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

76–021 2012

OVERSIGHT OF THE FEDERAL COMMUNICATIONS 

COMMISSION: THE NATIONAL BROADBAND PLAN 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COMMUNICATIONS, 

TECHNOLOGY, AND THE INTERNET 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

MARCH 25, 2010 

Serial No. 111–109 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 


smartinez on DSK6TPTVN1PROD with 
(II) 

COMMITTEE ON ENERGY AND COMMERCE 

HENRY A. WAXMAN, California 

Chairman 

JOHN D. DINGELL, Michigan 

Chairman Emeritus 

EDWARD J. MARKEY, Massachusetts 

RICK BOUCHER, Virginia 

FRANK PALLONE, JR., New Jersey 

BART GORDON, Tennessee 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

BART STUPAK, Michigan 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

Vice Chairman 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANE HARMAN, California 

TOM ALLEN, Maine 

JANICE D. SCHAKOWSKY, Illinois 

HILDA L. SOLIS, California 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

ANTHONY D. WEINER, New York 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

CHARLIE MELANCON, Louisiana 

JOHN BARROW, Georgia 

BARON P. HILL, Indiana 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

CHRISTOPHER S. MURPHY, Connecticut 

ZACHARY T. SPACE, Ohio 

JERRY MCNERNEY, California 

BETTY SUTTON, Ohio 

BRUCE BRALEY, Iowa 

PETER WELCH, Vermont 

JOE BARTON, Texas 

Ranking Member 

RALPH M. HALL, Texas 

FRED UPTON, Michigan 

CLIFF STEARNS, Florida 

NATHAN DEAL, Georgia 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOHN B. SHADEGG, Arizona 

ROY BLUNT, Missouri 

STEVE BUYER, Indiana 

GEORGE RADANOVICH, California 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 


smartinez on DSK6TPTVN1PROD with 
(III) 

SUBCOMMITTEE ON COMMUNICATIONS, TECHNOLOGY, AND THE INTERNET

RICK BOUCHER, Virginia 

Chairman 

EDWARD J. MARKEY, Massachusetts 

BART GORDON, Tennessee 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

BART STUPAK, Michigan 

DIANA DEGETTE, Colorado 

MICHAEL F. DOYLE, Pennsylvania 

JAY INSLEE, Washington 

ANTHONY D. WEINER, New York 

G.K. BUTTERFIELD, North Carolina 

CHARLIE MELANCON, Louisiana 

BARON P. HILL, Indiana 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

CHRISTOPHER S. MURPHY, Connecticut 

ZACHARY T. SPACE, Ohio 

JERRY MCNERNEY, California 

PETER WELCH, Vermont 

JOHN D. DINGELL, Michigan (ex officio) 

FRED UPTON, Michigan 

Ranking Member 

CLIFF STEARNS, Florida 

NATHAN DEAL, Georgia 

JOHN SHIMKUS, Illinois 

GEORGE RADANOVICH, California 

MARY BONO MACK, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE FERGUSON, New Jersey 


smartinez on DSK6TPTVN1PROD with 

smartinez on DSK6TPTVN1PROD with 
(V) 

C O N T E N T S 

Page 

Hon. Rick Boucher, a Representative in Congress from the Commonwealth 

of Virginia, opening statement ............................................................................ 1 

Prepared statement .......................................................................................... 4 

Hon. Cliff Stearns, a Representative in Congress from the State of Florida, 

opening statement ................................................................................................ 6 

Hon. Henry A. Waxman, a Representative in Congress from the State of 

California, opening statement ............................................................................. 7 

Hon. John D. Dingell, a Representative in Congress from the State of Michigan, opening statement ....................................................................................... 15 

Hon. Fred Upton, a Representative in Congress from the State of Michigan, 

opening statement ................................................................................................ 16 

Hon. Edward J. Markey, a Representative in Congress from the Commonwealth of Massachusetts, opening statement .................................................... 17 

Hon. John Shimkus, a Representative in Congress from the State of Illinois, 

opening statement ................................................................................................ 18 

Hon. Anna G. Eshoo, a Representative in Congress from the State of California, opening statement .................................................................................... 18 

Hon. Mary Bono Mack, a Representative in Congress from the State of 

California, opening statement ............................................................................. 19 

Hon. Bart Stupak, a Representative in Congress from the State of Michigan, 

opening statement ................................................................................................ 20 

Hon. Marsha Blackburn, a Representative in Congress from the State of 

Tennessee, opening statement ............................................................................ 21 

Hon. Doris O. Matsui, a Representative in Congress from the State of California, opening statement .................................................................................... 22 

Hon. Lee Terry, a Representative in Congress from the State of Nebraska, 

opening statement ................................................................................................ 23 

Hon. Mike Rogers, a Representative in Congress from the State of Michigan, 

opening statement ................................................................................................ 24 

Hon. G.K. Butterfield, a Representative in Congress from the State of North 

Carolina, opening statement ............................................................................... 26 

Hon. Anthony D. Weiner, a Representative in Congress from the State of 

New York, opening statement ............................................................................. 29 

Hon. Zachary T. Space, a Representative in Congress from the State of 

Ohio, opening statement ...................................................................................... 29 

Hon. Bobby L. Rush, a Representative in Congress from the State of Illinois, 

opening statement ................................................................................................ 30 

Hon. Joe Barton, a Representative in Congress from the State of Texas, 

prepared statement .............................................................................................. 10 

WITNESSES

Julius Genachowski, Chairman, Federal Communications Commission ............ 32 

Prepared statement .......................................................................................... 35 

Answers to submitted questions ...................................................................... 109 

Michael J. Copps, Commissioner, Federal Communications Commission .......... 40 

Prepared statement .......................................................................................... 43 

Answers to submitted questions ...................................................................... 207 

Robert M. McDowell, Commissioner, Federal Communications Commission .... 50 

Prepared statement .......................................................................................... 52 

Answers to submitted questions ...................................................................... 218 

Mignon L. Clyburn, Commissioner, Federal Communications Commission ....... 59 

Prepared statement .......................................................................................... 61 

Answers to submitted questions ...................................................................... 233 


smartinez on DSK6TPTVN1PROD with 
Page

VI 

Meredith Atwell Baker, Commissioner, Federal Communications Commission 65 

Prepared statement .......................................................................................... 67 

Answers to submitted questions ...................................................................... 247 

SUBMITTED MATERIALS FOR THE RECORD

Letter of June 29, 2007, from the Committee to the Federal Communications 

Commission, submitted by Mr. Stearns ............................................................. 103 

Press release dated August 5, 2005, from the FCC, submitted by Mr. Waxman ........................................................................................................................ 107


smartinez on DSK6TPTVN1PROD with 
(1) 

OVERSIGHT OF THE FEDERAL COMMUNICATIONS COMMISSION: THE NATIONAL 

BROADBAND PLAN 

THURSDAY, MARCH 25, 2010 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COMMUNICATIONS, TECHNOLOGY, 

AND THE INTERNET, 

COMMITTEE ON ENERGY AND COMMERCE, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 10:07 a.m., in Room 

2123 of the Rayburn House Office Building, Hon. Rick Boucher 

[Chairman of the Subcommittee] presiding. 

Members present: Representatives Boucher, Markey, Rush, 

Eshoo, Stupak, DeGette, Doyle, Inslee, Weiner, Butterfield, Matsui, 

Christensen, Castor, Murphy, Space, McNerney, Welch Dingell, 

Waxman, Stearns, Upton, Shimkus, Blunt, Bono Mack, Terry, Rogers, Blackburn, Griffith, and Barton. 

Staff present: Roger Sherman, Chief Counsel; Tim Powderly, 

Counsel; Greg Guice, Counsel; Shawn Chang, Counsel; Bruce 

Wolpe, Senior Advisor; Sarah Fisher, Special Assistant; Michiel 

Perry, Intern; Pat Delgado, Chief of Staff; Elizabeth Letter, Special 

Assistant; Neil Fried, Minority Counsel; Will Carty, Minority Professional Staff; and Garrett Golding, Minority Legislative Analyst. 

OPENING STATEMENT OF HON. RICK BOUCHER, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH 

OF VIRGINIA 

Mr. BOUCHER. Subcommittee will come to order. Good morning 

to everyone. This morning, we welcome Chairman Genachowski 

and the members of the Federal Communications Commission as 

we hold the first in a series of hearings that focus on the National 

Broadband Plan. In the Economic Recovery Act of 2009, we directed the Commission to prepare a plan to expand broadband access and increase broadband adoption among those who have access to it. 

Today the United States stands sixteenth among developed nations in broadband usage, and for the benefit of our national economy and our quality of life, we simply must do better. The Commission has done a superb job in developing the plan, and I want to 

commend the members of the Commission and the professional 

staff who have devoted a year, and I know thousands of hours to 

listening to public comments and carefully constructing the blueprint before us. I think you have truly done a superb job. 


smartinez on DSK6TPTVN1PROD with 
2 

I am going to comment this morning on several core recommendations of the plan and then recognize other members. First 

I was pleased to observe your proposal to transition the high cost 

fund in the Federal Universal Service Fund from supporting exclusively basic telephone service, which is what it does today, to also 

supporting broadband deployment. The Commission’s recommendation very closely tracks the provision in the comprehensive universal service reform legislation. That for the last four years, I 

have been working with our committee colleague, Mr. Terry, in 

order to advance. We have been through a series of discussion 

drafts, the most recent of which was the subject of a legislative 

hearing in the subcommittee. 

Today, universal service monies may not be spent for broadband. 

Our legislation will immediately allow carriers to use their USF 

monies for broadband deployment. We also have in our bill a mandate that carriers receiving universal service monies to provide 

broadband throughout their service territories within five years of 

the measure becoming law. The carriers could no longer receive 

USF monies if they fail to meet this broadband build-out mandate. 

The Commission’s recommendation also targets using the highcost fund for broadband, and I commend the compatibility of the 

broadband plan and the legislation that we have placed before the 

committee. 

Secondly, I was pleased to note that the plan incorporates the 

recommendation that we set a high goal for future broadband 

speeds. Today, the typical broadband service to the home here in 

the United States is between three and five megabits per second. 

In countries like South Korea and Japan, today’s data rates for the 

typical subscriber are far higher, often reaching between 50 and 

100 megabits per second. The Commission’s plan appropriately sets 

a goal over the coming decade of delivering to 100 million homes 

in the United States broadband speeds of at least 100 megabits per 

second. And I commend you for that. 

Third, the Commission’s proposal for auctioning to commercial 

builders the D block of the 700-megahertz spectrum without onerous conditions is commendable. The proceeds from the auction 

could then be applied to helping first responders purchase and install the equipment that is necessary to bring to fire, police, and 

rescue agencies nationwide a truly interoperable telecommunications capability. It is essential that when they converge from different localities on the scene of a disaster that fire, police, and rescue be able to communicate one with the other. We are 10 years 

beyond 9/11. That capability does not exist on a nationwide basis 

today. 

I offer to you my support for obtaining the appropriations that 

will be necessary in addition to the proceeds from the D block auction in order to complete the build-out of first responder communications equipment. I think that on a matter so fundamental to 

the Nation’s security, we will have bipartisan support for the provisions of the money necessary for the purchase of public safety 

equipment. 

Finally I want to commend the approach that you take in your 

plan to work with television broadcasters to identify the spectrum 

they now hold that on a consensual basis could be repurposed for 


smartinez on DSK6TPTVN1PROD with 
3 

commercial, wireless use. Broadcasters who surrender spectrum 

would receive compensation in exchange for a voluntary spectrum 

transfer. That, Mr. Chairman, is the right approach. 

We will soon pass here in the House our bipartisan bill to direct 

you and the NTIA to conduct a comprehensive inventory of the entire spectrum that could be used for commercial purposes. That inventory will offer a clear path for the next steps in making available adequate wireless spectrum. And that spectrum will be necessary to meet our Nation’s rising demand for wireless services. 

You have done an outstanding job in preparing the plan, and we 

want to thank you for joining us here this morning in order to discuss your recommendations. That concludes my statement, and I 

am now pleased to recognize the ranking Republican member of 

our subcommittee and our partner in so many telecommunications 

initiatives, the gentleman from Florida, Mr. Stearns. 

[The prepared statement of Mr. Boucher follows:] 


smartinez on DSK6TPTVN1PROD with 
4 


smartinez on DSK6TPTVN1PROD with Insert offset folio 10 here 76021A.001

Opening Remarks 

FCC Broadband Plan Roll Out 

March 25, 2010 

Thank you Mr. Chairman, and Ranking Member Stearns for holding this hearing 

this morning. Myself, along with my colleagues on the committee and every 

representative from the telecommunications industry as a whole have anxiously 

anticipated the unveiling the new National Broadband Plan for quite some time 

now and I appreciate you coming before us today to share your insights on the plan 

as well as the path forward in accomplishing it. Before we go any further, though I 

would like to commend you all for the hard work that you and your staffs have 

undoubtedly put into compiling and completing this finished product, and also for 

the work ahead of all of us as we work to implement these ambitious goals. 

I was very pleased to see some of the Commission's proposals as they relate to 

extending broadband out to un-served areas of our population as well as your 

proposal to help re-focus and cut waste from the Universal Service Fund. As a 

member of Congress who represents vast swaths of rural areas, it was good to hear 

that the initial focus of the plan's broadband expansion will be to get broadband 

access to the 5% of the popUlation that is completely without it, who live in areas 

where it has simply be uneconomical for private industry to expand into. 
5 


smartinez on DSK6TPTVN1PROD with Insert offset folio 11 here 76021A.002

The rapid expansion of broadband subscribers over the past decade has been a 

great success and truly represents what free-market principles partnered with 

limited government regulations can accomplish. I am glad that the commission 

recognized the need to help facilitate expanding broadband access to that last 

segment of the un-served left in our country, and this plan seems to strike the right 

balance between what the market can accomplish and where the government might 

need to supplement the private sector. 

I strongly believe that the deregulatory policies that have helped expand the reach 

of broadband in our country today can also help us hit and even surpass the plan's 

ambitious goals, most specifically the goal of making 100 megabits per second 

service available to 100 million homes by 2020. 

As this plan is being implemented, I look forward to working with the commission 

to build upon the successful expansions we have achieved across the 

telecommunications industry as we look to achieve the framework of goals you 

have laid before us. Thank you and I yield back the balance of my time. 
6 

OPENING STATEMENT OF HON. CLIFF STEARNS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA 

Mr. STEARNS. Good morning and thank you, Mr. Chairman, and 

let me welcome all the witnesses and let you know how much we 

appreciate you taking your time to come here. It is a very important hearing. We do this regularly, but this is, I think, very appropriate considering we just got the broadband plan from all of you. 

I have a lot of ideas. I haven’t been through the whole plan. My 

staff has been through it. We have marked up and done an analysis. I think all of us would agree that broadband is critical to our 

economic growth, and certainly the goals outlined in the plan are 

encouraging. 

You know on page 10, it mentions goal number four, Mr. Chairman, which I think is really exciting to think that every American 

community should have affordable access to at least one-gigabyteper-second broadband. Service to anchor institutions such as 

schools, hospitals, and government buildings, and you mentioned 

this, but I think all of us in America would not even comprehend 

what would happen in this country to its productivity and to the 

innovation and technology if we had one gigabyte. So, as you mentioned, oftentimes we get less than five megabytes through our 

broadband today. So I think this goal is outstanding. 

It is important for the Commission to recognize that much about 

our broadband market is working well, and that perhaps is my 

theme this morning, and that the plan should complement what is 

working rather than scrapping it. Key findings, according to the report now, that 290 million Americans, 95 percent of the population 

today have access to at least four-megabytes-per-second broadband 

service and two-thirds of adults subscribe. So approximately 200 

million subscribers have broadband at home today, representing a 

25-fold increase in the last 10 years, up from 8 million. 

By comparison—I just asked the staff to look at this—it took 90 

years to go from 8 million voice subscribers to 200 million under 

the old Title Two Common Carrier regulations. So that should tell 

you something. This plan confirms that the free market, pro-investment, national plan we already have in place for broadband has 

worked, considering how quickly we have moved. 

All the FCC need do then is remain focused on the five percent 

of households that otherwise may be uneconomic for the private 

sector to serve. What Congress and the FCC must not do is revert 

to failed regulatory ideas that were designed for old technologies 

and a monopoly marketplace, such as imposing network neutrality 

for forcing access to facilities and regulating rates are the surest 

way to deter the investment we need to reach this new broadband 

plan and ultimately the goal of one gigabyte here in America. 

If we don’t impose regulation of broadband providers that discourage private sector investment, we can meet the FCC chairman’s goal of making 100-megabyte-per-second service available to 

100 million households by the year 2020. So we must carefully 

avoid any investment killing and government interventions and 

avoid any attempt to reclassify broadband as a Title Two service. 

I think the plan, as we went through it obviously has some very 

good points, and I want to thank the chairman for answering my 

letter I sent to him. And it was nice to get the letter before the 


smartinez on DSK6TPTVN1PROD with 
7 

hearing, and we appreciate his response. As he pointed out, that 

the plan costs $20 million to create, and I am concerned that we 

had to spend $20 million to confirm what a lot of us knew was 

working. But I think it is worthwhile to get this perspective in this 

report. 

It could end up saving us more money as we move forward if the 

pro-investment approach continues and we refrain, as I mentioned, 

from putting burdensome regulations in place. 

Now, of course, this does not mean that the government has no 

role, and the plan can help us in this way. Two approaches in this 

plan show particular promise. The chairman mentioned this. The 

plan proposed to cut the waste in the universal service program 

and refocus it on the five percent of the country that does not have 

access to at least four-megabytes-per-second broadband. If we are 

going to subsidize broadband, concentrating on the seven million 

homes that are uneconomic for the private sector to serve makes 

sense. 

Second, the plan seeks to make 500 megahertz of spectrum available for wireless broadband within 10 years. That is good so long 

as the FCC does not give the spectrum away or rig auctions with 

conditions. Then we will advance, I think, our broadband goals 

while generating needed federal revenue. I hope that the 

broadband spectrum on the part of the broadcasters will be looked 

at carefully. And if they have to relinquish anything, it will be on 

a voluntary basis so we let that work itself out. 

So, Mr. Chairman, I thank very much for this hearing, and I look 

forward to the testimony of our Commissioner. 

Mr. BOUCHER. Thank you very much, Mr. Stearns. The chairman 

of the Energy and Commerce Committee, the gentleman from California, Mr. Waxman, is recognized for five minutes. 

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. WAXMAN. Thank you, Chairman Boucher, for scheduling this 

important hearing. The release of the National Broadband Plan 

was eagerly anticipated over the last several months, and I am 

pleased that the committee is examining its recommendations 

today. 

The National Broadband Plan is the most significant ambitious 

infrastructure program for America since the interstate highway 

system. Our competitiveness and prosperity depend on meeting its 

core objectives. America cannot settle for the second best in the digital age. Writing this detailed blueprint was a massive undertaking, and I commend Chairman Genachowski, the broadband 

team, the FCC staff, and the open transparent and data-driven 

process they used in preparing this report. 

Now comes the hard part. The real test of the plan’s success will 

be in its implementation. Congress, the FCC and the Administration all have a role to play. One important aspect of the plan is the 

recommendation to enhance public safety by building a new interoperable broadband network. According to the chairs of the 9/11 

Commission, ‘‘the FCC’s plan offers a realistic framework to move 


smartinez on DSK6TPTVN1PROD with 
8 

forward, and we hope that all stakeholders will work with the 

Commission to refine the plan as needed and make it a reality.’’ 

I have asked my staff to begin drafting legislation to implement 

the public safety recommendations. We will work in close consultation with Subcommittee Chairman Boucher, Ranking Members 

Barton and Stearns, and other members of the committee. 

Significant funding will be needed to effectuate the concepts outlined in the plan, but I believe we must find a way to move forward 

on a bipartisan basis to meet the needs of the public safety community. The plan identifies a looming shortage of spectrum as a major 

problem facing the expansion of wireless broadband. Members of 

the committee will have different ideas about how to address this 

issue. As we will hear today, the broadband plan makes a series 

of recommendations for freeing up spectrum. These deserve our serious consideration. 

As the plan recognizes, there is a pending legal challenge to the 

Commission’s ability to regulate broadband networks. The outcome 

of that issue could have serious implications for the Commission’s 

ability to protect consumers and implement the plan. Whatever the 

court rules, the Commission should take the steps it deems necessary to ensure it can implement the plan and to assure that 

broadband consumers are protected. 

There are other key recommendations in this plan. We need to 

take steps to safeguard consumer privacy, ensure transparent and 

accurate billing, provide access for disabled Americans and reform 

the Universal Service Fund. I hope today’s hearing will be only the 

first in a series of hearings on the future of broadband. We can 

benefit from additional hearings that will focus on individual aspects of the plan, including creating a public safety broadband network, reform the universal service, improving spectrum policy, providing better access to persons with disabilities, eliminating barriers to deployment and promoting broadband adoption throughout 

the country. 

I look forward to working with Chairman Boucher and other 

members of the subcommittee as we move forward. I thank our distinguished panel for being here today and appearing before the 

committee. And I look forward to your testimony. 

Mr. BOUCHER. Thank you, Chairman Waxman. The gentleman 

from Texas, Mr. Barton, ranking member of the Energy and Commerce Committee, is recognized for five minutes. 

Mr. BARTON. I thank the distinguished subcommittee chairman. 

Would ask unanimous consent to put my entire statement in the 

record. 

Mr. BOUCHER. Without objection. 

Mr. BARTON. Thank you, Chairman. I am just going to summarize because we want to hear from you folks on the FCC. First of 

all, if you have to have a federal broadband policy plan, you all 

have done about as good as can be done. But it is kind of like the 

old movie ‘‘The Good, The Bad, and The Ugly.’’ The good news is 

you say some things that I think need to be said. You try to reform 

the Universal Service Fund. You try to free up some spectrum, as 

Chairman Waxman just alluded to. 

The bad, the worst idea I have heard in years is reclassification. 

I just—I don’t know about anybody else on this committee, but I 


smartinez on DSK6TPTVN1PROD with 
9 

don’t want to regulate broadband like we regulated telephone services in the 1930s. I just don’t want to do it, and I don’t think the 

country wants to do it. 

As far as the ugly part of it, just generically, you know, Mr. Waxman talked about the interstate highway system as an infrastructure program, and he is right about that. If the federal government 

hadn’t decided to do the interstate highway system, we wouldn’t 

have had that type of a system. But 95 percent of America has 

broadband. The federal government hasn’t had to spend a dime. 

This isn’t a have/have not program. This is a find-something-forthe-FCC-to-do-that-makes-sense-in-the-21st-Century program. 

So some of your components are things that I think we can work 

together on, but overall, you know, as everybody knows, if it is not 

broke, don’t fix it. And you all are trying to fix something that in 

most cases isn’t broke. 

So with that, Mr. Chairman, I would yield back. Again I want 

to commend the Commission for working really hard, but you have 

produced a work product that we can use as a roadmap. But we 

don’t need to reinvent the wheel here. 

[The prepared statement of Mr. Barton follows:] 


smartinez on DSK6TPTVN1PROD with 
10 


smartinez on DSK6TPTVN1PROD with Insert offset folio 16 here 76021A.003

Statement of the Honorable Rep. Joe Barton 

Ranking Member, House Energy & Commerce Committee 

Subcommittee on Communications, Technology, & the Internet 

"The National Broadband Plan" 

March 4,2010 

Thank you, Mr. Chairman, and thank you for scheduling this 

hearing on the FCC's National Broadband Plan. 

I want to start by congratulating the Chairman, the 

Commissioners, their staff, and the Staff of the National Broadband 

Team. The National Broadband Plan was quite an undertaking and I 

applaud all those who worked so hard to cover so much ground. 

However, it looks like all this impressive work, and the $20 

million spent to fund it, might have been unnecessary. Our old plan 

has worked. The almost 400-page document starts by telling us that 

more than 95 percent of the country already has access to broadband 

without the government having to spend a dime on the build-out. 
11 


smartinez on DSK6TPTVN1PROD with Insert offset folio 17 here 76021A.004

Let me note that our Democratic friends have just decided to 

spend $938 billion so government could intervene in the health care 

system in order to increase coverage about 10 percentage points. That 

is said to be the greatest political victory since Medicare and Social 

Security. I think it may be remembered differently. 

It's my opinion that we might have accomplished a great deal 

more for a lot less by removing barriers to a free market, incentivizing 

innovation and empowering consumers, just like we've managed to do 

in the telecom sector, and in a bipartisan way, at that. 

Even in a recessionary economy and without government wisdom 

to guide them, the industry has invested tens of billions of dollars to 

expand and improve its networks. Broadband providers are laying 

cable and fiber, putting in place new connections, and building out 

wireless and satellite-based broadband networks. From 2003 to 2009, 

these types of direct investments created some 434,000 jobs; and over 

2 
12 


smartinez on DSK6TPTVN1PROD with Insert offset folio 18 here 76021A.005

the next five years, the same process could produce upwards of 

500,000 new jobs. Getting in the way of this with government rules 

and well-meaning, but misguided policies would be a mistake of huge 

proportions. 

So, my message for the Commission and for my colleagues on 

the Committee and in the Congress is simple, and it's the same 

message that fonner Chairmen Kennard and Powell conveyed: Don't 

mess it up. 

With all that said, there are some promising proposals in the plan. 

The goal of freeing up 500 megahertz of spectrum for wireless and 

mobile broadband is laudable. And the proposals to reform the 

Universal Service Fund to focus on the truly unserved households is 

promising as well. The areas that don't currently have broadband 

access are those that are uneconomic to serve, mainly sparsely 

3 
13 


smartinez on DSK6TPTVN1PROD with Insert offset folio 19 here 76021A.006

populated rural places, and any government money used should help 

Americans who live in these areas. 

As the Republicans on this Committee have been saying for more 

than a year, no one should get "seconds" before everyone gets "firsts." 

Given what this plan says about funding broadband, I wish the 

Commission could have voted in our Committee for the amendment 

we offered during the stimulus markup focusing on unserved 

households. The Republicans would have prevailed and the potential 

waste and overbuild problems with the NTIA and RUS broadband 

programs might have been avoided. 

Finally, I want to say a few words about the issue of 

reclassification that has the industry and the interest groups buzzing. 

Using monopoly-era law and regulations to regulate the most vibrant 

and competitive sector of our economy is beyond misguided. It flies in 

the face of the facts and it is quite simply a recipe for failure. I hope 

4 
14 


smartinez on DSK6TPTVN1PROD with Insert offset folio 20 here 76021A.007

the Commission doesn't give in to special interest groups, and deviate 

from what, by the plan's own admission, has been remarkably 

successful, just because they may lose the authority argument in court. 

Ifpeople are curious about what reclassification would do to the 

industry, ask any investment analyst. To a person, they will tell you to 

take your money and run if the Commission reclassifies broadband. 

Furthermore, solving a problem that doesn't exist by using 

reclassification to impose network neutrality, force access to facilities, 

mandate wholesale obligations, and regulate rates is the surest way to 

deter the investment we need to reach the new broadband plan's goals. 

Again, I congratulate the Commission on its hard work, and I 

thank all the Commissioners for being here today. 

Thank you, Mr. Chairman, and I yield back. 

### 

5 
15 

Mr. BOUCHER. Thank you very much, Mr. Barton. The Chairman 

Emeritus of the Energy and Commerce Committee, the gentleman 

from Michigan, Mr. Dingell, is recognized for five minutes. 

OPENING STATEMENT OF HON. JOHN D. DINGELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN 

Mr. DINGELL. Mr. Chairman, I thank you, and I commend you 

for holding today’s hearing. I want to also commend Federal Communications Commission Chairman Dan Husky and his team. They 

have completed a roadmap to ensure broadband reaches every corner of the United States. 

There are two elements that should be the core of this effort. 

First, it should focus on promoting broadband adoption. Second, it 

should establish and address a support mechanism for broadband’s 

expansion into high cost and underserved areas of the country. I 

am pleased that the National Broadband Plan includes chapters on 

these issues. 

Nonetheless, I have great concerns about several of the plan’s 

recommendations about spectrum reallocation and competitionbased issues. At best these matters are insular to the Congress’s 

intent to expand National Broadband Access. At worst, they would 

reinstitute the old policy fights, long since satisfactorily settled. 

In November of last year, I wrote to the Commission to express 

my misgivings about reallocating spectrum from broadcasters to 

mobile communications providers. Over-the-air broadcasters surrendered nearly a third of their spectrum to facilitate the recent 

transition from analog to digital signal transmission. Further loss 

of spectrum can have a very serious adverse effect on the public by 

limiting consumer choice. With respect to broadband television, 

this potential outcome would also reflect a marked weakening of 

the long-cherished principles of diversity and localism. 

My father and I have defended these since the Commission’s establishment in 1934. Before considering whether if or how to reallocate frequencies used for television, it behooves the Commission to 

work with NTIA to complete a comprehensive spectrum inventory 

such as the one mandated by H.R. 3125, ‘‘The Radio Spectrum Inventory Act.’’ I consider this a necessary predicate for the 

Congress’s consideration of the national broadband proposal to 

grant the Commission the authority to conduct spectrum reallocation incentive options. 

I have also serious apprehensions about the plan’s chapter on 

competition issues. This chapter is an unpleasant reminder of old 

arguments from the ’90s. At that time, the Commission required 

that local companies should make their networks available to all 

manner of carriers at below-market prices. This so-called 

unbundling resulted in a glorious mess. 

My colleague, Mr. Billy Tauzin, and I moved legislation through 

the House to eliminate unbundling requirements with respect to 

carriers’ investment in broadband facilities. The Senate, as it is unfortunately oft wont to do, did not pass this eminently sensible legislation. But the Commission ultimately adopted the bill’s essence 

in its triannual review of 2003. The result has been enormous inVerDate Mar 15 2010 04:07 Dec 12, 2012 Jkt 076021 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 E:\HR\OC\A021.XXX A021

smartinez on DSK6TPTVN1PROD with 
16 

vestments by carriers in broadband, both in my home state of 

Michigan and across much of the Nation. 

Chapter four of the National Broadband Plan signals communication and the Commission’s intention to revisit the unbundling 

statute. This, I think, is to reopen an old fight, and it gives me 

great concern because it can very well serve as a disincentive to 

necessary investments in broadband facilities. 

