use in the near term, given past growth rates. 

To ensure that consumers in rural areas receive broadband speeds comparable to 

urban areas, the Plan also recommends reevaluating this 4 Mbps funding target 

every 4 years and adjusting it as appropriate to reflect changing consumer use and 

demand to ensure that rural areas continue to receive service that is reasonably 

comparable to service in urban areas. Doing so will ensure that there is no digital 

divide in this country. 

Question 5d. Does this goal provide a competitive benefit to wireless technology? 

Answer. The Plan is technology and provider neutral. The Plan recommends that 

any provider that is able to meet the qualifications set forth by the Commission will 

be eligible to receive support to deploy broadband. The public and interested parties 

will have ample opportunity to comment and provide suggestions on what the criteria should be adopted to be eligible for distribution of support. 

Question 6. The CLECs who serve rural Alaska communities have been investing 

in mobile services and bringing cell phones to regions of the state that previously 

were unserved. They are very concerned the transition away from the High Cost 

Fund. Under a current order from the FCC, the CLECs are exempted from a cap 

on the High Cost Fund. Will you look into the possibility of extending this exemption on tribal lands as you move forward on USF reforms? 

Answer. In considering any universal service reforms, we will consider whether 

an exemption should be made for tribal lands, including Alaska Native regions, or 

any other region where unique circumstances necessitate a different approach. Indeed, in the universal service reform notice of inquiry and notice of proposed rulemaking adopted on April 21, 2010, the Commission specifically sought comment on 

whether there are any unique circumstances on tribal lands, including Alaska Native Regions, that would necessitate a different approach. 

Question 7. Many critics of the plan believe investment in networks will be chilled 

by the work of the National Broadband plan. Some people have expressed concerns 

that the Plan may produce the unintended consequence of chilling investment in 

these networks. Can you please address these concerns? 

77 

Answer. The National Broadband Plan sets forth recommendations that are designed to encourage, not discourage, investment in broadband networks. While I 

don’t know the specific proposals that these concerns reference, the Commission intends to move forward in an open and data-driven manner with the goal of expanding and improving broadband networks, and removing barriers to innovation and investment throughout the Nation. 

Question 8. I appreciate the push to bring the country to a 4G world—but the plan 

highlights that Chairman Rockefeller and my states lag behind in populations with 

access to a 3G network, with West Virginia 71 percent and Alaska with 77 percent 

covered. As you know, the remaining percentage will be the most difficult and costly 

to cover. Can you discuss some of the funding changes proposed for network build 

out? (Chapter 8.3) 

Answer. As you have noted, building out networks on sparsely populated and/or 

remote areas can be very costly. Nonetheless, as a nation we need to ensure that 

no population is left out of the benefits that come with access to mobile broadband. 

The Plan proposes the creation of a Mobility Fund, as part of broader reforms of 

the Universal Service Fund. Without increasing the overall size of Universal Service 

Funding, the Plan recommends providing one-time support for deployment of infrastructure enabling robust mobile broadband networks, to bring all states to a minimum level of mobile availability. Bringing all states up to a national standard will 

help enable Americans in unserved areas participate in the mobile revolution. I 

have directed staff to prepare a specific proposal for a Mobility Fund for Commission vote this fall. 

Question 9. I also appreciate the recognition that the FCC gives to the most under 

and unserved populations, tribal communities. I received many complains in my office regarding the broadband ARRA programs and their perceived failure to accommodate the needs of tribal communities. For future grant programs under NTIA 

(BTOP) and Rural Utilities Service, do you have recommendations on how to improve the process for tribal communities? 

Answer. The Commission is not involved with the evaluation or review of the 

Broadband Technology Opportunities Program (BTOP). Concerns regarding the 

BTOP process should be directed to NTIA. 

Question 10. The Broadband plan notes that rural Americans are significantly less 

likely to subscribe to broadband Internet access than their counterparts in urban 

areas. As you may know, Alaska has many rural communities. What strategies will 

you use to close the gap? 

Answer. Many of the adoption recommendations included in the National 

Broadband Plan are similar to those proposed in the first round BTOP application 

submitted by the University of Alaska for their Bridging the e-Skills Gap in Alaska 

program. For example, the Digital Literacy Corps, if funded, could provide digital 

skills training to a group of local rural residents, who, as trusted members of their 

communities, could help other residents understand the value of broadband and acquire the skills needed to navigate online environments. The Plan also recommends 

targeted awareness programs and a best practices clearinghouse, which would help 

rural communities share best practices and eliminate redundant efforts, both of 

which were included in the Alaska proposal. Additionally, the Plan suggests continuing support for state level initiatives, which could allow Alaska more ability to 

plan and implement programs specifically tailored to meet the state’s needs and the 

unique adoption barriers faced by its citizens. 

Low-income residents may also benefit from the plan’s recommendation to expand 

low income Universal Service support to broadband, and Native Alaskans will benefit from recommendations designed to increase adoption and deployment of 

broadband on Tribal lands such as the Tribal Broadband Fund. 

Question 11. In the Plan, the FCC shows that adoption on Tribal lands is extremely low because broadband has not been built out to these areas. In Alaska, 

we have many regions that are either underserved or not served at all. How do you 

plan to address this from both the wireline and the wireless perspective? Additionally, will you discuss how you believe the Commission should move forward in modifying the Tribal Land Bidding Credit (pg. 97 of NBP)? 

Answer. As noted above, the National Broadband Plan aims to provide several 

tools to address disparities throughout the nation, including on tribal lands and 

Alaska Native regions. The Commission took the first critical step by beginning the 

process of converting the Universal Service Fund over time to fund modern communications networks that support broadband as well as voice service. On April 21, 

2010, the Commission adopted a notice of inquiry and notice of proposed rulemaking 

to examine near- and longer-term processes to target funding toward new deployment of broadband networks in unserved areas while considering final rules to imVerDate Nov 24 2008 13:27 May 12, 2011 Jkt 066283 PO 00000 Frm 00081 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\66283.TXT SCOM1 PsN: JACKIE
78 

plement a new Connect America Fund mechanism that will efficiently support universal access to broadband and voice services. The Commission looks forward to receiving substantial input for this record from tribal governments, so Commission 

staff can understand and account for unique circumstances present on tribal lands, 

including Alaska Native regions. 

Recommendation 5.17 of the Plan outlines five specific actions to be undertaken 

as the Commission considers the unique spectrum needs of Tribal lands, which are 

intended to assist the development of wireless services. First, in connection with the 

recently launched Spectrum Dashboard, Commission staff is continuing to explore 

and implement improvements to the database that will assist in spectrum policy 

planning and decisionmaking, promote a robust secondary market in spectrum and 

improve communications services in all areas of the U.S., including rural, underserved and Tribal lands. As a first step, we are seeking to develop a search feature 

that would identify spectrum licensed on federally recognized Tribal lands. 

Second, as you note, I have directed staff to explore changes to the Tribal Land 

Bidding Credit program. I have asked staff to prepare an NPRM for the 4th quarter 

of this year proposing rules to promote greater use of spectrum on Tribal lands in 

coordination with Tribal governments, including possible revisions to the Tribal 

Land Bidding Credit. In that regard, we would seek comment on possible improvements to our program for providing Tribal Land Bidding Credits, including modifications to facilitate Tribal access to spectrum on Tribal lands. 

Third, we will explore establishing a Tribal Priority for wireless licenses covering 

Tribal lands. While the statutory and regulatory procedures for licensing wireless 

services are different in some respects from those applicable to broadcast stations, 

the Tribal Priority recently adopted for the threshold stage of FM radio allotment 

and AM radio licensing could be a model for establishing a similar priority in the 

wireless context. 

Fourth, we will explore creating additional flexibility and incentives for build out 

of facilities serving Tribal lands. 

Fifth, the Plan recommends expeditious resolution of pending petitions for reconsideration in the White Space proceeding and proceed with a Notice of Inquiry to 

consider higher power fixed operations in rural areas, which often include Tribal 

lands. I have directed staff to complete the final rules for TV white space devices 

by resolving outstanding challenges to those rules in the 3rd quarter of this year. 

Several other aspects of the Plan propose action to address the need to ensure 

that services reach all parts of the country. Recommendation 8.3 proposes the creation of the Mobility Fund to provide onetime support for deployment of 3G networks, to bring all states to a minimum level of 3G (or better) mobile service availability. This proposal, along with proposals with respect to other mechanisms mentioned above, such as the Connect America Fund, will assist the build out of wireless services. 

Question 12. Many Alaskans are concerned about rising monthly bills due to surcharges and line items that were not made clear to them when they signed up for 

service. What steps can the FCC take to improve transparency in billing? 

Answer. In August 2009, the FCC released a broad Notice of Inquiry (NOI) as 

part of its Truth-inBilling proceeding seeking information on opportunities to protect and empower American consumers by ensuring that consumers have sufficient 

access to relevant information about communications services. The Consumer Information and Disclosure NOI asked questions about the adequacy of information 

available to consumers at all stages of the purchasing process, including: (1) choosing a provider, (2) choosing a service plan, (3) managing use of the service plan, and 

(4) deciding whether and when to switch to a different provider or plan. The Consumer Information and Disclosure NOI asks these questions about all communications services used by consumers, including wireline and wireless, broadband, and 

video subscription services. The NOI also recognized that ‘‘access to accurate information plays a central role in maintaining a well-functioning marketplace that encourages competition, innovation, low prices and high-quality services.’’ (NOI at 

para. 5.) FCC staff are reviewing the record compiled in response to the NOI and 

considering appropriate next steps for protecting consumers. 

Question 13. It’s alarming to me that the FCC has found that broadband providers 

often times don’t actually deliver the speeds they advertise. How can consumers 

make these important decisions when they don’t know what speeds they are signing 

up for? 

Answer. The FCC also recognized the importance of consumer information to 

meaningful competition in its National Broadband Plan (NBP), stating: ‘‘Consumers 

need more information about the speed and overall performance of the [broadband] 

services they receive and of competitive offers in their area, and about the gap beVerDate Nov 24 2008 13:27 May 12, 2011 Jkt 066283 PO 00000 Frm 00082 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\66283.TXT SCOM1 PsN: JACKIE
79 

tween actual and advertised speeds and the implications of that difference.’’ (NPB 

at p.44.) To provide consumers this necessary information, the NBP recommends 

that the FCC, in coordination with the National Institute of Standards and Technology, establish technical broadband measurement standards and a methodology 

and process for updating them. It also recommends that the FCC encourage the formation of a partnership of industry and consumer groups to provide input on these 

standards and this methodology. Further, the Plan recommends that the FCC continue measuring and publishing data on actual performance of broadband services 

and initiate a rulemaking proceeding to determine performance disclosure requirements for broadband. The FCC has posted on its website links to broadband speed 

measurement tools available free to all consumers from any location where they use 

broadband service, and FCC staff have begun work to implement the Plan’s additional recommendations. Further to the NBP recommendation, the FCC recently 

contracted with a third-party, SamKnows Limited, to begin measuring broadband 

speeds. 

Question 14. The NBP (National Broadband Plan) notes that Americans in lowincome households subscribe to broadband Internet at much lower rates than their 

more affluent counterparts, even though they adopt mobile and pay-TV services at 

nearly the same rates. Can you try to explain this difference? How is the Commission going to tackle this problem it? 

Answer. An FCC survey conducted in developing the NBP identified three major 

barriers that keep non-adopters from getting broadband: (1) cost, (2) digital literacy, 

and (3) relevance. (NPB at 170.) In addition to outlining guiding principles for improving broadband adoption and utilization, the Plan made specific recommendations for addressing each barrier. The Plan’s recommendations for addressing the 

cost barrier include expanding the current Universal Service Lifeline Assistance and 

Link-Up America programs to make broadband more affordable for low-income 

households and considering free or very low-cost wireless broadband as a means to 

address affordability. In addition, ensuring competition and a well-functioning marketplace by providing all consumers with the information needed to make purchasing decisions may also help make broadband more affordable. 

The FCC has developed an outreach and educational structure to reach targeted 

constituencies. These constituencies align with those highlighted in the NBP. We 

will be working with national, state and local governments and community organizations. Specifically, our targeted constituencies are African American, Hispanic, 

Senior, Rural and Tribal. While we are targeting these groups, we also are working 

with organizations that will aid us in lifting some of the adoption barriers, such as 

libraries, senior and community centers, schools and local organizations. 

Question 14a. How does the FCC plan to promote innovation in content and online 

applications? 

Answer. Promoting innovation in content and online applications is a key goal of 

the Commission’s ongoing Open Internet proceeding. I believe that high-level rules 

of the road to preserve the free and open Internet can help ensure that content and 

application innovation continues to flourish online. The Commission moved forward 

last month with a proceeding to promote innovation and consumer choice in the 

video-device marketplace, which will help foster more innovative content and applications, implementing a key recommendation of the National Broadband Plan. The 

National Broadband Plan contains a number of other recommendations to promote 

innovation in online content and applications, e.g., regarding privacy, the smart 

grid, health IT, and online learning. The FCC is working to help implement those 

recommendations, either directly or by assisting other government agencies and 

stakeholders. 

Question 15. Mr. Chairman, I wanted to bring your attention to the letter Senator 

Wicker and I sent to you last month regarding data roaming issues and the current 

open proceeding. Can you give us a more specific timeline on this moving forward 

proceeding? 

Answer. In April, the FCC sought additional comment on whether to extend automatic roaming obligations to mobile data services. Comments are due June 14, 

2010, and reply comments are due July 12, 2010. I look forward to reviewing the 

record and working with my fellow Commissioners to determine, in an expeditious 

manner, the path forward that best serves American consumers with a focus on the 

importance of data roaming for rural Americans. 