In conclusion, Mr. Chairman, I would like to remind the witnesses today that the Congress is the sole progenitor of the Commission’s authorities. To quote Sam Everett, ‘‘If the Commission remembers it works for us, everything will turn out fine.’’ In keeping 

with the sentiment and concerns I have just articulated, I respectfully suggest that the Commission stay focused on the Congress’s 

simple goal of ensuring that broadband is accessible and affordable 

to all Americans, rather than to seek to rehash old and unproductive policy debates and to start counterproductive fights which are 

quite unnecessary. 

Mr. Chairman, I thank you for your courtesy. I ask unanimous 

consent to submit letters to the Commission to finish out the questions that we will need to ask today. I yield back the balance of 

my time. 

Mr. BOUCHER. Thank you very much, Mr. Dingell. The record of 

this hearing will remain open for members to submit additional 

questions in writing to members of the FCC. The gentleman from 

Illinois, Mr. Shimkus, is recognized for two minutes. 

Mr. SHIMKUS. Mr. Chairman, I think Mr. Upton here is prior to 

my time. 

Mr. BOUCHER. All right, I am sorry. Mr. Upton, you are recognized for two minutes. 

OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN 

Mr. UPTON. Thank you, Mr. Chairman, and welcome, Commissioner, it is good to see you. The trend in telecommunications sector is towards development of advanced technologies and increase 

competition. Deregulation has successfully promoted investment, 

innovation, and more competition, benefitting consumers to no end. 

95 percent of Americans now have broadband in more than one choice of carrier. That statistic along with more than $100 billion 

recently invested in the infrastructure speaks for itself. So, as Mr. 

Barton said, if it ain’t broken, don’t fix it. So as it works, let us 

not break it. It is clear to me that as the level of competition in 

the market increases, the amount of government regulation should 

decrease. 

And I would hope that we all could agree that the markets, in 

fact, have done a better job of protecting consumers than the regulators do. And in a competitive market, we should permit market 

forces to work and not interpose government regs between providers and consumers. All that does is impede the competition that 

we all want to see. I applaud your goal of providing 100 million 

homes with access to 100-megabytes-per-second broadband by 

2020. And I believe that we can do that without regulation. 

The level of deployment will only come, however, with the continued robust investment by the private sector. And I would agree 


smartinez on DSK6TPTVN1PROD with 
17 

with Chairman Dingell that the FCC, for example, the FCC requirement to carriers to unbundle their fiber, that goal will not be 

met by this legislative body. Don’t change the rules after investments have been made. Don’t put up roadblocks to new investment. 

Finally, I have some concerns about spectrum repacking proposals that could cause harm to consumers and broadcasters as a 

result of the DTV transition. Broadcasters returned over 100 megahertz of spectrum to the government and at the same time increased their services. Yield back my time. 

Mr. BOUCHER. Thank you, Mr. Upton. The gentleman from Massachusetts, Mr. Markey, is recognized for two minutes. 

OPENING STATEMENT OF HON. EDWARD J. MARKEY, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH 

OF MASSACHUSETTS 

Mr. MARKEY. Thank you, Mr. Chairman, very much, and congratulations to the Federal Communications Commission, you, Mr. 

Chairman, and all the Commissioners. When I put the language in 

the stimulus package mandating that the Federal Communications 

Commission had to return this as a report back to the American 

people on the future of broadband just 13 months ago, I can tell 

you right now that you met the highest expectations which I had 

when I inserted that language into the law. 

And the table of contents is just an indication of how thoroughly 

you have examined this subject. Health care, education, and energy 

and the environment, economic opportunity, government performance, civic engagement, public safety. This is as thorough a compendium of the issues that we have to work on in order to make 

sure that America once again regains its position as number one 

in the world in broadband as could ever be asked to be put together. We have dropped from second to fifteenth in the world behind Luxembourg, behind Canada, behind Finland over the last 

eight years. What we saw was incumbent companies going to court, 

going to the FCC chipping away at the proinvestments, 

precompetitive rules that we had put on the books. And as that 

happened, we saw slowly but surely the United States slip step by 

step into a position where the rest of the world looks at us over 

their shoulder. 

And this gives us the opportunity with this plan to once again 

regain that leadership. Google, EBay, Amazon, Hulu, we branded 

this made in the USA in the 1990s, but we have been slowly but 

surely slipping behind. So this is an incredible plan. And if it is 

fully implemented, both investment and consumer protection will 

be unleashed in a way which will guarantee that the American people will be, in fact, the country that the rest of the world looks to 

with envy. 

And we thank you for that, and we want to work with you to ensure that it is fully implemented so that we can regain that competitive edge that gave us that incredible position that we enjoyed 

and now has slipped from our grasp. 

We thank you, Mr. Chairman, for holding this hearing, and we 

thank the Commissioner for being here. 

Mr. BOUCHER. Thank you very much, Mr. Markey. The gentleman from Illinois, Mr. Shimkus, is recognized for two minutes. 


smartinez on DSK6TPTVN1PROD with 
18 

OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Mr. SHIMKUS. Thank you, Mr. Chairman. I am glad I waited and 

followed my friend from Massachusetts because as far as I know, 

this is a product of the chairman. It is not a product of the Commission. There was no vote on this plan, and I think we are going 

to hear that through the questions today, not that the chairman 

didn’t put a lot of time and effort into this and his staff. 

I want to debunk this sixteenth or twenty-fifth place. You have 

to be joking me. Lichtenstein, Monaco, Cutter, Malta, Bahrain, 

Luxembourg, Hong Kong, South Korea, Iceland, Singapore, St. 

Kitz, Nimitz, Macau, everyone in the top 20, we could fit the 25 

in the continental United States. So we got to get off this aspect 

of comparing apples to oranges. It is like saying the city of New 

York has it, and so we are fine. 

We have 95 percent of our people have broadband. Five percent 

do not. Do you know where they are at? They are in my district. 

You know what? The stimulus has not gone to them, and the RUS 

fund is not going to them. And that is what torques people off. 95 

percent of us have it. It is the private sector that has rolled it out, 

and now we want to take over one-sixth of the economy, another 

one-sixth of the economy to moving this whole information age 

from Title One to Title Two. The dirty little secret back here, it has 

already been exposed. We are not going to get a surprise from the 

chairman this time in the hearing because it is here. Some commented or suggested a second approach in which the FCC would 

implement certain plan recommendations under its Title Two authority. 

So let us have this hearing. Let us have this debate. The system 

is working. Where it is not working is in rural America which we 

spend billions of dollars, and the money is not going there. And we 

have the rollout. We got the stimulus rollout. We are overbuilding 

places that have broadband right now with our tax dollars. And it 

is not going to where it is needed. I yield back. 

Mr. BOUCHER. Thank you very much, Mr. Shimkus. The 

gentlelady from California, Ms. Eshoo, is recognized for 2 minutes. 

OPENING STATEMENT OF HON. ANNA G. ESHOO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Ms. ESHOO. Thank you, Mr. Chairman, for moving so quickly to 

schedule this hearing and welcome to the entire Federal Communications Commission. I have read the plan. I want to congratulate 

you. I think it is a bold one, and I think it is what our country 

needs. 

On this issue of where the United States is ranked in the world, 

according to the International Telecommunications Union, they 

have measured the United States, and they say that we have 

slipped from eleventh to seventeenth between 2002 and 2007. We 

know that our standing in the world is not a source of pride to us. 

Fewer than 27 out of every 100 Americans have broadband service 

compared with much better numbers in other countries. 

But today, we are going to hear the plan. We are going to ask 

questions about it. I am very pleased that many of the priorities 


smartinez on DSK6TPTVN1PROD with 
19 

that I have kind of pounded away on over the years are contained 

in the plan that really reflects my own legislative agenda. I hope 

we will move expeditiously on the broadband conduit bill, which I 

call the digging bill, which will ensure that federally funded transportation projects are required, laying the broadband infrastructure 

so we don’t have to dig up what we’ve already built in order to lay 

down what we know we need. 

I also look forward to the subcommittee’s fast-tracking consideration of the next generation 911 bill that my colleague, Jim Shimkus, and I know in his fight about where we are, where we are not, 

he would have mentioned this. We introduced the bill two weeks 

ago. I am ready to vote on a thorough and complete reconstruction 

of the Universal Service Fund and its programs so that we essentially can leapfrog into the 21st Century. America has always led 

the world in countless ways, and that is what I find so exciting 

about the plan because it is a roadmap, a plan, on how we can get 

there. 

We also need to decide the future of telecommunications services 

and their individual classification so that we can ensure that consumers are really properly protected and that competitiveness is 

encouraged. No matter who I meet with, they are also for competition unless it cuts in some way to the competition that they have 

a total hold on. We need an aggressive agenda, as I said, because 

the United States really lacks badly. 

So I look forward to hearing from each one of the Commissioners. 

This is going to be a lively debate, but at the end of it, I think what 

we all—our common goal must be is that there is competition that 

every person in the country is reached by 2020 with high speeds, 

not with this lagging speed that somehow people have a source of 

pride about. I don’t. I don’t think it is good enough for our country, 

and I look forward to working with everyone to accomplish this for 

our country. 

So thank you for a job well done. It is broad. It is visionary, and 

it is bold. I think it is exactly what we need to be talking about. 

Thank you. 

Mr. BOUCHER. Thank you very much, Ms. Eshoo. The gentlelady 

from California, Ms. Bono Mack, is recognized for two minutes. 

OPENING STATEMENT OF HON. MARY BONO MACK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Ms. BONO MACK. Good morning, Chairman Boucher, Ranking 

Member Stearns and Commissioners. I too would like to thank the 

FCC for its hard work on the National Broadband Plan. It is clear 

that a great deal of effort and thought went into this endeavor. 

As I review the text, I see some real opportunities for the committee and the Commission to work together to increase investment and opportunity. In the general sense, I believe that the 

plan’s approach to spectrum use and universal service are quite 

promising. Further, I believe most of us would agree that the goals 

of the plan are admirable. After all, who among us doesn’t want to 

facilitate capital investment and increase their constituents’ access 

to broadband? 


smartinez on DSK6TPTVN1PROD with 
20 

However, like the broadband plan, members of Congress also 

have goals. As we all stare at high unemployment rates in our districts, my goal is to support policies that create jobs for my constituents. Therefore, I have to question portions of the plan that 

seem to imply the need for a heavier government hand. I personally remain unconvinced that a sector of our economy, which is continuing to attract capital investment and reach more American 

households is in need of more government interference. 

As a matter of principle, I believe that broadband and the hitechs are best served if the Commission and this committee enact 

policies which incentivize capital investment and promote greater 

economic freedom. Additionally, I strongly believe we need to take 

great steps to protect the digital content that is driving consumers 

to broadband. The creators and owners of content should have their 

property protected by law, and we should reward entities who work 

to ensure its protection, not punish them. When I read sections of 

the plan which call for relaxing such protections, I become very 

concerned. 

Finally, I would like to caution the FCC on pursuing any agenda 

without solid legal authority. One certain way to stifle investment 

and stall economic growth is to make decisions that create uncertainty in a marketplace and encourage litigation. 

Again I would like to thank the Commission. I look forward to 

the question-and-answer portion of today’s discussion. I yield back 

the balance of my time. 

Mr. BOUCHER. Thank you very much, Ms. Bono Mack. The gentleman from Michigan, Mr. Stupak, is recognized for 2 minutes. 

OPENING STATEMENT OF HON. BART STUPAK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN 

Mr. STUPAK. Thank you, Mr. Chairman, and thanks for convening the hearing and welcome to the Commission. The National 

Broadband Plan hits a number of important issues such as public 

safety, interoperability, transitioning the universal service phone 

towards broadband, and freeing up additional spectrum for commercial use. 

I want to focus on the plan’s recommendations for the construction of a national interoperable public safety broadband network. 

The plan’s recommendation identifies an issue I have been highlighting for years: the need for a funding mechanism for the construction of an interoperable public safety network. The plan calls 

on Congress to establish the grant program within a year to assist 

on the construction of the network and create a funding mechanism. 

If the FCC is intent on moving forward with auctioning the D 

block spectrum for commercial use, we should use 100 percent of 

those funds as a down payment on building this network. The FCC 

has recognized the need for public funding, provided an analysis of 

the capital expenditure costs of the network and projected ongoing 

maintenance costs. Now Congress must act. Congress must act to 

establish a long-term funding mechanism that pays for the maintenance costs of the network and ensure that covers all Americans. 

Now, Mr. Chairman, again thanks for holding this hearing. I look 

forward to discussing with the Commission how we can move forVerDate Mar 15 2010 04:07 Dec 12, 2012 Jkt 076021 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 E:\HR\OC\A021.XXX A021

smartinez on DSK6TPTVN1PROD with 
21 

ward on the public safety provisions as well as other provisions in 

the national broadband, and if we have time, a question or two— 

hopefully we will be allowed to ask a few questions on the FCC collaboration act that we have introduced to bring a little sunshine so 

we can do our job quickly, more efficiently, more effectively and 

protect the public interest. Thank you. 

Mr. BOUCHER. Thank you, Mr. Stupak. The gentlelady from Tennessee, Ms. Blackburn, is recognized for two minutes. 

OPENING STATEMENT OF HON. MARSHA BLACKBURN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE 

Mrs. BLACKBURN. Thank you, Mr. Chairman. I appreciate the 

hearing, and I want to welcome the Commission. We are so pleased 

that you are here. Needless to say, we have all been following what 

you have done with the broadband plan, and we are anxious to 

have a discussion with you. 

A couple of quick points. Among my biggest concerns with the 

broadband plan is how these recommendations will affect private 

investment innovation and jobs creation. And because of this, I 

really am anxious to drill down a little bit deeper with all of you. 

You all know my district in Tennessee and know our creative community there and their continued expression of concerns with the 

availability of broadband. 

And in this vein, Chairman Genachowski, I agree with Chairman 

Barton on this. I was hoping for stronger and more definitive language closing the door on reclassifying broadband under Title Two, 

and instead I have really found the language to be ambiguous. And 

I am hopeful that we are going to see some changes there or could 

see some changes there again. Again investment is a concern that 

I have. And as we all know, a reclassification to Title Two is nothing more than a stepping stone for implementing net neutrality, 

which I believe would be detrimental to a thriving telecommunications industry. 

And before I yield back, I also want to flag for each of you a concern over what I think is a kind of a pretty toothless effort in the 

plan to curb copyright infringement. And I applaud your acknowledging the illegal distribution of copyrighted content being a problem. But I am anxious to get your thoughts on how we can put a 

little bit more heft behind that and continue to protect the innovations of those that are bringing next-generation technologies and 

uses about and also by creative community. And I yield back. 

Mr. BOUCHER. Thank you very much, Ms. Blackburn. The gentleman from Pennsylvania, Mr. Doyle, is recognized for two minutes. 

Mr. DOYLE. Thank you, Mr. Chairman. I will be brief. I was always taught that if you fail to plan, then you plan to fail. And looking over the broadband plan, I have to say congratulations. You all 

have passed. There is a lot of policy goals outlined in the plan. It 

sets the FCC on a bold plan of action, and it gives us, in Congress, 

a few things to do also. 

I am not going to run down a laundry list, but I think that the 

plan to promote competition is much needed and well received. 


smartinez on DSK6TPTVN1PROD with 
22 

Competitors need access to wires and spectrum in order to deliver 

more affordable and more innovative services. 

Additionally the plan for Universal Service Fund reform is well 

thought out. I hope that the Commission also takes this up as soon 

as possible, even without a new bill out of Congress. Chairman 

Genachowski, you have a lot to be proud of in this plan, and I want 

to congratulate you and your team for their hard work. And I yield 

back. 

Mr. BOUCHER. Thank you very much, Mr. Doyle. The gentleman 

from Alabama, Mr. Griffith, is recognized for two minutes. 

Mr. GRIFFITH. Thank you, Mr. Chairman, and I will ask unanimous consent to submit my opening statement for the record. 

Mr. BOUCHER. Without objection. 

Mr. GRIFFITH. Just a few comments. I never thought I would 

ever see the FCC Commission. 15 year ago, I founded FM frequency and put it up for public notice, and seven years later, we 

got it on the air. So you can see that I am not pro-regulation. But 

I do believe that the report is done with a good heart and with the 

American people in mind. 

I recognize that the competition that exists in the marketplace 

today has accomplished a great deal, and I hope that as we go 

through these hearing—and I am sure the debate will be spirited— 

I hope we have in mind that there is not a whole lot we can do 

to improve what has been done or in the spirit of what has been 

accomplished by private industry and investment. It has been significant. 

So I appreciate you being here and look forward to the discussion. Thank you, Mr. Chairman. I yield back. 

Mr. BOUCHER. Thank you, Mr. Griffith. The gentlelady from California, Ms. Matsui, is recognized for two minutes. 

OPENING STATEMENT OF HON. DORIS O. MATSUI, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Ms. MATSUI. Thank you very much, Mr. Chairman, and thank 

you for calling today’s hearing. I also would like to thank Chairman Genachowski and the other Commissioners for being with us 

today and for their work on the National Broadband Plan. I would 

also like to commend the FCC broadband team for their hard work 

and thoughtfulness in crafting a bold and visionary plan. 

Though no plan of this magnitude is perfect, this plan demonstrates American leadership and will serve as a blueprint for the 

world to follow. I am particularly pleased that the plan aims to 

close this Nation’s digital divide by recognizing the fact that millions of Americans, particularly in such economic times, simply 

cannot afford the high cost of broadband. 

Last September, I introduce the Broadband Affordability Act that 

would expand the USF Lifeline Assistance Program for universal 

broadband adoption to help ensure all Americans living in urban, 

suburban, and rural areas have access to affordable broadband 

services. I applaud the FCC for including my proposal as essential 

recommendations to increase broadband adoption rates among 

lower income household in the National Broadband Plan. In doing 

so, we will take a major step toward closing the digital divide, and 


smartinez on DSK6TPTVN1PROD with 
23 

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

this a reality. 

The plan also recognizes the importance of allocating more spectrum into the marketplace and ways to improve our Nation’s education, infrastructure, health care, public safety systems, as well as 

our anchor institutions in promoting competition in our economy. 

The plan recognizes the critical role that broadband plays in moving our Nation toward a more sustainable path of greater energy 

independence and efficiency by including a series of recommendations to modernize our Nation’s smart grid. 

I plan to introduce legislation in the coming weeks that would 

complement many of the FCC recommendations on smart grid, so 

this Nation can promote a smarter electric grid that empowers consumers to make choices that can save us energy and can save them 

money. I am looking forward to working with my colleagues and 

the Commission on overseeing and implementing many of the important initiatives recommended in the National Broadband Plan. 

I thank you, Mr. Chairman, for holding this important hearing, 

and I yield back the balance of my time. 

Mr. BOUCHER. Thank you, Ms. Matsui. The gentleman from Nebraska, Mr. Terry, is recognized. 

OPENING STATEMENT OF HON. LEE TERRY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEBRASKA 

Mr. TERRY. Thank you, Mr. Chairman. I appreciate you holding 

this hearing. Mr. Chairman, thank you for being here and Commissioners, appreciate your input on the broadband plan. I hope that 

it lays a good overview. Generally I think it brought it from just 

a nebulous maybe 50,000 down to the 10,000-foot level, not really 

getting into the super-granular activities or details, which I felt 

was good in the sense that it may signal that we actually have a 

role in Congress. 

And that is the theme I want to state here today is while I think 

you have done a good job of incorporating especially USF, I think 

Congress needs to take your plan, use that as the recommendations, but we need to do our job in Congress. Frankly I am uncomfortable with just saying you take the lead on all of this stuff. We 

are not going to deal with it. I think the opposite. The role is for 

us to do it, and I am going to take your plan as recommendations. 

On the Republican side, we have heard a lot about private sector 

involvement here, and I want to make sure that when I read the 

plan, I read that, yes, there were some regulatory type of policies 

outlined that we will have hopefully great debate within this committee on. But let us not short the private sector here. $60 billion 

per year by the private sector, and ruling out high speed broadband 

in this Nation should not be glossed over. 

We did $8 to $9 billion in the stimulus package over two years, 

so government spending and subsidy of broadband rollout is a 

small percentage. And if we start thinking that government is 

going to be the answer in rolling this out, we aren’t going to get 

this plan adopted. So with that, I will yield back. 

Mr. BOUCHER. Thank you very much, Mr. Terry. The gentleman 

from California, Mr. McNerney, is recognized for two minutes. 


smartinez on DSK6TPTVN1PROD with 
24 

Mr. MCNERNEY. Well, I want to thank you, Mr. Chairman, for 

leading this important and timely hearing, and I want to commend 

the Commission for your hard work on this. This is a pretty comprehensive plan. You worked hard. The plan clearly includes many 

important issues, but I am only going to be able to focus on a couple of them. 

A large part of my district has been severely hit by the economic 

downturn, and promoting job creation is my highest priority. It is 

significant that many of the companies in the telecommunication 

industry are still expanding even in the economic downturn, so 

there is something here that we want to capitalize on. 

I am very excited by the job growth creation potential that implementing this plan can produce, and vigorous investments by private sector coupled by sensible policy will clearly benefit our entire 

Nation. 

And finally I would like to ask the Commissioners to discuss 

briefly issues pertaining to spectrum allocation and special access. 

And with that, I yield back the balance of my time. 

Mr. BOUCHER. Thank you very much, Mr. McNerney. The gentleman from Michigan, Mr. Rogers, is recognized for two minutes. 

OPENING STATEMENT OF HON. MIKE ROGERS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN 

Mr. ROGERS. Thank you, Mr. Chairman. I hope we get to some 

resolve here of where we are going, and I think Title Two reclassification is dangerous at best. Just the fact that this plan exists has 

put a shiver of cold in the investment community about where we 

go in broadband development. 

We often want to talk about what has made America great. It 

wasn’t the United States Congress. It wasn’t the executive branch. 

It was private entrepreneurs putting capital at risk and making 

things happen, and the reason we have—and my friends on the 

other side of the aisle say 27 percent or whatever figure they use. 

It is because the private market is going to pursue a plan that allows a return on the investment so they can go to the next phase 

of that investment. 

And any time that we seek to stand in the way of that, we are 

going to get a horrible outcome. And just the notion that we are 

even talking about going to net neutrality, more regulation. I mean 

if you look at why it took so long for wireless to get to where it 

is and phones to get where it is, it is because they base the original 

rules, regulations, and laws on the Common Carrier Act for railroads in 1897. And we applied it to phones. This is exactly that 

same kind of iron horse regulatory ideas on an industry that is 

changing so fast we can’t keep up with it. Satellites are going to 

get ready to go to 4G pretty soon. What we ought to do is get out 

of their way and let competitive reign the day. 

The reason those other countries did it the way they did is because they don’t have economies like the United States. They don’t 

have the kind of investment and investors that the United States 

does. There is a marketplace here that is attracting money. My fear 

is if we continue down this path, we will stop that investment, and 

I think we will do far more harm than good. 


smartinez on DSK6TPTVN1PROD with 
25 

Doesn’t mean there is not a role for government. I think we can 

work on those things, but the very principle and idea that you have 

thrown this into—this uncertainty in the marketplace I think is a 

little bit dangerous to what I think is competitive development of 

broadband, and I would yield back my time. 

Mr. BOUCHER. Thank you very much, Mr. Rogers. The gentleman 

from Connecticut, Mr. Murphy, is recognized for two minutes. 

Mr. MURPHY. Thank you, Mr. Chairman. I will associate myself 

with a portion of Mr. Rogers’ remarks except to say that I think 

what has made this country great are free markets, but structured 

free markets. And I appreciate the hard work the Commission has 

put into this plan. It can certainly be improved, but it provides, I 

think, the type of structure that we need to make sure that the 

type of robust capital investment that we know is going to build 

out our broadband system is done in the fairest means possible. 

I would just like to associate myself with remarks made with respect to the issue of online piracy, and I understand that in the 

open Internet notice of proposed rulemaking, the Chairman has 

stated very clearly that the Internet and this new broadband platform should not be a shield for violations of the law and copyright 

infringement. But I think you are hearing from both sides of the 

aisle that there is a little bit of dissatisfaction on the amount of 

focus in this report on that issue. 

This country is losing billions of dollars every year to Internet piracy, and the trend is going in only one direction. As much as we 

can ask content providers to do, ultimately, I think, the solution 

largely lies in the hands of those distribution networks that are 

going to take advantage of what is now a partially federally funded 

broadband network. 

And so I think you are hearing from a number of people that 

would love to hear some comments from the Commission on how 

we think we either revise the plan or add to the plan with respect 

to piracy in order to guard copyright moving forward. But all in all, 

I would agree with many of my colleagues to say that this is a 

product of, I think, great labor and, I think, great importance for 

the rollout of broadband in this country, and I yield back. 

Mr. BOUCHER. Thank you very much, Mr. Murphy. The gentleman from Missouri, Mr. Blunt, is recognized for two minutes. 

Mr. BLUNT. Thank you, Mr. Chairman. I have remarks for the 

record. In addition to that, I would just like to say that the comments that I made and others made in our hearing on this last 

year about unserved versus underserved areas continue to trouble 

me. As we go into the finding of what unserved areas are, it does 

seem to me that in rural areas particularly, you run the great risk 

of making that service untenable because you create a competitor 

in a marketplace that can barely handle one provider. I am concerned by that. 

I am concerned by what net neutrality is in this plan that might 

lead to needless regulation, unbundling mandates. All of those 

things discourage the build-outs in the areas that we need them. 

I do think that the Universal Service Reform and the spectrum 

planks, the new plan probably keep us away from that regulation 

if we focus on them instead of the other things. 


smartinez on DSK6TPTVN1PROD with 
26 

But, Mr. Chairman and Mr. Stearns, thank you for holding this 

hearing. I hope that we do become vigorous and active partners 

with the Commission as you now look at the work product you put 

before us, and that we don’t make the kind of mistakes that slow 

down the great expansion that we have had in broadband over the 

last few years. And I yield back, Mr. Chairman. 

Mr. BOUCHER. Thank you very much, Mr. Blunt. The gentleman 

from North Carolina, Mr. Butterfield, is recognized for two minutes. 

OPENING STATEMENT OF HON. G.K. BUTTERFIELD, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH 

CAROLINA 

Mr. BUTTERFIELD. Thank you, Mr. Chairman. I too want to 

thank you for convening this hearing and thank the five Commissioners for coming forward today to have this conversation with all 

of us. I too have a copy of the plan. I must concede that I have not 

read every word of it, but I certainly plan to. It is a very comprehensive plan, and I want to thank you for your work. 

From what I can understand, the plan states that 95 percent of 

households in America do indeed have access to broadband while 

5 percent, 1 out of 20, do not. Well, my district in eastern North 

Carolina, the rural district that I represent is home to many of 

those households who are without very basic access to broadband. 

With commerce, education, and communication being just a few of 

the everyday tasks that are moving online, those who cannot access 

broadband become further disenfranchised and unprepared for 

achieving a successful and productive life. 

It is particularly important that efforts be focused on connecting 

the unconnected first so that students, teacher, job seekers, and 

others like those in my district have the opportunity to play on 

equal footing. The less densely populated economically depressed 

areas like much of my district are no less in need of access to quality broadband and are certainly no less deserving. I hope we can 

build on the plan’s goals and recommendations. 

The National Broadband Plan enumerates six long-term goals 

with hopes of achieving them by 2020. The goals are indeed very 

ambitious but certainly achievable so long as government moves 

quickly and responsibly to update its communications policy framework while partnering and empowering private industry to robustly 

invest in network expansion and improvements. 

I would like to note the extraordinary private investments made 

to building the networks we use every day. As Congress and the 

FCC move forward, it is important we take that investment into 

account when drafting policy around the goals of the plan. 

For example, between ’06 and ’08, AT&T, a very responsible corporation, invested more than $1.2 billion in my state of North 

Carolina in an effort to enhance and improve our networks. Increased regulations and mandates on the companies that built 

these networks with their private dollars may not be the best way 

to achieve the goals of the plan. 

So it is critical, in closing, that policymakers and regulators work 

in concert—that is the key word—work in concert with private inVerDate Mar 15 2010 04:07 Dec 12, 2012 Jkt 076021 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 E:\HR\OC\A021.XXX A021

smartinez on DSK6TPTVN1PROD with 
27 

dustry when drafting those policies. Thank you for your indulgence, 

Mr. Chairman. I yield back. 

Mr. BOUCHER. Thank you very much, Mr. Butterfield. The 

gentlelady from Colorado, Ms. DeGette, is recognized for two minutes. 

Ms. DEGETTE. Thank you very much, Mr. Chairman. I will put 

my full statement in the record. I just want to mention a couple 

of things. I agree with my colleagues that this National Broadband 

Plan is a comprehensive, and it is a forward-looking document, and 

I strongly share the goals. I want to raise just a couple of issues. 

The first one is cities like Denver, which is my district, are often 

the first to get access to the first communications technologies. But 

access alone is not enough. What we have to remember as we go 

forward is that broadband also has to be affordable for low-income 

Americans, many of whom live in urban areas like my area and 

who have seen a real divide, even though broadband is accessible 

in urban areas. 

Second issue I want to mention is the conflicts with existing uses 

that we are going to have to resolve. The broadband plan recommends allocating new spectrum to satisfy consumer demand for 

wireless data networks. And this could provide important benefits, 

but it also raises questions about how, if a significant transfer of 

spectrum to broadband is needed, we can accomplish the objective 

in the fairest way to existing spectrum uses. And so this is one of 

the questions that I hope that we can explore today. 

I want to just mention two other aspects of this plan that I am 

very pleased to see. The first one is the emphasis on health IT 

which is going to be very important as we move forward with our 

new health care plan in this country, and which we have seen in 

my district with Denver Health how much health IT can help with 

patient outcomes and efficiency. 

Secondly, I am very pleased to see some mention of expanding 

in national smart energy grid. I think a smart grid is going to be 

very important as we get independent from foreign oil and develop 

alternative energy. 

With that, Mr. Chairman, I will yield back. 

Mr. BOUCHER. Thank you very much, Ms. DeGette. The 

gentlelady from Florida, Ms. Castor, is recognized for two minutes. 

Ms. CASTOR. Thank you, Chairman Boucher, for calling this 

hearing, and thank you, Chairman Genachowski and the entire 

FCC for your work on the National Broadband Plan. You have 

given us a lot to consider, and there are many competing interests 

here, but I think our overarching goal must be to ensure that all 

Americans have access to broadband and the many benefits that 

the technology has to offer. And whether we live in big cities and 

urban areas or small rural towns, whether we are rich or poor, 

black or white, broadband hold so much promise. 

And it appears that the National Broadband Plan is a commitment to finally getting everyone on board and ensuring that we are 

a Nation that is united by the most important technology since the 

invention of the telephone. So we must continue to modernize and 

innovate. 

I would like to direct your attention to a couple of the proposals 

that are particularly important to the hard-working families in my 


smartinez on DSK6TPTVN1PROD with 
28 

state. First, the Universal Service Fund. Florida historically has 

paid a lot into it and hasn’t gotten much back. So I would like to 

hear how the broadband plan will correct this past discrepancy. Do 

you have a commitment to the use of spectrum for low-cost wireless 

service in communities where affordability remains a high barrier 

to broadband use? I know there are a lot of students and teachers 

and older folks who will need our help accessing this vital technology. 

The E-rate program should be robustly funded in order to ensure 

that schools and libraries have access to affordable broadband including wireless connectivity. Reform of the universal service fee 

must address these issues going forward. 

Second, a public safety network is indispensible to the functioning of our communities in an emergency, and Florida hurricane 

season is just around the corner. That means our first responders 

will be on high alert should a big storm knock out power and 

wreak havoc on our coastal communities. There is a lot of debate 

as to whether a dedicated block of spectrum would serve our first 

responders better than a shared network, and I would like to hear 

more on this proposal. 

Overall, I am supportive of the recommendations in the plan. I 

think it strikes a good balance between the incentives for innovation and incorporates practical mechanism to bring the digital divide. Congratulations. 

Mr. BOUCHER. Thank you very much, Ms. Castor. The gentlelady 

from the Virgin Islands, Ms. Christensen, is recognized for two 

minutes. 

Mrs. CHRISTENSEN. Thank you, Chairman Boucher, and thank 

you for holding this hearing so that we can go home better informed about the National Broadband Plan that was unveiled by 

the FCC this week. Although the number of people connected to 

broadband in this country has gone from 8 million in 2000 to almost 200 million last year, far too many families are still not connected, and our world rankings are far too low. 

So while this plan is a solid blueprint, I do look forward to implementations closing the gap and propelling us into the world leadership that we used to have before. It cannot be that because they 

are not connected, children can’t do their homework, individuals 

can’t access jobs, small businesses cannot buy or sell competitively, 

health care cannot reach everyone who needs it, and our public 

safety agencies cannot communicate well enough to protect us in 

an emergency. So this plan needs to ensure all of this while preserving and stimulating competitiveness in keeping costs affordable 

is quite a challenge you and all of us have ahead of us. 

We will monitor with great interest the reforming of the Universal Service Fund and the E-rate which we have had problems 

with in the Virgin Islands as well as a freeing up and an auctioning of the spectrum. 

I have several concerns. One being, of course, that the territories 

be fully included. The rest of them I hope to get to in questions. 

And again I want to commend you, Chairman Genachowski, and 

the other Commissioners for the transparent, open, and comprehensive process, and welcome all of you back to the subcommittee. 


smartinez on DSK6TPTVN1PROD with 
29 

Mr. BOUCHER. Thank you, Ms. Christensen. The gentleman from 

New York, Mr. Weiner, is recognized for two minutes. 

OPENING STATEMENT OF HON. ANTHONY D. WEINER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW 

YORK 

Mr. WEINER. Thank you very much, Mr. Chairman. I want to 

welcome members of the Commission here and express the gratitude of our committee for the work that went into this report. I 

want to associate myself with the remarks of Mr. Markey, and I 

do want to just make a brief mention of my good friend Mr. Shimkus and his remarks. He is able to work up a level of indignancy 

by 10:00 most of us can’t muster in a whole day, but it is important 

to note that having a conversation about broadband in our economy 

without looking at what we are doing and not doing and how we 

are slipping in relation to other states and other nations is just 

folly. 

You know we have learned with our history with the Internet 

and technology, it is a great job producer for us. It is a way we 

keep our competitive advantage. It would be akin to opening up a 

shoe store in a neighborhood and saying I’m not going to look at 

any other shoe stores in the neighborhood or in the neighborhood 

counties to find out what they are doing right or wrong. We have 

to think that way, and too often we—and it is a constitutional problem probably—we think for a year to the next budget, to the next 

fiscal year, to the next appropriation bill. This document that was 

produced by the FCC takes that and turns it on its head and said 

we have to look for the next generation, for the next 30 years, for 

the next 50 years. Admittedly, there are going to be some elements 

of this plan that are going to maybe create problems for one sector. 

Maybe they are going to encourage other sectors, but that is exactly the type of thinking that we should want to do. 

We have to remember as we look at this committee that we are 

looking for opportunities in this document to produce thousands 

and thousands and thousands of jobs. But we are not going to know 

exactly what they are going to look like. That is the way technology 

always operates. We are at our best in this body and in this subcommittee when we are laying the groundwork for innovation. 

The FCC has done it, and I want to thank you very much for setting us on this path. We are going to change a lot of words in this 

document. We are going to make some amendments to it, and we 

are going to find our own way as a legislature often does, but as 

a blueprint, you have really scored. And I want to express the gratitude of our country for your doing so. 

Mr. BOUCHER. Thank you very much, Mr. Weiner. The gentleman from Ohio, Mr. Space, is recognized for two minutes. 

OPENING STATEMENT OF HON. ZACHARY T. SPACE, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO 

Mr. SPACE. Thanks, Mr. Chairman, for holding this hearing. I 

would like to thank Chairman Genachowski and the Commissions 

along with your staff for a lot of hard work. I know a lot of people 

have worked very hard around here lately, but I don’t know that 


smartinez on DSK6TPTVN1PROD with 
30 

anyone has matched that you and your teams have put in. So 

thank you. 

There are a lot of exciting and, I think, forward thinking aspects 

to the National Broadband Plan that you have prepared. And I 

would like to highlight two areas of interest that I believe will benefit the constituents that I represent back in Ohio. 

First I am delighted to see that the plan proposed to transform 

the existing high costs of the Universal Service Fund Into the Connect America fund that will support broadband networks. As stated 

in the testimony before us this morning, 95 percent of Americans 

have access to broadband. While that is obviously very impressive, 

we still have a lot of work to do to cover that five percent, many 

of whom within rural districts and have no options when it comes 

to broadband. 

Many of those people are my constituents in southern Ohio, and 

transitioning the high-cost fund to explicitly support broadband deployment to rural areas would be a tremendous help to the residents of Appalachian Ohio. 

Second, I am encouraged to see the plan’s recommendations on 

expanding the FCC’s Rural Health Care Pilot Program. In 2007, 

the southern Ohio healthcare network was successful in obtaining 

a pilot program grant to build a fiber optic network across about 

12 counties to connect health care facilities. This has paved the 

way for further broadband expansion in the region, and at present 

we are attempting to leverage this previous investment to deploy 

broadband, actually middle mile fiber, to 34 counties in southern 

Ohio that again in many places have no options. 

Success breeds success, and we must strengthen the Rural 

Health Care Pilot Program by making it permanent as the plan 

suggests and by permitting for-profit entities serving vulnerable 

populations to be eligible. I stand ready to assist on this front. And 

in closing, I reiterate my support for the goals addressed in the 

plan, and I very much look forward to working with the Commission and my colleagues here in Congress and industry partners to 

realize our Nation’s broadband potential. Thank you and I yield 

back. 

Mr. BOUCHER. Thank you, Mr. Space. The gentleman from Illinois, Mr. Rush, is recognized for two minutes. 

OPENING STATEMENT OF HON. BOBBY L. RUSH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Mr. RUSH. Thank you, Mr. Chairman, and, Mr. Chairman, I 

thank you for conducting this hearing, and also the Chairman of 

the FCC, Chairman Genachowski, and the other Commissioners. 

And I want to join my colleagues in congratulating you on a job 

well done. 

As members of Congress, we have seen far more than our fair 

share of plans before, and they have promised us the sun, the 

moon, the stars, the celestial bodies seen and unseen, known and 

unknown. But very few have been heralded so highly as this plan 

and its promises to enhance America’s ability to improve the life 

choices of the people and to maintain her status as a global leader. 

While that may sound a bit skeptical about this plan, I am really 

not. Much of it sounds good on paper and certainly makes for good 


smartinez on DSK6TPTVN1PROD with 
31 

and polished sound bites. I understand the power of new communication, technologies, and the importance of innovation at least in 

people and communities’ commercial efficiency and productivity. 

Same as in our precious energy resources as well as ability to safeguard public safety. 

The promise of widespread public access is important for our Nation. The unique opportunity we are presented with at this moment 

in history is unprecedented, and I want to ensure that Congress 

and the FCC serve the best interests of the American people. 

Mr. Chairman, if we don’t execute this plan comprehensively and 

thoughtfully, we will miss out on a huge opportunity while also setting back the short-term and long-term technology needs of the 

American people. 

I am therefore interested in hearing this Commission’s discussion 

especially on how the adoption of the broadband plan can help to 

drive our economy out of its current doldrums by stimulating new 

jobs as well as opportunities for small business and innovative entrepreneurs. The plan as it currently reads does not provide any 

recommendations however on how small minority businesses and 

similarly the American economy, and I think the plan should. I 

think this is a stunning omission, and, Mr. Chairman, with that 

said, I yield back the balance of my time. 

Mr. BOUCHER. Thank you very much, Mr. Rush. The gentleman 

from Vermont, Mr. Welch, is recognized for two minutes. 

Mr. WELCH. Thank you very much, Mr. Chairman. Two points 

and one observation. First the work that you are doing is absolutely critical to the future economic growth of this country, and 

what you have presented is a solid plan that embraces competition, 

and acknowledgement if we are going to have competition, we have 

to have access to the wires and the spectrum. And we have to have 

universal service so it is going to reach the most remote parts of 

our tremendous country. 

Second, you have done this on a bipartisan basis, and I got to 

tell you that is pretty unique around here. And I want to thank you 

for that. And this is my observation. You have taken a very difficult topic, presented a solid plan, and done it on a bipartisan 

basis. And it is so effective, you may embarrass us into trying to 

do the same. Thank you. I yield back. 

Mr. BOUCHER. Thank you, Mr. Welch. The gentleman from 

Washington State, Mr. Inslee, is recognized for two minutes. 

Mr. INSLEE. Thank you. I just want to note the work you are 

doing is helpful to improve our health reform efforts, which are 

new and still building. I just want to point one instance where our 

broadband policy can help the city of Republic, Washington, eastern Washington. We essentially have to turn off all the computers 

in Republic, Washington if you want to send an x-ray from Republic to have it read by a diagnostician in Seattle. That is unacceptable. This is part of the health reform effort as well. 

I just want to make three quick points. First, I appreciate the 

plan’s effort to complete our white spaces program which would 

free up spectrum, could allow the geniuses who are coming to create these new technologies. It is very exciting to get that done. 

Second, I am pleased that you support essentially the direction, 

the moving in our spectrum allocation provision. We passed the bill 


smartinez on DSK6TPTVN1PROD with 
32 

in this committee to get that done, and you have joined us in that 

effort. We hope that will actually be a while before we even get the 

next version of the report out. 

Third, I am pleased that you got the public safety block. We have 

some ideas how to move forward. This is very frustrating to all of 

us to not to have an interoperable system at this late, late, late 

date with our law enforcement officers not having—and firefighters 

not having systems. Got to get that job done. I think we are on the 

right track. Thank you. 

Mr. BOUCHER. Mr. Inslee, thank you very much, and thanks to 

all members for being expeditious this morning. Well, you have 

heard from us. Now we get to hear from you, and we would like 

to welcome the members of the Federal Communications Commission. The Chairman, Julius Genachowski, Commissioner Michael 

Copps, Commissioner Robert McDowell, Commissioner Mignon Clyburn, and Commissioner Meredith Baker. Without objection, your 

prepared written statements will be made a part of the record. We 

would welcome your oral summaries and ask that you keep those 

to approximately five minutes so that we will have ample time to 

question you. 

Chairman Genachowski, we welcome you, and we will be happy 

to hear your statement. 

STATEMENTS OF JULIUS GENACHOWSKI, CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION; MICHAEL J. COPPS, 

COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION; 

ROBERT M. MCDOWELL, COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION; MIGNON L. CLYBURN, COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION; AND 

MEREDITH ATWELL BAKER, COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION 

STATEMENT OF JULIUS GENACHOWSKI 

Mr. GENACHOWSKI. Thank you, Chairman Boucher, Ranking 

Member Stearns, members of the committee. Thank you all for the 

chance to testify in the National Broadband Plan. The plan addresses the opportunities and challenges of broadband high-speed 

Internet in a way that reflects a strong conviction that as our Nation rebuilds its economy, broadband can and must serve as a foundation for long-term economic growth. 

Mr. BOUCHER. Chairman Genachowski, if I could get you to pull 

that microphone just a little bit closer, we can hear you better. 

Mr. GENACHOWSKI. How is that? 

Mr. BOUCHER. That is much better. Thank you. 

Mr. GENACHOWSKI. A foundation broadband for long-term economic growth, ongoing investment and enduring job creation. Multiple studies tell us the same thing. Even modest increases in 

broadband adoption can yield hundreds of thousands of new jobs. 

A broad array of people throughout the ecosystem, investors, entrepreneurs, business leaders, labor leaders, consumer advocates, and 

others agree that if the U.S. has world-leading broadband networks, we will see a powerful new wave of innovation in business 

and job creation here at home. 


smartinez on DSK6TPTVN1PROD with 
33 

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. Now we have real work to do to seize the 

opportunities of broadband. The status quo is not good enough. 

Notwithstanding the many positive and even exciting developments 

in the U.S. around wired and wireless broadband, our country is 

not where it should be or needs to be to maintain our global competitiveness in our rapidly changing world. 

First, the U.S. is lagging globally as several studies show, as low 

as seventeenth in one broadband study, and 40th out of 40 among 

countries surveyed in the rate of change of innovative capacity. 

That tells us that other countries are improving faster than the 

U.S. 

Second, certain communities within the U.S. are lagging. Rural 

Americans, low-income Americans, African Americans, Hispanic 

Americans, seniors, tribal communities, Americans with disabilities, for these groups, adoption rates are much lower than the 65 

percent national average, which is itself much lower than other 

countries and much lower that what we would tolerate for vital infrastructure like electricity or telephones. 

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. That is too many. 

Third, the costs of digital inclusion grow higher every day. Several years ago, not having broadband could have been thought by 

some to be simply an inconvenience. Now broadband access and 

digital literacy are essential to participation in our economy and 

our democracy. As I believe Congress anticipated when it directed 

the FCC to prepare a National Broadband Plan, the plan the FCC 

has submitted is a plan for action and a call to action that these 

times require. 

The terrific FCC staff and broadband team have produced a team 

that is as strong as it is nonideological and nonpartisan. It was the 

outcome of an extraordinary process that has been unprecedented 

in so many respects, unprecedented in its openness and transparency, in the breadth and depth of public participation and its 

professionalism, and in its focus on data and analytical rigor. 

The plan sets ambitious goals for the country, including access 

for every American to robust and affordable broadband services 

and the skills to subscribe, broadband speed of at least one 

gigabyte to at least one library, school, or other public anchor institution in every community, affordable hundred megabytes 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. Among other 

things, 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 to unlicensed spectrum so that we can head off the looming spectrum crisis and lead 

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


smartinez on DSK6TPTVN1PROD with 
34 

cost to private investment, and accelerate deployment of wired and 

wireless networks. It proposes initiatives to foster vibrant competition 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 challenges including education, health care, energy and public safety. 

I am heartened that a broad array of companies as well as nonprofits, consumer and public interest groups have voiced strong 

support for the plan. If I may read what John Chambers, CEO of 

Cisco, wrote in Business Week, ‘‘the vital communication systems 

that make our economy work and serve as a platform for business 

innovation and social interaction are second class.’’ Sadly, many of 

us have accepted that. It is time to overcome our broadband complacency. The National Broadband Plan sent to Congress by the 

FCC 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. I believe the plan is fiscally prudent, respecting the primacy of private investment and identifying opportunities 

for billions of dollars in spectrum auctions. 

As we move forward, I look forward to working with members of 

the committee on the broadband plan and on all ideas to unleash 

the power of broadband, the technology with the greatest potential 

since the advent of electricity to advance our economic and social 

well-being to the benefit of all Americans. Thank you, Mr. Chairman. 

[The prepared statement of Mr. Genachowski follows:] 


smartinez on DSK6TPTVN1PROD with 
35 


smartinez on DSK6TPTVN1PROD with Insert offset folio 42 here 76021A.008

Written Statement of 

Julius Genachowski 

Chairman 

Federal Communications Commission 

"Oversight of the Federal Communications Commission: 

The National Broadband Plan" 

Hearing before the 

Subcommittee on Communications, Technology, and the Internet 

United States Senate 

March 25, 2010 

Chairman Boucher, Ranking Member Stearns, 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, and also 

recommend ways that broadband can be harnesses 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 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 21" 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 increases 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. 

The record compiled during the FCC's broadband proceeding shows that, notwithstanding the 

many exciting and positive developments in the U.S. around wired and wireless broadband, our 

country is not where it should be - or needs to be - to maintain our global competitiveness in this 

rapidly changing world. 
36 


smartinez on DSK6TPTVN1PROD with Insert offset folio 43 here 76021A.009

First, studies place the U.S. as low as 16th when it comes to important attributes of broadband 

adoption and speeds. Our record shows roughly 65% adoption in the U.S. compared to 

significantly higher adoption percentages 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, low-income 

Americans, minorities, seniors, Tribal communities, and Americans with disabilities. For these 

groups, adoption rates are much lower than 65 %. 

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 non-partisan. 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. 

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. 

2 
37 


smartinez on DSK6TPTVN1PROD with Insert offset folio 44 here 76021A.010

• 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. 

All of these solutions - coupled with the Plan's recommendations on eGovemment can not 

only lead to improvements and cost savings in each of area, they can increase demand for 

broadband, creating a virtuous cycle that will promote broadband build out and adoption, and 

help spur our economy. 

On public safety, America's first responders are on the front lines every day protecting oUT 

families and communities, The National Broadhand Plan lays out a multi-part gameplan 

designed to finally deliver on the recommendation of the 9111 Commission that we have 

interoperable communications for our first responders. 

I am pleased that several bi-partisan members of the 9111 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 thle] 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. 

3 
38 


smartinez on DSK6TPTVN1PROD with Insert offset folio 45 here 76021A.011

If I may pull out one quote, John Chambers, CEO of Cisco, wrote 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 trans formative power of high-speed Internet. 

• The essential role of private investment in extending broadband networks across our 

Nation. 

• 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 restraincd, role to play, focusing 

with laser-like precision on efficient and effective solutions. 

As the Executive Director of the agency's broadband effort, Blair Levin, said: 'This plan is in 

beta and always will be." Like the Internet itself, the plan should change in light of new 

developments. Implementation requires a long-term commitment to measuring progress and 

adjusting to improve performance. But evaluation is no excuse for paralysis. 

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. Reporting from China, the reporter wrote: 

4 
39 


smartinez on DSK6TPTVN1PROD with Insert offset folio 46 here 76021A.012

"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." 

In the 21" century digital economy, to stand still is to fall behind. ) look forward to working 

with Members of the Committee on our broadband plan and on all ideas to unleash the power of 

broadband, a technology with the greatest potential since the advent of electricity to advance our 

economic and social well-heing, to the benefit of all Americans. 

Thank you. 

#### 

5 
40 

Mr. BOUCHER. Thank you, Chairman Genachowski. Commissioner Copps. 

STATEMENT OF MICHAEL COPPS 

Mr. COPPS. Good morning and thank you, Chairman Boucher, 

Ranking Member Stearns, members of the subcommittee for having 

us up here today to discuss the National Broadband Plan. This is 

something, as many of you know, that has been near and dear to 

me for the almost nine years that I have been at the Commission. 

I had long lamented our Nation’s lack of a broadband strategy 

in a competitive world where other nations were leaving in the digital dust. Now that has changed. We have a roadmap. We have set 

our compass on due north. We know where we want to go, and we 

are setting off down that road. At last we begin to walk the 

broadband walk. 

We head down this road not because broadband is some 

technophile’s dream or some cool new tool, but because of the 

dawning realization that high value broadband is the great enabler 

of our time. This technology infrastructure intersects with just 

about every great challenge confronting our country today. Jobs, 

business growth, education, energy, the environment, international 

competitiveness, health care, overcoming disabilities, opening doors 

of equal opportunity, news and information, and our democratic 

dialogue, there is no solution to any of these challenges that does 

not have a broadband component to it. Now we understand. 

So it was music to my ears when Congress called for the development of National Broadband Plan. Under the visionary leadership 

of Chairman Genachowski and with the hard work of an impressive FCC team, and in the most open and transparent process I 

have witnessed at the Commission, we now have a plan with clear 

objectives and a considered strategy aimed at ensuring that everyone in this country has equal opportunity in this new digital age, 

no matter who they are, where they live, or the particular circumstances of their individual lives. 

Foremost among our charges is digital inclusion. Every one of 

our citizens must have access to this enabling technology in order 

to participate fully in 21st century life. You won’t get a job without 

it. You won’t be safe without it. You can’t be well educated without 

it. You cannot be an engaged citizen without it. So surely America 

cannot afford to have any digital divides between haves and 

havenots, between those living in big cities and those in rural areas 

or tribal lands, between the able-bodied and people with disabilities. 

Broadband must leave no American behind, including the original Americans, Native Americans. I encourage the broadband team 

to make sure this plan works for Indian country, and I am pleased 

with the recommendations that have been delivered. I also wanted 

to ensure that the plan was aimed at providing full accessibility to 

persons with disabilities. These are folks who ask nothing more 

than an equal shot at being fully productive citizens, and 

broadband can make that so much more achievable if we get it to 

them. My written testimony elaborates on these two points. 

Let me also very quickly say how pleased I am that the plan addresses the need for better research and development efforts in our 


smartinez on DSK6TPTVN1PROD with 
41 

society and, of course, pleased about the public safety plan, which 

we will talk about. 

I want to spend my last couple minutes on the perhaps less tangible but no less important dimensions of broadband. As our information infrastructure begins to migrate online, we becoming increasingly dependent upon broadband for news and information, for 

our civic engagement, for our democratic dialogue. America’s future 

town square will be paved with broadband bricks. We need to make 

sure it is available to all and open to all. 

With high-speed Internet, those who are connected can have the 

world at their fingertips. For the unconnected, it is beyond their 

reach. An increase of technology does not by itself, however, guarantee a more informed citizenry. Neither does just hooking everybody up to broadband. A well-connected nation does not equate to 

a well-informed nation without significant effort. Put another way, 

a nation connected but not informed or civically engaged is about 

as useful to democracy as a plugged-in lamp with no light bulb. 

I believe that our country’s democratic dialogue will suffer if the 

same harms that have been inflicted on traditional media are allowed to undercut the potential of new media in the digital age. 

Time happily spares you my extended remarks on the subject, 

but we all know journalism is in trouble. Journalism is at crossroads, and we better do something about how the American people 

are going to receive the news and information we need in a world 

where the town square is going broadband and where a critically 

important public interest has somehow to be safeguarded. Any viable solutions will have to address both traditional media and online 

media. And I am pleased that the National Broadband Plan recognizes the need to come to terms with the news and information implications of the digital transition. 

I look forward to working on this with the members of this subcommittee. Each of the Commissioners would have, I am certain, 

some variations on the plan that has been presented. In matters 

involving the reclamation of spectrum, for example, I will be especially vigilant that nothing we do decreases the already scarce diversity we have in programming or in media ownership. Every 

local voice that disappears runs against the grain of the public interest. 

Regarding competition in our telecommunications industries, it 

will take great vigilance to ensure that consumers in our present 

consolidated environment can have more access to competitive providers. This may require some very tough decisions, but I believe 

the plan provides ample opportunity for us to tackle and resolve 

such problems as we proceed. 

My final comment is on an issue I try to highlight every time I 

come before you. It is the need to facilitate the work of the Commissioners by modifying the closed meeting rule that prohibits 

more than two of us ever talking together and sharing our experiences about the great issues before the Commission. My experience 

has shown me that this has had pernicious and unintended consequences, stifling collaborative discussions among colleagues, delaying timely decision-making by the agency, and short-changing 

the pubic interest. 


smartinez on DSK6TPTVN1PROD with 
42 

I note the Representatives Stupak, Eshoo, and Doyle have introduced legislation to correct this. I believe the legislation they have 

introduced would constitute a major a reform of the Commission 

procedures as any that I can contemplate. Thank you for the opportunity to testify today, and I look forward to your comments, your 

guidance, and your questions. 

[The prepared statement of Mr. Copps follows:] 


smartinez on DSK6TPTVN1PROD with 
43 


smartinez on DSK6TPTVN1PROD with Insert offset folio 50 here 76021A.013

TESTIMONY OF FCC COMMISSIONER MICHAEL J. COPPS 

U.S. HOUSE COMMITTEE ON ENERGY AND COMMERCE 

SUBCOMMITTEE ON TELECOMMUNICATIONS AND THE INTERNET 

"THE NATIONAL BROADBAND PLAN" 

***** 

MARCH 25, 2010 

Good morning Chainnan Boucher, Ranking Mcmber Stearns, and Members of the 

Subcommittee. When I put today's hearing on my calendar, I realized that it was one year ago 

this week that I sat before you as Acting Chair ofthc FCC testifying on the Commission's efforts 

to prepare the American people for the digital television transition. That was no small 

undertaking. I am once again privileged to come before you today, along with Chairman 

Genachowski and my colleagues, to discuss another great task being undertaken by the FCC-to 

ensure that every American has high-speed, opportunity-creating, affordable broadband. 

Since my continnation as a newly-minted Commissioner in 2001, I have been calling for 

a national broadband strategy to ensure this nation's going-forward global competitiveness. It is 

my belief that high-value broadband is the Great Enabler of our time. This technology 

infrastructure intersects with just about every great challenge confronting our nation today-'-

jobs, business growth, education, energy, climate change and the environment, international 

competitiveness, health care, overcoming disabilities, opening doors of equal opportunity, news 

and infonnation, our democratic dialogue. There is no solution for any of these challenges that 

does not have some broadband component to it. So, after seeing this country drop in broadband 

penetration rankings among OECD economies, it was music to my ears when Congress called 

for the development of a National Broadband Plan. Under the visionary leadership of Chainnan 

Genachowski, and with the hard work of an impressive team of FCC staff, we now have a Plan 

with clear objectives and a considered strategy aimed at ensuring that everyone in this country 

has equal opportunity in this new Digital Age, no matter who they are, where they live, or the 
44 


smartinez on DSK6TPTVN1PROD with Insert offset folio 51 here 76021A.014

particular circumstances of their individual lives. 

The process to develop this Plan has been the most comprehensive, open and transparent 

that I have ever seen at the Commission. The broadband team searched out a myriad of 

traditional and non-traditional stakeholders that needed to be heard, making a special effort to be 

inclusive of those without a corporate lobbyist or lawyer working for them in Washington. After 

all, I strongly believe that a broadband policy for the American people should be a broadband 

policy of and by the American people. 

The goal of a broadband plan, in my opinion, should be to ensure a robust broadband 

ecosystem that serves the American people. And, I believe that this Plan can achieve this-with 

recommendations to reform the Universal Service Fund, identifY additional licensed and 

unlicensed spectrum for wireless broadband, encourage ICT research and development, to name 

just a few. 

I am pleased that the Plan has concrete recommendations for ensuring that the pub lie 

safety community has access to the broadband tools it needs to protect American lives and 

property. The Commission finally has a plan based on a level of data and analysis far better 

than anything that has been available before. We've been saying this for some time-we simply 

have to get this done-and 1 think the Plan puts us in the direction of creating a much-needed, 

nationally-connected, interoperable broadband network for first responders to ensure the safety 

of all. The Plan addresses many of my priorities for broadband; 1 can't possibly delve into each 

of them here and do them any semblance of justice. 1 do want to highlight a few. 

Foremost among them is digital inclusion. Every one of our citizens must have access to 

this enabling technology in order to participate fully in 21 5t century life. Access denied is 

opportunity denied. America cannot afford to have digital divides between haves and have-nots, 

2 
45 


smartinez on DSK6TPTVN1PROD with Insert offset folio 52 here 76021A.015

between those living in big cities and those living in rural areas or tribal lands, between the ablebodied and persons with disabilities. There is a huge and potentially debilitating irony here: this 

liberating and dynamic technology that can make so many things better could end, if we don't 

do the job thoroughly and do it right. by creating even wider divides in this country going 

forward than we have had in the past. 

So broadband must leave no American behind-not African Americans, not Hispanic 

Americans, not Asian Americans, not disabled Americans, not poor Americans, not ntral 

Americans, not inner-city Americans. And all Americans includes the original AmericansNative Americans. I have seen first-hand the unacceptable state of communications in much of 

Indian Country. Even the plain old telephone service that so many of us take for granted is at 

shockingly low levels of penetration there-below 70 per cent of Native American households. 

And we have no reliable data on the status of Internet subscribership on tribal lands, because no 

one has collected it. That's why I encouraged the broadband team to develop a Plan that works 

for Indian Country, and I am pleased with the recommendations they delivered. Implementation 

will give Native American communities the visibility they deserve at the FCC and will build 

upon the trust relationship that Bill Kennard did so much to promote while he was Chainnan of 

the FCC. 

Another important focus of the Plan is ensuring accessibility for persons with 

disabilities. In my time at the Commission, I have had the inspiring experience of working with 

numerous disabilities communities, beginning with my very first speech as a Commissioner, 

which was to a deaf and hard-of-hearing audience. I've come to see and appreciate the talents 

these folks have and to begin understanding the challenges they must constantly overcomeevery day, all day. These arc individuals with so much talent and dedication, and all they ask is 

3 
46 


smartinez on DSK6TPTVN1PROD with Insert offset folio 53 here 76021A.016

an equal shot at being productive members of society. We just cannot countenance their 

exclusion. At a broadband hearing that I chaired at Gallaudet University, we saw how new 

broadband technology can change lives and create opportunities for people who want to be, who 

need to be, fully participating, mainstream citizens. There is no question that we have made 

some progress in recent years, but we have much more to do. Implementation of the 

recommendations in the Plan will help ensure that communications services, equipment and 

content are accessible to persons with disabilities. 