80 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. OLYMPIA J. SNOWE TO

HON. JULIUS GENACHOWSKI

Question 1. The Broadband Plan makes several references to the private sector 

investment that has been made to broadband networks and services. The document 

even goes as far to state that ‘‘due in large part to private investment and marketdriven innovation, broadband in America has improved considerably in the last decade.’’ 

Back in the Fall, the Commission concluded that a total investment for universal 

broadband availability for the Nation would range from $20 billion to $350 billion 

depending on the speed of broadband service. 

In the Plan, the Commission concludes that in order to achieve the National 

Broadband Availability Target of broadband speeds of 4 Mbps download and 1 

megabit-per-sec upload, the total cost would be approximately $33 billion. 

The Plan sets a goal of 100 million U.S. homes should have affordable access to 

actual download speeds of at least 100 Mbps and actual upload speeds of at least 

50 Mbps by 2020. Can you pinpoint or elaborate on what the Commission has estimated as the required investment to achieve that goal? 

Answer. The Plan’s goal for achieving affordable, actual download speeds of 100 

megabits-per-second downstream and 50 megabits-per-second upstream to 100 million American homes by 2020 is ambitious but achievable. The 100-squared initiative will help ensure America’s global competitiveness in the 21st century. A widespread level of affordable high-speed connectivity will encourage innovators to develop the next generation of cutting-edge applications in the American market, for 

the American people. 

The network deployment model developed and referenced in the Plan was aimed 

at estimating what areas of the country are currently ‘‘unserved’’ by broadband and 

calculating the level of investment that would be needed to serve those areas. The 

model was not developed with the purpose of estimating the investment that would 

be required to build 100 Mbps networks to 100 million households. 

Question 2. One of the main goals of the Plan to is to ‘‘maximize investment’’ but 

the document seems to be light on recommendations related to financial incentives 

such as tax credits to bolster capital investment in infrastructure. 

Given the significant capital expenditures required to meet the Commission’s National Broadband Availability Target and 100–100 goal, why weren’t there more recommendations related to tax credit-based incentives? The plan made these types of 

tax-based proposals to Congress for Research and Experimentation (R&E) and 

telework practices. 

Answer. The Plan includes a variety of recommendations to reduce costs and encourage private sector deployment in broadband networks and applications. The 

Plan has recommendations to encourage private sector investment to realize the 100 

squared goal by, among other things, fostering competition, driving demand for increased network performance and lowering the cost of deploying infrastructure. 

These recommendations should help inform consumers about broadband performance, expand services and infrastructure, and reform access to rights-of-way to 

lower barriers to entry for firms. The Plan also encourages Congress to make the 

Research and Experimentation (R&E) tax credit a long-term tax credit to stimulate 

broadband research and development, which is a cost effective way to spur private 

sector research and investment in broadband networks and applications. 

Question 3. The Plan also establishes six long-term goals to serve as a compass 

over the next 10 years. The first goal is to provide at least 100 million U.S. homes 

with affordable Internet broadband access with actual download speeds of at least 

100 megabits-per-second and actual upload speeds of at least 50 megabits-per-second. Providing consumers, developers, and small businesses such high-speed 

broadband speeds will truly revolutionize the Internet as well as exponentially increase the benefits it provides—users will be able to leverage new and emerging 

high-bandwidth applications and services that aren’t available today or accessible 

with lower speeds. 

But at the same time, the Plan acknowledges that broadband carriers are aggressively upgrading their networks to offer higher speeds and greater capacities. The 

Plan cites several network upgrades and expansions that are already planned or in 

the process of being implemented over next 2 to 3 years that will provide approximately 100 million homes with broadband speeds of 20 to 50 megabits-per-second 

and provide the building blocks to even faster broadband speeds in long-term. How 

will the Commission measure the effectiveness of this Plan as a catalyst for accelerating the investment that is currently underway or broadband deployment and 

adoption in general? 

81 

Answer. The Plan includes a variety of recommendations and benchmarks to track 

progress of broadband deployment and adoption. Implementing the Plan requires a 

long-term commitment to measuring progress and adjusting programs and policies 

to improve performance. The Plan’s recommendations to monitor implementation include: 

a. Ensuring that the FCC quickly publishes a timetable of proceedings to implement plan recommendations within its authority; 

b. Publishing an evaluation of plan progress and effectiveness as part of the annual Section 706 Advanced Services Inquiry; 

c. Creating a Broadband Data Depository; 

d. Continue to utilize Broadband.gov as a public resource for broadband information; and, 

e. Publishing a Broadband Performance Dashboard with metrics designed to 

track broadband plan goals. 

Also, as required by the Broadband Data Improvement Act, the Commission intends to conduct periodic surveys of consumers in urban, suburban, and rural areas 

in the large business, small business, and residential consumer markets to evaluate 

the characteristics of broadband service capability and adoption. These periodic national surveys will help track adoption rates over time, which can help measure the 

effectiveness of the Plan’s proposals. 

The Plan recommends that the Commission and the U.S. Bureau of Labor Statistics collect more detailed and accurate data on actual availability, penetration, 

prices, churn and bundles offered by broadband service providers to consumers and 

businesses, and should publish analyses of these data. The Commission’s Broadband 

Action Agenda includes a proceeding later this year to improve the data the Commission collects on broadband deployment and adoption. By collecting more granular 

data over an extended time period, the Commission and other agencies can analyze 

the impact of programs and investment on broadband deployment and adoption. 

In addition, the National Broadband Plan recommends Congress and Federal 

agencies promote third-party evaluation of future broadband adoption by including 

specific requirements and funding for program evaluation and funding to conduct 

in-depth assessments and longitudinal program assessment. 

Question 4. One of the E-rate recommendations in the Plan is that the FCC 

should reexamine specific E-rate rules that appear to limit the flexibility of applicants to craft the most cost-effective broadband solutions based on the types of 

broadband infrastructure, services and providers available in their geographic areas. 

While more flexibility could possibly reduce the overall cost of broadband and increase bandwidth, there are concerns about maintaining the integrity of the program. The E-rate program has been very successful, well run, and established procedures for minimizing waste, fraud, and abuse. Can you elaborate on the FCC’s plan 

with respect to reforming and enhancing the E-rate program but maintaining the 

integrity and ensuring that increasing flexibility doesn’t open it up to more waste, 

fraud, and abuse? 

Answer. In keeping with the National Broadband Plan’s vision of improving and 

modernizing the universal service programs, the Commission is currently examining 

what is working well and what can be improved in the current E-rate program. Specifically, the Commission is considering several potential reforms that would cut red 

tape by eliminating rules that have not effectively served their intended purpose, 

while continuing to protect against waste, fraud, and abuse. For example, the Commission is considering streamlining the E-rate application process, providing greater 

flexibility for applicants to choose the most cost-effective and educationally useful 

broadband services. The Commission is also exploring ways to expand the reach of 

broadband to the classroom, including schools that serve populations facing unique 

challenges, such as tribal schools or schools for children with physical, cognitive, or 

behavioral disabilities. Additionally, the Commission is taking steps to make the Erate program more user-friendly and is working closely with the Universal Service 

Administrative Company, which administers the E-rate program under the Commission’s direction. 

The E-rate program provides two ‘‘priorities’’ for discounting telecommunications 

services—Priority 1 for external telecommunications and Internet connections and 

Priority 2 for internal connections/wiring. The Plan recommends that the Commission develop ways that Priority 2 funding can be made available to more E-rate applicants. Given the advancements in information technology and more dynamic content and applications that teachers and students are utilizing, numerous schools are 

finding that traditional Priority 1 connections (typically T1/T3s) are not enough for 

82 

the growing demand and usage—that higher bandwidth connections are needed. Libraries have also conveyed the need for greater capacity due to increased patronage. 

Question 5. The Broadband Plan makes numerous proposals related to the Universal Service Fund, in general. As you know, the Universal Service Administrative 

Company (USAC) is the independent, not-for-profit corporation designated as the 

administrator of the Federal Universal Service Fund by the FCC. Can you elaborate 

on how involved the Universal Service Administrative Company (USAC) was in assisting the FCC’s development of these recommendations? Were USAC official active 

participants in discussions? 

Answer. As the National Broadband Plan Team developed its recommendations, 

it obtained information and data from USAC, as necessary, regarding the operation 

of the existing universal service programs. 

Question 6. The E-rate program provides two ‘‘priorities’’ for discounting telecommunications services—Priority 1 for external telecommunications and Internet 

connections and Priority 2 for internal connections/wiring. The Plan recommends 

the Commission develop ways that Priority 2 funding can be made available to more 

E-rate applicants. Given the advancements in information technology and more dynamic content and applications that teachers and students are utilizing, numerous 

schools are expressing that traditional Priority 1 connections (typically T1/T3s) are 

not enough for the growing demand and usage—that higher bandwidth connections 

are needed. Libraries have also conveyed the need for greater capacity due to increase patronage. How will the Commission balance the recommendation for increasing Priority 2 funding with accommodating for greater Priority 1 funding to 

meet the growing bandwidth needs of schools and libraries? 

Answer. Funding under the E-rate program is essential to enable schools and libraries to maintain current levels of Internet connectivity and to provide access to 

improved telecommunications and information services as technology advances. 

High-speed services are needed to handle the applications available today, including 

online distance learning and videoconferencing. Schools will need E-rate funding for 

both the initial implementation of high-speed broadband access and for ongoing 

costs to maintain and continuously improve their networks. Although the E-rate 

program has always been able to fund all Priority 1 requests in the past, the demand for internal connections has exceeded the E-rate program’s $2.25 billion cap 

in every year but one since the program’s existence. The Commission is currently 

considering ways to ensure that schools and libraries receive funding for Priority 2 

services, with two goals in mind: (1) providing funding for internal connections to 

more schools and libraries than in the past; and (2) ensuring that a predictable 

amount of funding is available to schools and libraries for internal connections each 

year. 

Question 7. One of the main focal points of the Plan is radio spectrum and finding 

more of it for wireless. While I strongly agree that comprehensive spectrum policy 

reform is long overdue and paramount to achieving the long-term telecommunications needs of this nation, I am concerned about what seems to be a heavy emphasis on reallocation instead of a more multi-faceted solution that includes fostering 

technological advancement and more robust spectrum management. 

Case in point, there are extensive and detailed recommendations in the Plan to 

reallocate 120 megahertz of spectrum currently being used by broadcasters as well 

as the voluntary mobile auction fund, but only general recommendations to encourage technical innovation and spectrum sharing/reuse opportunities that would improve spectrum efficiency. For example, a technology known as femtocell, that can 

increase capacity by offloading wireless traffic onto broadband wireline networks, 

wasn’t mentioned once in the Plan. 

This plan is suppose to be forward thinking but seems to be somewhat stuck in 

the past by presenting a roadmap that excessively relies on reallocation, which is 

a zero sum game, instead of a greater emphasis on technological innovation and robust management to increase spectrum efficiency and wireless capacity. Do you 

agree that more robust spectrum management policy and technical innovation advancement are just as important, if not more so than reallocation? Can you explain 

in more detail how the Plan will implement a comprehensive solution to ensure that 

spectrum is available to meet the future needs of all users—not just wireless 

broadband? 

Answer. I certainly agree that an effective spectrum policy involves much more 

than allocation decisions. The Plan includes a number of recommendations for spectrum policy initiatives. 

For instance, the Plan calls for ensuring greater transparency concerning existing 

spectrum allocation and utilization. The FCC has already launched, concurrent with 

release of the Plan, the ‘‘spectrum dashboard,’’ which enables user-friendly access 

83 

to information regarding spectrum bands and licenses. The dashboard will also assist in spectrum policy planning and decision-making, and help promote a robust 

secondary market in spectrum so that companies can access spectrum to serve a variety of different needs. The Plan also recommends that the Commission move forward with creating methods for ongoing measurement of spectrum utilization. This 

too, will help provide a fact base that can inform policymaking so that we can take 

needed actions to make better use of spectrum. In addition, the Plan calls for a triennial assessment of spectrum allocations to ensure that existing allocations serve 

the public interest. 

I also believe that the FCC should expand incentives and mechanisms for incumbent licensees to yield their spectrum to more productive uses. The Plan sets forth 

several different mechanisms, including the use of incentive auctions and expansion 

of tools to facilitate relocation of government users. 

Question 8. One of the recommendations within the National Broadband Plan is 

that the FCC should make 500 megahertz newly available for broadband use within 

the next 10 years, of which 300 megahertz between 225 MHz and 3.7 GHz should 

be made newly available for mobile use within 5 years. 

While the Plan briefly notes general estimates between 40 to 150 megahertz of 

spectrum are required for each operator, it wasn’t clear as to how the 500 MHz 

would ultimately be parceled out—spectrum license sizes for new competitors and 

additional spectrum bandwidth to increase capacity for incumbent spectrum licensees. Can you elaborate on how that 500 MHz will be distributed? 

Answer. As the Plan notes, the forecast of the need to make 300 megahertz of 

spectrum between 225 MHz and 3.7 GHz available by 2015 reflects a set of reasonable assumptions about the evolution of supply and demand for mobile bandwidth. 

Determinations about whether spectrum is licensed or unlicensed, as well as service 

rules, will need to be developed. By adopting flexible use policies for this spectrum, 

and facilitating secondary markets, the Commission will help ensure that spectrum 

can be put to its highest and best use. 

Question 9. How will the Commission balance providing more spectrum to incumbents in order to increase capacity and bandwidth with providing spectrum to new 

entrants to foster more competition so consumers can have more choices available 

to them? 

Answer. The first priority is to make available additional spectrum. Both incumbents and new entrants will need access to spectrum. 

Question 10. The FCC recently launched a free broadband speed test for consumers to check the download and upload speeds of their Internet broadband connection. The premise is that the test will allow consumers to compare the FCC test 

results with the speeds promised by the broadband provider and allow the FCC to 

use data collected from the test to analyze broadband quality and availability across 

the United States. 

However, some users have expressed concern about widely varying results. There 

is actually a disclaimer on the FCC test site stating that the test may not be an 

accurate representation of connection quality provided by one’s broadband provider. 

An FCC official recently stated that ‘‘software-based tools can provide individuals 

with inconsistent performance results, some of which are out of the control of the 

ISP.’’ Given the test transfers a small amount of generic data back and forth between a user’s computer and a testing server, the path that the data takes could 

contain numerous hops or links owned and operated by multiple carriers that the 

consumer is not aware of—even for local end points. In addition, the old adage 

‘‘you’re only as fast as your slowest link’’ seems to apply. So one could easily see 

a possible misrepresentation the test would have and the consumer confusion that 

could result. 

Is the FCC concerned about consumer confusion that the Commission’s Consumer 

Broadband Test could create? With varying test results and lack of detailed information presented, it could lead to consumers wrongly accusing their broadband provider of not providing what they are advertising even though, as the FCC official 

noted, some performance characteristics are out of the ISP’s control, correct? 

Answer. The Commission recognizes that there are limitations to the online, software-based, speed tests, as you rightly point out. However, these speed tests are not 

designed primarily to test the performance that a consumer’s broadband provider 

is delivering (and solely responsible for), but rather to provide insight into the actual performance that the consumer experiences on his or her device. In that respect, the software-based tests are extremely valuable. 

Beyond performance experienced by the consumer though, we are also interested 

in performance delivered by an individual ISP, as part of the broader transparency 

84 

initiative. For that reason, we are also launching a hardware-based speed testing 

project in partnership with a third-party contractor, SamKnows. 

• The goal of the project is to provide consumers with accurate and complete information about what speeds are delivered to their homes by ISPs. 

• While measuring performance experienced on an end-user device is valuable as 

well, ISPs cannot be reasonably held accountable for factors inside of the home 

that may degrade service. Therefore, this project will rely on scientific, hardware-based testing that will test performance at the point of the user’s router. 

• The initial test will rely on a panel of 10,000 volunteers across ISPs, service 

tiers and geographies, all of which will be given a customized router that can 

be easily integrated into their existing home network. 

• The FCC will make results of this study available later this year on both a publicly accessible website and in the form of a report. 

• This is the first step in an iterative process to design a specific testing methodology for broadband services and create more transparency and accountability 

in the broadband marketplace. 

Question 11. Transparency with broadband performance is a key issue within the 

Plan but there isn’t any real mention of the multitude of factors that affect 

broadband speeds—the multiple links that exist between consumer and the Internet 

content they’re accessing, equipment performance, the type of data being transmitted, existence of viruses/malware, etc. What are the FCC’s plans to properly address this? 

Answer. Many factors affect broadband performance, so, as described above, the 

Commission intends to employ a two-part strategy to provide improved measurement and reporting of broadband speeds and performance. The first part, tackled 

by online speed tests at the end-user’s device, will provide information on performance experienced by consumers. The second part, tackled by hardware-based testing 

that sits behind a customer’s modem, will provide information on performance delivered by ISPs. As the diagram below illustrates, there are a number of points where 

performance can be affected: 

Software-based testing covers performance for the entire range from point 1 to 

point 6. However, to isolate just the performance delivered by ISPs, it is important 

to focus just on point 2 to point 5. The Commission staff is working with a thirdparty contractor, SamKnows, as well as the ISP community to accomplish this. By 

placing test devices at the Customer Premise Equipment (CPE) point, we can remove performance degradation that occurs between points 5 and 6 from factors such 

as in-home wiring, multiple computers in use, viruses or malware on a device, and 

other issues. By working with ISPs and independent testing locations to place testing servers on ISP networks and at commonly used peering exchanges, we can remove performance degradation that occurs between points 1 and 2 from factors such 

as off-network or public Internet traffic that an ISP cannot control. 


414REPQ1.eps
85 

Although there are a multitude of factors affecting broadband speeds, by performing both of these tests, the Commission hopes to isolate just those factors that 

ISPs are responsible for. That way, consumers are informed as to whether, when 

they experience sub-standard performance, the issue is what is delivered by the ISP, 

or whether the issue is on their device or in their home network. This will lessen 

the burden on ISPs to deal with customer complaints about performance that they 

cannot correct, and lessen the burden on consumers that may erroneously purchase 

higher speed service packages when that may not be the true problem. 

Question 12. The Broadband Plan indicates that approximately 4 percent of housing units are in areas with three wireline providers (either DSL or fiber, the cable 

incumbent and a cable over-builder), and 78 percent are in areas with two wireline 

providers. Thirteen percent are in areas with a single wireline provider and 5 percent have no wireline provider. 

However, this data seems to conflict with the FCC’s most recent semi-annual 

broadband report, which was released earlier this year in February. Table 13, which 

details the percentage of Census Tracts with Residential Fixed High-Speed Connections related to the number of providers, indicates that 26 percent of census tracts 

have three broadband providers and only 1.1 percent of census tracts have no 

broadband provider. 

Table 13.—Percentage of Census Tracts with Residential Fixed High-Speed Connections by 

Technology as of December 31, 2008 

(Connections over 200 kbps in at least one direction) 

Technology 

Number of Providers 

Zero One Two Three Four Five Six Seven or 

More 

aDSL 4.3 40.7 38.4 13.4 2.7 0.4 0.1 0.0 

sDSL 96.0 3.8 0.2 0.0 0.0 0.0 0.0 0.0 

Other Wireline 99.2 0.8 0.0 0.0 0.0 0.0 0.0 0.0 

Cable Modem 8.6 79.3 11.6 0.6 0.0 0.0 0.0 0.0 

FTTP 86.7 13.0 0.2 0.0 0.0 0.0 0.0 0.0 

Satellite 45.2 24.6 24.5 5.6 0.0 0.0 0.0 0.0 

Fixed Wireless 87.3 10.2 2.0 0.4 0.1 0.0 0.0 0.0 

Power Line 99.8 0.2 0.0 0.0 0.0 0.0 0.0 0.0 

aDSL and/or Cable Modem and/or FTTP 1.5 6.6 34.7 35.7 16.2 4.3 0.8 0.2 

Any Technology 1.1 2.6 15.1 25.7 26.1 16.7 7.9 4.8 

Note: Figures may not sum to totals due to rounding. 

Sources: FCC Form 477, Part VI and Census 2000. 

Can you clarify the differences in the data sets? Which is more accurate in detailing the number of broadband providers consumers have available to them? 

Answer. Table 13 displays data that broadband providers submit to the FCC on 

Form 477. This data collection requires providers to show the number of customers 

by technology and speed tier for each census tract in which they offer service. The 

table then shows the percent of tracts with a given number of providers for each 

of these technologies. 

The NBP highlights a shortcoming of this approach (Ch 4, endnote 6). It states 

that ‘‘. . . the new 477 data are not ideal for analyzing competition because the data 

identify providers that operate anywhere in a Census tract and not whether their 

service areas overlap geographically.’’ So while over half of the census tracts have 

four or more providers their service territories have an unknown but likely limited 

overlap. 

The NBP (Exhibit 4–A) depicts share of housing units in tracts with 0–3 providers. In partial explanation of how the NBP derived these numbers the endnote 

states ‘‘First, we do not count providers with less than 1 percent of broadband subscriptions in a given Census tract under the assumption that a provider, with such 

a small number of subscribers is probably not available to a large part of the tract. 

Second, we identify cable overbuilders (such as RCN) in the data, which allows us 

to make reasonable assumptions about where cable companies actually provide service to the same geographic areas. Specifically, we assume that any given area is 

served by a maximum of one facilities-based DSL provider and one cable provider 

unless a cable overbuilder is present, in which case we count both cable providers. 

We also count fiber-specific competitors, but do not double-count telco providers that 

offer both DSL and fiber in the same tract (such as Verizon DSL and FiOS).’’ 

Question 13. Another table (Table 10) in the report shows that the number of 

broadband providers has increased from 1,270 in June 2005 to 1,554 in December 

2008—a 22 percent increase over 3 and a half years. 

86 

Table 10.—Nationwide Number of Providers of High-Speed Connections by Technology 2005–2008 

(Connections over 200 kbps in at least one direction, in thousands) 

Technology 2005 2006 2007 2008 

Jun Dec Jun Dec Jun Dec Jun Dec 

aDSL 758 818 833 858 864 856 863 879 

sDSL 270 269 256 257 242 233 238 262 

Other Wireline 206 241 246 256 246 250 259 290 

Cable Modem 227 242 254 279 282 292 296 341 

FTTP 138 170 187 222 251 276 308 430 

Satellite 10 4 5 5 5 5 4 5 

Fixed Wireless 423 463 452 505 484 514 505 617 

Mobile Wireless 13 15 19 24 19 22 24 46 

Power Line and Other 18 7 6 6 6 7 6 5 

Total 1,270 1,345 1,327 1,396 1,374 1,399 1,395 1,554 

Note: Multiple Form 477 filers within a holding company structure count as one provider. 

Source: FCC Form 477, Part I. 

From the FCC’s point of view is the broadband industry becoming more competitive and do consumers have more options for broadband providers available to 

them? 

Answer. The Plan recognizes that competition is crucial for promoting consumer 

welfare and spurring innovation and investment in broadband access networks. 

Competition provides consumers the benefits of choice, better service and lower 

prices. The Plan analyzed available data to assess the current state of competition 

among wireline broadband services and mobile wireless broadband services, and the 

competitive dynamics across different broadband technologies. However, the Plan 

does not analyze the market power of specific companies or reach definitive conclusions about the current state of competition for residential broadband services. 

Rather, the Plan includes a variety of recommendations designed to spur competition and innovation across the three elements of the broadband ecosystem—networks, devices and applications. 

With regard to broadband networks, the Plan makes recommendations intended 

to ensure that consumers have the information they need to make decisions that 

maximize benefits from these services. Increased transparency will likely drive service providers to deliver better value to consumers through better services. The Plan 

also focuses on ways to increase competition in the wholesale broadband market— 

including issues associated with high-capacity circuits, copper retirement, interconnection and data roaming. 

As the Commission considers rulemakings to implement these recommendations, 

the Commission looks forward to participation from the public and interested parties to ensure that the goals of increased competition are realized. 

Question 14. Broadband Internet access services are currently classified as information service, which is defined as ‘‘the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available 

information via telecommunications, and includes electronic publishing.’’ 

Some have suggested reclassifying broadband as a telecommunications service, 

which is defined as ‘‘the transmission, between or among points specified by the 

user, of information of the user’s choosing, without change in the form or content 

of the information as sent and received.’’ 

Without question, there has been a significant evolution in the telecommunications industry and the networks—from the legacy tip & ring circuit-switched 

PSTN voice network to the high-bandwidth, dynamic routing, IP packet-based networks of today, where there is a convergence of various data types. Today’s 

broadband networks employ numerous protocols, various caching and queuing technologies, DNS/IP addressing, as well as encoding and decoding (codecs) technologies 

that allow consumers to utilize countless services and applications online. Very simply, there is an extensive amount of processing, storing, and converting activities 

on a broadband network than the legacy phone network with regards to the User 

Network Interface (UNI) connection. In your opinion and from a pure definitional 

standpoint, which definition is more appropriate for broadband access services? Do 

you believe a new definition or classification (such as ‘‘Internet Service’’ or 

‘‘Broadband Service’’) may be required to better reflect broadband Internet access 

services? 

Answer. In the Brand X decision, 454 U.S. 967 (2005), the Supreme Court held 

that it is ambiguous whether cable modem service, one form of broadband Internet 

access service, is an integrated information service or includes a telecommunications 

service component. 

87 

A majority of six Justices are on record as saying that classification of cable 

modem service is a call for the FCC to make and that ‘‘the Commission is free within the limits of reasoned interpretation to change course if it adequately justifies 

the change’’ (id. at 1001); one of the six ‘‘just barely’’ accepted the FCC’s information 

service approach; and the three remaining Justices expressed the view that the 

agency must classify a separable telecommunications service within cable modem offerings. In light of that decision, I believe the FCC has discretion in deciding whether broadband Internet access service includes a telecommunications service component. 

As you know, Chairmen Rockefeller, Waxman, Kerry, and Boucher have announced they will start a process to develop proposals to update the Communications Act. A limited update of the Communications Act could lock in an effective 

broadband framework to promote investment and innovation, foster competition, 

and empower consumers. I have committed all available Commission resources to 

assisting Congress in its consideration of how to improve and clarify our communications laws. 

Question 15. Would reclassification of broadband Internet access service as a telecommunications service change the ability of service providers to deal with online 

copyright theft? What should be done to maximize security for copyright holders 

from a technology standpoint? 

Answer. I do not believe that classification of the transmission component of 

broadband Internet access service as a telecommunications service would have any 

effect on the ability of service providers to deal with online copyright theft. The National Broadband Plan recognizes (at page 58) that ‘‘[t]he Internet must be a safe, 

trusted platform for the lawful distribution of content.’’ The Plan acknowledges (at 

page 17) that digital piracy is an ongoing problem. The Plan notes promising developments in technology to prevent piracy, such as content finger-printing, and lauds 

industry-led initiatives to develop guidelines for dealing with piracy. I am hopeful 

that continuing advances in technology, development of industry guidelines, and enforcement of copyright laws will curb piracy without stifling innovation or overburdening lawful uses of copyrighted works. 

Question 16. Additionally, would reclassification have any implications for the 

ability of service providers to deal with computer viruses or spam, or even to implement cybersecurity measures? As a member of the Intelligence Committee, I am 

very interested in enhancing—and not impeding—cybersecurity protections, so I 

look forward to your comments on this. 