Inclusion of all Americans is all the more important given the critical role broadband will 

play in informing our civic dialogue and stimulating citizen engagemcnt in our democracy. I 

realize that you already know this-your constituents probably get a lo( of their information, and 

misinformation, about Congress and their representative's doings via the Internet. But, wc arc 

late in understanding the broad civic implications of broadband as we begin (0 migrate so much 

of our national conversation to the Internet. America's future town square will be paved with 

broadband bricks-and it must be accessible to all and reneet the diverse voices of our diverse 

country. Sustaining democracy by effectively informing all of our communities in the Digital 

Age goes to the core of what we are trying to achieve as we implement the Plan. With highspeed Internet, those who are connected have the world at their fingertips. For the unconnected, 

that world is beyond reach. Already we see a blossoming participatory and experimental culture 

on the Net. We see evolving new platforms that astound us, from smart phones to tablets to the 

advent of at-home 3-D viewing and we can communicate with someone on the other side of the 

world as easily as with our next-door neighbor. 

An increase of technology does not by itself guarantee a more informed citizenry. A 

2009 study indicates that, as a country, we now consume in excess of 1.3 trillion hours of media 

4 
47 


smartinez on DSK6TPTVN1PROD with Insert offset folio 54 here 76021A.017

per year. Yet the production and distribution of essential news and information content has 

never been more in doubt. The same hyper-speculation and consolidation that wreaked havoc on 

so much of our economy began even earlier with the media sector. That, coupled with the 

dismantlement of public interest oversight of our broadcast stations, has decimated newsrooms, 

brought pink slips to many thousands of joumalists, put investigative joumalism on the 

endangered species list and replaced real news with glitzy infotainment. A new Pew Research 

Center report shows a 50 percent decline in network news reporting and editing capacity since 

the 1980s and a 30 percent drop for newspapers since 2000. I believe that our country's 

democratic dialogue will suffer if these same hamls that have been inflicted upon traditional 

media are allowed to undercut the potential ofncw media in the Digital Age. 

We face a two-pronged challenge. First, ensuring that the Intemet of the future can 

support the information infrastructure that democracy requires; and, second-for the years 

immediately ahead-stemming the decline of traditional media journalism that still supplies the 

overwhelming bulk of our news and information. So I'm pleased that the National Broadband 

Plan recognizes the need to come to terms with the news and information implications of the 

digital transition, and I am also pleased that the Commission has launched a separate, but really 

inherently related, examination focusing on "The Future of Media and Infonnation Needs of 

Communities in a Digital Age." A Commission without steady focus on this would ignore one 

of the core implications of broadband infrastructure. 

And, one last note about inclusion. To fully realize the goal of broadband for all, 

broadband must not only be ubiquitously deployed, accessible and affordable-we must know 

how to use it. I commend the Plan's clear commitment to digital literacy so that people have the 

training and education to use the Intemet and the discernment to understand how, if wrongly 

5 
48 


smartinez on DSK6TPTVN1PROD with Insert offset folio 55 here 76021A.018

used, the Net can inflict personal and social hanns. 

Each of us would have, I am sure, some variations on the Plan that has been presented. 

In matters involving the reclamation of spectrum, for example, I am always conscious of the fact 

that the airwaves belong to the American people and that licensees may use that spectrum, but 

they do not own it. Talk about directly compensating licensees for spectrum runs into that 

reality. Also regarding broadcasting, I will be urging great caution because of the possibly 

detrimental effects of reallocating spectrum from those stations currently using it to serve diverse 

audiences. Every local voice that disappears runs against the grain oflocalism, diversity and 

competition. 

Regarding issues of competition, we will have to be vigilant that the Plan's strategies 

actually work. Lack of competition could require us at some point to take actions going beyond 

what has generally been discussed. While competition is at the core of our enabling statute, I do 

not view competition today as a hallmark of our present telecommunications environment. In 

competition, as in other areas, should we find that we lack the tools necessary to conduct 

effective public interest oversight of the evolving broadband ecosystem, we may have to invoke 

other available authorities already invested in the Commission--or, should we lack some 

authority that we need, we may have to come back here and request it. We are dealing with a 

broadband information ecosystem where many parts come together to fonn a complex, 

synergistic and interdependent whole. If we lack the oversight tools to treat it systemically, we 

invite hanns that could do the ecosystem grave injustice. 

The Plan produced by the broadband team should not be viewed as a static document, but 

rather as one that will likely require adjustment and flexibility as we proceed. This, in my 

opinion, is a strength rather than a weakness. Taken as a whole, the Plan points the compass and 

6 
49 


smartinez on DSK6TPTVN1PROD with Insert offset folio 56 here 76021A.019

sets us on the right path. But like every great infrastructure endeavor this country has 

undertaken-be it roads, canals, bridges, railroads, highways, electric power, even basic 

telecommunications-to get the job done we will need a combination of private sector leadership 

and visionary government policy. Tn other words, we have a lot of work to do. 

I look forward to working cooperatively with my colleagues to begin the hard work of 

safeguarding America's global competitiveness by ensuring that every American has high-speed, 

opportunity-creating, affordable broadband. In mentioning the workings of the agency, I would 

be remiss if I did not express my appreciation for the efforts of Representatives Bart Stupak, 

Anna Eshoo and Mike Doyle to reform the work of the agency by proposing to eliminate the 

statutory prohibition on more than two Commissioners talking together outside a public 

meeting. My experience has shown me that this bar has had seriously pernicious and unintended 

consequences--stifling collaborative discussions among colleagues, delaying timely decision· 

making by the agency, discouraging collegiality and short-changing the public interest. The 

legislation they have proposed would, in my mind, constitute as major a reform of Commission 

procedures as any I can contemplate. 

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

guidance and questions. 

7 
50 

Mr. BOUCHER. Thank you very much, Commissioner Copps. Commissioner McDowell. 

STATEMENT OF ROBERT MCDOWELL 

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

Stearns and all members of the committee. It really truly is a privilege to be before you today. The broadband plan offered up last 

week by the Office of Broadband Initiative does represent a tremendous amount of hard work and thoughtfulness. However, it 

was not put to a Commission vote and contains no rules, and that 

is because the plan represents the beginning of a process and not 

the end of one. 

While we may disagree at times on the best paths to follow during our upcoming journey, we can all agree on at least the primary 

destination, a country that offers faster broadband access to more 

Americans at affordable prices. 

Before going further, however, all policymakers involved should 

pledge to do no harm. Precisely because the FCC classified 

broadband services as less regulated information services, we have 

seen a deployment and adoption of broadband technologies flourish. 

As the plan itself asserts, the number of Americans who have 

broadband at home has grown from 8 million in the year 2000 to 

nearly 200 million last year. In fact, today out of 114 million households, only 7 million lack access to broadband. Some form of 

broadband is available to roughly 95 percent of Americans while 

over two-thirds have actually subscribed. 

One especially bright gem in America’s economy is the phenomenal growth in wireless broadband adoption. Mobile broadband 

was virtually unheard of in the year 2000. By the end of last year, 

however, an estimated 100 million Americans subscribe to wireless 

broadband technologies. We lead the world in 3G buildout and 

adoption. 

Furthermore, America is home to more wireless companies than 

any other country. More than half of all Americans have a choice 

of five wireless providers. 94 percent have a choice of four. Not only 

has investment and innovation been dynamic in the telecom core 

of the Internet environment, but economic activity at the edge of 

networks has been nothing short of explosive as well. 

For instance, last year Americans again lead the world by 

downloading over 1.1 billion applications onto their mobile devices. 

Not 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 percent since the year 2007. 

In fact, some researchers estimate that annual domestic mobile 

app downloads will reach nearly 7 billion by the year 2014. 

The Internet is an environment that is growing and evolving 

faster than any individual company or government can measure. 

The Net operates in an open and free marketplace where innovation and investment are thriving. In fact, some estimate that private sector investment in broadband infrastructure exceeded $60 

billion last year alone. 

Any policies the government adopts should nurture and strengthen these trends and not undermine them. For instance, cable 

modem services alone are available to 92 percent of American 


smartinez on DSK6TPTVN1PROD with 
51 

households. Merely by upgrading cable networks with the DOXIS 

3.0 system, which is expected to happen over the next few years 

anyway, over 104 million American homes will have access to 

speeds of up to 100 megs. Unless the government provides disincentives to investments, the broadband plan’s goal of reaching 

100 million households with 100 meg services should be attained 

well before the year 2020 if we allow current trends to continue. 

In that spirit, I question calls for further regulating one of the 

brightest spots of the American economy. Chapter 17 of the Plan 

opens the door to classifying broadband services as old-fashioned, 

monopoly-era, circuit-switched, voice telephone services under Title 

Two of the Communications Act of 1934. 

Broadband has flourished because of the absence of such regulations, and let me clear up a persistent myth. Broadband has never 

been regulated under Title Two. Not only would such a classification likely fail on appeal, I also don’t see how foisting regulations 

first devised in the 19th century would help a competitive 21th century marketplace continue to thrive. 

The plan does contain ideas that are worth exploring further 

however. For instance, bringing more spectrum to market should 

continue to be a priority for the Commission, as it has been for the 

past several years. We should place a special emphasis on frequencies that are lying fallow or are underused, particularly spectrum held by the government when auction spectrum should remain unencumbered by regulation. 

At the same time, however, the Commission should encourage 

more efficient use of the airwaves in addition to rapid buildout. The 

need to use spectrum efficiently is inevitable, so we should work to 

stay ahead of the spectral efficiency curve. 

Additionally, the plan calls for comprehensive reform of the universal service subsidy rules. This system is broken, plain and simple. Our first priority, however, should be to contain costs. The contribution factor, a tax of sorts, which is directly paid by consumers, 

has ballooned from 5.53 percent in 1998 to over 15 percent today. 

This trend hurts American consumers and is unsustainable. In its 

current condition, the Universal Service Fund cannot support additional obligations. 

I have outlined many other ideas in my written statement. In the 

meantime, I look forward to working with Congress and my Commission colleagues to adopt policies that allow investment, innovation, job growth, competition, and adoption in the broadband market to continue. Thank you, Mr. Chairman. I look forward to your 

questions. 

[The prepared statement of Mr. McDowell follows:] 


smartinez on DSK6TPTVN1PROD with 
52 


smartinez on DSK6TPTVN1PROD with Insert offset folio 60 here 76021A.020

STATEME."IIT 

of 

COMMISSIONER ROBERT M. McDOWELL 

FEDERAL COMMUNICATIONS COM:VllSSION 

Before the 

COMMITTEE ON ENERGY AND COMMERCE 

SUBCOMMITTEE ON COMMUNICATIO."llS, TECHNOLOGY 

AND TIlE INTERNET 

UNITED STATES HOUSE OF REPRESENTATIVES 

March 25, 2010 
53 


smartinez on DSK6TPTVN1PROD with Insert offset folio 61 here 76021A.021

~1r. Chainnan, Ranking Member Steams and Members of the Subcommittee. it is 

a privilege to appear beli:Jre you today. 

The Broadband Plan (Plan) offered up by the FCC's OiTIee of Broadband 

Initiative represents a tremendous amount of hard work and thoughtfulness. It is 

important for everyone to understand. however, that the Plan docs not carry with it the 

force and effect of law. In other words, the Plan itself contains no rules. Not having a 

Commission vote gavc the Broadband Plan team the tlexibility to make their 

recommendations to Congress and the Commission freely. Rulemakings. opportunities 

for public comment. subsequent debates and votes on proposed rules spawned by the 

Plan. not to mention possible legislation. still lie over the horizon. In ShOli. we are at the 

beginning of a long process. not the end of one. 

Before the govemment intervenes fllliher into this marketplace. however, we 

should recognize how far America has come. As the Plan itself asserts, "The number of 

Americans who have broadband at home has grown from eight million in 2000 to nearly 

200 million last year." In fact, today, out of 114 million households, only seven million 

lack access to broadband. Some form of broadband is available to roughly 95 percent of 

Americans, while over two-thirds havc subscribed to these services. Seven years ago, 

only 180,000 homes had access to fiber-based broadband. By the middle oflast year, that 

figure spiked to over 17 million households. 

Additionally, America has experienced phenomenal growth in wireless broadband 

adoption. Mobile broadband was viliually unheard of in 2002. By the end of last year. 

however, an estimated 100 million Americans subscribed to wireless broadband 

technologies. America is home to more wireless companies than any country in the 
54 


smartinez on DSK6TPTVN1PROD with Insert offset folio 62 here 76021A.022

world. More than half of all Americans have a choice of five wireless providers. Ninetyfour percent have a choice of four. Similarly, we lead the world in 3G build-out and 

adoption. 

Not only has investment and innovation been dynamic in the telecom "core" of 

the Internet environment, but economic activity at the "edge" of networks has been 

nothing short of explosive as well. For instance, last year Americans led the world by 

downloading over 1.1 billion applications onto their mobile devices. Not 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 percent since 2007. Hundreds of 

thousands of mobile applications are pouring into the market, with countless more on the 

way from thousands of developers tor years to come. By 2014, annual domestic mobile 

app downloads arc estimated to reach nearly seven billion. 

As a direct result of adopting policies that ensured the 'Net would be regulated 

only with a light touch, the Internet environment is growing and evolving faster than any 

individual, company or government can measure. The 'Net operates in an open and tl'ee 

marketplace where innovation and investment are thriving. In fact, some estimate that 

private sector investment in broadband infrastructure exceeded $60 billion last year 

alone. 

As Congress and the Commission consider the ideas from the Office of 

Broadband Initiative, we should make sure that we first and foremost do no hann. For 

instance, cable modem services alone are available to 92 percent of American 

households. Merely by upgrading cable networks with the DOCSIS 3.0 system, which is 

expected to happen over the next few years anyway, over 104 million American homes 

2 
55 


smartinez on DSK6TPTVN1PROD with Insert offset folio 63 here 76021A.023

will have access to speeds of up to 100 mbps. In other words, unless the government 

provides disincentives to investment, the Plan's goal of reaching 100 million households 

with 100 mbps services should be attained well before 2020 if we allow current trends to 

continue in an unfettered manner. To that end, I look forward to working with Congress 

and my colleagues to adopt policies that allow investment, innovation, job growth, 

competition and adoption in the broadband market to continue to flourish. 

As we go forward, I agree that some aspects of the Plan deserve further 

investigation. For example: 

• Although Chapter 5 of the Plan places great emphasis on long-term spectrum 

needs, I am hopeful that we will also encourage and consider ideas that call for 

more efficient use of spectrum. These include more robust deployment of 

enhanced antenna systems; improved development, testing and roll-out of creative 

technologies, where appropriate, such as cognitive radios; and enhanced 

consideration of, and more targeted consumer education on, the use of femto 

cells. Each of these technological options, already available in the marketplace, 

augment capacity and coverage, which are especially important for data and 

multimedia transmissions. 

• As I have said for quite some time, we should accelerate our efforts to create a 

more specific framework for allowing unlicensed use of the television "white 

spaces." And I am pleased that Recommendation 5.12 of the Plan agrees. I am 

also interested in using some portion of this spectrum to provide wireless 

backhaul in rural areas. Our work on white spaces started under FCC Chainnan 

Michael Powell, but the Commission has been too slow to deliver our promise to 

all American consumers. 

• Similarly, we should explore our existing authority under Section 336 of the 

Communications Act to provide television broadcasters an incentive to lease their 

spectrum. Focusing on this statutorily pennissible and volul1tGl:v mechanism for 

leasing parts of the airwaves may be an easier path to accelerating deployment of 

advanced wireless services, as opposed to the more coercive means discussed in 

Chapter 5 ofthe Plan. 

• Furthennore, we should bring spectrum that is lying fallow to auction as quickly 

as possible. I agree with Recommendation 5.5 of the Plan, which proposes that 

govemment should strive to lead in relinquishing spectrum it does not use 

et1iciently or, sometimes, at all. Congressional input, as well as improved 

interagency coordination, is vital in this pursuit. 

3 
56 


smartinez on DSK6TPTVN1PROD with Insert offset folio 64 here 76021A.024

• With respect to the Universal Service Fund and intercatTier compensation 

mechanism, which are discussed in Chapter 8 of the Plan, reform is 

embarrassingly overdue. As a Commission, we came velY close to codifying 

consensus on refOlms in late 2008. Unfortunately, needless procedural 

roadblocks thrown in our way prevented us from consummating any agreements. 

I hope we can rekindle the same constructive and positive bipartisan spirit, which 

existed at that time, in any future proceedings. 

• For several years, I have said that any USF retonn must accomplish five basic 

objectives. The Commission must: 

(I) contain the growth of the Fund; 

(2) in a limited and fiscally sound manner, explore the possibility of 

broadening the base of contributors; 

(3) reduce the contribution burden (By the way, the contribution factor has 

grown from 5.53 percent during the tirst quarter of 1998 to currently a 

level of 15.3 percent, which is an historic high. This confiscatory money 

grab not only burdens America's consumers the most, it is evidence that 

the Fund's viability is in question.); 

(4) ensure competitive neutrality; and 

(5) eliminate waste, fraud and other abuses of the system. 

Such comprehensive reform - which would include all of these objectivesshould be accomplished beji)re embarking on any effort to alter the distribution system. 

As I continue to review and analyze the Plan, I may find additional proposals I 

can support. At the same time, I would be remiss if I did not point out some ideas that 

give me concern. 

• First, Chapter 17 of the Plan opens the door to classifying broadband services as 

old-fashioned monopoly era, circuit-switched, voicc telcphone services under 

Title II of the Communications Act of 1934. Broadband deployment and 

adoption have flourished in the absence of such regulations. Not only do I doubt 

that such a reclassification would survive ap~eaL I don't see how foisting a 

regulatory framework first devised in the 19' Century would help a competitive 

21 st Century marketplace continue to thrive. 

• Second, Recommendation 4.7 of the Plan implies that the Commission should 

mandate the unbundling of fiber and other network elemcnts that have been 

deploycd since the agency deregulated some of these components. As a result of 

that deregulation, fiber deployment has spiked in recent years. Rather than 

reversing course by re-opening settled conflicts, the Commission instead should 

ensure that any future actions will not discourage capital invcstment. By 

4 
57 


smartinez on DSK6TPTVN1PROD with Insert offset folio 65 here 76021A.025

unearthing regulations from yesteryear to foist on cutting-edge innovations, we 

would be inviting years of unnecessary litigation and all of the regulatory 

uncertainty that comes with it. Such an environment would inhibit investment. 

• Third, Chaptcr 4 of the Plan rcfers to thc elephant in the room, a proceeding that 

has shadowed the Plan since last fall: the open Internet or "net neutrality" 

proceeding. Although the Plan does not take a position on that proceeding, I take 

this opportunity to reiterate my serious concerns regarding the Commission 

embarking on such a regulatory journcy. 

• I also question Recommendation 15.6, which asks Congress to fund a new "public 

media" communications venture that, unlike current funding for public 

broadcasting, would cover new online digital platforms and expand the eligible 

pool of applicants beyond FCC license holders. I cannot in good conscience 

endorse new federal spending for this or many other ideas contained in the Plan 

when our government is spending record amounts by taking on monumental 

levels of debt - all while America's families and businesses are cutting their 

budgets in an attempt to restore fiscal responsibility. 

• In the same spirit, I am concerned that Chapter 4 of the Plan may have given new 

life to ideas that could result in the imposition of new taxes on the Tntemet. 

Federal preemption of Internet taxation could be beneficial, but only ifit results in 

more freedom. 

• After the Commission's workshop on capital investment in the broadband sector 

last October, I was hopeful that the Plan would contain a chapter discussing and 

making recommendations on the ideas several commenters submitted in the 

record regarding tax incentives to spur more broadband deployment and adoption. 

Helping to elevate that discussion could lead to new ideas that could further our 

goal of greater broadband ubiquity. The Plan's recommendation (7.2) to make the 

Research and Experimentation tax credit "long term," however, is a step in the 

right direction. 

• Furthermore, I question recommendations 11.4, 15.7 and 15.9, which call on 

Congress to amend the "fair use" provision of the Copyright Act for various 

purposes. These recommendations were edited late in the process; however, it 

still is not clear how broadly the Plan's proposal actually sweeps. Copyright 

issues in the digital era are highly complex. More importantly, policies that 

support strong enforcement of property rights, including intellectual property 

rights, will encourage the creation of more compelling content that could help 

spur broadband adoption. I look forward to learning more about the request for 

statutory change. 

• Finally, when it comes to the Plan's discussions regarding set-top boxes in 

Chapter 4 of the Plan, I caution the Commission to tread gingerly. Technological 

mandates by the government almost never result in robust innovation. In fact, 

5 
58 


smartinez on DSK6TPTVN1PROD with Insert offset folio 66 here 76021A.026

history shows that such mandates are more often than not counterproductive. It is 

my hope that if the Commission is to act at all in this area, it start with a notice of 

inquiry to explore whether any futther action is required. 

The time has come to debate the Plan's recommendations in a positive, 

constructive and civil manner, and I am pleased to be a part of this dialogue. While we 

may disagree at times on the best paths to follow during our upcoming journey, we can 

agree on at least the primary destination: a country that offers faster broadband access to 

more Americans at afTordable prices. 

In conclusion, America's communications sector is at a critical juncture. 

America's technological future could be even more brilliant if we, as policymakers, have 

the courage to make the right choices. I look forward to continuing to work with 

Congress, Chailman Genachowski and my Commission colleagues on these impoltant 

policies to grow the economy, create new jobs and make America stronger and more 

competitive. 

Mr. Chailman, Ranking Member Steams and Members ofthc Subcommittee, 

thank you again for the opportunity to appear before you today. This concludes my 

statement, and I look forward to answering your questions. 

6 
59 

Mr. BOUCHER. Thank you very much, Commissioner McDowell. 

Commissioner Clyburn. 

STATEMENT OF MIGNON CLYBURN 

Ms. CLYBURN. Thank you, Mr. Chairman, Ranking Member 

Stearns and members of the subcommittee. 

Mr. BOUCHER. Yes, your microphone please. 

Ms. CLYBURN. That might help. Thank you. 

Mr. BOUCHER. Thank you. 

Ms. CLYBURN. Thank you, Mr. Chairman, Ranking Member 

Stearns, and members of the subcommittee. It is an honor and a 

privilege to appear before you today to discuss the National 

Broadband Plan. Over the past nine months, the FCC undertook 

the mammoth task of developing a blueprint for this Nation that 

aims to bolster our standing as a world leader in technology, business, and inclusion. Under Chairman Genachowski’s leadership, 

this process was conducted in an unprecedented open and transparent manner in order to ensure that we maximized opportunity 

for public input. 

There are three issues in particular that I wanted to touch on 

today. In my view, each of these warrants our upmost and immediate attention. One, fostering the development of a nationwide 

interoperable public safety network. Two, ensuring an environment 

conducive to universal broadband adoption. And three, cultivating 

vibrant competition in the broadband marketplace. 

Developing a nationwide interoperable public safety network is 

no easy task. This fact, however, is no excuse for where we stand 

today. It is inconceivable that it will be almost nine years since the 

tragic events of September 11, 2001. We still have not meaningfully 

addressed this critical need. The National Broadband Plan attempts to meet this challenge. It offers concrete steps for a nationwide public safety wireless broadband network that will provide 

needed functionality and interoperability for the public safety community. 

The recommendations for the Emergency Response Interoperability Center and Congressional funding for the network in particular address two of the most fundamental building blocks necessary to make this network a reality. 

Moreover, the plan sets forth a rigorous program to make sure 

we get the details right, and the Commission has already put these 

ideas in motion by hosting a technical panel to review the finer 

points of the proposed network. 

Another indispensible part of the plan concerns broadband adoption. Approximately one-third of Americans have not adopted 

broadband at home. While some view this percentage as a success, 

there are reasons to be concerned. High-speed Internet is the gateway to opportunity and is fast becoming a requirement for meaningful citizenship. If you want to apply for a job, get more information on health-related issues, take classes that are unavailable in 

your town, unlock economic opportunities, be able to obtain government services, you must have direct high-speed access to the Internet. If we steamroll ahead without our fellow Americans joining us 

online, we will merely be reinforcing an underclass that will weigh 

heavily on our progress as a Nation. 


smartinez on DSK6TPTVN1PROD with 
60 

The plan also offers a critical recommendation with respect to 

the high cost of broadband. Specifically the plan recommends 

wholesale reform of the Universal Service Fund to both make it 

more efficient and enable it to directly support broadband service. 

This process requires assessing and adjusting nearly every aspect 

of the current USF support methods as well as the intercarrier 

compensation system. 

The third element central to a successful broadband strategy is 

competition. Competition is the lifeblood of investment, innovation, 

and affordable prices. Without it, industry has little reason to upgrade its facilities and improve its services. 

A cable industry executive noticed as such, informing investors 

that there is simply no need for the company to roll out the faster 

Internet speeds available today in areas where it does not have 

competition from another high-speed provider. Thus, only in areas 

where Americans are lucky enough to have more than one provider 

with truly high-speed capability will providers like this one have 

any economic incentive to offer better service. The same holds true 

for prices. There is little question that where there is limited or no 

competition, consumers pay higher prices for broadband. 

Indeed, just recently we saw a new spike in prices levied by providers on the lowest tiers of service. When such across-the-board 

increases occur, our role as stewards of the public interest requires 

us to examine the market carefully and take appropriate action 

where necessary. 

In closing, I would like to express my gratitude to my colleagues 

and my enthusiasm for working with them to address the challenges ahead. I also want to recognize the important work of the 

committee. I look forward to engaging constructively with you in 

the weeks and months ahead. 

The American people rely on us to work cooperatively to ensure 

that we implement a National Broadband Plan that is good for consumers and that helps drive our economy. Thank you again for the 

opportunity to appear before you today, and I look forward to answering any questions you may have. 

[The prepared statement of Ms. Clyburn follows:] 


smartinez on DSK6TPTVN1PROD with 
61 


smartinez on DSK6TPTVN1PROD with Insert offset folio 70 here 76021A.027

TESTIMONY OF COMMISSIONER MIGNON L. CLYBURN 

FEDERAL COMMUNICATIONS COMMISSION 

BEFORE THE SUBCOMMITTEE ON 

COMMUNICATIONS, TECHNOLOGY, AND THE INTERNET 

COMMITTEE ON ENERGY AND COMMERCE 

UNITED STATES HOUSE OF REPRESENTATIVES 

March 25, 2010 

Thank you Mr. Chainnan, Ranking Member Steams, and members of the 

Subcommittee. It is an honor and a privilege to appear before you today alongside my 

esteemed colleagues to discuss the National Broadband Plan. Over the last nine months, 

the FCC undertook the mammoth task of developing a broadband blueprint for the Nation 

that aims to bolster our standing as a world leader in teehnology, business, and inclusion. 

Under Chain11an Genachowski's leadership, this process was eonducted in an 

unprecedented open and transparent manner in order to ensure that we maximized 

opport11nities for public input. 

The Plan tackles nearly every aspect of our Nation's broadband challenge, taking 

a pragmatic approach to a number of problems previously deemed intractable. For 

example, the cost and timetable for obtaining access to poles, ducts, conduit, and rightsof-way have slowed deployment and investment in networks for years. The Plan takes 

this obstacle head on with common sense recommendations for expediting the process 

and lowering unnecessary costs, as well as by supporting current Congressional proposals 

to increasc efficiency and cost savings through "Dig Once" legislation. 

There are three issues in particular that I wanted to touch on during my brief time 

here with you today. In my view, each of these warrants our utmost and immediate 
62 


smartinez on DSK6TPTVN1PROD with Insert offset folio 71 here 76021A.028

attention: (1) fostering the development of a nationwide, interoperable public safety 

network; (2) ensuring an environment conducive to universal broadband adoption; and 

(3) cultivating vibrant competition in the broadband marketplace. 

Developing a nationwide, interoperable public safety network is no easy task. 

This fact, however, is no excuse for where we stand today. It is inconceivable that, in the 

almost nine years since the tragic events of September II, 2001, we still have not 

meaningfully addressed this critical need. 

The National Broadband Plan attempts to meet this challenge. It offers concrete 

steps for a nationwide public safety wireless broadband network - a network that will 

provide needed functionality and interoperability for the public safety community. The 

recommendations for the Emergency Response Interoperability Center and Congressional 

funding for the network in particular, address two of the most fundamental building 

blocks necessary to make this network a reality. For the first time, the Commission is 

recommending a Plan that involves input from all stakeholders and has a strong chance of 

success. The Plan itself recognizes a rigorous program for the agency to make sure we 

get the details right, and the Commission has already put these ideas in motion by hosting 

a technical panel last week to review some of the finer points of the proposed network. 

Another indispensable part of the Plan concerns the issue of broadband adoption. 

Approximately one-third of Americans have not adopted broadband at home. While 

some view this percentage as a success, there are reasons to be concerned. High-speed 

Internet is the gateway to opportunity and is fast-becoming a requirement for meaningful 

citizenship. If you want to apply for a job, get more information on health-related issues, 

take classes that are unavailable in your town, unlock economic opportunities, or, before 

- 2 -
63 


smartinez on DSK6TPTVN1PROD with Insert offset folio 72 here 76021A.029

long, be able to obtain government services, you will have to have direct, high-speed 

access to the Intemel. If we steamroll ahead without our fellow Americans joining us online, we wiJlmerely be reinforcing an underclass that will weigh heavily on our progress 

as a nation. 

In addition to the innovative programs suggested in the Plan to combat adoption 

balTiers such as digital literacy and relevance. the Plan offers a critical recommendation 

with respect to the high cost of broadband. Specifically, the Plan recommends wholesale 

refolTl1 to the Universal Service Fund (USF) to both make it more efficient and enable it 

to directly support broadband service. This process requires assessing and adjusting 

nearly every aspect of the current USF support methods. as well as the intercarrier 

compensation system. We must consider all the costs incurred to provide broadband as 

well as the revenues derived from broadband networks and adjust our support 

mechanisms accordingly. Moreover. support should be targeted to those areas - on a 

technology-neutral basis - where broadband deployment and service would not be 

economical. 

The third element central to a successful broadband strategy is competition. 

Competition is the lifeblood of investment, innovation, and affordable prices. Without it, 

industry has little reason to upgrade its facilities and improve its scrvices. A cable 

industry executive recently noted as much, infonning investors that there is simply no 

need for the company to roll out the taster Intemet speeds available today in areas where 

it docs not have competition from another high-speed provider. Thus, only in those areas 

where Americans are lucky enough to have more than one provider with truly high-speed 

capability will providers like this one have any economic incentive to offer better service. 

- 3 -
64 


smartinez on DSK6TPTVN1PROD with Insert offset folio 73 here 76021A.030

And the same goes for prices. There is little question that where there is limited 

or no competition, consumers pay higher prices for broadband. Indeed, just recently we 

saw a new spike in prices levied by providers on the lowest tiers of service. When these 

across-the-board increases occur, our role as stewards of the public intcrest requires us to 

examine the market carefully and take appropriate action where necessary. 