Answer. As you know, section 1 of the Communications Act explains that the 

Commission exists ‘‘for the purpose of the national defense [and] for the purpose of 

promoting safety of life and property through the use of wire and radio communication.’’ Cybersecurity is a growing concern, and the Commission has recently begun 

two proceedings to assess our needs in this area: we have launched an inquiry on 

the ability of existing broadband networks to withstand significant damage or severe overloads as a result of natural disasters, terrorist attacks, pandemics or other 

major public emergencies; and we have begun a proceeding to seek public comment 

on the proposed creation of a new voluntary cybersecurity certification program that 

would encourage communications service providers to implement a full range of cybersecurity best practices. We will examine the records of these proceedings closely, 

along with the record generated in response to the Notice of Inquiry on our legal 

framework. To the extent that the Commission possessed the necessary authority 

to address cybersecurity, as well as online copyright theft, computer viruses or spam 

before Comcast, the ‘‘third way’’ classification framework discussed in the Notice of 

Inquiry on our legal framework would protect that authority. If, on the other hand, 

the Commission decides to maintain the information service classification, jurisdictional issues would be addressed on a case-by-case basis, in light of the particular 

details of the proposal at issue. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. JOHN ENSIGN TO

HON. JULIUS GENACHOWSKI

Question 1. Chairman Genachowski, last month the Washington Post wrote that 

‘‘it is curious that the [FCC] faults the market for failing’’ when ‘‘the number of 

Americans who have broadband at home has grown from 8 million in 2000 to nearly 

200 million last year.’’ The National Broadband Plan itself notes that broadband 

providers invested $130 billion into their networks over the last 2 years, during a 

major recession. I have to agree with the Washington Post editorial board—I don’t 

see signs of gross market failure that might justify the sort of government spending 

88 

and increased government intervention recommended by the Plan. How is it that 

you and your team came to such a different conclusion? 

Answer. In the Recovery Act, Congress directed the FCC to develop a National 

Broadband Plan that would ‘‘seek to ensure that all people of the United States 

have access to broadband capability and [to] establish benchmarks for meeting that 

goal,’’ as well as promote the use of broadband infrastructure in advancing a number of national purposes like health care delivery, education, and energy independence and efficiency. 

In 2009, I said that our steps to fulfill this Congressional directive would be datadriven—not starting with conclusions, but using data to develop analysis—not just 

accepting data, but digging into data to find concrete solutions that supersede ideology—and that can make a difference in the lives of real Americans. 

To complete the Plan, the FCC launched 36 staff-level public workshops attracting 

over 2,500 participants; issued 31 Public Notices, generating over 23,000 comments 

totaling more than 74,000 pages; and used new media tools including our broadband 

blog, which received over 1,200 comments, all of which were entered into the official 

record. 

The data we gathered from this process showed that on many quantifiable 

metrics, the United States faced significant gaps. The FCC team found that roughly 

14 to 24 million Americans lack access to broadband infrastructure that can support 

today’s applications, and that roughly 80 million American adults still do not use 

broadband at home. Only 16 percent of public community colleges have high-speed 

connections comparable to research universities. And nearly a decade after 9/11, the 

Nation’s first responders still lack access to a nationwide, interoperable wireless 

public safety network. 

To be sure, today’s broadband ecosystem is vibrant and healthy in many ways— 

in large part, due to the large investments that private sector providers have made. 

In order to meet the high goals for American technological leadership that we set 

in the Plan, private sector investment will be essential. That’s why the plan takes 

steps to drive innovation and investment in the broadband ecosystem long into the 

future—yielding innovations, devices and services we cannot dream of today. These 

solutions—making 500 MHz of spectrum available for mobile broadband use and reforming the Universal Service Fund in a revenue-neutral manner to make 

broadband available to every American—are not intended to displace the role of private investment. Rather, they are targeted to maximize the fruits of that investment 

in a way that speeds the deployment, adoption and use of broadband in the ways 

Congress intended and for the benefit of all Americans. 

Question 2. Chairman Genachowski, one of the National Broadband Plan’s goals 

is to have 100 million households served by 100 megabit broadband within 10 years. 

Achieving this goal will obviously require tens of billions of dollars to be invested 

into broadband networks. The Plan, however, recommends net neutrality restrictions; suggests broader unbundling mandates; and leaves the door open to using 

outdated monopoly telephone regulations for broadband. Most people I talk to say 

that heavy-handed regulations like these will deter the private-sector investment 

you need to reach your 100 to 100 target. If such policies would result in less investment, isn’t the FCC be undermining its own goals by pursuing these regulatory policies? 

Answer. I start with the belief that the private sector must play the leading role 

in extending broadband networks across our nation, to ensure we realize our ambitious 100 X 100 goal. Promoting private sector investment is a key focus of the National Broadband Plan and a key priority for the FCC, including through initiatives 

to reduce barriers to broadband deployment; reform the Universal Service Fund to 

support broadband; and provide high-level rules of the road to preserve the free and 

open Internet as an engine for economic growth and private investment, both in and 

on top of broadband Internet platforms. 

Question 3. Chairman Genachowski, in your testimony before the House Commerce Committee, you left the door open to pursuing involuntary proposals to reallocate broadcaster spectrum. While you and I agree on the importance of finding more 

spectrum for wireless broadband, I believe we must exhaust every possible voluntary proposal before even talking about involuntary mechanisms. Do you agree? 

And if so, will you commit to us today that you will not consider m involuntary proposals until the FCC has completed its consideration and implementation of all possible voluntary mechanisms? 

Answer. I believe, and the staff at the FCC believes, that a voluntary approach 

can work, and our goal is to first employ all possible voluntary mechanisms. We believe a voluntary approach with proceeds sharing will allow the market to determine 

the best use of spectrum, allowing the right amount of spectrum demanded by the 

89 

market to flow to its highest valued use, while creating value for everyone in that 

chain of stakeholders (broadcasters, consumers, and broadband providers). 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. GEORGE S. LEMIEUX TO

HON. JULIUS GENACHOWSKI

Question 1. Last year, Congress approved a stimulus bill directing more than $7 

billion in funding for broadband deployment. While some of the funds have now 

gone out, the funding did not go out quickly, and many of the largest broadband 

providers would not participate. Since this money was allocated before this plan was 

created, are you concerned that billions of dollars in funding are being misspent in 

a fashion that is devoid of a strategic plan? Has your staff been coordinating with 

the Department of Commerce and the Department of Agriculture to ensure that 

their funding plans complement the broadband plan we are considering today? 

Answer. The Commission coordinated extensively with the Executive Branch and 

provided its technical and other expertise to the Departments of Commerce and Agriculture during the development of their Recovery Act grant and loan programs, 

and our agencies remain in contact on matters of broadband policy. While the grant 

and loan programs were implemented prior to the completion of the National 

Broadband Plan, as required by law, I believe that those programs are complementary to the proposals in the Plan. The plan explicitly mentions the BTOP program 

in several places, highlighting how this first investment in broadband will impact 

the broadband ecosystem, and how best to measure and learn from those early investments to improve decisions in the future. In addition, the Plan emphasizes the 

importance of deploying facilities to consumers who do not have access to broadband 

or who face other obstacles to adoption, such as affordability, and recommends a variety of different tools to advance these goals. 

Question 2. As you know, spectrum availability has been of concern as our Nation’s technologies develop. We must be working to find ways to free up spectrum 

for new technologies. In the National Broadband Plan, it is stated that to free up 

spectrum broadcasters will be asked to volunteer to give up some of their spectrum 

(of which they already gave some up for the digital transition). What is the plan 

should these broadcasters not volunteer more of their spectrum? 

Answer. I believe, and the staff at the FCC believes, that a voluntary approach 

can work, and our goal is to first employ all possible voluntary mechanisms. We believe a voluntary approach with proceeds sharing will allow the market to determine 

the best use of spectrum, allowing the right amount of spectrum demanded by the 

market to flow to its highest valued use, while creating value for everyone in that 

chain of stakeholders (broadcasters, consumers, and broadband providers). We intend to focus our efforts on voluntary mechanisms so as to best ensure their success. 

Question 3. As you know, in recent years, Internet piracy and intellectual property 

protection has been a mounting problem. The National Broadband Plan would be 

a perfect opportunity o address this issue. The current plan does not mention piracy 

and has little mention of intellectual property protections. Why was there no acknowledgement in your plan of the piracy problems that plague our entertainment 

and software companies online? With the rollout of this plan, almost every American 

will have access to broadband. With greater broadband speeds and availability, 

what is being done to protect the content from being stolen? 

Answer. The National Broadband Plan recognizes (at page 58) that ‘‘[t]he Internet 

must be a safe, trusted platform for the lawful distribution of content.’’ The Plan 

acknowledges (at page 17) that digital piracy is an ongoing problem. The Plan notes 

promising developments in technology to prevent piracy, such as content fingerprinting, and lauds industry-led initiatives to develop guidelines for dealing with piracy. The Plan does not include any specific recommendations for ensuring that expanding broadband deployment will not increase the amount of piracy of copyrighted works. I am hopeful that continuing advances in technology, development 

of industry guidelines, and enforcement of copyright laws will curb piracy without 

stifling innovation or overburdening lawful uses of copyrighted works. 

Question 4. Do you believe public safety needs or will need more than 10 MHz 

of spectrum for voice, video, and data? If yes, by when? If they do, then why not 

just allocate the spectrum now? Why should we try to solve this problem later if 

we already have the solution in front of us now? Will it not cost more to solve the 

problem later and create problems with interoperability because systems will be on 

different spectrum bands? 

Answer. Currently there is 10 MHz of dedicated capacity in the 700 MHz band 

available for use for public safety broadband communications. This spectrum is 

90 

available today and, because of its propagation and other technical attributes, provides a solid platform for deployment of a nationwide, interoperable public safety 

broadband network. This 10 MHz of dedicated capacity is the necessary core on 

which to build the public safety network and will provide public safety with more 

than adequate capacity and performance required to support day-to-day and emergency communications. 

Technology advances in the LTE air-interface standard will likely make it possible 

for non-contiguous spectrum to be part of the network. Accordingly, should additional capacity be required in the future, this technology, in conjunction with the 

interoperability requirements imposed by the FCC’s Emergency Response Interoperability Center will ensure that interoperability is not compromised. 

The 700 MHz band, where this spectrum is located, is particularly exciting as new 

4G technologies, such as LTE, are just beginning to be deployed to support advanced 

data communications. Public safety, by being able to deploy their networks now and 

in the near future, can capitalize on these technologies and this commercial deployment, ensuring a technological evolution path and reducing costs by leveraging 

these commercial technologies. 

More specifically, in deploying its network in this core spectrum, public safety can 

enter into incentive-based partnerships with commercial entities to deploy their network in a cost-effective manner that utilizes these state-of-the-art commercial 4G 

technologies and leverages commercial infrastructure. In this way, public safety will 

recognize approximately $9 billion in cost savings for the construction of the network and potentially tens of billions in savings in operating costs. Unfortunately, 

as I will discuss a little later, if the D block is reallocated to the public safety community, it is likely that these cost savings will not be recognized because significant 

cost-efficiencies will squandered. If this occurs, the mere expense of the network will 

make it extremely unlikely that the network will be nationwide, leaving portions of 

the country without access to these critical public safety communications services. 

FCC technical staff has spent considerable time and effort ensuring that the 10 

MHz of dedicated spectrum available to public safety will provide more then adequate capacity and performance for day-to-day and emergency communications. Our 

analysis, which we released publicly this week, demonstrates through the examination of several real-life large-scale emergencies, that allowing public safety to build 

out their broadband network on the core 10 MHz of dedicated spectrum supports 

these critical communications requirements. When analyzing capacity, an important 

point to keep in mind is that spectrum does not equal capacity. By deploying advanced, 4G wireless technologies and cellular network architecture, public safety 

can achieve much greater capacity than they have achieved in the past. Further, 

based on the past evolutionary trends of commercial technologies, if the public safety network is deployed utilizing non-proprietary commercial technologies, capacity 

and performance of the network is likely to improve in the same amount of spectrum. 

However, we also recognize that it is impossible to plan for the worst emergency. 

Accordingly, it is critical to provide public safety with a backstop of additional capacity for use when they need it such as when their network is at capacity or otherwise unavailable. Accordingly, the FCC is planning to shortly initiate a rulemaking 

proceeding that will require commercial operators across the 700 MHz band to provide public safety with roaming and priority access on their networks at reasonable 

rates. This means that public safety will have access to as much as 60 MHz of additional spectrum—far more then the 10 MHz of spectrum available in the D block. 

Further, unlike the case of just reallocating the D block, roaming and priority access 

will provide public safety with access to resilient networks in case their network is 

rendered unavailable. 

Still, there are additional pieces to ensure adequate capacity and performance. 

First, our cost model recognizes and captures the need for deployable caches of communications equipments, such as cell towers on wheels, to ensure that the public 

safety community is able to supplement its network during the worst emergencies. 

Second, we have also recommended that states and localities should include in 

their building codes requirements for the installation of in-building transmitters. 

Question 5. The National Broadband Plan seems to place a heavy emphasis on 

public safety having priority access to commercial networks to augment the 10 MHz 

of dedicated public safety broadband spectrum. How can you be sure that commercial carriers will be willing to provide that access? 

Answer. The Commission will soon commence a proceeding to require commercial 

networks to offer public safety users priority access and roaming capabilities at reasonable rates. This will ensure that critical communications needs can be met even 

when public safety broadband networks are at capacity or unavailable. 

91 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. DAVID VITTER TO

HON. JULIUS GENACHOWSKI

Question 1. The FCC’s recently released National Broadband Plan makes numerous references to several internal reports prepared by the Omnibus Broadband 

Team as support for its recommendations. 

• The Broadband Availability Gap Report, cited 22 times 

• Broadband Performance Report 

• Spectrum Reclamation: Options for Broadcast Spectrum Report 

• The Public Safety Broadband Wireless Network Report 

I understand that these reports still have not been made available. Is this true, 

when do you expect to release these reports so Congress and the public can begin 

the process of reviewing the analysis underlying the recommendations contained in 

the Plan? 

Answer. The Broadband Availability Gap Report was released April 21, 2010. The 

Public Safety Broadband Wireless Network Report was released April 23, 2010. 

They are available for download at http://www.broadband.gov/plan/broadbandworking-reports-technical-papers.html. The FCC has already held an open workshop on the Broadband Availability Gap 

Report to present the broadband team’s analysis and take questions from the public. 

The release dates for the Spectrum Reclamation: Options for Broadcast Spectrum 

Report and the Broadband Performance Report are forthcoming. 

Question 2. I know the plan’s goal is to reach 100 million households with 100 

Mbps service. Some analysts believe that we may be on path to reach this goal with 

current market conditions. Wouldn’t it be preferable to let the market investment 

work instead changing the broadband regulatory structure in a way that many 

think could provide disincentives to investment? 

Answer. I agree that we should let the market work where it can effectively promote innovation, investment, deployment, and provide consumers with reasonable, 

affordable choices. As the Commission works through the implementation of the National Broadband Plan recommendations, we will take care to ensure that our policies encourage investment and deployment, promote innovation, and allow consumers to enjoy the benefits of next generation broadband services. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. SAM BROWNBACK TO

HON. JULIUS GENACHOWSKI

Question 1. In response to a question I asked you during this committee’s consideration of your nomination, you stated that you ‘‘agree that unthinking or heavyhanded regulation always carries the risk of burdening innovation, investment, and 

dynamism—and that the FCC must be vigilant in guarding against such an approach.’’ 

I have therefore been surprised about several initiatives you have taken, or are 

considering since becoming Chairman. You launched into a rulemaking proceeding 

on network neutrality before having gathered any facts regarding whether there is 

a problem that needs a regulatory solution. Now that the D.C. Circuit has rejected 

the FCC’s assertion of authority to impose network management regulations on 

broadband providers, you are allegedly considering reclassifying broadband services 

as telecommunications services, saddling such services with common carrier regulations. And some of your recommendations in the National Broadband Plan, such as 

fiber unbundling, contemplate eradicating the extremely successful broadband policies that began under Chairman Kennard in the Clinton Administration. 

I was glad during your confirmation process that you recognized that heavy-handed regulation runs ‘‘the risk of burdening innovation, investment, and dynamism.’’ 

But you seem to be heading in that very direction, despite the impact that such regulation would have on your, and the Obama Administration’s, broadband goals. How 

are you going to achieve ubiquitous broadband deployment when, by your own admission, you are risking investment by imposing burdensome regulations? 

Answer. Promoting continued investment and job creation, both in the core 

broadband networks and through Internet-based services and applications that ride 

on such networks, is a key priority for the FCC and a key focus of the National 

Broadband Plan. On June 17, the Commission adopted a Notice of Inquiry on a 

Legal Framework for Broadband. This Notice initiates an agency proceeding to seek 

public comment on how the Commission should best address the challenge that the 

D.C. Circuit’s Comcast decision has handed us, including how the agency can foster 

predictability and promote innovation and investment. It seeks comment on all opVerDate Nov 24 2008 13:27 May 12, 2011 Jkt 066283 PO 00000 Frm 00095 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\66283.TXT SCOM1 PsN: JACKIE
92 

tions, and invites any ideas for how the Commission should proceed, including: 

maintaining the current ‘‘information service’’ classification of services such as cable 

modem and DSL Internet access; classifying broadband Internet connectivity service 

as a ‘‘telecommunications service’’ to which all the requirements of Title II of the 

Communications Act would apply; and a ‘‘third way’’—similar to the highly successful approach that has been used for cell phone services since 1993—under which the 

Commission would identify the Internet connectivity service that is offered as part 

of wired broadband Internet service as a telecommunications service and forbear 

from applying all provisions of Title H other than the small number that are needed 

to implement fundamental universal service, competition, and consumer protection 

policies. 

Question 2. If broadband were to be reclassified as telecommunications service, do 

you think broadband service providers would increase investment in their networks? 

Please explain your answer. 

Answer. These issues are addressed in my answer to Question 1 above and in the 

statements released by myself (Genachowski Statement) and the FCC’s General 

Counsel, Austin Schlick (Schlick Statement), on May 6, 2010, concerning the ‘‘Third 

Way.’’ Copies are attached for your convenience. I believe the ‘‘Third Way’’ I have 

proposed, would encourage investment in broadband networks by providing regulatory certainty, avoiding needless regulation, and enabling the provision of universal service support for broadband deployment. I would also note that the Third 

Way is modeled on the light touch regulatory treatment for the wireless industry 

that many have cited as pro-investment and pro-innovation. I remain open to other 

ideas that will achieve the same objective and provide a sound legal framework, and 

the Notice of Inquiry adopted at our June 17 Open Meeting seeks comment on all 

possible approaches, including maintaining the current information services classification for broadband Internet services. 

Question 3. Do you believe that a reclassification of broadband services would survive a court challenge? Are you willing to endure years of uncertainty waiting for 

an answer? 

Answer. I am confident that any decision the FCC issues that addresses or relies 

on Commission authority to implement broadband policies will be challenged in 

court. For the reasons given in the May 6, 2010 statement by the FCC’s General 

Counsel, I believe that classification of the transmission component of wireline 

broadband Internet access service as a telecommunications service would survive judicial review. See Schlick Statement at 6–7. 

Question 4. In the Comcast case, the D.C. Circuit held that the FCC had not demonstrated that its regulation of the network management activities of ISPs was reasonably ancillary to express authority provided to the FCC by Congress. But the 

D.C. Circuit reiterated its two-part test that the Commission is permitted to exercise ancillary authority when: (1) Title I covers a particular entity or activity and 

(2) Commission action is ‘‘reasonably ancillary to the Commission’s effective performance of its statutorily mandated responsibilities.’’ Do you agree that the D.C. 

Circuit’s decision does not preclude the Commission from exercising ancillary jurisdiction in the future as long as the agency ties such authority to its ‘‘statutorily 

mandated responsibilities’’? 

Answer. I agree that the Comcast decision does not preclude the Commission from 

exercising ancillary authority to effectuate statutorily mandated responsibilities. 

The Notice of Inquiry adopted on June 17, seeks comment on the strongest arguments for use of ancillary authority to realize the FCC’s mission for broadband communications. 

Question 5. In Comcast, the D.C. Court concluded that ‘‘[b]y leaping from Brand 

X’s observation that the Commission’s ancillary authority may allow it to impose 

some kinds of obligations on cable Internet providers to a claim of plenary authority 

over such providers, the Commission runs afoul of Southwestern Cable and Midwest 

Video I.’’ Doesn’t this mean that the D.C. Circuit acknowledges that the FCC can 

exercise ancillary authority to impose certain rules, but that the FCC must demonstrate that the imposition of such rules is reasonably ancillary to the agency’s 

statutorily mandated responsibilities? 

Answer. See Response to Question 3 above. 

Question 6. According to Commissioner McDowell’s March testimony at the House 

Energy and Commerce Committee, ‘‘[m]ore than half of all Americans have a choice 

of five wireless providers. Ninety-four percent have a choice of four. Similarly, we 

lead the world in 3G build-out and adoption.’’ In addition, Commissioner McDowell 

asserts that ‘‘[n]ot only does the United States have one-third of the world’s market 

share of ‘‘mobile apps,’’ but the American mobile app market has grown over 500 

93 

percent since 2007.’’ Given these facts, how did the report conclude that the United 

States lags in mobile innovation? 

Answer. The National Broadband Plan stated that ‘‘[t]he United States maintains 

the greatest tradition of innovation and entrepreneurship in the world—one that 

combines creativity with engineering to produce world-leading applications, devices 

and content, as well as the businesses that bring them to market.’’ 

However, innovation will be constrained if the FCC does not make additional 

spectrum available. As the Plan states, ‘‘Mobile broadband is growing at unprecedented rates. . . playing an increasingly important role in our lives and our economy. Mobile broadband is the next great challenge and opportunity for the United 

States. It is a nascent market in which the United States should lead.’’ Today, the 

FCC has only 50 megahertz of spectrum in the pipeline that it can assign for 

broadband use, just a fraction of the amount that will be necessary to match growing demand. As a result, companies representing 5 percent of the U.S. economy 

asked the FCC to make more spectrum available for mobile broadband, saying that 

‘‘without more spectrum, America’s global leadership in innovation and technology 

is threatened.’’ 

If we do not make more spectrum available, scarcity of mobile broadband could 

mean higher prices, poor service quality, an inability for the United States to compete internationally, depressed demand, and ultimately, a drag on innovation. 

The Plan concludes that ‘‘[b]y any measure, innovation is thriving in mobile and 

computing devices.’’ I look forward to working with Congress, the industry and 

stakeholders to ensure that the United States has the spectrum it needs to lead the 

world in mobile innovation, with the fastest and most extensive wireless networks 

of any nation. 

THE THIRD WAY: A NARROWLY TAILORED BROADBAND FRAMEWORK

Chairman Julius Genachowski—Federal Communications Commission—May 6, 2010 

Many have asked about the FCC’s next steps in view of the recent decision in the 

Comcast case. I’ll describe here a path forward, which will begin with seeking public 

comment on a post-Comcast legal foundation for the FCC’s approach to broadband 

communications services. The goal is to restore the broadly supported status quo 

consensus that existed prior to the court decision on the FCC’s role with respect to 

broadband Internet service. 

This statement describes a framework to support policies that advance our global 

competitiveness and preserve the Internet as a powerful platform for innovation, 

free speech, and job creation. I remain open to all ideas on the best approach to 

achieve our country’s vital goals with respect to high-speed broadband for all Americans, and the Commission proceeding to follow will seek comment on multiple legal 

theories and invite new ideas. 

The FCC’s Mission 

More than 75 years ago, Congress created the Federal Communications Commission with an explicit mission: ‘‘to make available, so far as possible, to all people 

of the United States . . . A rapid, efficient, Nation-wide, and world-wide wire and 

radio communications service with adequate facilities at reasonable charges, for the 

purpose of the national defense, [and] for the purpose of promoting the safety of life 

and property through the use of wire and radio communication.’’ 

In the decades since, the technologies of communications have changed and 

evolved—from telephone, radio, and broadcast TV to cable, satellite, mobile phones, 

and now broadband Internet. With the guidance of Congress, the Commission has 

tailored its approach to each of these technologies. But the basic goals have been 

constant: to encourage private investment and the building of a communications infrastructure that reaches all Americans wherever they live; to pursue meaningful 

access to that infrastructure for economic and educational opportunity and for full 

participation in our democracy; to protect and empower consumers; to promote competition; to foster innovation, economic growth, and job creation; and to protect 

Americans’ safety. 

The Consensus Understanding of the FCC’s Role with Respect to 

Broadband 

A challenge for the FCC in recent years has been how to apply the time-honored 

purposes of the Communications Act to our 21st Century communications platform—broadband Internet—access to which is generally provided by the same companies that provide telephone and cable television services. 

94 

Broadband is increasingly essential to the daily life of every American. It is fast 

becoming the primary way we as Americans connect with one another, do business, 

educate ourselves and our children, receive health care information and services, 

and express our opinions. As a unanimous FCC said a few weeks ago in our Joint 

Statement on Broadband, ‘‘Working to make sure that America has world-leading 

high-speed broadband networks—both wired and wireless—lies at the very core of 

the FCC’s mission in the 21st Century.’’ 

Over the past decade and a half, a broad consensus in the public and private sectors has developed about the proper role and authority for the FCC regarding 

broadband communications. This bipartisan consensus, which I support, holds that 

the FCC should adopt a restrained approach to broadband communications, one 

carefully balanced to unleash investment and innovation while also protecting and 

empowering consumers. 

It is widely understood—and I am of the view—that the extreme alternatives to 

this light-touch approach are unacceptable. Heavy-handed prescriptive regulation 

can chill investment and innovation, and a do-nothing approach can leave consumers unprotected and competition unpromoted, which itself would ultimately lead 

to reduced investment and innovation. 

The consensus view reflects the nature of the Internet itself as well as the market 

for access to our broadband networks. One of the Internet’s greatest strengths—its 

unprecedented power to foster technological, economic, and social innovation—stems 

in significant part from the absence of any central controlling authority, either public or private. The FCC’s role, therefore should not involve regulating the Internet 

itself. 

Consumers do need basic protection against anticompetitive or otherwise unreasonable conduct by companies providing the broadband access service (e.g., DSL, 

cable modem, or fiber) to which consumers subscribe for access to the Internet. It 

is widely accepted that the FCC needs backstop authority to prevent these companies from restricting lawful innovation or speech, or engaging in unfair practices, 

as well as the ability to develop policies aimed at connecting all Americans to 

broadband, including in rural areas. 