In closing, I would like to express my gratitude to my colleagues and my 

enthusiasm for working with them to address the challenges ahead. I also want to 

recognize the important work of the Committee, and look forward to engaging 

constructively with you on the most important telecommunications issues of the day. The 

American people rely on us to work cooperatively to ensure that we implement a 

National Broadband Plan that is good for consumers and that helps drive our economy. 

Thank you for the opportunity to appear before you today, and I look forward to 

answering any questions you may have. 

- 4-
65 

Mr. BOUCHER. Thank you very much, Commissioner Clyburn. 

Commissioner Baker. 

STATEMENT OF MEREDITH ATWELL BAKER 

Ms. BAKER. Thank you very much, Mr. Chairman, Ranking 

Member Stearns, and members of the subcommittee. Good morning 

or almost afternoon now. It is really a privilege to appear before 

you today. I look forward to working with you as we consider the 

many important issues that have been raised in the National 

Broadband Plan. 

I would like to share just a few remarks with you here this 

morning, hitting many of the topics that my companions have, as 

you have also, as I understand my full statement will be entered 

into the record. 

Broadband in America is a success story. Under a light-touch, 

targeted, regulatory regime in both the Clinton and the Bush Administrations, we have gone from a narrow band dialup world to 

a multi-platform broadband world by crafting a regulatory framework that promotes facilities-based competition, not prescriptive 

government requirements. 

Private industry from every communication platform has responded to this consistent framework with substantial network investment and deployment to the great benefit of consumers. This 

has resulted in broadband availability to 95 percent of Americans 

and healthy competition from rival providers. Indeed, there are 

only 7 million households where market forces have yet to yield a 

wired broadband provider. 

Yet there is more work to be done, and I am pleased to be here 

talking about the National Broadband Plan. Turning to the National Broadband Plan itself, there are places where I would have 

made different recommendations and suggestions, but I am grateful to the Commission’s broadband team for its hard work and find 

that significant parts of the plan deserve careful consideration. I 

would like to say a few words about three key priorities from the 

plan today. 

First, as I have said since I arrived at the FCC, one area of 

prompt government action is spectrum policy. One of the plan’s 

most important recommendations is the call for more comprehensive, long-term approach to spectrum management. The continued 

success of state-of-the-art mobile broadband depends on our ability 

to align our spectrum policies with the changing needs of consumers and industry. 

Other nations, like Germany and Japan, are already planning 

significant additional blocks of spectrum to be auctioned for mobile 

broadband. The U.S. must act similarly to lay the foundation for 

the next generation of mobile innovation, machine-to-machine communications, mobile health, and a meaningful alternative to fixed 

broadband. 

I hope our policies in this area will be guided by three overarching objectives: facilitating efficient use of spectrum, identifying 

and reallocating additional spectrum, and encouraging investment 

and innovation in wireless networks and technologies. 

The second policy area is Comprehensive Universal Service Fund 

and intercarrier compensation reform targeted to broadband investVerDate Mar 15 2010 04:07 Dec 12, 2012 Jkt 076021 PO 00000 Frm 00071 Fmt 6633 Sfmt 6633 E:\HR\OC\A021.XXX A021

smartinez on DSK6TPTVN1PROD with 
66 

ment in unserved areas. We need to update our funding mechanisms to reflect a broadband world, and we must do so in a manner 

that ensures accountability and efficiency. We need to do this in a 

manner that does not expand the size of the $9 billion fund. Consumers pay for this. The universal service contribution factor for 

next quarter will be the largest ever, 15.3 percent. This is real 

money. A $6 tax on a $40 phone bill. 

Third, nationwide public safety interoperability must be a top 

priority. I believe the plan’s recommendations are an appropriate 

place for us to start, focusing on the sufficiency of first responder 

funding and available spectrum resources. The need for interoperability was highlighted in the 9/11 report and devastatingly illustrated in the aftermath of Hurricanes Katrina and Rita. We must 

move forward expeditiously to provide the communications tools 

our Nation’s first responders deserve. 

As we consider all of the plan’s recommendations, our broadband 

policy should be focused on these efforts directly tied to promoting 

adoption, deployment, and facilities-based competition. We should 

build upon the strong regulatory foundation that we have before 

us, harnessing private investment, encouraging entrepreneurs and 

inventors to provide better broadband to more Americans. 

I am concerned that some of the proposals referenced in the plan 

have the Commission chart a more radical path, changing our market-based regulatory framework midcourse in a manner that could 

diminish our much-needed emphasis on adoption and chill the private investment we need for our broadband infrastructure. 

We must, in particular, resist efforts to adopt rules in the network neutrality proceeding that would dictate how networks are 

managed and operated. I have attended two technical workshops 

and reviewed the record on net neutrality, and I have yet to see 

any evidence of a systematic problem that needs to be addressed 

today. 

We also should reject calls to regulate the Internet under monopoly-era Title Two rules and rebuff unbundling proposals that selectively forget our long and checkered history with government-manufactured competition. 

Lastly I am hopeful we avoid one-size-fits-all approaches to 

broadband. This is particular true with respect to affordability, relevancy, and literacy adoption hurdles facing a third of Americans 

today. Each one of them has its own importance. Thank you again 

for the opportunity to be here today, and I look forward to your 

questions. 

[The prepared statement of Ms. Baker follows:] 


smartinez on DSK6TPTVN1PROD with 
67 


smartinez on DSK6TPTVN1PROD with Insert offset folio 76 here 76021A.031

TESTIMONY OF J;'CC COMMISSIONER MEREDITH A. BAKER 

U.S. HOUSE COMMITTEE ON ENERGY AND COMMERCE 

SUBCOMMITTEE ON TELECOMMUNICATIONS AND THE INTERNET 

"THE NATIONAL BROADBAND PLAN" 

***** 

MARCH 25. 2010 

Mr. Chairman, Ranking Member Stearns and Members of the Subcommittee, it is 

a privilege to appear before you today. I look forward to working with you as 

you consider the many important issues that have been raised in the National 

Broadband Plan. 

The National Broadband Plan is an impressive body of work. There are places 

where I would have made different recommendations and suggestions, but I am 

grateful to the Commission's Broadband Team for its hard work and find that 

significant parts of the Plan deserve careful consideration. These include the 

promotion of a strategic spectrum plan, long-overdue universal service reform, 

and the deployment of a national interoperable broadband network for public 

safety. I would like to say a few words about these key priorities today. 

At the outset, however, I would like to share my belief that broadband in 

America is a success story. Under a light-touch targeted regulatory regime in 

both the Clinton and Bush Administrations, we have gone from a narrowband 

dial-up world to a multi-platform broadband world by crafting a regulatory 

framework that promotes facilities-based competition in lieu of prescriptive 

government requirements. Private industry from every communication platform 

has responded to this consistent framework with substantial network investment 

and deployment to the great benefit of consumers. This has resulted in 

broadband availability to 95 percent of Americans, the vast majority of whom 

have choice amongst competing providers. 

There is absolutely more to be done to reach the remaining seven million 

unserved households that the Broadband Plan has identified. However, as we 

strive to get more broadband-with faster speeds-deployed to more Americans 

in more places, we must acknowledge what the current regulatory environment 

has accomplished. 

As I have said since I arrived here at the FCC, one area for prompt government 

action is spectrum policy. Consequently, I am pleased that onc of the Broadband 

Plan's most important priorities is the call for prompt action on spectrum. The 

continued success of state-of-the-art mobile broadband depends on our ability to 

align our spectrum policies with the changing needs of consumers and industry. 

Other nations, like Germany and Japan, are already planning to allocate 

significant additional blocks of spectrum to mobile broadband. The U.S. must 

act similarly to lay the foundation for the next generation of mobile innovation, 
68 


smartinez on DSK6TPTVN1PROD with Insert offset folio 77 here 76021A.032

machine-to-machine communications, mobile health and a meaningful alternative 

to fixed broadband. 

The Plan identifies the need for a more comprehensive, long-term approach to 

spectrum management. The United States needs a spectrum plan that expands 

upon proven flexible, market-oriented approaches to facilitate spectrum access, 

wireless innovation and competition. I hope our policies in this area will be 

guided by three overarching objectives: facilitating efficient use of spectrum, 

identifying and re-allocating additional spectrum, and encouraging investment 

and innovation in wireless networks and technologies. 

As we proceed, we must take care to ensure that we treat all licensees equitably. 

We should provide both existing and new license holders with as much latitude 

as possible to design and deploy state-of-the-art, efficient networks and develop 

service offerings to appeal to U.S. consumers. I would strongly oppose any 

efforts to dictate business plans or service offerings through regulatory mandate 

or inflexible allocations or service rules. 

I also support the Plan's emphasis on comprehensive Universal Service Fund and 

intercarrier compensation reform, targeted to broadband investment while not 

expanding the size of the fund. It is necessary to evolve our support mechanisms 

into an era in which all Americans have the opportunity to benefit from 

broadband. We must transition in a considered way to an explicit support 

mechanism that will ensure accountability, efficiency, and adequate funding in 

areas where market forces are not sufficient to drive broadband services to 

America's consumers. But we must also be mindful that the nearly $9 billion 

Fund is not without limits. Consumers pay for this. The universal service 

contribution factor for next quarter will be the largest ever-IS.3 percent. This 

is real money from real people. Our efforts to modernize the Universal Service 

Fund should not become an excuse to further grow the overall size of the Fund. 

It is our obligation to ensure that money is spent wisely to achieve the goals set 

out by Congress-but without distorting the market or breaking the bank. The 

Plan gives us helpful recommendations to begin this process. 

I also believe the Broadband Plan's focus on public safety is long overdue. 

think nationwide public safety interoperability should be a top priority for this 

Commission and believe the Plan is an appropriate place for us to start, focusing 

on the sufficiency of first responder funding and available spectrum resources. 

The need for interoperability was highlighted in the 9-11 Report and 

devastatingly illustrated in the aftermath of Hurricanes Katrina and Rita. We 

need to move forward expeditiously to provide the communications tools our 

nation's first responders deserve. 

As we consider the Plan's recommendations in detail, our broadband policy 

should be focused on those efforts directly tied to promoting adoption, 

deployment, and facilities-based competition. We should build upon the strong 

2 
69 


smartinez on DSK6TPTVN1PROD with Insert offset folio 78 here 76021A.033

rcgulatory foundation that we havc beforc LIS, harnessing private investment, 

encouraging entrepreneurs and invcntors to drive better broadband to more 

people, whoever they are and wherever they live. 

I am concerned about passages throughout the Plan, notably in Chapter 4, that 

suggest an interest in rc-opening settled regulatory battles and changing our 

market-based regulatory framework mid-course in a manner that could diminish 

our emphasis on adoption and chill the private investment we so desperately nced 

in our broadband infrastructure. We must. in particular, resist efforts to adopt 

rules in the Network Neutrality proceeding that would dictate how networks are 

managed and operated. We should also reject calls to revert to monopoly-era 

Title II regulation for broadband services that ignore the track record of success 

under Title I, and rebuff fiber unbundling and copper retirement proposals that 

seem to selectively forget our long and checkered history with governmentmanufactured competition. 

We must also be careful to avoid prescribing government-imposed answers to 

questions best left to the market as consumers and companies. As we shift 

towards a broadband-enabled and digital world. government should not be in the 

business of mandating technologies or picking technology winners. We mllst 

avoid one-size-fits-all approaches to broadband. This is particularly true with 

respect to the affordability. relevancy, and literacy adoption hurdles facing a 

third of Americans today. 

In closing I would be remiss not to note that much of the Plan is dedicated to 

ensuring broadband connectivity to serve a number of statutorily enumerated 

national purposes from education and health care, to cnergy policy. In each of 

these critical areas, broadband can be a great enabling technology and I am 

hopeful that the Plan's thoughtful efforts will prove valuable to those agencies 

and stakeholders seeking to work with the FCC to harness the power of 

broadband for the betterment of our nation and consumers. 

Thank you again for the opportunity to be here today. I look forward to your 

questions. 

3 
70 

Mr. BOUCHER. Thank you very much, Commissioner Baker, and 

thanks to each of the Commissioners and the Chairman for your 

thoughtful comments to us today. We appreciate you sharing some 

of the rationale you have had in developing this comprehensive and 

very well-constructed plan. 

Commissioner Genachowski, I was very pleased to note the ambitious deadlines that you have set forth in the plan for at long last 

achieving the competitive availability of set-top boxes. I think that 

if consumers could shop for set-top boxes in the store and choose 

boxes that have varied functionality, a variety of different functions 

available from different manufacturers, all of which are compatible 

with every cable system and every satellite system for delivering 

multi-channel video, we would see tremendous innovation in the 

market for the origination of these devices. 

And I think we would soon see devices on store shelves that 

would have functionality well beyond the typical set-top box you 

buy from the cable company or the satellite company today. So I 

commend you for setting forth these ambitious deadlines. This is 

not a new issue, and in fact, it is 15 years old. In the ’96 Communications Act, we directed the Commission to move forward with 

the rule making in order to assure the competitive availability of 

these set-top boxes. 

And still today consumers can’t go to the store and shop for a variety of different set-top boxes. So I am glad to see the recommendation. I would ask you if you agree with me that rather 

than putting forth a mere notice of inquiry and continuing for a 

much longer period of time the discussion about this, it is now time 

to move to a notice of proposed rule making. I think it is. I hope 

you would agree, and I would ask for your response. 

Mr. GENACHOWSKI. Well, first of all, thank you for raising that 

topic. It is an important one. 

Mr. BOUCHER. And if you could pull the mike a bit closer, we 

could hear you better. 

Mr. GENACHOWSKI. All right, I think you mentioned Congress did 

require competition in this area. We have seen much less competition and innovation than we could have. The reason that it is in 

the broadband plan is that the team realized during its work that 

while computers are only in about 76 percent of homes, TVs are in 

almost 100 percent of homes. And so if we can unleash this particular market, that can help accelerate our broadband goals. 

With respect to the exact process, I would be happy to work with 

you. I think that it is the intention to move as expeditiously as possible. We haven’t made a final decision on the process to use, but 

I would be happy to—— 

Mr. BOUCHER. Well, thank you very much. I would encourage 

you to give very serious favorable consideration to going right to a 

rule-making. We have been discussing this for 15 years. This time 

enough. 

Secondly you appear to be recommending a role for local governments, municipalities across the country in helping to deploy 

broadband. I share that aspiration. In fact, in past Congresses, I 

have introduced legislation that would free local governments to 

offer broadband particularly where there are gaps and for whatever 


smartinez on DSK6TPTVN1PROD with 
71 

reason the commercial providers have not offered an array of competitive services for broadband. 

Does the mention of this in your broadband plan imply support 

for legislation that would remove the roadblocks that various states 

have erected to their municipalities offering broadband? And would 

you recommend that we adopt legislation effectively preempting 

those roadblocks and freeing communities nationwide in order to 

deploy broadband services? 

Mr. GENACHOWSKI. Well, Mr. Chairman, if I could not comment 

on specific legislation, although we would be happy to be a resource 

to you on that. The goal of unleashing local governments to experiment and innovate around broadband access seems to me a highly 

desirable goal, and I would be pleased to work with you on the best 

path to encourage the kind of local experimentation that could be 

very—— 

Mr. BOUCHER. Thank you, Mr. Chairman. Very diplomatic answers you are providing this morning. Let me use the balance of 

my time to talk a bit about D block. I think you are on the right 

track in recommending that the D block of the 700 megahertz spectrum, the only part of the 700 megahertz still in government hands 

be auctioned, and auctioned essentially without the kinds of onerous conditions that attached to the D block auction several years 

ago that caused that auction to fail. 

So I heartily endorse your idea of auctioning without those kinds 

of conditions. I have two questions. First of all, would you need legislation in order to devote the proceeds to that auction in some significant part or perhaps totally to the buildout of equipment for 

fire, police, and rescue nationwide? 

Mr. GENACHOWSKI. I believe we would. 

Mr. BOUCHER. I agree, and we will certainly work. I am working 

now with Chairman Waxman to structure a bill that would provide 

that clear authority. The second question I have relates to your 

proposal that the winners in the D block auction and also the holders of all 700-megahertz spectrum, that would include the cellular 

companies that prevailed in previous 700-megahertz auctions, provide roaming access to first responders at reasonable rates and also 

give priority access to first responders at times when the public 

safety spectrum is either fully occupied or for other reasons unavailable. 

Now, that recommendation on its face may give pause to some 

who would consider taking part in an auction because it needs better definition. So I suppose my direct question to you is how does 

that requirement, were it to be a part of your auction rules, relate 

to the existing priority, a wireless priority system, that is in place 

today for federal personnel? Would it be a simple extension of that 

which might prove to be not so onerous, or would it be something 

beyond that that might prove to be more onerous? 

Mr. GENACHOWSKI. Mr. Chairman, the goal is to adopt a set of 

rules that would not be onerous and that would allow us finally to 

move forward and deliver on the 9/11 Commission recommendations. It will be the subject of the rule making. We will have plenty 

of opportunity for input, but I am very pleased that four members 

on a bipartisan basis of the 9/11 Commission have looked at our 

plan and said this is a very sensible way to go. 


smartinez on DSK6TPTVN1PROD with 
72 

Mr. BOUCHER. Well, thank you very much, Mr. Chairman. We 

appreciate your being here and sharing these thoughts with us. 

The gentleman from Florida, Mr. Stearns. 

Mr. STEARNS. Mr. Chairman, thank you very much, and I ask 

unanimous consent to insert into the record the response that 

Chairman Genachowski sent to me about creation of this plan. 

Mr. BOUCHER. Without objection. 

Mr. STEARNS. I noticed, Mr. Chairman, that you indicated you 

spent about $20 million to develop this plan. I think that works out 

about $50,000 a page or more, and it took you about a year, I 

think, to develop this plan. So in effect, $50,000 a day. I think 

when we developed the 1996 Telecommunication Bill, we didn’t 

have a plan in there, and then later on, there was some talk about 

it. And your former Chairman Kinard said that in 1999, let me 

read his speech, that ‘‘the fertile fields of innovation across the 

communications sectors and around the country are blooming because from the get-go we have taken a deregulatory, competitive 

approach to our communications structure, especially the Internet.’’ 

So I think with those statements and this obviously predecessor of 

yours, do you agree with his statements? 

Mr. GENACHOWSKI. I agree. Yes, I do. 

Mr. STEARNS. And they remain valid today? 

Mr. GENACHOWSKI. Yes, I would say making sure that we have 

policies that unleash investment, that encourage innovation—— 

Mr. STEARNS. Policies of the government, you mean? 

Mr. GENACHOWSKI. Well, you know, as you know in this area, 

whether it is spectrum, whether it is Universal Service Fund, there 

are policies that the government needs to be involved in and is involved with. The question for us is what kind of climate, what kind 

of policies could we make sure we have that promote investment, 

that promote innovation, that protect and empower consumers, 

that promote competition. That is how I look at it. 

Mr. STEARNS. OK, Mr. McDowell, Mr. Welch has indicated this 

is a bipartisan plan, and I think you pointed out no one voted on 

it. It is true that you and Ms. Baker didn’t vote on this bill. Is that 

correct? 

Mr. MCDOWELL. That is correct. 

Mr. STEARNS. And during the process this year that it was developed in, they spent $20 million. Were you ever consulted during 

the year, you and your staff? Were you called up and let in to participate in the development of this plan? 

Mr. MCDOWELL. Absolutely. 

Mr. STEARNS. OK, and you were, Ms. Baker, too? 

Ms. BAKER. Yes. 

Mr. STEARNS. When did you get a chance to see the final plan? 

Mr. MCDOWELL. We saw the final text, the final drafts starting 

about 21 days before the March 18 meeting, so late February. 

Mr. STEARNS. Late February? 

Mr. MCDOWELL. Did you think it might be helpful that you had 

seen it earlier? I mean how do you feel about your participation? 

You know I think there is actually a benefit to the fact that there 

was not a vote, in that I think it allowed the broadband plan team 

to have the liberty to put in there what they saw fit to put in there. 


smartinez on DSK6TPTVN1PROD with 
73 

So I think there was actually a net positive. Obviously there are 

things I agree with and things I disagree with, as I think all of us 

can probably say that. So I think it was a net positive we did not 

have the vote and allowed them. Certainly I originally a year ago, 

long before Chairman Genachowski was even nominated, had said 

that a plan like this should be put out for public comment, but the 

Commissioner only had a year to do it. So I understand there were 

time constraints as well. 

Mr. STEARNS. OK, Chairman Genachowski, the broadband plan recommends appropriating an additional $9 billion to convert the 

already $8 billion-a-year Universal Service Fund for broadband. 

Now if we have $7.2 billion in the stimulus package for broadband 

was appropriately spent, why do we need an additional $9 billion? 

Mr. GENACHOWSKI. Mr. Stearns, if I could—sir, that is not exactly what the plan says. First on Universal Service Fund, the plan 

outlines a road map for the FCC to cut and cap existing spend for 

telephone service and transition that funding to broadband without 

increasing the growth of the fund. So that over a 10-year period, 

the transition from the old USF to the new USF can happen without any additional funding. 

The plan goes on to say that if Congress thought it desirable to 

accelerate that transition, to have that transition happen faster 

than 10 years, it would cost several billion dollars over a few years 

to do that. And that is something that, as part of the development 

of the plan, it was thought should be presented for consideration. 

Mr. STEARNS. Commissioner McDowell, Assistant Secretary of 

State Verdeer said that net neutrality could be employed as a pretext or as an excuse for undertaking public policies that we would 

disagree with pretty fundamentally. Just days earlier, the president of Venezuela called for regulation of the Internet while demanding authorities crack down on a news Web site that was critical of him. ‘‘The Internet can’t be something free when anything 

can be done and said. No, every country has to impose its rules and 

regulation’’ is what he said. 

How do we hold other countries to higher standards if we ourselves are beginning to get involved with regulation? Or perhaps 

you might just comment on some of the comments that the assistant secretary of state said as well as what the president of Venezuela said. 

Mr. MCDOWELL. Well, I will let Ambassador Verdeer speak for 

himself, but I have for quite some time now expressed similar concerns that as governments encroach more into the area of network 

management of the Internet that we really start to lose the moral 

high ground. What appears to be reasonable to us may not appear 

reasonable to other countries and vice versa. 

Actually as Commissioner Baker said, since the Clinton/Gore Administration, it has been the policy of the U.S. government that 

network management issues and the governance of the Internet 

should be left to nongovernmental bodies such as the Internet Engineering Task Force and others. And this has worked quite well. 

What has really made the Internet so robust and growth there so 

explosive is in effect it is somewhat lawless, that it is positively 

chaotic in a positive and constructive way. And I think we do need 

to be very cautious before we venture into this area further. 


smartinez on DSK6TPTVN1PROD with 
74 

Mr. STEARNS. Thank you, Mr. Chairman. 

Mr. BOUCHER. Thank you, Mr. Stearns. The chairman of the Energy and Commerce Committee, the gentleman from California, 

Mr. Waxman, is recognized for five minutes. 

Mr. WAXMAN. Thank you, Mr. Chairman. Before I begin my questions, I would like to correct an assertion made by Commissioner 

McDowell that broadband has never been regulated under Title 

Two. DSL broadband was a Title Two service until August 2005 

when the Commission moved it to Title One. 

I would like to ask a question about the plan’s recommendations 

regarding the creation of a nationwide interoperable broadband 

network for public safety. I know that all parties agree that the 

problem of interoperability needs to be resolved, but it seems like 

there is a strong disagreement regarding what we should do with 

the D block. Chairman Genachowski, in your February 25, 2010 remarks, introducing the public safety recommendations, in the plan 

you emphasized that you directed FCC staff to begin anew, not 

take anything for granted, be data-driven and creative, and come 

up with the best policy recommendations to achieve success. Do the 

recommendations in the plan reflect that direction? 

Mr. GENACHOWSKI. Yes, they do. Admiral Jamie Barnett, an extraordinary public servant, has led up our efforts to do this. That 

was the charge to him, and he has been committed with his team 

on developing a framework for finally delivering on the 9/11 Commission recommendation. 

Mr. WAXMAN. Was the staff free to recommend reallocation of the 

D block if that was the best plan for public safety? 

Mr. GENACHOWSKI. Yes. 

Mr. WAXMAN. And do you agree with the conclusion that 10 

megahertz of dedicated broadband spectrum in combination with 

access to additional commercial spectrum is enough to ensure public safety interoperability at this time? And what about the future? 

Mr. GENACHOWSKI. Yes, I agree with the very deeply thought 

through plan that was put together by the public safety team. In 

the future, there may be additional needs for spectrum. We need 

to recover more spectrum for a variety of purposes, that in the future we may need more spectrum for public safety, and it should 

be part of our strategic planning process over time. 

Mr. WAXMAN. Is it correct to say that the FCC’s engineers and 

technical experts fully analyzed where the 10 megahertz of spectrum dedicated to broadband would yield adequate spectrum capacity? And did they do their due diligence on this question? 

Mr. GENACHOWSKI. Yes, I believe they did. 

Mr. WAXMAN. I would like to ask Commissioner Copps, 

McDowell, Baker, and Clyburn, is the approach outlined in the 

plan the best way to achieve interoperability in your view? Do each 

of you support the recommendation that the D block be auctioned 

for primarily commercial purposes? 

Mr. COPPS. I support this plan. When I was acting chairman, one 

of the things that I did was direct our staff to go back to a basic 

put all the options on the table for the incoming chairman so we 

could really start and look at all options. 

As Commissioner Clyburn pointed out, we are eight years beyond 

9/11 now. We have to get moving. This is a far more solidly groundVerDate Mar 15 2010 04:07 Dec 12, 2012 Jkt 076021 PO 00000 Frm 00080 Fmt 6633 Sfmt 6633 E:\HR\OC\A021.XXX A021

smartinez on DSK6TPTVN1PROD with 
75 

ed plan, a far more thought out plan. I am not saying it is the only 

plan, and I am not saying all the questions are answered right this 

second. But I think this is the one to proceed on if it meets the approval of the Congress because Congress has a role here too. 

But I am happy we have, under the Chairman’s leadership, 

moved the ball this far down the field. I think we have a unified 

plan here, and we shouldn’t—— 

Mr. WAXMAN. Well, let me ask your colleagues because—and 

maybe they can give me a yes or no answer because the time is 

running out. Do you support the recommendation D block be auctioned for primarily commercial purposes? 

Mr. MCDOWELL. Thank you, Mr. Chairman. Very quickly, the 

transition component of that broadband has been regulators. 

Broadband services have never been regulated under Title Two. I 

will be happy if, Chairman, you will allow me to file something 

supplemental for the committee outlining the history of that. In 

any case, the D block, I think, primarily should serve as commercial services and should be auctioned off accordingly. 

Keep in mind that Congress in 1997 well before 2001, September 

11, set aside 24 megahertz of the 700 megahertz block. That is sitting there. That is wonderful spectrum. It should be used for something other than narrow band voice. Public safety has at its disposal about 97 megahertz total of spectrum of various kinds. Not 

all apples, some apples and oranges but so—— 

Mr. WAXMAN. So you agree with the—— 

Mr. MCDOWELL. It should be auctioned off commercially. 

Mr. WAXMAN. OK, Commissioner Clyburn. 

Ms. CLYBURN. I believe that the auction model is comprehensive 

and pragmatic, yes. 

Mr. WAXMAN. Commissioner Baker. 

Ms. BAKER. On balance, I agree with the plan. 

Mr. WAXMAN. OK, the plan recommends that Congress come up 

with very significant amounts of money to fund the construction 

and maintenance of the proposed network. Chairman Genachowski, 

does the $6.5 billion estimated for construction of the network account for state matching funds? And if the federal government 

were to contribute to the construction of this network, would it be 

reasonable to require states to pay a share of the cost associated 

with the construction? 

Mr. GENACHOWSKI. Well, Mr. Chairman, if I could, we would be 

happy to supply you the underlying work behind the $6 billion. I 

am not sure of the answer to your question. I will say one thing 

if I could. To move forward on this now while commercial forging 

networks are being built out is the least expensive way to make 

sure that we build a public safety network. If we wait, the price 

will only go up. 

Mr. WAXMAN. Thank you very much. I look forward to moving on 

a bipartisan basis to meet the needs of the public safety community. I look forward to working with the FCC toward that goal. Mr. 

Chairman, I would like to put in the record a press comment by 

the FCC dated August 5, 2005 regarding the Title One/Title Two 

issue. 

Mr. BOUCHER. Without objection. 

Mr. WAXMAN. Thank you. 


smartinez on DSK6TPTVN1PROD with 
76 

Mr. BOUCHER. The gentleman from Michigan, Mr. Upton, is recognized for five minutes. 

Mr. UPTON. Thank you, and again welcome, Commissioners. A 

number of us have a good number of questions. Chairman 

Genachowski, welcome again. First question for me is as it relates 

to the broadcast spectrum. As you know, we are working on legislation here. I think one of the things that we want to make sure is 

that you all do not force the broadcasters to give away or auction 

some of that spectrum. Are we on the same page on that? 

Mr. GENACHOWSKI. I think so. The need here is urgent for the 

country. Mobile broadband is as important a platform for job creation, innovation for decades to come. We have the opportunity to 

lead the world, but not if we don’t have enough spectrum. What 

our team has done is develop a win/win/win plan for mobile 

broadband, for broadcasters, for the public that I would be happy 

to discuss with you further but that I think should work for everyone. And it is based on voluntary actions by broadcasters and an 

incentive auction that we hope Congress will authorize. 

Mr. UPTON. I like those words. Mr. McDowell, we all, as we look 

to increase speeds, as I look at chapter four in this book, it seems 

to me that if there were a fiber unbundling requirement that it 

would hurt us dramatically as we try to deploy fiber networks in 

areas that do not have the broadband access today. I think you are 

in agreement on that. It would be wonderful if you might want to 

comment. 

Mr. MCDOWELL. In the next couple of years, if we were to do that 

today, in the next couple of years, I think we would receive a tremendous amount of litigation. There are two decisions by the U.S. 

Court of Appeals for the D.C. Circuit, USTA 1 and USTA 2, that 

speak directly to these issues. And it is really at this point settled 

law as Commissioner Baker was saying. And I think we would be 

exposing ourselves to a tremendous level of litigation and ultimate 

loss if we tried to impose unbundling regulations on fiber that had 

been laid subsequent to those court cases especially. 

Mr. UPTON. And, Chairman Genachowski, I noted that Brer 

Levin, the executive director of your broadband initiative, dismissed unbundling in a December 21, ’09 interview as ‘‘not very 

productive.’’ The reason that he explained is the Commission is not 

that terribly—this is again in quotes—‘‘not that terribly interested 

in moving towards things which will freeze capital investment and 

have long, complicated court battles,’’ along the lines of what Mr. 

McDowell indicated. More importantly he observed these suggestions ‘‘fail to look at what is really going on in the market.’’ What 

are your thoughts as it relates to your executive director? Does he 

have good ground? 

Mr. GENACHOWSKI. The goals of promoting investment innovation in the sector are our highest goals. Promoting competition is 

one of if not the best strategy to get there. Unbundling is a word 

that creates more confusion, clarifies less. What the plan actually 

focuses on are some issues that we heard from business in the market, whether it is special access, whether it is providing choice for 

small businesses. We have heard many complaints from small businesses that they lack choice, that their prices are too high. 


smartinez on DSK6TPTVN1PROD with 
77 

And so the plan suggests several discrete areas where the record 

showed real competition issues, especially for small businesses, 

that it tees up an inquiry by the Commission. And I think it is important to look at those. 

Mr. UPTON. But you understand the fear that we would have if 

you pursued such a course? 

Mr. GENACHOWSKI. Of course I do. Again the goals of the Commission very clearly are to adopt policies that promote investment, 

promote innovation, promote competition, and protect and empower 

consumers. That is what I have instructed the staff to look at every 

day. 

Mr. UPTON. Now, as we look at this entire document, tell me 

what your next step is. What is the timeframe that you are going 

to try to embark on? 

Mr. GENACHOWSKI. Well, the staff has been working on an implementation schedule, and so in the period ahead, we will be announcing a schedule for implementing the plan. I think that there 

are, as I said during my opening remarks, I am not satisfied with 

the status quo. I think this is an extraordinary platform for job creation and investment. There are some very real problems that have 

been acknowledged on a bipartisan basis that we need to solve. 

So I am going to push to move forward as quickly as we can because I think it is critical for U.S. world leadership in this area. 

Mr. UPTON. Thank you. Yield back. 

Mr. BOUCHER. Thank you, Mr. Upton. The gentleman from Massachusetts, Mr. Markey, is recognized for five minutes. 

Mr. MARKEY. Thank you, Mr. Chairman, very much. The first 

broadband plan was the 1996 Telecom Act. And the 1996 Telecom 

Act, of course, actually resulted in broadband being regulated 

under Title Two. And from 1996 all the way until August of 2005, 

broadband was under Title Two, just for the record. 

And during that period of time, we got a lot of policies that were 

implemented. Consumer protection, universal service, protecting 

consumer privacy, interconnection and competition provisions, access for individuals with disabilities, consumer billing protections. 

And what was also possible under Title Two? 

Well, under Title Two, the FCC could forbear if it wanted to, and 

it availed itself of that power right up until August of 2005 wherever it thought it was necessary. So I don’t think we should pretend that going back to Title Two would mean that the earth would 

stop spinning on its axis and the end of time would be upon us. 

We can achieve a sensible policy, a balance in Title Two, just as 

others assert that we can achieve it in Title One. 

Now, I know that the FCC is fighting in court to defend the current Title One policy framework. Hopefully the court will uphold 

that, but if it doesn’t, cool heads will prevail. And we will work 

with the FCC to ensure that all of the goals that are in this 

broadband plan, universal service, investment, competition, privacy, disability, access, will all be implemented. So the agenda for 

connecting America doesn’t change if the FCC uses Title One or 

Title Two. 

I know that there are some people out there saying they 

shouldn’t have the authority under Title One or Title Two. Kind of 

turn it into an agency that is just kind of enforcing the law without 


smartinez on DSK6TPTVN1PROD with 
78 

any ability to be rule makers, but I just completely disagree with 

that. History says that that is completely wrong, and the Telecom 

Act of ’96 was a broadband plan. And this is the next iteration of 

it. This is broadband plan number two going forward for the 21st 

century. Do you agree with that interpretation, Chairman 

Genachowski, of the law? 

Mr. GENACHOWSKI. Congressman Markey, you—— 

Mr. MARKEY. Can you turn on your microphone please? 

Mr. GENACHOWSKI. Sorry. You lived it, and so it couldn’t possibly 

be wrong. During those years from 1998 to 2008, I was in the private sector. I was a business operator, and I was in investment. 

And I am very sensitive to the effects that poor policies can have 

on investment. 

I am confident that this FCC will tackle all of these issues in a 

way that has great respect for the private investment that we need 

to get to world leadership on broadband. And as you mentioned, 

the FCC has been operating under Title One. A company made a 

decision to challenge that in court. The FCC is defending it, but I 

believe we have the authority and that we will have the authority. 

Mr. MARKEY. OK, and I agree with that 100 percent. Otherwise 

the whole history of the Telecom Act of 1996 makes no sense because all of those regulations were implemented under Title Two. 

So it really doesn’t make any difference except that there are some 

companies out there that enjoyed the forbearance that was engaged 

by the FCC during a particular period of time would just like to 

extend it in perpetuity, and I do not think that would be a good 

policy for our country. Competitiveness, Darwinian, paranoia-inducing competition is what America should be all about, not forbearing from competition but inducing it into every single aspect 

of this communications marketplace. 

That is how we got Hulu and YouTube and Google and EBay and 

Amazon. Not one home in America had broadband in February of 

1996 when the Telecom Act was signed. Not one home had 

broadband. Ten years later, we come back, and there is a completely different dialogue in our country. 

One final question. That is on the E-rate that Congresswoman 

Matsui and Capps and I have both introduced, have all introduced 

E-rate 2.0 Act to change the way in which we look at the E-rate 

to ensure that there is more access. How do you feel about that, 

Mr. Chairman? 

Mr. GENACHOWSKI. I think it is essential. I thank you, of course, 

and the committee for its work on E-rate over the years. One of the 

things that I see when I talk to teachers around the country is how 

frustrated they are by the fact that some of their kids have 

broadband access, some don’t. And how frustrated that they are 

that their facilities, while we have connected classrooms, aren’t 

good enough to give them what they want. So tackling that is a 

recommendation of the plan. It owes a lot to your leadership with 

respect to E-rate. 

Mr. MARKEY. We thank you, Mr. Chairman. We thank all of the 

Commissioners for their excellent work on this plan. It is going to 

actually play a historic role in ensuring that America regains its 

position as number one. Thank you. 


smartinez on DSK6TPTVN1PROD with 
79 

Mr. BOUCHER. Thank you, Mr. Markey. The gentlelady from 

California, Ms. Bono Mack, is recognized for five minutes. 

Ms. BONO MACK. Thank you, Mr. Chairman. First questions are 

the Commissioners Genachowski and McDowell. I am very concerned about the plan’s recommendations to changes in the copyright law expanding the definition of fair use. Can you please explain why this is necessary? 

Mr. GENACHOWSKI. Sure, the first point to make is that it is very 

important that we make sure that the Internet is not only open but 

a safe place to do business, including by owners of copyrights. And 

so I have been very clear and the plan is very clear that we need 

to make sure that companies can enforce their rights and that we 

don’t have rampant piracy on the Internet. 

Over the course of a broadband proceeding, we heard from teachers and some in the education community that pointed to some 

narrow issues where they said our ability to do what we would like 

to do in teaching is inhibited, and there may be some ways to fix 

that that don’t challenge the fundamental point that protecting intellectual property is essential. 

Ms. BONO MACK. Mr. McDowell. 

Mr. MCDOWELL. We want to encourage owners of copyrighted 

works to put them online. So they need to feel comfortable in doing 

so. That means they have to enjoy the strongest possible intellectual property rights protection. We have to allow them to work constructively and cooperatively with carriers to police and act against 

stolen intellectual property. 

So first of all, I should start off by saying we are not the expert 

agency on intellectual property or copyrights. But I am sounding a 

note of caution when it comes to any recommendations that could 

be seen as wanting to weaken intellectual property rights. I think 

what will actually help the proliferation of new content and applications online will be if we have strong intellectual property rights 

enforcement. 

Ms. BONO MACK. But there is almost no discussion in this whole 

document about legal content protection. Is it not a priority at all 

for the FCC? Just to either one of you. 

Mr. GENACHOWSKI. I believe there is some discussion. We would 

be happy to follow up with you on that. IP is not a central issue 

in the broadband plan, so there is an endorsement of the importance of copyright protections, and then there is an identification 

of an issue that was raised with us in the record with respect to 

education and the suggestion for further work on that. 

Mr. MCDOWELL. I think if you look at Sections 11.4, 15.7, and 

15.9, there you will see some discussion there. But some of the concerns that when I read it were that we could be suggesting a weakening of intellectual property rights protection. 

Ms. BONO MACK. Thank you. Just to echo my concern, in the document, the example you cite in fair use is actually, you said, teachers seeking to use Beatles’ lyrics to promote literacy is the example 

that you cite. Now, in education, the best way we can improve literacy is to cite the Beatles? And this is the example you have used 

for this argument. Do you care to comment on that? Because you 

just spoke to this very comment about it being the example that 

was given to you was the Beatles’ lyrics. 


smartinez on DSK6TPTVN1PROD with 
80 

Mr. GENACHOWSKI. I think what I would be happy to do is make 

sure that we share with your office the comments that we received 

from educators on their concerns in this area. And I am confident 

that the report emphasizes the importance of intellectual property 

and puts ideas on the table. 

As you know, it is not self-executing, but certainly we would be 

happy to be a resource to you. And I would be happy to supply the 

information that we received in the course of process on the issues 

that that section addresses. 

Ms. BONO MACK. I would appreciate that very much. Does anybody else care to comment? 

Ms. BAKER. I would like to make a comment. I have not visited 

with the teachers or the educational community, so I can’t speak 

to that. But I have visited with consumers and media companies. 

And video is driving broadband at option. And for media companies 

to put their expensive content on the web, they need to have assurance that it is going to be protected. 

And so I think it is very important that we consider this as we 

move forward with broadband, and that it is very important that 

we are protecting our intellectual property. 

Ms. BONO MACK. Thanks very much, Mr. Chairman. I yield back. 

Mr. BOUCHER. Thank you, Ms. Bono Mack. The gentlelady from 

California, Ms. Eshoo, is recognized for five minutes. 

Ms. ESHOO. Thank you to each one of you. I hung on every word 

of your testimony and welcomed it. So thank you again for the extraordinary work. 

We know that or I am convinced that you all, through your testimony and otherwise, that you recognize the need for speed, but I 

continue to have some concerns, especially when it comes to spurring competition with new and innovative uses of the spectrum. 

There are so many entrenched interests that seem to be able to 

stop new ideas from taking root through delaying tactics that keep 

the spectrum concentrated in the hands of the larger carriers. I 

think this concern has been raised by other members of the committee as well. 

If we are going to see that 100 megabytes reach 100 million 

homes, the FCC has to begin and complete rule makings faster so 

we can see immediate action. And I don’t know what you all have 

to say about that. I think that perhaps it is more in the hands of 

the chairman. I might be wrong about that. 

I am disappointed that the advanced wireless spectrum, the 

AWS3, was not recommended for immediate deployment. You are 

not surprised by my comment, Mr. Chairman, on that. It was a 

proceeding that was teed up years ago, and I don’t really think that 

businesses can either afford to or should be allowed to have to 

hang around and lose money for years. 

It is my understanding that the DOD’s spectrum band that the 

National Broadband Plan, that you are considering pairing that 

spectrum with the currently jammed, I think it is jam-packed with 

vital systems, including the drones. I put on my Intelligence Committee hat. The drones were air strikes in Afghanistan and Pakistan and border security here at home. And that these systems in 

the band cost over $100 billion and can’t be relocated until 2030. 


smartinez on DSK6TPTVN1PROD with 
81 

I don’t know if you want to comment on this. I don’t really see 

the DOD giving up spectrum. So have you contacted the DOD? Has 

the DOD contacted you? That is my first question. And if you don’t 

find paired spectrum by the October deadline that you outlined in 

the report, are you actually going to auction the spectrum and put 

it in use as soon as possible? 

I am going to continue on with my questions and then you can 

answer them. On the next generation 911, as I said, Mr. Shimkus 

and I are cochairs of the E–911 caucus. We have offered legislation, 

and if you have had a chance to take a look at it, what your take 

is on that. 

There are so many things to ask about. Of course, we are going 

to submit more questions that you can answer in writing. Public 

television and their broadcast spectrum issues, the public television 

stations are very different from commercial television stations as 

you obviously appreciate. As the Commission looks ahead the rule 

makings announced in the plan to reclaim the 120 megahertz of 

spectrum from these broadcasters. 

Can you give us any assurances that public television stations 

would be protected from involuntary reallocations of that spectrum? I think it is important that they are protected. I think they 

represent one of the treasures of our Nation. So those are my opening questions, and I am going to submit to you, to the Commission 

to respond to in writing. 

So whoever would like to answer, I welcome it. 

Mr. GENACHOWSKI. I would be happy to do so. On the first issue, 

our staff at the FCC and their colleagues at NCIA and other agencies have been talking about spectrum and with respect to the 

spectrum you mentioned, they have identified a potential opportunity that could be very good for the country in terms of pairing. 

I completely agree with you that it is a bad practice to extend 

proceedings, petitions indefinitely at the FCC, and one of the 

things that the plan did was put a deadline on exploration of this 

pairing alternative. And I believe the plan goes on to say that if 

the pairing is not possible, then the Commission should proceed, 

adopt rules, and auction that spectrum. 

With respect to E–911, I think we owe you and Congressman 

Shimkus thanks for the ideas because I believe that E–911 is discussed in the broadband plan certainly as part of looking to the future on public safety in the 21st century, and broadband tackling 

911 and the way that people are actually using communication devices is essential. 

And on public TV, the answer to your question is yes, and I think 

for public TV too, there is an opportunity here for a win/win. And 

that is something that I hope we can work on with everyone together in the proceedings that will watch. 

Ms. ESHOO. Thank you very much, and I am very excited. It is 

as if the cobwebs are being cleared and we have a vision for our 

future. And I really look forward to working with the Commission 

and the full subcommittee on this. Thank you. 

Mr. BOUCHER. Thank you very much, Ms. Eshoo. Gentlelady 

from Tennessee, Ms. Blackburn, is recognized for five minutes. 

Mrs. BLACKBURN. Thank you, Mr. Chairman. And I want to 

thank you all again for being here. I have to tell you. The lack of 


smartinez on DSK6TPTVN1PROD with 
82 

attention to intellectual property and the way you are punting the 

question is a little bit troubling to me. I think that you have to look 

at the fact that broadband—you are talking about wanting 

broadband, a robust broadband deployment and expansion. And to 

not have some of the intellectual property protections—and I know 

that you are not the central agency that handles that, but I do 

think that it is worthy of a revisit from you. 

The expansion of fair use is of concern to me. One of my writers 

terms it fairly useful way to steal my money. And that is his 

version of fair use. So I think that I would encourage you all to 

have a revisit on that. 

I have about seven questions. I am not going to get through all 

of them. So, Commissioner McDowell, you had mentioned something I want to go back to. The notion of net neutrality, having net 

neutrality and those net neutrality rules could complicate the efforts to enforce the laws on illegal content, illegal downloading online. I would like for you to just expand a little bit about that relationship between net neutrality rules and enforcement against illegal content. 

Mr. MCDOWELL. Sure. First of all, the proposed rules do call for 

a carveout for enforcement of such things as illegal content, not 

just intellectual property theft but child pornography or things involving national security, et cetera. 

But I think my concern with adopting those rules in general is 

the amount of uncertainty that it will inject. We have talked about 

today extensively Title One versus Title Two. I will be filing a letter with the committee regarding my position on that, but that is 

being litigated before the courts. And these things do take years. 

In the meantime, would new rules actually give network operators pause in terms of acting on a number of fronts including the 

enforcement of intellectual property where it might not be so clear, 

especially if we are talking about relaxing or undermining fair—expanding fair use, undermining of the existing protections? So I 

think it creates some certainty. 

You know after the ’96 Act, we have the legislation and then regulation and then litigation cycle that went on for better part of a 

decade. I would think that after we try to promulgate some rules, 

we would have at least half a decade of such uncertainty, and that 

is probably not good for intellectual property rights holders. 

Mrs. BLACKBURN. OK, Mr. Chairman, let us go back to Commissioner Baker’s comment where, you know, talking about the media 

companies and the push to get that content on their because of the 

way people are doing research. So if you want to ensure both a robust broadband deployment and a protection of the intellectual 

property and that content from those copyright industries that are 

going to be essential and are going to contribute to that growth, 

then how are you going to go about that? 

I think we have to realize that our core copyright industries contributed nearly a quarter of the real growth we had in our economy 

last year. And you are talking about, you know, ease of access here. 

So how are you going to marry those two? We are all interested in 

it. We have a lot of innovators who have invested a lot of money 

in new platforms. So how do you make that guarantee? 


smartinez on DSK6TPTVN1PROD with 
83 

Mr. GENACHOWSKI. Well, one is I couldn’t be more firm in my 

conviction that it is essential to be able to protect intellectual property on the Internet. I have been clear about this since the first day 

I was sworn in as Chairman. I understand that one, it will be video 

under Commissioner Baker and other content that will be an important part of driving broadband everywhere, and one of the main 

ways that a strong broadband policy will create job creation and innovation in the country. 

So I think in general I am in complete agreement with you on 

this. I think we have to be sensitive as a Commission to suggestions that we have from teachers or others saying can you look at 

narrow issues to see what makes sense. We wouldn’t do anything 

in this area without a robust, open, participatory proceeding that 

heard views from everyone involved. And I think that is our job. 

But I should stop there, but I don’t—— 

Mrs. BLACKBURN. Well, we are out of time, so that will be fine. 

And thank you again so much to all of you for your preparation 

and being here. And, Mr. Chairman, I will submit the balance of 

my questions, and we are appreciative for your efforts today. 

Thank you. 

Mr. BOUCHER. Thank you very much, Ms. Blackburn. The gentleman from Michigan, Mr. Stupak, is recognized for five minutes. 

Mr. STUPAK. Thank you, Mr. Chairman. Chairman Genachowski, 

Mr. Waxman spent a little bit of time on public safety. I have a 

couple questions I would like to follow up on. The National 

Broadband Plan proposes roaming and priority access to public 

safety organizations for all license holders in the 700-megahertz 

realm. What type of obligations would be placed on commercial providers to ensure that public safety is given more than just priority 

access but also a robust and resilient access at times of emergency? 

Mr. GENACHOWSKI. Well, the details of that are exactly the kind 

of thing that would be worked out of the rule making that we will 

hold. But that is the—what you describe is the goal. To put in 

place a mechanism where public safety can have prioritized access 

to spectrum that it needs. The team that has worked so hard on 

this and has consulted with everyone involved believes that there 

is a path that can work for public safety and deliver on the 9/11 

Commission recommendations and that is also reasonable for wireless industry, and it takes advantage of this unique moment in 

time. If we do this as the commercial networks are being built out, 

we can get it done, do it efficiently, and deliver on the 9/11 Commission recommendations. 

Mr. STUPAK. Well, in order for it to work though, you are going 

to have to have a ready and willing commercial partner to work 

with for law enforcement. And are you confident we are going to 

have it in all parts of America, especially our rural areas? If they 

don’t, how would public safety proceed to have this plan? 

Mr. GENACHOWSKI. I asked this question of our team because I 

wanted to make sure that the plan that was being proposed met 

these goals. They are confident that this mechanism will work for 

public safety and that commercial providers will provide the access 

that is described in the plan. 

Mr. STUPAK. Even in areas that are not developed now? 


smartinez on DSK6TPTVN1PROD with 
84 

Mr. GENACHOWSKI. I believe that is the case. It is certainly something we would be happy to follow up with you. Sorry, the areas 

that are not developed now, the idea is that as we push forward 

on forging mobile broadband network everywhere, it would be developed and that actually it would accelerate buildout of 45G networks in rural areas because we can do the commercial networks 

and the public safety networks together. 

I fear that if we don’t do that, in some areas, we won’t get any 

4G networks, and some areas we might get commercial and no public safety at all because, as Commissioner McDowell mentioned, 

there is public safety spectrum that is there. It is not being built, 

and the goal here is to get it built. 

Mr. STUPAK. You mentioned 4G, but then you add in the mobility 

fund, you provide for support for 3G wireless network. So I guess 

that seems like—how are you going to get the 4G then to help our 

law enforcement in those areas when the minimum is going to be 

a 3G in that Connect America Fund, I think it is, in your proposal. 

And plus you are only going to support one carrier with subsidies 

in a given geographic area, right, underneath this Connect America 

Fund? 

So how will you determine which broadband provider in a given 

area would receive support if they are only supposed to be 3G, but 

yet you are talking about public safety needs 4G? How do we 

bridge that? 

Mr. GENACHOWSKI. Well, the 3G networks would be the foundation for the 4G networks, so I do think this is part of the solution 

to make it happen. With respect to the other issues, I think you 

are raising issues that, of course, we’ll take up in the course of developing the rule making. In the meantime, we would be happy to 

follow up with you on more information that went into the development of this plan. 

Mr. STUPAK. Well, let me ask you one more since we are going 

to look to the future development. In the intercarrier compensation 

scheme that is going to be sort of Universal Service Fund phased 

out, what, over 10 years? Is that what it is? 

Mr. GENACHOWSKI. Yes. 

Mr. STUPAK. OK, and how does the FCC plan to ensure that the 

necessary support for rural telecommunications remain in places 

considering how essential the implicit support is to many of these 

rural companies? 

Mr. GENACHOWSKI. Well, we believe that the plan proposed a 

transformation over 10 years. 

Mr. STUPAK. OK. 

Mr. GENACHOWSKI. We will have that result. As I said to one of 

your earlier questions, the team has also suggested an alternative 

to accelerate the transition. There is a possibility of identifying additional funding. That is a choice that we would be happy to work 

with the committee on. But the goal of the plan would be to deliver 

exactly what you are seeking for rural America. 

Mr. STUPAK. I appreciate the goals and the thought and analysis 

that went into this. It is just that whenever we do, whether it is 

the Telecommunications Act of ’96 or anything, it is always rural 

areas, we will get to you. We are still waiting, and law enforcement, it is even greater. You say you need 4G. We can’t even get 


smartinez on DSK6TPTVN1PROD with 
85 

the basic cable up in some of those areas or DSL. So I am a little 

concerned about that. 

Commissioner Copps, I have four seconds left. The bill we entered as the FCC Corroboration Act, give me just a quick comment 

on why we need it and hopefully we can convince the chairman, 

even though he has indicated we might get a hearing on it here 

soon, why we need this. 

Mr. COPPS. Well, I want to commend you again on introducing 

the legislation to make this possible. I just think it would be a 

great step forward from the standpoint of dispatching the business 

of the Commission. You know we were all standing around in the 

room out front waiting for the hearing to start here, and it was an 

opportunity we could have talked about some stuff on broadband 

and maybe resolved a problem or two. I don’t know. But we all had 

to get lockjaw at that point because we would be delving into the 

world of substance. 

So I think from the standpoint of doing business, you have five 

people here who come from five very different backgrounds with 

hopefully different talents to contribute to the cause, different perspectives. You can really benefit from those folks sitting around 

and talking about these issues. It serves the public interest. You 

do it with counsel present. You build in protections, but the system 

we have right now disserves the public interest and retards the 

ability of the Commission to discharge its obligations in a timely 

and public-interest-friendly fashion. And if there was one reform 

that I could make at the FCC, the one you proposed would be it. 

Mr. STUPAK. Thank you very much. 

Ms. Clyburn wants to comment on it. 

Ms. CLYBURN. Mr. Chairman, if you would allow. One example 

to augment that. I had the opportunity to chair the joint board for 

USF where all of the joint boards. Thank you very much, Mr. 

Chairman. And one of the things—and my colleagues are members. 

I distinctly remember on our inaugural call, which we had a lot of 

new voices because it was virtual. A lot of voices on the line and 

Commissioner Copps was in the middle of a very significant point, 

and it was 17 minutes after the hour when Commissioner Baker— 

and she was quite on time—came into the room. And Commissioner Copps had to get offline. So what happens is we lost that 

exchange, and just lost that train of thought. And it is a very cumbersome process. So I thank you for recognizing that even on that 

level where notes would be taken that this country and the joint 

board would be better served in having a process that is more relaxed. 

Mr. BOUCHER. Thank you very much—— 

Mr. STUPAK. Thank you, Mr. Chairman. 

Mr. BOUCHER [continuing]. Ms. Clyburn and Mr. Stupak. And let 

me assure you there will be a hearing on your measure in the nottoo-distant future. The gentleman from Alabama, Mr. Griffith, is 

recognized for five minutes. 

Mr. GRIFFITH. Thank you, Mr. Chairman. I appreciate the opportunity. When you mention staff, is it your staff that is going to 

make the recommendation so that we remain competitive and enhance the creativity of our Internet? 

Mr. GENACHOWSKI. I think it is the FCC staff. 


smartinez on DSK6TPTVN1PROD with 
86 

Mr. GRIFFITH. Well, it is the FCC staff. Is there a group that is 

specifically in tune with what has happened in the marketplace in 

the last 10 years and has a relationship with that marketplace? 

Mr. GENACHOWSKI. That is a great question. That is the job of 

the staff of the agency to be proactive, to stay on top of market developments and to make sure that we have the skill sets necessary 

to do our job. 

Mr. GRIFFITH. Right, and so those individuals have had experience in the marketplace and understand the reality of the capitalistic system and the development and the risk capital and that sort 

of thing? Is that a fair—— 

Mr. GENACHOWSKI. I come from 10 years in the private sector 

and taking this job, and I have focused on bringing in to the staff 

a broad collection of people with backgrounds in operating businesses and investment firms as well as people who have other relevant experiences. I think that is how we do our job best, to put 

a room together of people with different backgrounds and disciplines and have them focused on doing the right thing for the 

country. But certainly making sure that people have a very real 

understanding of technology, the marketplace, what drives business decisions is essential to me. 

Mr. GRIFFITH. Would it be five or six staff members that will be 

assigned to the development of the language and how it might affect private investment? 

Mr. GENACHOWSKI. I think the implementation of the plan will 

be worked on by many more staff members than that. 

Mr. GRIFFITH. Well, where I am going is I would love for you to 

identify those for me, and I would love to sit and see their resumes 

and also talk with them if that would be fair because it is of great 

interest to me, having been in the communication field once before. 

And in the interest of the health care bill that we just went 

through, I have read that bill, and there is no provision in the 

health care bill for broadband envy. So we have to—that is a joke. 

We hope that you guys can solve that problem for us here. And 

thank you very much for being here. We appreciate it. 

Mr. BOUCHER. Thank you, Mr. Griffith. The gentlelady from California, Ms. Matsui, is recognized for five minutes. 

Ms. MATSUI. Thank you very much, Mr. Chairman. You know in 

many districts even like mine in Sacramento, there are far too 

many households who cannot afford broadband services. In a recent 

survey conducted by the FCC found that 93 million Americans do 

not subscribe to in-home broadband services in large part because 

of affordability barriers. 

The fact is the high cost of broadband leaves far too many lower 

income families in urban and rural areas at a severe disadvantage 

in our economy. Last September, I introduced a broadband affordability act to expand the USF Lifeline Assistance Program for universal broadband adoption. This bill will ensure that all Americans, 

whether they live in urban, suburban, or rural areas all have access to affordable broadband services. 

Chairman Genachowski, I applaud you actually and the Commissioners for including this proposal as a central element of your 

plan. How important is it, in your view, is it for our economy and 

for the matter of our country to fully close the digital divide? 


smartinez on DSK6TPTVN1PROD with 
87 

Mr. GENACHOWSKI. I think it is essential, and I appreciate your 

leadership on this, and it is included in the plan. Ten years ago if 

you were looking for a job, you would get a newspaper. You would 

look at the classified, and that is how you would look for a job. 

Today job posting have moved online. Most jobs require online applications. If you don’t have Internet access, you are disadvantaged 

in looking for a job. More and more jobs require basic digital skills 

and digital literacy, and so it is very important that we move forward on this. 

It is one of our biggest gaps too globally where other countries 

are ahead of us on adoption rates. So it is a very important challenge. There is no silver bullet, and the plan recommends a number 

of different strategies to tackle adoption issues. 

Ms. MATSUI. Now, if this program, my linkup program for universal broadband service were implemented, in your view, how 

much do you estimate it would increase the broadband adoption 

rates in urban and rural areas? 

Mr. GENACHOWSKI. Well, we have set a goal in the plan of moving from 65 percent to 90 percent adoption over the next 10 years, 

which would be a third as fast, two-thirds as fast as the adoption 

rate for telephone. With respect to lifeline linkup, we want to move 

forward as quickly as we can with smart pilot projects so we can 

identify what works, what really moves the needle on adoption, and 

then focus our energies on those. 

Ms. MATSUI. And that would be both in urban and rural areas? 

Mr. GENACHOWSKI. Yes. 

Ms. MATSUI. OK, that’s great. 

Mr. GENACHOWSKI. Yes. 

Ms. MATSUI. I had in my opening remarks broadband is going to 

play a major role in the sustainable path to clean energy economy, 

improving energy efficiency standards, and lessening our dependence on foreign oil. 

As I mentioned before, I will soon be introducing legislation that 

will complement many of the recommendations made in your plan 

to modernize our Nation’s smart grid. In doing so, it will make our 

smart grid more reliable and efficient and assure resilience to natural disasters and empower consumers to make more energy efficient and economic decisions about their energy usage. 

Chairman Genachowski, how important do you believe that 

broadband is to modernize our Nation’s smart grid? 

Mr. GENACHOWSKI. I think it is essential. I think Congress was 

wise in instructing us to prepare a broadband plan, to ask us to 

look at the relationship between broadband and energy, health 

care, education. There is a section in the plan, as you know, but 

it is going to be critical to integrate broadband with our smart grid 

both critical and efficient and ultimately would result in very significant savings and benefits for the country. 

Ms. MATSUI. Well, can you expand on the point made in the plan 

about the importance of ensuring that consumers have greater access to information about their electricity usage, and why is it so 

important? What are the barriers in order to provide them that access? 

Mr. GENACHOWSKI. There is terrific innovation going on in this 

base with products that help consumers visualize their energy use 


smartinez on DSK6TPTVN1PROD with 
88 

and a lot of evidence that that translates directly into energy savings. Many of those technologies rely on broadband connectivity 

and often wireless connectivity to fully see and fully visualize. So 

homes that don’t have access to broadband or haven’t adopted 

broadband are not able to get the benefits of those kinds of technologies. And so in a number of different areas here, the nature of 

broadband is a general purpose technology that can fuel so much 

innovation, investment, and benefit producing activity applies very 

much to energy. And this is a good example. 