The Broadband Policy Agenda 

Consistent with this consensus view of the FCC’s role, Congress last year directed 

the FCC to develop America’s first National Broadband Plan, which we delivered 

in March. And I have described over the past months the policy initiatives I believe 

are of crucial importance to our global competitiveness, job creation, and broad opportunity. These include: 

• Extending broadband communications to all Americans, in rural and urban 

America and in between, by transforming the $9 billion Universal Service Fund 

from supporting legacy telephone service to supporting broadband communications service; 

• Protecting consumers and promoting healthy competition by, for example, providing greater transparency regarding the speeds, services, and prices consumers receive, and ensuring that consumers—individuals as well as small 

businesses—are treated honestly and fairly; 

• Empowering consumers to take control of their personal information so that 

they can use broadband communications without unknowingly sacrificing their 

privacy; 

• Lowering the costs of investment—for example, through smart policies relating 

to rights-of-way—in order to accelerate and extend broadband deployment; 

• Advancing the critical goals of protecting Americans against cyber-attacks, extending 911 coverage to broadband communications, and otherwise protecting 

the public’s safety; and 

• Working to preserve the freedom and openness of the Internet through highlevel rules of the road to safeguard consumers’ right to connect with whomever 

they want; speak freely online; access the lawful products and services of their 

choice; and safeguard the Internet’s boundless promise as a platform for innovation and communication to improve our education and health care, and help deliver a clean energy future. 

At the same time, I have been clear about what the FCC should not do in the 

area of broadband communications: For example, FCC policies should not include 

regulating Internet content, constraining reasonable network management practices 

of broadband providers, or stifling new business models or managed services that 

are pro-consumer and foster innovation and competition. FCC policies should also 

recognize and accommodate differences between management of wired networks and 

95 

wireless networks, including the unique congestion issues posed by spectrum-based 

communications. The Internet has flourished and must continue to flourish because 

of innovation and investment throughout the broadband ecosystem: at the core of 

the network, at its edge, and in the cloud. 

These policies reflect an essential underlying regulatory philosophy: 

• A strong belief in the free market and in private investment as essential and 

powerful engines of economic growth; 

• An embrace of the view that a healthy return-on-investment is a necessary and 

desirable incentive to risk-taking and deployment of capital; 

• A recognition of the powerful role entrepreneurs, innovators, startups and small 

businesses must play in fueling American economic success; and 

• An understanding that government has a vital but limited role in advancing 

common goals, for example by helping tackle core infrastructure and public 

safety challenges; providing basic rules of the road to enable markets to work 

fairly; acting in a properly calibrated way when necessary to protect consumers 

and promote competition, investment, and innovation—and otherwise getting 

out of the way of the entrepreneurial genius and free market that is America’s 

greatest competitive advantage. 

Implications of Comcast v. FCC 

The recent court opinion in Comcast v. FCC does not challenge the longstanding 

consensus about the FCC’s important but restrained role in protecting consumers, 

promoting competition, and ensuring that all Americans can benefit from broadband 

communications. Nor does it challenge the commonsense policies we have been pursuing. 

But the opinion does cast serious doubt on the particular legal theory the Commission used for the past few years to justify its backstop role with respect to 

broadband Internet communications. The opinion therefore creates a serious problem that must be solved so that the Commission can implement important, commonsense broadband policies, including reforming the Universal Service Fund to provide 

broadband to all Americans, protecting consumers and promoting competition by ensuring transparency regarding broadband access services, safeguarding the privacy 

of consumer information, facilitating access to broadband services by persons with 

disabilities, protecting against cyber-attacks, ensuring next-generation 911 services 

for broadband communications, and preserving the free and open Internet. 

The legal theory that the Comcast opinion found inadequate has its roots in a series of controversial decisions beginning in 2002 in which the Commission decided 

to classify broadband Internet access service not as a ‘‘telecommunications service’’ 

for purposes of the Communications Act, but as something different—an ‘‘information service.’’ 

As a result of these decisions, broadband became a type of service over which the 

Commission could exercise only indirect ‘‘ancillary’’ authority, as opposed to the 

clearer direct authority exercised over telecommunications services. Importantly, at 

the time, supporters of this ‘‘information services’’ approach clearly stated that the 

FCC’s so-called ‘‘ancillary’’ authority would be more than sufficient for the Commission to play its backstop role with respect to broadband access services and pursue 

all sensible broadband policies. 

The Commission’s General Counsel and many other lawyers believe that the 

Comcast decision reduces sharply the Commission’s ability to protect consumers and 

promote competition using its ‘‘ancillary’’ authority, and creates serious uncertainty 

about the Commission’s ability, under this approach, to perform the basic oversight 

functions, and pursue the basic broadband-related policies, that have been long and 

widely thought essential and appropriate. 

This undermining of settled understandings about the government’s role in safeguarding our communications networks is untenable. Since the decision, lawyers 

from every quarter of the communications landscape have been debating a difficult 

and technical legal question: What is the soundest and most appropriate legal 

grounding to let the FCC carry out what almost everyone agrees to be necessary 

functions regarding broadband communications? 

The Conventional Options 

Two primary options have been debated since the Comcast decision: 

One, the Commission could continue relying on Title I ‘‘ancillary’’ authority, and 

try to anchor actions like reforming universal service and preserving an open Internet by indirectly drawing on provisions in Title II of the Communications Act (e.g., 

sections 201, 202, and 254) that give the Commission direct authority over entities 

providing ‘‘telecommunications services.’’ 

96 

Two, the Commission could fully ‘‘reclassify’’ Internet communications as a ‘‘telecommunications service,’’ restoring the FCC’s direct authority over broadband communications networks but also imposing on providers of broadband access services 

dozens of new regulatory requirements. 

I have serious reservations about both of these approaches. 

The FCC General Counsel advises that under the first option, continuing to pursue policies with respect to broadband Internet access under the ancillary authority 

approach has a serious risk of failure in court. It would involve a protracted, piecemeal approach to defending essential policy initiatives designed to protect consumers, promote competition, extend broadband to all Americans, pursue necessary 

public safety measures, and preserve the free and open Internet. 

The concern is that this path would lead the Commission straight back to its current uncertain situation—and years will have passed without actually implementing 

the key policies needed to improve broadband in America and enhance economic 

growth and broad opportunity for all Americans. 

Meanwhile, the second option, fully reclassifying broadband services as ‘‘telecommunications services’’ and applying the full suite of Title II obligations, has serious drawbacks. While it would clarify the legal foundation for broadband policy, it 

would also subject the providers of broadband communications services to extensive 

regulations ill-suited to broadband. Title II, for example, includes measures that, if 

implemented for broadband, would fail to reflect the long-standing bipartisan consensus that the Internet should remain unregulated and that broadband networks 

should have only those rules necessary to promote essential goals, such as protecting consumers and fair competition. 

Accordingly, I directed the FCC General Counsel and staff to identify an approach 

that would restore the status quo—that would allow the agency to move forward 

with broadband initiatives that empower consumers and enhance economic growth, 

while also avoiding regulatory overreach. In short, I sought an approach consistent 

with the longstanding consensus regarding the limited but essential role that government should play with respect to broadband communications. 

I am pleased the General Counsel and staff have identified a third-way approach—a legal anchor that gives the Commission only the modest authority it 

needs to foster a world-leading broadband infrastructure for all Americans while definitively avoiding the negative consequences of a full reclassification and broad application of Title II. 

A Third Way 

As General Counsel Austin Schlick has explained more fully in his statement 

today, under this narrow and tailored approach, the Commission would: 

• Recognize the transmission component of broadband access service—and only 

this component—as a telecommunications service; 

• Apply only a handful of provisions of Title II (Sections 201, 202, 208, 222, 254, 

and 255) that, prior to the Comcast decision, were widely believed to be within 

the Commission’s purview for broadband; 

• Simultaneously renounce—that is, forbear from—application of the many sections of the Communications Act that are unnecessary and inappropriate for 

broadband access service; and 

• Put in place up-front forbearance and meaningful boundaries to guard against 

regulatory overreach. 

This approach has important virtues. 

First, it will place Federal policy regarding broadband communications services, 

including the policies recommended in the National Broadband Plan, on the soundest legal foundation, thereby eliminating as much of the current uncertainty as possible. From reorienting the Universal Service Fund to support broadband in rural 

America, to adopting focused consumer protection and competition policies, to promoting public safety in a broadband world, this approach would provide a solid legal 

basis. In particular, it would allow broadband policies to rest on the Commission’s 

direct authority over telecommunications services while also using ancillary authority as a fallback. 

Second, the approach is narrow. It will treat only the transmission component of 

broadband access service as a telecommunications service while preserving the longstanding consensus that the FCC should not regulate the Internet, including webbased services and applications, e-commerce sites, and online content. 

Third, this approach would restore the status quo. It would not change the range 

of obligations that broadband access service providers faced pre-Comcast. It would 

not give the FCC greater authority than the Commission was understood to have 

97 

pre-Comcast. And it would not change established policy understandings at the 

FCC, such as the existing approach to unbundling or the practice of not regulating 

broadband prices or pricing structures. It would merely restore the longstanding deregulatory—as opposed to ‘‘no-regulatory’’ or ‘‘over-regulatory’’—compact. 

Fourth, the approach would establish meaningful boundaries and constraints to 

prevent regulatory overreach. The FCC would invoke only the few provisions necessary to achieve its limited but essential goals. Notably, these are the very same 

provisions (sections 201, 202, and 254, for example) that telephone and cable companies agree the FCC should invoke, albeit indirectly under an ‘‘ancillary authority’’ 

approach. The Commission would take steps to give providers and their investors 

confidence and certainty that this renunciation of regulatory overreach will not unravel while also giving consumers, small businesses, entrepreneurs and innovators 

the confidence and certainty they need and deserve. Since Congress gave the Commission forbearance authority 17 years ago, the Commission has never reversed or 

undone a forbearance decision. 

Fifth, the approach is familiar and has worked well in an analogous context— 

wireless communications. In its approach to wireless communications, Congress 

mandated that the FCC subject wireless communications to the same Title II provisions generally applicable to telecommunications services while also directing that 

the FCC consider forbearing from the application of many of these provisions to the 

wireless marketplace. The Commission did significantly forbear, and the telecommunications industry has repeatedly and resoundingly lauded this approach as 

well-suited to an emerging technology and welcoming to investment and innovation. 

In short, the proposed approach is already tried and true. 

Sixth, this approach would allow the Commission to move forward on broadband 

initiatives that are vital for global competitiveness and job creation, even as it explores with Congress and stakeholders the possibility of legislative clarification of the 

Communications Act. The Communications Act as amended in 1996 anticipated that 

the FCC would have an ongoing duty to protect consumers and promote competition 

and public safety in connection with broadband communications. Should Congressional leaders decide to take up legislation in the future to clarify the statute and 

the agency’s authority regarding broadband, the agency stands ready to be a resource to Congress as it considers any such legislative measures. In the interim, 

however, this approach would ensure that key initiatives to address pressing national challenges can move forward. 

I will ask my Commission colleagues to join me soon in launching a public process, seeking comment on this narrow and tailored approach. The proceeding will 

seek comment regarding the Title I and Title II options discussed above, will seek 

input on important questions such as whether wired and wireless broadband access 

should be treated differently in this context, and will invite new ideas. As we move 

forward, my focus will be on the best method for restoring the shared understanding 

of FCC authority that existed before the Comcast decision and for putting in place 

a solid legal foundation for achieving the policy goals that benefit consumers and 

our economy in the most effective and least intrusive way. 

The state of our economy and recent events are reminders both of the need to be 

cautious and the necessity of a regulatory backstop to protect the American people. 

I stand ready to explore all constructive ideas and expect those who engage with 

us to do so constructively as well. The issues presented by the Comcast decision are 

a test of whether Washington can work—whether we can avoid strawman arguments and the descent into hyperbole that too often substitute for genuine engagement. 

The Comcast decision has created a serious problem. I call on all stakeholders to 

work with us productively to solve the problem the Comcast decision has created 

in order to ensure a solid legal foundation for protecting consumers, promoting innovation and job creation, and fostering a world-leading broadband infrastructure for 

all Americans. 

A THIRD WAY LEGAL FRAMEWORK FOR ADDRESSING THE COMCAST DILEMMA

Austin Schlick, General Counsel—Federal Communications Commission—May 6, 2010 

Chairman Genachowski has asked me to describe the legal thinking behind the 

narrow and tailored approach to broadband communications services that he introduced for public discussion today. It springs from a longstanding consensus about 

how the FCC should approach Internet access services; from a recent court decision 

that casts serious doubt on the FCC’s current strategy for implementing that conVerDate Nov 24 2008 13:27 May 12, 2011 Jkt 066283 PO 00000 Frm 00101 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\66283.TXT SCOM1 PsN: JACKIE
98 

sensus; and from a belief that Congress’s laws and the Supreme Court’s decisions 

provide a way to overcome this new challenge. 

The Policy Consensus. As the Chairman explains in his statement, general agreement has developed about the agency’s light-touch role with respect to broadband 

communications. This bipartisan agreement spans the FCC Chairmen and Commissioners, Congress, and industry, and has three elements: 

1. The Commission does not regulate the Internet. The policy of preserving the 

Internet as a generally unregulated, free-market forum for innovation, speech, 

education, and job creation finds expression in (among other provisions) section 

230 of the Communications Act, which states Congress’s conclusion that ‘‘[t]he 

Internet and other interactive computer services have flourished, to the benefit 

of all Americans, with a minimum of government regulation.’’ (47 U.S.C. 

§ 230(a)(4)) 

2. Dial-up Internet access service (used by about 5 million American households 

essentially to ‘‘call’’ the Internet) is subject to the regulatory rules for telephone 

service. This policy protects the 5.6 million American households that depend 

on ordinary telephone service to reach the Internet. 

3. For the broadband access services that a majority of on-line consumers use 

to reach the Internet, the Commission refrains from regulation when possible, 

but will step in when necessary to protect consumers and fair competition. This 

balanced approach to broadband access services was expressed most clearly on 

September 23, 2005, when a unanimous Commission released two companion 

decisions addressing broadband Internet access service. The first decision that 

day, generally known as the Wireline Broadband Order, ‘‘established a minimal 

regulatory environment for wireline broadband Internet access services to benefit American consumers and promote innovative and efficient communications.’’ 