Ms. MATSUI. Well, in Sacramento, the utility district receive $129 

million grant for smart grid, and in talking, we felt it was really 

important to look at that and look at broadband and how the connection of this is so important when you think about the community and what we need to do and to see the relationships. 

That is really very important too because for some reason I think 

when you think about things like smart meters and being able to 

find out what’s being used in your house, people seem to understand that this is somehow connected to broadband. So I think it 

is important, and I am very grateful that you have a new plan. 

Thank you. 

Mr. GENACHOWSKI. Thank you. 

Mr. BOUCHER. Thank you very much, Ms. Matsui. The gentleman 

from Michigan, Mr. Rogers, is recognized for five minutes. 

Mr. ROGERS. Thank you very much, Mr. Chairman. Thanks 

again, Commissioners. Mr. Genachowski, I am very impressed with 

and I like a lot what you are saying. But when I went back and 

took a look at your statement on September 17 at the hearing, nowhere in this statement does it talk about net neutrality, not once. 

Great statement. Get tears in your eyes reading this thing. I want 

to stand up and salute the flag. 

And then four days later, you introduce a rule, a pretty sweeping 

rule on net neutrality. Today I heard you tell this panel that I am 

for a light touch on regulation. That is what has generated all of 

this competition, and yet your FCC was doing oral arguments arguing where you have the ability to regulate the Internet. And maybe 

you can help me understand how we get from that position to net 

neutrality and your position of today that you are telling me now, 

which I like to hear, light touch on regulation. You can argue the 

case that you have the ability to do that even though it appears 

to me by reading the case that the three-judge panel was pretty 

tough on your position. Could you help me understand that, sir? 

Mr. GENACHOWSKI. Sure, I think, you know, I have been very 

public for quite a long time on my very strong view that clear, 

high-level rules to preserve a free and open Internet are pro-investment rules, pro-competition, pro-innovation that we have an obligation to make sure that the open architecture of the Internet that 

has served the country so well continues going forward. So I see 

real consistency between my priorities of innovations and investment and preserving a free and open Internet. 

Mr. ROGERS. The very things that you reference actually in your 

speech to the Brookings Institute where you talked about, you 

know, Chevrolet and hot dogs and apple pie. Great stuff, but you— 

there are some of the things that you reference, Netscape, started 

in Ann Arbor, Michigan. We are very proud of that. The Facebook, 


smartinez on DSK6TPTVN1PROD with 
89 

those other innovations didn’t happen because of this social justice 

notion we are going to have this exchange of information. We are 

going to be in the back yard and have Kum By Ya and play drums. 

And somebody was going to make some money, right? 

Mr. GENACHOWSKI. Absolutely. 

Mr. ROGERS. And so what you are saying is I believe in the light 

touch. I believe in a free and open Internet. That is why we are 

going to regulate the Internet. There is no such thing as being a 

little bit pregnant. When you start getting into regulation of the 

Internet, you are going to make determinations. You have to make 

determinations. 

And you are arguing the fact that you absolutely have the ability 

to do it. I agree with the three-judge panel. I don’t think you do. 

I would love to know—obviously we are going to disagree. You 

think it is consistent that you can do that. I don’t think you are. 

You need to help me understand where does it say, in what section 

of the law, in what you are arguing that gives the FCC the ability 

to regulate the Internet. 

Mr. GENACHOWSKI. Well, we are not in favor—I am not in favor 

of regulating the Internet. 

Mr. ROGERS. But you are in favor of net neutrality which is regulating the Internet. 

Mr. GENACHOWSKI. I completely disagree with that, sir. It is 

about—in fact, some companies have come to us to suggest that we 

regulate the Internet, and we have resisted it. The FCC has, for 

many decades, had rules that apply to the onramps for the Internet 

to promote competition to make sure that those are free and open 

and fair. And I do think that we should continue that in the Internet world so that the next Facebooks, the next eBay, the next 

Netscapes have the ability to innovate, to invent, and as you say, 

I completely agree, get a return on their investment by having a 

fair chance to reach a market. 

Mr. ROGERS. And I agree with you, but when the federal government, FCC, gets into the business of setting up what those rules 

are that don’t exist today, you have regulated the Internet. I don’t 

know how you cross that barrier and think that there’s no harm, 

no foul. There clearly is, and I will tell you what will happen. 

There is a member who—a complete free market. I believe in the 

market. I think it works. 

Now we are going to create these big programs to give broadband 

to people because maybe you have all gotten in and regulated the 

Internet where there isn’t a clear market solution, but there might 

be in your terms, at least Mr. Copps’ view, I think, a social justice 

issue for having that broadband at the house. 

Now you have completely dismantled the very model that got us 

to 200 million folks having access to broadband, and how you don’t 

intertwine that is beyond me. And I guess my concern is exactly 

that. You say here light touch. Four days later, you unleash a pretty aggressive, first-time-ever I would argue regulation of the Internet. 

Today you said light touch. What is next? I mean obviously this 

is something you are wedded to and you are clearly committed to 

this. And I think Mr. McDowell pointed out this section. I apologize. I don’t—it was section 17? Is that right, sir? Did I get that 


smartinez on DSK6TPTVN1PROD with 
90 

right? I mean so you have clearly laid out the platform to do this. 

And is it your position that you are going to continue to pursue at 

least in court that you have the right to regulate the Internet? 

Mr. GENACHOWSKI. If I may, sir, when I started at the FCC, the 

prior administration had adopted first a set of principles regarding 

the free and open Internet, then enforced those principles against 

a company. It was the prior administration that did it. That is why 

we are now in court. It took those principles and attached them as 

conditions to a merger, so I inherited a landscape around this area 

where there were open Internet rules in effect, but they were confusing to people, diminishing predictability and certainty. 

I think it is important to adopt clear, high-level rules of the road 

that encourage innovation, competition, and that make clear what 

is not permitted. And almost anyone involved in this will tell you 

there are some things you shouldn’t be able to do. Make clear what 

is permitted, and then have a fair process for disputes to be resolved. 

And I would be happy to work with you on that. I think there 

is a way to do this completely consistent with investment growth. 

Mr. BOUCHER. Thank you very much, Mr. Rogers. Your time has 

expired. 

Mr. ROGERS. Thank you, Mr. Chairman. 

Mr. BOUCHER. The gentleman from California, Mr. McNerney, is 

recognized for five minutes. 

Mr. MCNERNEY. Thank you, Mr. Chairman. You know I have 

really enjoyed this hearing so far. Mr. Chairman, I have a question 

concerning access. Do you believe that pursuing a purely engineering approach to meeting data flow challenges would make net neutrality an obsolete issue? 

Mr. GENACHOWSKI. I would be—one of the suggestions that I 

made in the rule making that we propose was to increase transparency, to increase the information about the engineering network 

management rules that will be available to entrepreneurs and 

CTOs. I think it would have the positive effect of minimizing disputes, minimizing the government role. And so if that is what you 

are referring to, it is something that I would like to pursue. 

Mr. MCNERNEY. Well, what I am getting at is that a purely engineering approach would basically expand the capability of the existing spectrum, and that may be enough to override whatever net 

neutrality issues are. Commissioner McDowell, do you have—your 

head is shaking there. 

Mr. MCDOWELL. I think you are on the right track absolutely. I 

think what can actually obviate the need for—first of all, there is 

no need. The Internet is not broken in this regard, but what we 

really—the ultimate antidote to potential anticompetitive behavior 

is more competition, especially in the last mile. The most robust 

area for that competition recently has been wireless. 

The Commission has worked hard for years since the chairmanship of Michael Powell, for instance, on getting unlicensed use of 

the white spaces out to market. This is something that in November of ’08 with great fanfare we announced a groundbreaking order 

of 5–0 bipartisan unanimous vote. It was absolutely a wonderful 

moment, but we have bogged down in our progress there. 


smartinez on DSK6TPTVN1PROD with 
91 

Something like the use of unlicensed use of the white spaces 

could actually absolutely obviate the need for any rules. I dispute 

that there is a need right now. The record doesn’t have any evidence that there is. But you are absolutely right. So also with new 

technologies, cognitive radio, software defining radio, new smart 

antenna technologies. All these can allow us from a wireless perspective to have more competition the last mile wirelessly so you 

get multiple providers and consumers have a wonderful robust 

marketplace to choose from. 

Mr. MCNERNEY. Thank you. I have another question for you, 

Commissioner McDowell. Do you feel that the plan will succeed in 

meeting the six goals that are identified? Do you think the plan as 

written and published? 

Mr. MCDOWELL. It remains to be seen. First of all, it is obviously 

a very ambitious plan. It is very lengthy. There are several hundred recommendations, some of which are for the FCC to do, some 

of which are for other agencies to do, some of which are for Congress to do. So all those moving parts, I think it is going to be very 

difficult to say all of them are going to realize the hope of their recommendations. But we can always be optimistic. 

Mr. MCNERNEY. One more question for you if you don’t mind. 

While I certainly appreciate the risk of additional regulation, and, 

as I mentioned in my opening statement, creating jobs is very important to me, considering the situation in my district and in the 

country. And I wish to work with the Commission on that issue as 

we move forward. 

Do you think there is any risk of abuse without further regulation, without additional regulation? Is that something you see as 

a potential problem? 

Mr. MCDOWELL. Well, I think in the context, for instance, of our 

net neutrality proceeding, the Department of Justice, the anti-trust 

division found comments in early January, which is very rare for 

the anti-trust division to do that. It examined the marketplace and 

not only said was it not broken, in other words, there was not concentration and abuse of market power, there was actually downright optimistic that there is a competitive marketplace for 

broadband and that more competition is coming, especially because 

of wireless. 

The Federal Trade Commission also examined this in 2007. 

Issued a 5–0 bipartisan unanimous report that said that we need 

to be very careful. This is a competitive marketplace, and while 

new rules might have the best of intentions, they could create regulatory uncertainty. So I think there is great risk there. 

Mr. MCNERNEY. Any other Commissioners care to take a stab at 

that? 

Ms. CLYBURN. As it relates to competition, sir, I am concerned 

about the future. In chapter four of the plan, it talks about what 

2012 looks like, and it talks about cable rolling out its DOXIS 3.0 

product which will provide incredible—the goal, incredible potential 

high speed. What it also points out is that in the market that we 

are speaking, that competition may only exist in up to 15 percent 

of the market. 

So if we talk about, you know, prices and service quality and the 

like, I am a bit concerned because I don’t see robust competition 


smartinez on DSK6TPTVN1PROD with 
92 

in that particular segment in terms of high speed deployment being 

available in the next couple of years. 

Mr. MCNERNEY. OK, thank you. 

Ms. BAKER. I appreciate and understand the concern. My concern 

is that we proactively produce regulations when we are talking 

about a marketplace in the future. I think that right now the market is competitive, and any significant change in the regulatory environment will cause investment to dwindle, and that will cause 

jobs to dwindle. And I think we need to be very careful when we 

tread in this area. 

Mr. MCNERNEY. OK, thank you. My time is up. 

Mr. BOUCHER. Thank you very much, Mr. McNerney. The gentleman from Missouri, Mr. Blunt, is recognized for five minutes. 

Mr. BLUNT. Thank you, Chairman, for the time. Let me ask-see 

what questions I can ask and which questions we will submit later. 

The first question would be in 2007, the FCC determined that a 

wireless service is not required to provide another wireless carrier 

with roaming services if the second carrier holds a wireless license 

of spectrum usage in the same geographic location. 

Is there anything in this plan that changes that? And, Mr. 

Copps, you were there in ’07. If you want to answer that. 

Mr. COPPS. I think what we are trying to do is trying to revisit 

that a little bit on the premise that roaming is essential, I think, 

to competitive environment and looking at the end-market exception that was put in place at that time when several of the carriers 

were telling us this is, you know, inhibit the small one, inhibiting 

their ability to be able to connect and do business as they would 

like. 

So I think the Commission was well advised, and the chairman 

can speak better to this, what is looking at, trying to take another 

look at that and see what, if any, changes need to be made at this 

point. 

Mr. BLUNT. So, Chairman, your sense is there would be some potential there, that this will reverse some of that 2007 structure? 

Mr. GENACHOWSKI. I wouldn’t say that mostly because that process, that proceeding hasn’t happened yet. If I remember correctly, 

the plan does identify roaming as an issue whose resolution could 

affect the speed of deployment and acceleration and competition in 

the mobile broadband market and suggested it is something that 

the Commission needs to look at. 

Mr. BLUNT. Now the previous view was if you had a license to 

serve the area already, you were required to provide your own service. Mr. McDowell, do you have a view on that? 

Mr. MCDOWELL. I think as a policy matter what we need to encourage is buildout of your home region. So I think what you are 

referring to is there was a concern in ’07—I was there too—that we 

wanted to make sure roaming wasn’t just a substitute for resale. 

If you had a license and weren’t building out in your own region, 

we wanted to provide a disincentive for that and an incentive for 

you to build out your own network so that you can become self-sufficient, so that the spectrum could be used more efficiently and consumers could be better served. So I think that has got to be a fundamental policy objective for us is to encourage buildout in home 

region and therefore everywhere. 


smartinez on DSK6TPTVN1PROD with 
93 

Mr. BLUNT. OK, thank you. Let us go to broadcast TV for a 

minute. This committee in this Congress passed a bill out where 

the FCC would create an inventory of all the spectrum out there, 

how it is currently being used. That has never been voted on by 

either the House or the Senate, and I think this report calls for the 

need to find another 500 megahertz of spectrum. 

Do you think it would be helpful to analyze how the spectrum 

is currently being used? And would you encourage use to move forward and ask the FCC to find out how the spectrum is currently 

being used before you just go out and try to find 500 megahertz of 

spectrum? Anybody can answer. 

Mr. GENACHOWSKI. Sure, I would be happy to tackle that. The 

spectrum inventory bill is very important, and it reflects the recognition of the importance of spectrum in mobile to our economic 

landscape. Much is known already. The demands on our mobile 

network, the constraints that we are heading into are very clear 

based on the record. 

And of course the FCC has information about where licensees 

are. The wireless industry in the course of our proceeding on 

broadband came and suggested that we need 800 megahertz of 

spectrum to satisfy forthcoming mobile needs. The staff at the FCC 

did work and felt the 500 megahertz was a reasonable goal. There 

has been record development with respect to broadcast spectrum 

and record development with respect to the win/win idea that is in 

the plan. 

Of course, there is a lot more work to do, and we look forward 

to working with the committee to find a sensible way to unleash 

spectrum for economic activity to make sure the broadcasters are 

treated fairly, that viewers are served, and that there is a possibility to generate billions of dollars of revenue through auctions 

that we do—— 

Mr. BLUNT. OK, well I thought that this committee was right 

when we encouraged that you be funded, allowed, directed to make 

that review, and I hope we do that. But if we don’t do that, what 

is the impact of over-the-air broadcasting on any spectrum reallocation? I know we have some areas all over the state that aren’t 

served by the same over-the-air broadcast they were before the digital conversion. 

How much worse does that get as we begin to reallocate spectrum, and, you know, we have lots of areas in America that are 

still either you pay for the satellite or you have over-the-air broadcasting or you don’t have television. 

Mr. GENACHOWSKI. The goal of the proceeding would be to respect the needs of viewers, especially those who still get their TV 

signal over the air. The congestion issues that we are concerned 

about are chiefly large market issues, and we can make substantial 

progress for the country if, in a small number of large markets, a 

small number of broadcasters share spectrum. We can free up very 

significant amounts of spectrum for our mobile broadband economy, 

generating auction revenues. 

So I am confident that there is a win/win here. I think the issues 

will be much less in rural areas because the congestion issues on 

the mobile broadband side are less intense. 


smartinez on DSK6TPTVN1PROD with 
94 

Mr. BLUNT. Well, it could be though a lot of the unserved people 

that were served before the other conversion are the people closest 

to the station, closest to the tower, if you are on that higher number on the band. But I have some other questions on the unserved 

and underserved and other things, and we will submit those for 

your answers in writing. Again thank all of you for being here 

today. Mr. Chairman, thank you for your time. 

Mr. BOUCHER. Thank you very much, Mr. Blunt. The gentlelady 

from the Virgin Islands, Ms. Christensen, is recognized for five 

minutes. 

Mrs. CHRISTENSEN. Thank you, Mr. Chairman, and again welcome. My first question is hopefully just for the record, Mr. Chairman. States means states and territories wherever we see that in 

the plan? 

Mr. GENACHOWSKI. Yes. 

Mrs. CHRISTENSEN. Good, OK. Thank you. Before coming to Energy and Commerce, I was on Homeland Security. So the issue of 

interoperability was and remains a big challenge and one I am very 

concerned about. 

I have heard some concerns that the 10 megahertz of broadband 

might be inadequate for public safety needs either now or in the 

future. Listening to your prior comments, it seems that you were 

pretty satisfied that you were meeting the needs of public safety 

in this regard. So do you have concerns that there is not enough, 

or do you plan to expand the spectrum later on? 

Mr. GENACHOWSKI. As I mentioned to Chairman Waxman, my 

charge to the team at the FCC, which is led by a wonderful 30-year 

admiral, was to take a fresh look at public safety mobile communications needs and recommend an overall plan that would most 

quickly and effective deliver on the 9/11 Commission recommendations. 

As Commissioner McDowell mentioned, there is 24 megahertz 

that has already been allocated. It is not being used because there 

is no strategy to build the network. And so this program, which includes several elements, is a plan to get the network built, to act 

consistent with the authority we have now to auction the 10 megahertz, referring to the D block. 

I do have tremendous faith in our team and in the commitment 

to delivering on the 9/11 Commission recommendations. 

Mrs. CHRISTENSEN. Thank you. Everyone feel the same way? OK. 

Commissioner Clyburn, when you came before us in the initial 

hearing with the Commission, you talked a lot about the concern 

about preserving diversity and local programming as well as closing the gaps for women and minorities. Do you feel that the plan 

provides enough capacity potential to meet those concerns? 

Ms. CLYBURN. It provides some promise, but I remain concerned 

on some fronts. The concern for me is when we talk about, and I 

am not—I am for a voluntary spectrum reallocation. But what the 

potential of that is that some of these entities who may be financially strapped may be the first to sell their space, which would 

possibly further dilute the gains in the quest for diversity with the 

voices. 

But the frontier, when I look at the overall plan, I am hopeful 

because it provides a whole host of opportunities that some are 


smartinez on DSK6TPTVN1PROD with 
95 

named and some are not, you know, low-power television, entertainment in other types of sourcing or programming over the Internet. There are growing enterprises and arches who exclusively 

want to stay in that space because of the flexibility and the potential for keeping more of their dollars. 

So while I am concerned on the other front, I am hopeful that 

this space will be one that literally the sky is the limit in terms 

of potential for diverse voices. 

Mrs. CHRISTENSEN. And so would it be the role of the FCC to do 

the outreach to make sure that these smaller entities know what 

is available, or is it our role or CPC’s role or—— 

Ms. CLYBURN. I think it is very much a global effort. When I go 

out and speak, I say just that, the more positive aspect. A young 

lady came up to me and said, you know, I am in my senior year 

of college. You know what do I do? You know I want to get into 

broadcasting, and I am a proponent of in the meantime. In the 

meantime, you have a vehicle, a relatively affordable vehicle 

through the Internet to promote yourself, to produce yourself, and 

so I look at this as both of an opportunity and a bridge to whatever 

comes next. 

Mrs. CHRISTENSEN. Thank you. Let me just ask this question. I 

know that preserving and stimulating competition is a major part 

of the plan, but are there any new mandates imposed on industry— 

and anybody can answer this—in the broadband plan? And if so, 

what industries might have mandates that might require additional investment? 

Mr. GENACHOWSKI. Well, the plan itself is not self-executing. 

There are a number of ideas in the plan to promote competition. 

I spoke earlier about the complaints that we have heard at the 

Commission from small businesses who want to move on to 

broadband but are dissatisfied with the choice that they have and 

their prices. And we hear from other competitors who have raised 

issues. And the plan identifies a number of issues that require further work. 

Mrs. CHRISTENSEN. Thank you. My time is up, Mr. Chairman. I 

yield back whatever is left. 

Mr. BOUCHER. Thank you very much, Ms. Christensen. The gentleman from Nebraska, Mr. Terry, is recognized for five minutes. 

Mr. TERRY. Thank you, Mr. Chairman. It has been asked before, 

but I haven’t asked it, as the old saying goes. But I am going to 

ask it in a little bit different way regarding the over-the-air TV 

spectrum. The plan suggests the option of being able to give back 

or sell back—I am not sure—that part of the spectrum. The second 

half of that is does—if there are not enough station holders willing 

to give back some of their spectrum, we have heard that you won’t 

just force it. But does the FCC even have authority to force them 

to give back or the authority to take back some of that spectrum? 

Mr. GENACHOWSKI. With respect to authority, the authority that 

we don’t have is to structure what we call the incentive auction 

where with respect to any band, we have the ability to ensure that 

any spectrum that is used that way, that some of the auction proceeds benefit the license holders. 

On the first question, again I would emphasize that both that 

there is a real issue ahead of us for the country and our ability to 


smartinez on DSK6TPTVN1PROD with 
96 

lead the world in mobile. We have all the ingredients lining up 

with the incredible innovation that we are seeing, with the fact 

that we are moving quickly to 4G to lead the world. And we would 

be happy to share with you the data that shows the gap that we 

are going to face between capacity—— 

Mr. TERRY. I am well aware. I am just wondering if you have 

that authority or whether Congress would have to give you that authority to grab back that spectrum if they don’t voluntarily offer it 

to you. 

Mr. GENACHOWSKI. My understanding is that the authority that 

we lack is the incentive auction. 

Mr. TERRY. So you think if it just we are going to take that back, 

you have the authority to do that without congressional—— 

Mr. GENACHOWSKI. I think in general with respect to licensees—— 

Mr. TERRY. OK. 

Mr. GENACHOWSKI [continuing]. They are licensees of spectrum. 

Mr. TERRY. OK, which is also a follow-up question about giving 

it back, whether you could buy it back. They are leasing it. I don’t 

know if they would have the power to resell that anyway without 

the FCC allowing that or Congress. 

Just overall, I like the plan in part, and, of course, we are always 

going to disagree with some of the details out here. But one of 

them, I view this plan as mostly an infrastructure, but a lot of the 

opening statements was on tape rate. And I think that is an interesting discussion of access versus acceptance. And so I want to talk 

about what part of the plan do you think is important on the tape 

rate, which then dovetails into the buzzword affordable. And I 

think that is a term of art not necessarily science. And so are there 

mandates in here on pricing, or how would you make this ‘‘affordable’’ so more people take it once we get the infrastructure and access out there? And I will open that up to any of them. Chairman, 

you have a good job of burdening and shouldering most of the answers and questions. 

Mr. COPPS. I will get us going quickly. 

Mr. TERRY. We can go to Michael. He needs to be involved more. 

Mr. COPPS. Well, I think, number one, inferring that there is a 

competitive environment out there that helps drive down consumer 

costs is one way you get this stuff out and make it affordable. I 

think digital literacy is important so people understand the importance of this to their individual lives and to the future of the Nation. 

Going back for just a second to that previous question you asked 

about, you know, licenses all expire. So, you know, we are not necessarily talking about going in and grabbing. I have always been 

a believer in kind of use-it-or-lose-it, and if you are in the broadcast 

spectrum, that involves serving the public interest. So my advice 

to the broadcast industry, while we are cogitating all of this and 

doing inventories and all of that is to make sure that that spectrum is being used. 

Mr. TERRY. Mr. Copps, I hate to be rude to you, but I only have 

23 seconds left, and I want to follow up on the affordability and 

how we are going to do that. And I thought the E-rate was the anVerDate Mar 15 2010 04:07 Dec 12, 2012 Jkt 076021 PO 00000 Frm 00102 Fmt 6633 Sfmt 6633 E:\HR\OC\A021.XXX A021

smartinez on DSK6TPTVN1PROD with 
97 

swer to that question. So in this discussion of affordability and take 

within urban cores and rural areas, has E-rate not been successful? 

Mr. COPPS. E-rate has been a stunningly successful program, I 

do believe, and I think it is—you are talking about digital literacy 

and all of that. And certainly E-rate is connected to that, but just 

from the standpoint of connecting kids to the 21st century, it has 

been an outstanding success. 

Mr. BOUCHER. Thank you very much, Mr. Terry. The gentleman 

from Illinois, Mr. Rush, is recognized for five minutes. 

Mr. RUSH. I want to thank you, Mr. Chairman. This has been an 

excellent hearing. Chairman Genachowski and the other Commissioners, you may be aware of the joint efforts by this subcommittee 

and the subcommittee that I chair to draft a federal privacy legislation. In recent days, much has been made about the plan’s proposal 

to commission future spectrum options for broadband service 

around advertising business models. 

If the FCC imposes conditions on spectrum and the 700 megahertz auctions require free broadband access for people who can’t 

afford it, then one probable way to finance the purchase price 

would be through advertising-based services. The plan offers this 

as a proposed recommendation. However if I am veteran to auction 

and I know when to follow rules of the road with respect to protecting consumer privacy, then I might not be inclined to participate or to bid as much as might otherwise. This especially puts the 

cart before the horse and could open the doors to another set of unsuccessful auctions. With the passage of privacy legislation, what 

impact do you think that this passage will have on your auction designs for the 700 megahertz? 

Mr. GENACHOWSKI. The privacy issue is a very important one is 

a very important one, and it is discussed in the plan. It is one of 

the big looming topics that the plan does say needs to be addressed 

to give consumers and businesses the confidence they need to participate in a broadband future. 

It is not—I think we are glad that there is work proceeding on 

legislation, and I think, if I understand your point, it is that clarity 

around the rules of the road on privacy would have real benefits 

to the business community and individuals as the broadband future 

rolls out. And I would agree with that. 

Mr. RUSH. And on to another matter. As you know, one of my 

observations is that the broadband plan places too much emphasis 

on the demand and the adoption side without giving corresponding 

weight to factors that will stimulate entry by small businesses, including by minority-owned and entrepreneurs. Small businesses 

are a critical part of the equation, and they can help to offset the 

huge number of layoffs that we witness from large carriers. 

And I wanted to ask you, Chairman Genachowski and Mr. 

Copps. Mr. Copps, I know minority ownership has been a real area 

of concern for you over the years, and how do you plan on directing 

this stunningly silent omission in the National Broadband Plan? 

Mr. GENACHOWSKI. If I may, sir, there is complete agreement on 

the importance of small businesses and the challenges and opportunities around broadband. We held three workshops looking at the 

small business issues, and there is a discussion in the plan. I would 

be happy to follow up with you and make sure, but with respect 


smartinez on DSK6TPTVN1PROD with 
98 

to training, information, digital literacy for small businesses, there 

are recommendations in the plan with respect to small business administration and joint activities, extension programs, to make sure 

that small businesses get the information that they need. There are 

several recommendations on that. 

And then with respect to the affordability issue that we heard 

from small businesses, there are recommendations with respect to 

moving forward on competition issues to get more competition to 

help reduce the price. So I hope the plan is not confusing on that, 

but I—there is complete agreement on the importance of small 

businesses in all ways that you said. And I hope that we can follow 

up and make sure that we are being as clear as we should be. 

Mr. COPPS. For my part, I commend the emphasis of the plan on 

small business. Ever since I was assistant secretary of commerce 

in previous administration, Clinton Administration, I have dealt a 

lot with small and medium-sized enterprise. They are the locomotive of the economy. They are the job creators. So getting 

broadband out there that can facilitate their business is an important priority. 

Also is making sure the small business is a participant in the 

building out of this infrastructure and gets its share of activity as 

we build out. 

Mr. RUSH. Yes, I only have—I guess my time is expired. 

Mr. BOUCHER. Thank you very much, Mr. Rush. The gentleman 

from Vermont, Mr. Welch, is recognized for five minutes. 

Mr. WELCH. Thank you very much. I had some of the same concerns that Mr. Blunt had, and I think that you all have addressed 

those questions. But obviously on the issue of this spectrum, we 

can’t afford to ignore the incredible opportunity that it has to connect folks in rural and low-income communities. And I think all of 

us represent some part of our district, most of us anyway, that are 

rural and low income. And that is certainly the case in Vermont. 

You have heard this, and you understand it, but it is important 

for me to say it so that folks back in Vermont appreciate that we 

are on the job here about the absolute necessity of treating this in 

many ways like electricity. So that that opportunity to create jobs 

comes to the rural communities, and I appreciate your concern on 

that. 

I wanted to ask you about this. The Commission obviously recognizes and understands the problems in the wholesale market, particularly with high speed special access connections. In Vermont, 

we have established, with the help of the governor and the legislature, Republican and Democrat, the Vermont Telecommunications 

Authority. And it has identified the high cost of wireless back haul 

as one of the most significant potential barriers to our success in 

Vermont in getting wireless service deployed in rural Vermont. 

So on the one hand, we are committed to the goal. On the other 

hand, we have a practical impediment that really does require 

leadership and guidance from you. And I just want to kind of go 

down the line a little bit about your views on that. Why don’t we 

start at this end with Ms. Atwell Baker, who thank you for coming 

into my office and saying hello. 

Ms. BAKER. Absolutely. It was a great visit. I am glad that we 

had the time. Special access is an important input into services inVerDate Mar 15 2010 04:07 Dec 12, 2012 Jkt 076021 PO 00000 Frm 00104 Fmt 6633 Sfmt 6633 E:\HR\OC\A021.XXX A021

smartinez on DSK6TPTVN1PROD with 
99 

cluding wireless and the back haul is certainly important. It is 

something we are taking a look at. We gathered the data. We are 

in the process of doing that now to look at what parts need to be 

regulated, what parts need to be unregulated. So hopefully we will 

be able to do this expeditiously. 

Mr. WELCH. OK, thank you. Ms. Clyburn. 

Ms. CLYBURN. Yes, sir. As it relates to back haul, I recognize the 

importance of that, and recognize that it will increase competitive 

options and make the cost of deployment lower. So I am looking 

forward to engaging more fully with that and to get rid of the some 

of the bottlenecks that cause. 

Mr. WELCH. Let me just elaborate on this, Mr. McDowell, when 

you do it. You know in Vermont we have been trying to encourage 

some local generation of power, and then local generators have to 

use the wires and poles that were there beforehand in a regulated 

utility. And it is a practical challenge trying to figure out what is 

fair compensation on an asset that has been fully depreciated. And 

to some extent, these back haul charges remind me of that whole 

battle that we went through. 