(Para. 1) It reclassified telephone companies’ Internet access offerings as indivisible ‘‘information services’’ subject only to potential regulation under the doctrine of ancillary authority. (‘‘Ancillary authority’’ refers to the Commission’s 

discretion under the statutory provisions that establish the agency (Title I of 

the Communications Act) to adopt measures that are ‘‘reasonably ancillary to 

the effective performance of the Commission’s various responsibilities.’’ United 

States v. Southwestern Cable Co., 392 U.S. 157 (1962).) The companion decision, 

known as the Internet Policy Statement, adopted principles for an open Internet 

and expressed confidence that the Commission had the ‘‘jurisdiction necessary 

to ensure that providers of telecommunications for Internet access . . . are operated in a neutral manner.’’ (Para. 4) As recently as March 16 of this year, 

the current Commission—again unanimously—adopted a Joint Statement on 

Broadband reaffirming that ‘‘[e]very American should have a meaningful opportunity to benefit from the broadband communications era.’’ (Para. 3) 

These three basic principles reflect the Commission’s commitment to a policy that 

promotes investment in the Internet and broadband technologies, and ensures basic 

protections for businesses and consumers when they use the on-ramps to the Internet. 

The Comcast Case. A month ago, the United States Court of Appeals for the D.C. 

Circuit issued an opinion that raises serious questions about the Commission’s ability to implement the consensus policy effectively, absent some responsive administrative action. That case is Comcast v. FCC, the so-called Comcast/BitTorrent case. 

The case began in 2007, when Internet users discovered that Comcast was secretly 

degrading its customers’ lawful use of BitTorrent and other peer-to-peer applications. In 2008, the FCC issued an order finding Comcast in violation of Federal 

Internet policy as stated in various provisions of the Communications Act and prior 

Commission decisions. 

The D.C. Circuit held that the Commission’s 2008 order lacked a sufficient statutory basis, because it did not identify ‘‘any express statutory delegation of authority’’ 

for putting an end to Comcast’s undisclosed interference with its own customers’ 

communications. The narrow holding is that because the Commission, in 2002, classified cable modem offerings entirely as ‘‘information services’’ (a category not subject to any specific statutory rules, but only the agency’s ancillary authority under 

Title I of the Act), it could not, in 2008, enforce Title II’s nondiscrimination and consumer protection principles in the cable modem context. The underlying legal principle is that, when the Commission classified residential broadband services as solely and entirely information services despite their substantial transmission component, the Commission unintentionally went too far in limiting its ability to protect 

consumers and small businesses. 

99 

The opinion recognizes the Commission’s continued ability to adopt rules concerning services Congress specifically addressed in the Communications Act— 

wireline and wireless telephony, broadcasting, and cable and satellite TV—and 

those rules may incidentally benefit the Internet. But, under Comcast, the FCC’s 

2002 classification decision greatly hampers its ability to accomplish a task the 

Commission unanimously endorsed in 2005: ‘‘ensur[ing] that broadband networks 

are widely deployed, open, affordable, and accessible to all consumers.’’ (Internet Policy Statement) 

The Commission’s Options. Comcast undermined only the particular legal foundation used in recent years to support the longstanding consensus regarding 

broadband policy, not the consensus itself. In particular, the case casts no doubt on 

the wisdom of the three-part framework that has encouraged the development of diverse and innovative Internet applications, content, and services, as well as faster 

and more widely available access connections. The Commission’s focus is on putting 

the consensus approach back on a sound legal footing. The public debate surrounding the Comcast decision has focused on two principal options, but there is a 

third approach that may provide a more tailored and sustainable alternative. 

1. Title I: Stay the Course 

Some big cable and telephone companies suggest the agency should stick with the 

information service classification, try to adapt its policies to the new restrictions announced by the Comcast court, and see how it goes. This is a recipe for prolonged 

uncertainty. Any action the Commission might take in the broadband area—be it 

promoting universal service, requiring accurate and informative consumer disclosures, preserving free and open communications, ensuring usability by persons with 

disabilities, preventing misuse of customers’ private information, or strengthening 

network defenses against cyberattacks—would be subject to challenge on jurisdictional grounds because the relevant provisions of the Communications Act would not 

specifically address broadband access services. Paradoxically, the FCC would be on 

safe legal ground only to the extent its actions regarding emerging broadband services were intended to affect traditional services like telephone and television. 

Even if the Commission won every case, there would be implementation delays 

of months or years while legal challenges worked their way through the courts— 

eons in what the Ninth Circuit has called the ‘‘quicksilver technological environment’’ of broadband. (AT&T Corp. v. City of Portland, 216 F.3d 871, 876 (9th Cir. 

2000)). The extended uncertainty would deprive investors, innovators, and consumers of needed clarity about the rules of the road. Because the stay-the-course 

proposal does not allow the Commission directly to promote broadband deployment 

and adoption or protect broadband competition and consumers, it would not support 

the consensus status quo that existed before Comcast. 

2. Title II: Telephone-Style Regulation of Broadband Internet Services 

A second option is to reclassify broadband Internet access services as telecommunications services and apply the full suite of provisions established in Title 

II of the Communications Act, many of which were developed decades ago for telephone networks. That approach would put the Commission on a strong jurisdictional 

footing in future broadband rulemakings and adjudications, because broadband 

Internet services would be governed directly by Title II. But this full Title II approach would trigger a detailed regulatory regime (comprising 48 sections of the 

United States Code) that the Commission has successfully refrained from applying 

to broadband Internet services. Although there would be clear rules of the road for 

broadband, those rules would be inconsistent with the current consensus approach 

of regulatory restraint. 

3. A Third Way: Placing the Consensus Policy Framework on a Sound Legal Footing 

There is a third legal path that fits better with the Commission’s settled, deregulatory policy framework for broadband communications services. It begins at the Supreme Court. In National Cable and Telecommunications Association v. Brand X 

Internet Services, Inc., a majority of the Justices deferred to the Commission, and 

permitted its information service classification of cable modem offerings, because the 

Communications Act ‘‘leaves Federal telecommunications policy in this technical and 

complex area to be set by the Commission.’’ Justice Scalia, joined by Justices Souter 

and Ginsburg, concluded in a strong dissent that the ‘‘computing functionality’’ and 

broadband transmission component of retail Internet access service must be acknowledged as ‘‘two separate things.’’ The former involves unregulated information 

services while the latter is a telecommunications service. The dissent therefore 

would have held that the Commission’s information service classification of cable 

broadband Internet access service was an unreasonable and unlawful interpretation 

of the Communications Act. 

100 

As discussed in detail below, adopting Justice Scalia’s bifurcated view of 

broadband Internet access service is entirely consistent with (although not compelled by) the Brand X majority opinion. This course would also sync up the Commission’s legal approach with its policy of (i) keeping the Internet unregulated while 

(ii) exercising some supervision of access connections. The provisions of Title II 

would apply solely to the transmission component of broadband access service, while 

the information component would be subject to, at most, whatever ancillary jurisdiction may exist under Title I. 

In addition to narrowing the applicability of Title II, the Scalia approach enables 

the Commission to use the powerful deregulatory tool Congress provided specifically 

for tailoring Title II’s requirements to the Internet Age, and thereby establishing 

appropriately confined boundaries for regulation. When Congress amended the Communications Act in 1996, most consumers reached the Internet using dial-up service, 

subject then (as it is now) to Title II. Cable modem service was emerging, though, 

and telephone companies were beginning to offer DSL broadband connections for 

Internet access under Title II. Aware of the changing landscape, Congress gave the 

FCC authority and responsibility via section 10 of the Communications Act to ‘‘forbear’’ from applying telecommunications regulation, so that the new services are not 

subject to needlessly burdensome regulations. And in section 706 of the Telecommunications Act of 1996 (47 U.S.C. §1302), Congress directed the FCC to use 

its new forbearance power to ‘‘encourage the deployment on a reasonable and timely 

basis of advanced telecommunications capability to all Americans.’’ 

The upshot is that the Commission is able to tailor the requirements of Title II 

so that they conform precisely to the policy consensus for broadband transmission 

services. Specifically, the Commission could implement the consensus policy approach—and maintain substantively the same legal framework as under Title I— 

by forbearing from applying the vast majority of Title II’s 48 provisions to 

broadband access services, making the classification change effective upon the completion of forbearance, and enforcing a small handful of remaining statutory requirements. As few as six provisions could do the job: 

Sections 201, 202, and 208. These fundamental provisions collectively forbid unreasonable denials of service and other unjust or unreasonable practices, and allow 

the Commission to enforce the prohibition. Long before the Comcast decision, access 

providers supporting an information service classification made clear that they did 

not seek to avoid enforcement of these fair-dealing principles: 

• In December 2000, Cox commented in the Cable Modem docket that ‘‘a Title I 

classification ensures that the Commission has ample ability and authority to 

implement rules to correct any market failures or other policy concerns about 

cable data services that might develop in the future.’’ 

• In May 2002, Verizon agreed in the Wireline Broadband proceeding that ‘‘classification of broadband under Title I [would not] lead to any erosion of the consumer protections provisions of the Communications Act.’’ 

• In July 2003, SBC (now AT&T) noted in the same docket that Title I classification of broadband Internet access services would allow the Commission ‘‘to intercede at some later point if necessary to protect consumers.’’ 

After Comcast, the commonsense consensus that there should not be unreasonable 

conduct by broadband access service providers remains. In the Commission’s pending Open Internet Proceeding, for example, Comcast has urged ‘‘a standard based 

on ‘unreasonable and anticompetitive discrimination.’ ’’ Sprint Nextel has commented that ‘‘[t]he unreasonable discrimination standard contained in Section 

202(a) of the Act contains the very flexibility the Commission needs to distinguish 

desirable from improper discrimination.’’ And AT&T has concurred that the ‘‘unreasonable discrimination’’ prohibition in section 202(a) ‘‘is both administrable and indispensable to the sound administration of the Nation’s telecommunications laws.’’ 

Applying sections 201, 202, and 208 to broadband access service would hold 

broadband access providers to standards they agree should be met and would address the specific problem that sparked the case—secret interference with subscribers’ lawful Internet transmissions. Applying a few other Comcast sections of 

Title II would allow the Commission to address other recognized issues as well. 

Section 254. Section 254 requires the Commission to pursue policies that promote 

universal service goals including ‘‘[a]ccess to advanced telecommunications and information services . . . in all regions of the Nation.’’ In the Joint Statement on 

Broadband issued earlier this year, the Commission called for reform of the universal service program to ‘‘emphasize the importance of broadband.’’ The Title I/information services model used by the Commission actually undermines accomplishment of this goal, because universal service support is generally available only for 

101 

telecommunications services: The law defines ‘‘universal service’’ as ‘‘an evolving 

level of telecommunications services the Commission shall establish periodically’’ 

(emphasis added). Industry agrees this is a problem. AT&T (in a January 2010 

white paper) and the cable industry (in a March 2010 letter) have both proposed 

untested theories they think might permit universal support for broadband under 

Title I. Recognizing broadband transmission as a separable telecommunications 

service would definitively solve the problem. 

Section 222. Title II requires providers of telecommunications services to protect 

the confidential information they receive in the course of providing service. These 

protections are another part of the consensus policy framework for broadband access. A unanimous Commission addressed privacy in the 2005 Wireline Broadband 

Order, stating that ‘‘[c]onsumers’ privacy needs are no less important when consumers communicate over and use broadband Internet access than when they rely 

on [telephone] services’’ (para. 148), and that it had jurisdiction to enforce this norm 

(para. 146). As early as 1987, ‘‘long before Congress enacted section 222 of the Act, 

the Commission had recognized the need for privacy requirements associated with 

the provision of enhanced [i.e., information] services’’ and established rules for telephone companies to protect ‘‘legitimate customer expectations of confidentiality’’ as 

well as other companies’ confidential business information. (Id. Para. 149 and 

n.447). 

Section 255. Telecommunications service providers and providers of telecommunications equipment or customer premises equipment must make their services and 

equipment accessible to individuals with disabilities, unless not reasonably achievable. The Wireline Broadband Order addressed this requirement as well. Again, although the Commission was there adopting the Title I legal framework, it held fast 

to the Title II rule, promising to ‘‘exercise our Title I ancillary jurisdiction to ensure 

achievement of important policy goals of section 255.’’ (Para. 123) The Joint Statement on Broadband similarly provides that disabilities should not stand in the way 

of Americans’ access to broadband. (Para. 3) 

The Wireless Experience. Although it would be new for broadband, this third way 

is a proven success for wireless communications. In 1993, Congress addressed the 

minimum safeguards necessary for then-emerging commercial mobile radio services 

(CMRS), such as cell phone service. Congress specified in a new section 332(c) of 

the Communications Act that Title II applies to CMRS, but the Commission may 

forbear from enforcing any provision other than the core requirements of sections 

201, 202, and 208. This forbearance framework for wireless has been so successful 

that in 2001, Tom Tauke, Verizon’s Senior Vice President for Public Policy and External Affairs, told the House Judiciary Committee that ‘‘this approach produced 

what is arguably one of the greatest successes in this industry in the last twenty 

years—the growth of wireless services’’—and it ‘‘will work’’ for wireline broadband 

as well. 

(Aside from this statutory history, wireless broadband may be distinguishable 

from cable and telephone company broadband access services on account of differences in the technical and consumer aspects of wireless broadband service, as 

well as the Commission’s direct jurisdiction over licensing of wireless services under 

Title III of the Communications Act. On the other hand, telecommunications classification of a distinct transmission component within wireless broadband service 

might be essential to supporting deployment and wider adoption of wireless 

broadband under section 254.) 

A Stronger Legal Foundation. Applying a few foundational sections of Title II to 

the transmission component of broadband Internet access service would establish a 

strengthened legal basis on which to implement the consensus policy for broadband 

access. If broadband access service is found to contain a separate telecommunications service, as Justices Scalia, Souter, and Ginsburg believed was the only plausible view, then the Commission may protect broadband consumers by grounding its 

authority in Title II directly as well as in Title I as ancillary authority. This beltand-suspenders approach—relying on direct statutory authority in addition to ancillary authority—puts the Commission in an inherently more secure position than the 

Title I approach, which allows only assertions of ancillary authority. 

The legal issue surrounding the third way is not whether the Commission can sufficiently protect consumers in a particular context, as it is under the information 

service classification and the Comcast opinion, but whether the Commission’s decision to adopt Justice Scalia’s classification of broadband access would be permissible. Brand X all but answers that question. 

Brand X involved a challenge by independent Internet service providers (ISPs), 

long distance carriers, consumer and public interest groups, and states to the Cable 

Modem Declaratory Ruling. In that 2002 decision, the Commission had concluded 

that cable modem service then was being provided as ‘‘a single, integrated service 

102 

that enables the subscriber to utilize Internet access service,’’ with a telecommunications component that was not ‘‘separable from the data processing capabilities of 

the service.’’ The Commission held that cable modem service ‘‘does not include an 

offering of telecommunications service to subscribers’’ and, accordingly, no portion 

of it triggered Title II duties or protections. (Cable Modem Declaratory Ruling paras. 

38–39) 

When the case was briefed at the Supreme Court, all the parties agreed with the 

Commission that cable modem service either is or includes an information service. 

The Court therefore addressed whether the Commission permissibly applied the 

Communications Act in choosing to conclude that cable modem service providers 

offer only an information service, rather than a telecommunications service and an 

information service. The Court’s opinion unequivocally reaffirms the principle that 

courts must defer to the implementing agency’s reasonable interpretation of an ambiguous statute. Justice Thomas, writing for the six-Justice majority, recited that: 

In Chevron [U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 

837 (1984)], this Court held that ambiguities in statutes within an agency’s jurisdiction to administer are delegations of authority to the agency to fill the 

statutory gap in reasonable fashion. Filling these gaps, the Court explained, involves difficult policy choices that agencies are better equipped to make than 

courts. 467 U.S., at 865–866. If a statute is ambiguous, and if the implementing 

agency’s construction is reasonable, Chevron requires a Federal court to accept 

the agency’s construction of the statute, even if the agency’s reading differs from 

what the court believes is the best statutory interpretation. 

(545 U.S. at 980) Furthermore, ‘‘[a]n initial agency interpretation is not instantly 

carved in stone. On the contrary, the agency. . .must consider varying interpretations and the wisdom of its policy on a continuing basis.’’ (Id. at 981 (quoting Chev- ron)) 

Turning to the Communications Act, Justice Thomas wrote: 

The entire question is whether the products here are functionally integrated 

(like the components of a car) or functionally separate (like pets and leashes). 

That question turns not on the language of the Act, but on the factual particulars of how Internet technology works and how it is provided, questions Chevron 

leaves to the Commission to resolve in the first instance. . . . [T]he statute fails 

unambiguously to classify the telecommunications component of cable modem 

service as a distinct offering. This leaves Federal telecommunications policy in 

this technical and complex area to be set by the Commission. 

(Id. at 991) ‘‘The questions the Commission resolved in the order under review,’’ 

Justice Thomas summed up, ‘‘involve a subject matter [that] is technical, complex, 

and dynamic. The Commission is in a far better position to address these questions 

than we are.’’ (Id. at 1002–03 (internal citation and quotation marks omitted)) 

Justice Breyer concurred with Justice Thomas, stating that he ‘‘believe[d] that the 

Federal Communications Commission’s decision falls within the scope of its statutorily delegated authority,’’ although ‘‘perhaps just barely.’’ (Id. at 1003) 

In dissent, Justice Scalia, joined by Justices Souter and Ginsburg, expressed the 

view that the Commission had adopted ‘‘an implausible reading of the statute[,] . . . 

thus exceed[ing] the authority given it by Congress.’’ (Id. at 1005) Justice Scalia reasoned that ‘‘the telecommunications component of cable-modem service retains such 

ample independent identity that it must be regarded as being on offer—especially 

when seen from the perspective of the consumer or end user.’’ (Id. at 1008) 

These opinions collectively afford the Commission great flexibility to adjust its approach going forward—particularly by adopting an approach like the one suggested 

by Justice Scalia. The Brand X case put six Justices on record as saying that classification of cable modem service is a call for the FCC to make and that ‘‘the Commission is free within the limits of reasoned interpretation to change course if it adequately justifies the change’’ (id. at 1001); one of the six ‘‘just barely’’ accepted the 

FCC’s information service approach; and the three remaining Justices expressed the 

view that the agency must classify a separable telecommunications service within 

cable modem offerings. As many as all nine Justices, it seems, might have upheld 

a Commission decision along the lines Justice Scalia suggested. In any event, the 

lawfulness of a limited reclassification could be confirmed relatively quickly in a single court case, avoiding the prolonged and uncertain case-by-case testing that would 

follow from continuing down the Title I road. 

An agency reassessment of the classification issue would have to include consideration of the policy impact of the Comcast case, as well as a fresh look at the technical characteristics and market factors that led Justice Scalia to believe there is 

a divisible telecommunications service within broadband Internet access. The facVerDate Nov 24 2008 13:27 May 12, 2011 Jkt 066283 PO 00000 Frm 00106 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\66283.TXT SCOM1 PsN: JACKIE
103 

tual inquiry would include, for instance, examination of how broadband access providers market their services, how consumers perceive those services, and whether 

component features of broadband Internet access such as e-mail and security functions are today inextricably intertwined with the transmission component. If, after 

studying such issues, the Commission reasonably identified a separate transmission 

component within broadband Internet access service, which is (or should be) offered 

to the public, then the consensus policy framework for broadband access would rest 

on both the Commission’s direct authority under Title II and its ancillary authority 

arising from the newly recognized direct authority. This necessarily would allow a 

stronger legal presentation than the standalone ancillary jurisdiction arguments 

that the Commission made unsuccessfully in Comcast. 

No New Unbundling Authority. In the wake of Comcast, representatives of the incumbent telephone companies have sometimes suggested that any deviation from 

the current information service classification of broadband Internet access would 

open the door to new network unbundling authority under section 251(c) of the 

Communications Act. That is not a credible concern. An incumbent telephone company’s network unbundling obligations under section 251 do not depend on the classification of the services the incumbent company is providing. The Commission’s 

adoption of its current information service classification accordingly did not lessen 

unbundling obligations or authority under section 251. In paragraph 127 of the 2005 

Wireline Broadband Order (the order that extended the information-service classification to telephone companies’ broadband access) the Commission specifically explained that ‘‘nothing in this Order changes a requesting telecommunications carrier’s [unbundling] rights under section 251 and our implementing rules.’’ 

Nor would identifying a separate telecommunications component of broadband access service afford competing ISPs any new rights to the incumbents’ networks on 

a wholesale basis under the old Computer Inquiry rules. The Commission 

‘‘eliminate[d]’’ those requirements for wireline broadband access providers in 2005, 

no matter whether they provide a Title I or Title II access service. (Id. para. 80). 

As for cable companies, there is currently an open rulemaking proceeding—begun 

by the Powell Commission at the same time it adopted the information services theory—that asks ‘‘whether it is necessary or appropriate at this time to require that 

cable operators provide unaffiliated ISPs with the right to access cable modem service customers directly.’’ (Cable Modem Order para. 72) The Commission has not 

taken any action to implement mandatory access to cable broadband networks, and 

a consensus seems to have developed that it should not be ordered. Should the Commission wish to formally confirm that consensus, it could close the 2002 proceeding. 

No Rate Regulation. Nor would identification of a telecommunications service 

within broadband Internet access be a harbinger of monopoly-era price regulation, 

as some have suggested. Congress made mobile services subject to Title II in 1993, 

but under the model established for wireless services the Commission rejected rate 

setting. A wireless carrier’s success, the Commission explained, ‘‘should be driven 

by technological innovation, service quality, competition-based pricing decisions, and 

responsiveness to consumer needs—and not by strategies in the regulatory arena.’’ 

(Implementation of Sections 3(n) and 332 of the Communications Act, Regulatory 

Treatment of Mobile Services, 9 FCC Rcd 1411, 1420 (1994)) There is no reason to 

anticipate the Commission would reach a different conclusion about prices or pricing 

structures for broadband access. Indeed, more than 800 incumbent telephone companies voluntary provide broadband access as a Title II telecommunications service 

today, and while most have voluntary tariffs, the Commission expressly does not require tariffing. (Wireline Broadband Order para. 90) 

Difficult To Overturn. Would a forbearance-based approach provide greater or 

lesser protection against future over-regulation of broadband access than today’s information service classification? Although neither approach would, could, or should 

absolutely prevent the Commission from adjusting its future policies in light of 

changed circumstances, the forbearance approach should provide greater, not lesser, 

protection against excessive regulation than the Title I approach. 

As already discussed, the Commission’s information service approach was highly 

discretionary and, the Supreme Court instructed in Brand X, subject to review ‘‘on 

a continuing basis.’’ For both reasons, the current information service classification 

is inherently insecure. Justice Scalia made this point in Brand X. (545 U.S. at 1013) 

Forbearance determinations for broadband access transmission would be more difficult than the information service classification to reverse. That is because Section 

10 mandates forbearance if: 

(1) enforcement of such regulation or provision is not necessary to ensure that 

the charges, practices, classifications, or regulations by, for, or in connection 

104 

with that telecommunications carrier or telecommunications service are just 

and reasonable and are not unjustly or unreasonably discriminatory; 

(2) enforcement of such regulation or provision is not necessary for the protection of consumers; and 

(3) forbearance from applying such provision or regulation is consistent with the 

public interest. 

The initial determination to forbear from regulating broadband access would be 

straightforward under this test. Applying sections 201, 202, and 208 would directly 

address the first prong of the test. As for the second and third prongs (protecting 

consumers and consistency with the public interest), the critical fact is that Title 

II rules currently do not apply to broadband access service. Forbearing would preserve the status quo, not change it. To satisfy the statutory forbearance criteria, 

therefore, the Commission would only have to conclude that consumers and the public interest are adequately protected today, without application of the Title II provision at issue. Consistent with the 2005 classification order, this analysis could be 

undertaken on a nationwide rather than market-by-market basis. (See Wireline 

Broadband Order paras. 91–93) 

Unforbearing (that is, imposing Title II rules that have not been applied to 

broadband access services in many years, if ever) would be a different matter entirely. In order to overturn a grant of forbearance, the Commission would first have 

to compile substantial record evidence that the circumstances it previously identified as supporting forbearance had changed, and then survive judicial review under 

the Administrative Procedure Act’s arbitrary-and-capricious standard. The difficulty 

of overcoming section 10s deregulatory mandate and a prior agency finding in favor 

of forbearance is illustrated by the fact that the FCC has never reversed a forbearance determination made under section 10, nor one made for wireless under the 

similar criteria of section 332(c)(1). 

The Commission could further reinforce the certainty of forbearance in the text 

of any implementing order. For instance, the Commission might provide that in the 

event of an adverse court decision on forbearance the old unitary information service 

classification would spring back, or that there would be some other response by the 

Commission that is more consistent with the pre-Comcast status quo than full Title 

II regulation. 

No Inconsistent State Regulation. Excessive state regulation is as threatening to 

the Internet as excessive Federal regulation. The Commission, however, has broad 

authority to preempt inconsistent state requirements when they frustrate valid Federal policies. Under today’s information service classification, the Commission’s general policy of not regulating information services means that states have little ability to regulate broadband Internet access services. The Commission has similar authority to preempt state regulation of interstate telecommunications services when 

the state regulation is inconsistent with Federal regulation (or deregulation) and the 

state cannot limit the effect of its regulation to an intrastate portion of the service. 

Furthermore, section 10(e) of the Act specifically provides that no state may apply 

a provision of Title II that the Commission has nullified through forbearance. For 

these reasons, broadband access providers would have at least the same protection 

against unjustified state regulation as they enjoy today. Indeed, access providers arguably would have more protection under a tailored forbearance approach than 

under the Title I approach; because a permissible exercise of Federal jurisdiction 

can effectively limit state jurisdiction, the Comcast decision’s narrowing of Federal 

ancillary jurisdiction might have the corollary effect of expanding the permissible 

scope of state regulation. 

No Red Tape or Slippery Slopes. Finally, a third-way approach modeled on the 

successful framework used for wireless services would have to be administrable and 

lead to sensible results in practice. Administration should be a non-issue. Access 

providers would be free to define and redefine their transmission services to best 

meet operational and customer needs, without any need to file tariffs (given forbearance from the rate-setting provisions of the Act). The fact-specific inquiry involved 

in a tailored forbearance approach, moreover, would address only facilities-based 

providers that offer access transmission to the public at large. Providers of Internet 

content, applications, and services would remain unregulated under the first prong 

of the Commission’s consensus framework, while providers of negotiated (‘‘private’’) 

carriage services—on the Internet or elsewhere—are not telecommunications service 

providers subject to Title II. (See Communications Act section 3(46) (‘‘The term ‘telecommunications service’ means the offering of telecommunications for a fee directly 

to the public, or to such classes of users as to be effectively available directly to the 

public, regardless of the facilities used.’’) A narrow and tailored forbearance approach to solving the Comcast problem appears workable in this respect as well. 

105 

Whether, all things considered, the legal response to Comcast sketched out here 

is the best one for the Commission to adopt would be for the five FCC Commissioners to answer after an opportunity for public comment and private study. In my 

judgment, it’s a question worth asking. 

Æ