And there is the property right obviously, the owner on the one 

hand. On the other, there is the acknowledged and urgent necessity 

of not reinventing the wheel in providing access to an infrastructure so that all of the economy can prosper. 

And do you have any thoughts on how to thread that needle? 

Mr. MCDOWELL. Very perceptive question actually. So when we 

talk about lofty and laudable goals in broadband, sometimes it does 

come down to the nitty-gritty of things like pole attachments and 

access to rights-of-way—— 

Mr. WELCH. Well that is what it is about. 

Mr. MCDOWELL [continuing]. And special access absolutely. So 

the plan does tee up those issues. I don’t want to steal the chairman’s thunder, but when or what we might be doing going forward 

on pole attachments. I will let him speak to that and things of that 

nature with special access. For about three years now, I have been 

calling for a cell fight by cell fight, building by building mapping 

with special access. The last time the Commission looked at the 

regulations was 1998. 

I want to commend the chairman for issuing a public notice to 

get into the next stage where we can actually make a very informed decision as to what to do next. 

Mr. WELCH. OK, great. Mr. Copps, thank you. 

Mr. COPPS. Special access, I think it is time to do this. I am 

pleased that the broadband plan tees this up. We can’t take forever 

on this. This has been a problem for a long time. The facts that 

we have leads me to believe that maybe some people are paying a 

lot more for this kind of access than they should be. If that is true, 

I don’t think we should take forever to resolve that. I think we 

need to get to the essential core of data we need and then go ahead 

and act. 

Mr. WELCH. OK, thank you. Mr. Genachowski. 

Mr. GENACHOWSKI. I agree with each of my colleagues. I think 

it is an example of the kind of issue, sort of a blood-and-guts issue 

where government can play a positive role in promoting investment, promoting competition, and it has to roll up its sleeves with 


smartinez on DSK6TPTVN1PROD with 
100 

the data, tackle the rules. And so I think it is an opportunity in 

this issue and others for a very healthy discussion and debate that 

is focused on the barriers in the marketplace. 

Mr. WELCH. OK, thank you. I see my time has expired, Mr. 

Chairman. Thank you, and I thank the Commission. 

Mr. BOUCHER. Thank you very much, Mr. Welch. Chairman Dingell is on his way, and we expect him to arrive momentarily for his 

round of questions. Right on time. Thank you, Chairman Dingell. 

You are recognized for five minutes. 

Mr. DINGELL. There will probably be a lot of yes-or-no questions, 

and I hope that our panel will be kind to me over this matter. Mr. 

Chairman Genachowski, Webster’s Dictionary defines the word voluntary as being ‘‘done, made, brought about, undertaken et cetera 

by one’s own accord or by free choice.’’ Is that the definition that 

would be applied to the word voluntary or voluntarily in the recommendations of the Commission’s broadband plan? 

Mr. GENACHOWSKI. Yes. 

Mr. DINGELL. Now, so I assume that would apply then to the 

questions where they are talking about voluntary channel sharing 

and motivating existing licenses to voluntarily clear the spectrum. 

Am I right? 

Mr. GENACHOWSKI. Yes. 

Mr. DINGELL. Mr. Chairman, the National Broadband Plan 

states if the FCC does not receive authorization to conduct incentive auctions or if the incentive auctions do not yield a significant 

amount of spectrum, the FCC should pursue other mechanisms. 

That is a quote. Now, are these other mechanisms going to be voluntary? Yes or no? 

Mr. GENACHOWSKI. I think that language speaks for itself. 

Mr. DINGELL. I am sorry? 

Mr. GENACHOWSKI. I think that language speaks for itself. The 

other mechanisms would be determined in the future. 

Mr. DINGELL. All right, if these are not voluntary, how would 

they then be accomplished? 

Mr. GENACHOWSKI. Sir, that would be speculation. I am focused 

on a near term win-win that works for broadcasters and that is 

done on a voluntary basis. 

Mr. DINGELL. Well, you understand there is a concern here because everybody wants to know what these is going to constitute. 

Now, would we assume then that these other mechanisms will be 

100 percent voluntary or involuntary or what? 

Mr. GENACHOWSKI. I would be speculating to talk about what 

would happen if we face a spectrum crisis in the country and—— 

Mr. DINGELL. I hope you and the Commission understand that 

this is a point of no small importance. Now, to all of this witnesses, 

and this again is a yes-or-no question. And, ladies and gentlemen, 

I apologize if this is discourteous. Does the Commission possess the 

authority, whether under the Communications Act of 1934, the 

Telecommunications Act of 196 or otherwise, with which to require 

broadband networks to unbundle access? Starting with you, Mr. 

Chairman, please. Yes or no. 

Mr. GENACHOWSKI. Well, that is a good—I would like to be advised by counsel on that. We have been focused on broadband policies and—— 


smartinez on DSK6TPTVN1PROD with 
101 

Mr. DINGELL. I will ask then that you submit that for the record. 

Mr. GENACHOWSKI. I will, sir. 

Mr. DINGELL. Mr. Copps? 

Mr. COPPS. I would say yes. 

Mr. DINGELL. Well—— 

Mr. MCDOWELL. I would say no. 

Mr. DINGELL. Commissioner? 

Ms. CLYBURN. I would say I would submit that later. 

Mr. DINGELL. And the last of our Commissioners? 

Ms. BAKER. No. 

Mr. DINGELL. Now, does the Commission believe unbundling network access will have a chilling effect on further investments to expand broadband infrastructure? Again with apologies, yes or no. 

Mr. GENACHOWSKI. I don’t know that it lends itself to a yes or 

no because unbundling means so many different things to different 

people. 

Mr. DINGELL. Commissioner Copps? 

Mr. COPPS. I think I would give the same answer, and a shorter 

answer would be not necessarily. 

Mr. DINGELL. Commissioner? 

Mr. MCDOWELL. If history is our guide, yes. 

Mr. DINGELL. Commissioner? 

Ms. CLYBURN. I echo Ms. Copps’ answer. 

Mr. DINGELL. Commissioner? 

Ms. BAKER. Chilling, yes. 

Mr. DINGELL. Again to all witnesses, does the Commission eventually intend to require unbundled access to broadband networks? 

Yes or no? 

Mr. GENACHOWSKI. Again I think the plan speaks for itself, and 

the plan does not speak about unbundled network elements. 

Mr. DINGELL. Commissioner Copps? 

Mr. COPPS. I can’t predict what the Commission intends to do. 

Mr. MCDOWELL. I can’t predict what the Commissioner will do 

either. 

Ms. CLYBURN. I am not sure at this time. Thank you. 

Ms. BAKER. I hope not. 

Mr. DINGELL. Now, my time is running out here. Mr. Chairman, 

the National Broadband Plan mentions wireless communication 

services as a source of new spectrum. On February 16, 2010, I sent 

a letter to the Commission highlighting my concern that the opening of the spectrum for mobile broadband services may result in interference with satellite radio signals. Can you unequivocally assure me that this will not be the case? Yes or no? 

Mr. GENACHOWSKI. If the staff in the agency says there is not interference, then there won’t be interference. 

Mr. DINGELL. I didn’t hear the answer, sir. 

Mr. GENACHOWSKI. Sorry. If the engineers at the FCC say there 

won’t be interference, then I believe there won’t be interference. 

Mr. DINGELL. Mr. Chairman, will the Commission provide advanced notice of the WCS rules, publish them, and allow for comment prior to their implementation? Yes or no? 

Mr. GENACHOWSKI. I believe I don’t see any reason why not. That 

is what we always do. 


smartinez on DSK6TPTVN1PROD with 
102 

Mr. DINGELL. Ladies and gentlemen, thank you. My time is up. 

You have been very kind, Mr. Chairman. I reiterate my request for 

sending a letter asking further questions of the Commission and 

ask that it be inserted in the record. 

Mr. BOUCHER. Thank you very much, Chairman Dingell. And the 

record of this hearing will remain open until such time as a letter 

has been sent to you containing questions that various members of 

the committee may decide to ask beyond the context of today’s 

hearing and until we have received your response to that letter. So 

when you receive it, please be as prompt as you can. 

We thank you for your attendance here today and for sharing 

your views with us extensively. We have been here now for about 

three and a half hours, and we have certainly been enlightened by 

the information you have provided, and hopefully you have been 

somewhat enlightened by the views we have expressed as well. 

The gentleman from Florida, Mr. Stearns, is recognized for unanimous consent request. 

Mr. STEARNS. Thank you for your forbearance, Mr. Chairman. I 

ask unanimous consent to enter into the record just for the history 

a letter from 2007 from this committee, a bipartisan letter, to the 

FCC about the D block. Chairman Genachowski, just let me commend the staff for their public safety proposal. The 16 of us from 

both sides of the aisle sent a letter to your predecessor recommending a very similar approach. And I am optimistic that Congress will consider legislation authorizing first responders to use 

auction revenues to build a public safety network. And if possible, 

your public safety and wireless staff could provide input to help us 

draft that, that would be appreciated. Thank you, Mr. Chairman. 

Mr. BOUCHER. Thank you very much, Mr. Stearns, for that rather lengthy unanimous consent request. Without objection. Well, 

thanks to the Commission. This hearing is adjourned. 

[Whereupon, at 1:40 p.m., the Subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 


smartinez on DSK6TPTVN1PROD with 
103 


smartinez on DSK6TPTVN1PROD with Insert offset folio 113 here 76021A.034

ONf fhJNOflW TENT; CO"GI1~£S 

m.~. ~oU~t of l\tptcsentatibeli 

'!Committee on (tEner!!!' llnl:! '!Commem ~M;fJillgton, 1D1!t 205l5-6115 

PENNIE ~J ~1T.;:1j1800NS (.'1'11"-~ (.If STAff 

(J~EG{l A ROfHSCl-II\..O, CiiIE~ COJNSE~ 

The Honorable Kevin J. Martin 

Chairman 

JOHN D, DINGElL, MiCHIGAN 

CHAIRMAN 

June 29, 2007 

Federal Communications Commission 

445 lih Street, S,W, 

\Vashingtoll, D.C. 20554 

JOfM1lTOft,TtMS l'iA"",!.'IOMliM90! 

RAl-~K M ....... tL, nx.o.s j PCNNISIIASTel1T,llI.INOIS 

fReOUPTON, M'CkIGAN 

CLlH&TI:AA'IS,ftOOIPA 

NlllW",< OEAl, GEORGIA 

EOWHlrFlH.O,KI!NTI.IC.';Y 

~~~/S~~~~SN~~()';ING 

! .. ~A1'fG~ WlI.$ON, NfW MrXICO 

JC!lNa.SI'tADrGG AliIZONA 

~HM,~$YI.·Clilr·I'lCKf::AINC·,MISSl5SIf'<'1 

VllC~OSS=tlA.NEWy(l$\J{ 

S'(!'VI'.I.I'-""EfI,rNOlllI>.A 

3EOI'IO( n/oOANC)VICJoI. CAUFOftN'A JOSl;PHR ('11TS,F~IiNSVt\lANlA 

MARYa"NO,CI\I.IFOf!~!A 

GRE0 Wt';Wff't OI\f:.OQ!II 

lH,'!04,Q¥,{.I~aAASI\A 

Ml~<FEIlGIJS;)N,Ni,WJ€RSE'I 

Mlt:~ flOOEAS /llth'GAN 

SU'M"'~1C1(,~OR1HCAf\OtINIl 

JOIm S\ltUI'AN, OKlANOMA 

TIt.\MUI\I"Il'l.1'~IVNsY,\AI'IIA 

I,,",ChAn c ilUFlGH,S,11:Xns 

MAR&H"'IILAClI'!I\)f\N,THlNESSE!: 

Re: Implementing a Nationwide. Broadband, Interoperable Pu~afety Network in 

the 700 MHz Band; Development of Operational, Technical.and Spectrum Regnil'ements 

for Meeting Federal, State and Local Public Safety Communications Reg\!irements 

Through the Year 2010 PS Docket No. 06-229, WT Docket No, 96-86 (Ninth Notice of 

Proposed Rulemaking) 

Dear Chairman Martin: 

We commend you for your consideration of the above-referenced rulemaking. 

We request that this Jetter be placed in the pubJie comment file \\1th respect to that 

proceeding. We believe that it is worth considering whetller public-private partnerships 

can belp First Responders use more efficiently the 24 MHz of spectrum that was cleared 

by the Digital Television Transition and Public Safety Act of2005 and made available 

specifically for that purpose. Proposals like those of FrontHne to jury-rig the 700 MHz 

auction, however, would force public safety officials (0 negotiate with olle winner, of one 

auction, with one pre-detemlined business plan and no track record of success. In the 

end, it would harm both the broader auction and our public safety goals. We urge you to 

rejcct Frontline-type schemes and stick with your proposal in tile Ninth Notice of 

Proposed Rulemaking to allow First Responders to negotiate with all comers outside the 

confines of an auction. 

Public safety officials have expressed concern that Frontline does not adequately 

represent their interests, as evidenced in the recent filings of thc National Public Safety 

Telecommunications Council, the Association of Public Safety Communications 

Officials, and others. Stale and local government representatives oppose the Frontline 

proposal for similar reasons in filings by the National Association of 

Telecommunications Officers and Advisors, the NatioMI Association of Counties, (he 

U.S. Conference of Mayors, and the National League ofCilias. The public safety and 
104 


smartinez on DSK6TPTVN1PROD with Insert offset folio 114 here 76021A.035

Letter to Chaim1an Kevin Martin 

Jlme 29, 2007 

government officials note that little time has b~en available to scmtinize the 11 th-hour 

proposal, which is short on specifics, leaving doubt whether the business plan and 

proposed network will really work. They also worry that the coverage, reliability, 

security, and quality of service will not meet public safety standards; that the network 

will not be available for years; and that First Responders will lack control. 

Public safety officials are so skeptical, in fact, that iliey insist any spectrum setaside for entities such as Frontline be granted on the condition that the licensee meet a 

series of public safety requirements or return ilie spectrum. The statement of 

requirements, however, will no! be drafted until some time in ilie future. The odds of 

crafting precisely the right auction conditions, that create precisely the right model, and 

that result in precisely the right winner, who will then agree to public safety's 

requirements are minimal at best. We are likely to be left either with no bidder, or a 

winner who will neither meet the needs of public safety nor relinquish the license wiiliout 

a fight. Meanwhile, we would have wasted time, spoiled ilie auction, taken valuable 

spectrum out of circulation, and slowed progress toward our public safety goals. The 

history of spectrwn policy has been marred by unfortlmate incidents in which lltigation 

delayed the allocation and use of spectmm. 

Alarmingly, a number of Frontline's proposals do not even have anything to do 

with public safety, Suggestions to impose wholesale and so-called open access 

requirements, for example, are blatant poison pills to discourage competing bids and 

lower the price ofilie spectrum. An outright prohibition on participation by incumbents 

is similarly self-serving. Whether considered as part of the Frontline proposal or as 

stand-alone requirements, these restrictions are inappropriate. Business models should be 

left to the market, not hard-\vired into auctions. Moreover, Congress overwhelmingly 

rejected network neutrality mandates last year in a bipartisan vote of269 to 152 on the 

House floor. The Commission has also just lawlched proceedings which we believe will 

demonstrate that network neutrality and device unbundling mandates are not only 

unnecessary, but harmful. The National Public. Safety Telecommunications Council and 

the Association of Public Safety Communications Officials have also expressed concerns 

iliat requiring open access would jeopardize the public safety network. 

To avoid starting down a path that will be difftcult, if not impossible, from which 

to recover, we suggest that the Commission follow the approach it outlined in the Ninth 

Notice of Proposed Rulemaking. There, ilie Commission proposed assigning half of the 

24 MHz of spectnU11 to a public safety licensee that would have discretion to enter into 

pUblic-private partnerships. This would allow more time to consider additional 

proposals, increase the likelihood that the network actually meets the needs of public 

safety, and give First Responders more control, not to mention more competitive 

alternatives than one license holder. Further, it does so without jeopardizing the 24 MHz 

of public safety spectmm, the 60 MHz of commercial spectnll1, or the auction proceeds 

that will fund the $1 billion interoperable public safety grant progran1 and the $1.5 billion 

converter-box program for digital television. The prospect of subscribers from tens of 

thousands of public safety agencies and the pooling of spectrum will give multiple parties 

incentives to negotiate with First Responders. Proposals could come from winners of this 

2 
105 


smartinez on DSK6TPTVN1PROD with Insert offset folio 115 here 76021A.036

Letter to Chaimlan Kevin Martin 

June 29,2007 

auction as well as holders of other licenses, all of whom may be willing to provide public 

safety access to additional spectrwn and their existing infrastructure in return for access 

(0 public safety's spectrum. 

This approach will also leave more spectrum available to create a greater diversity 

of geographic license sizes and spectrmn blocks. The Commission would then have an 

easier time creating options for a wide variety of providers: national, regional, and local; 

large, medium, and small; incumbent and new entrant; rural and urban. 

It is imperative that the Commission abide by the statutory timetable for the 

auction. Achieving tbe right balance between the commercial and public safety interests, 

however, will take fundamentally more flexibility, coordination, and cooperation than 

can possibly be achieved through a hastily fabricated proposal reverse-engineered into an 

auction. Separating this matter from the auction would also allow us to take a more 

cautious and deliberative approach, not just the 28 days that could be allotted to the 

pleading cycle without jeopardizing the January 28, 2008, statutory deadline for start of 

the auction. Moreover, both the First Responders and the commercial entities may see 

need for adjustments, Such adjustments are manageable when relationships are based on 

contracts and service agreements, which can have shorter durations, modification 

provisions, and tenninatioll clauses. Spectrum licenses, by contrast, crumot be easily 

modified or tenninated. De-linking the debate from the auction would also free bidders 

to make their auction plans, rather than continue to hold them hostage as delays over this 

controversy continue to threaten the time that will remain between release of the rules 

and the auction. 

If Frontline and others believe in their business plans and are genuine in their 

desire to help public safety, (here should be no need to stack the deck. They can still 

pmticipate in the auction, enter into an agreement with First Responders, and voluntarily 

operate their networks lli1der a wholesale and open access model. If they cannot raise 

enough money to win spectrum at a fairly structured auction, this is an indication that 

their proposal will not adequately serve either public safety or consumers, Honest, 

market-based auctions work when free of onerous service conditions. They have fostered 

a vibrant and competitive wireless industry, and prodlJ(;ed tens of billions of dollars in 

Federal revenue. But the rules are critical. If done right, they create a fair playing field. 

If rigged, they sway the auction toward pmiicular pru'ties and particular business models, 

Let us not mistake this proposal for what it is: yet aIlother attempt to get valuable 

spectrum on the cheap. 

Sincerely, 

cc: Commissioner Michael J. Copps 

Commissioner Jonathan S. Adelstein 

Commissioner Deborah Taylor Tate 

Commissioner Robert M, McDowell 

3 
106 


smartinez on DSK6TPTVN1PROD with Insert offset folio 116 here 76021A.037

--------

Mike Rogers 

Fre~~ Subcommittee on Telecommunications & 

the lntemet 
107 


smartinez on DSK6TPTVN1PROD with Insert offset folio 117 here 76021A.038
108 


smartinez on DSK6TPTVN1PROD with Insert offset folio 118 here 76021A.039

also require;; facilities-hased providers !O cOlltribute existing univ{;:rsal st'rvice mcch'lllisms 

based on their current levels reVL'nues for the DSL transmissioll for 

;tiler the eiIective date of the until the Commission 

whichever occurs earlier, If the Commission is ullable to com,HelC 

the 270-day the Commission will take' whatever action n~'Cessal)' to 

funding including extending the nO-day period expanding the eontriblltltll1 

The Order also allows wirdinc the to one!' the transmissioll 

component of the wire line broadband access service 10 at1iliated or unamliated ISPs on 

a common-carrier hasis, non-common carrier hasis. or some combi.nation of bulh, Some rural 

incumbent local exchange carriers, LECs, haye indicated their members chouse to 

broadband Intcm<:( tnlllsmissioll on a COll1ln(lll carrier basis. 

In a Notice of Proposed Ru]<:making. the Commission seeks c()mment on VAihether it 

should develop a frRmework for consumer protcction in the broadband 11 frameworK that 

ensures (hat conSllmer lle,:ds L1rc met by (Ill providers Intemct 

service, regardless underlying Technology, 

the Commission, 

(FCC 05-150), 

lOOS, by Report Ortit'r and Notice 

Commissioner Abernathy_ and 

slalemems issued by 

Viireline COl11pelition Bureau Staff ContlKtl;; Terri Natoli and William Kehoe, 

-FCC-

-+18-1580 

News about the Federal Communications Commission also be found 

on tbe 
109 


smartinez on DSK6TPTVN1PROD with Insert offset folio 119 here 76021A.040

FE:DE:RAL COMMUNICATIONS COMMISSION 

WASHINGTON 

OFF'"!C£ OF 

THE CI-lA:R~A\i 

The Honorable Cliff Stearns 

Ranking :'v1ember 

Subcommittee on Communications, Technology, 

and the Internet 

Committee on Energy and Commerce 

C.S. House of Representatives 

2370 Rayburn House Office Building 

Washington, D.C. 20515 

Dear Congressman Steams: 

March 23, 2010 

Enclosed please find my responses to the questions in your letter of March 12, 2010. 

Please let me know if I can be of further assistance. 

Sincerely, 

~~'ki -

• 

Enclosure 
110 


smartinez on DSK6TPTVN1PROD with Insert offset folio 120 here 76021A.041

Chairman Genachowski's response to Congressman Stearns's Questions 

], ml.\', specifically, was it necessary to delay release of tlie plan to March 1 7from the 

statutorily required deadline ofFebruOlY /7? 

The Commission requested a one-month extension in the interest of advancing a National 

Broadband Plan that reflected the extraordinary importance of the task and that was responsive to 

the unprecedented record developed during the comment and workshop period, The 

Commission's process for the Plan was unparalleled, It was the most open and participatory 

process in the agency's history and included over 50 public workshops and field hearings, 30 

Public Notices, and significant hours devoted at eight separate Commission meetings to provide 

the public with updates on the Plan's development. 

2, If'iwl was done belWeen F ebrua/)) 17 and March I 7? 

The additional time enabled the staff to thoroughly compile and review the extraordinary record 

developed during thlS effort - over 74 thousand pages of comments from 700 parties -- to obtain 

additional input from key stakeholders, and to more fully brief Commissioners on aspects oflhe 

Plan as it came together. 

3, How much money have you spent in preparing the plan? Please provide a total figure as well 

as a breakdown, includingfiguresfor categories such as the total amount paid to existing 

emploreesfor time spent on the plan, the total amount paid to /lew employees for lime spent 011 

the plan, amollnt spent 011 studies and reports, amoullt spent 011 travel, al110ullt spent 011 

workshops, and amounl spent all printing and production, 

The Chart below provides the infonnation you requested, 

FCC's Broadband Plan Ex endilures for FY 2009 & Y 2010' 

'Expenditures as of March 15,2010, which includes FCC appropnations and ARM funds 

1 Includes infrastructure upgrades to host new datasets, and web-based tools and information services. 

, Includes purchase of over 20 third-party datasets 

4 The printing is being performed in-house, above represents pre-production cost estimate 
111 


smartinez on DSK6TPTVN1PROD with Insert offset folio 121 here 76021A.042

4. How mallY staffpeople were hired specificall)l to lVork 0/1 the plan? From Il'here Here the)' 

typically hired? What is the employment classification oflhese staffers? How mallY of them had 

a background in communications law as opposed to a general consulting background? Were 

they hired through the same process other FCC employees l'l'ho do 110t work on the plan are 

tlpically hired? 

The limited ten11 hires the agency brought ill to develop the Plan reflected Congress's broad 

charge to the FCC under the American Recovery and Reinvestment Act, including the 

requirement to assess and develop strategies for use of broadband to address the important 

national purposes Congress requested, such as "advancing consumer welfare, ciVIC participation, 

puhlic safety and homeland security, community development, health care delivery, energy 

independence and efficiency, education, worker training, private sector investment, 

entrepreneurial activity, job creation and economic growth." These limited tenn hires are highly 

qualified and dedicated professionals skilled in a broad array of communications disciplines 

(legal and non-legal), or leaders in fields like education. medicine, and energy who understand 

the stakes involved in creating a comprehensive broadband infrastructure. In all, the FCC hired 

78 limited term staff. Some of these staff were employed for the entire duration of the National 

Broadband Plan; others were employed for only part of that time. These employees typically 

were hired from private sector organizations, including consulting finns, law finns, investment 

firms and operating businesses, as well as non-profit and other organizations. These employees 

serve on non-permanent appointments in various job classifications such as: Economist, Program 

Manager, Program Analyst, Telecommunications Analyst, Attorney and Consultant. Nine of the 

hires had a specific background in communications law; many more had experience in non-legal 

aspects of the communications sector. The Commission was granted Direct Hire Authority 

(DHA) from the Office of Personnel Management in response to the congressionally mandated 

requirements for a National Broadband Plan. Direct Hire Authority is a competitive process that 

allows for a streamlined approach to hiring. In addition to using DHA, the Commission used 

appointing authorities that arc outside the competitive hiring process such as the Recovery Act 

appointing authority, temporary consultant and student appointment authorities, as well as details 

of staff from other federal agencies to quickly ramp up its broadband efforts. 

5. 711e Administration has emphasi:ed its policies to limit the hiring of. or communication with, 

private sector employees in connection with government generally and the Americall Recovery 

and Reinvestment Act il1 particular. 1f71ile Jam 110t convinced that such interactIOn heMeen the 

public and private sectors is problematic. I am concerned if a double standard is being applied. 

How is it consistent Wilh Ihe Admillistrations' overall position on the interaction be/ween the 

private and public sectors the FCC used private sector consultants, on a limited-IeI'm basis, 

many of whom may return to the private sector? 

The unprecedented scope of the requirements set out in the Recovery Act to create this Plan 

within one year challenged the FCC to assemble a team and access expertise in the latest 

technology that is not readily available in the government. The Commission gained crucial 
112 


smartinez on DSK6TPTVN1PROD with Insert offset folio 122 here 76021A.043

insight trom the broad array of skilled professionals and stakeholders hired to assist us in 

creation of the Plan, These professionals included engineers, economists, entrepreneurs, 

scholars, analysts, lawyers, as well as leaders from non·profits, medicine, education, energy, and 

government. All cam.: together as public servants to tackle vitally important issues focused on 

what's right for our country, 

6, H01V did the FCC review potential confliCTS of interest among employees hiredji-om the 

private sector) Does The FCC plan 10 make available in publicly reviewable/arm allY potel1fial 

conflicts so that the American people call be assured that the plan was pUilogerher ill all 

objeclil'e manner? 

As soon as prospective senior members of the Broadband task force were identified, they were 

contacted by an ethics official in the FCC's Office of General Counsel (OGC) and were 

personally vetted, in advance of being hired, to ensure that they had no disqualifying contlicts or 

appearance concerns and that they were aware of the ethics restrictions that would govern their 

activities as Federal employees, Those who were deternlined by OGC to have potentlal conflicts 

or appearance concems that could not be resolved were not hired, 

All individuals who were selected for hire as members of the Broadband team were contacted by 

the FCC's Human Resources Office and provided a [oml on which they were required to indicate 

whether they had financial hOldings or interests of any kind, Those who indicated that they had 

such holdings or interests were referred to OGC, and their holdings or interests were reviewed 

for potential conflicts with their Federal service, In addition, the two individuals who were hired 

as members of the Senior Executive Service, and the one who was hired as a Schedule C 

employee, were required to file Public Financial Disclosure Reports (SP·278), All other 

employees who were hired at or above the GS·13 level were required to complete Confidential 

Financial Disclosure Reports (OGE Form·450), Both forms list the investments held by the 

filing employee, their ~pouse and their dependent children, Any employee who reported any 

personal investments in companies subject to significant regulation by the FCC was required to 

divest such investments. 

Although the FCC is not pennitted to makc available in a publicly reviewable form the contents 

of any employee's Confidential Financial Disclosure Report, the contents of the Public Financial 

Disclosure Reports filed by three senior members of the Broadband team are available upon 

request by members of the pUblic, 

7. How soon will an electronic, searchable copy of the plall be available to help facilitate rev!eh 

of the plan by congressional staff and the public? 

A searchable pdf file was available on the FCC's website as soon as the Commission released the 

Plan on March 16th There will be a Spanish version of the plan produced in April and a Braille 

version soon after. 

8, Please anSlI'Cr yes or 110 to each of the following questions: If the D, C. Circuit rules rhal/he 

FCC lacks jurisdiction under Title I to impose network neufrality regulations, will VOl<, as 
113 


smartinez on DSK6TPTVN1PROD with Insert offset folio 123 here 76021A.044

Chairman, propose that the FCC classify broadband services under Title !I? Might YOll make 

slIch a proposal even if the D, C Circuit does not SO rule and, ifso, why? 

9. What is your personar opinion on whether broadband services should be classified under Title 

If? 

As you know, the Commission is currently litigating the case to which you refer, Comcast Corp. 

v, FCC. No. 08-1291 (D,C, CiL argued Jan, 8,2010), before the D,C. Circuit, The FCC is 

vigorously asserting the position, presented in the Commission's brief in that case, that Congress 

has delegated the agency the authority to address certain broadband issues under Title I and other 

provisions of the Communications Act. When the D,C. Circuit issues its decision in the Comcast 

case, we will review and assess the significance of that decision for matters before the 

Commission, 

On the broader question of the appropriate treatment of broadband under the Communications 

Act, I believe broadband is essential to our country's economic health and global 

competitiveness; to improving the lives of the American people; and to meeting critical national 

challenges like education and public safety. I believe the FCC must pursue policies that promote 

investment, innovation, competition and consumer interests associated with broadband networks 

and services. I am committed to ensuring an approach to broadband that will continue to allow 

the agency to meet the goals Congress has set for it. 
114 


smartinez on DSK6TPTVN1PROD with Insert offset folio 124 here 76021A.045

TIle Honorable Qf Henrv A. Waxman 

Chairman < 

Committee on Energy lind i'~,,~,~.Mr',' 

tLS, House ofRcprescmatives 

2125 Rayburn House omce Building 

Washington. n.c. 20515 

Dear Chairman Waxman: 

July L 2010 

AHnched please 11nd my responses to the additional post,hearing qucst!c)l1S 

aPIPClllra!lCcbel\)re the Committell on March 25. 2010. Please let know I can 

Sincerely. 

GCI11tchowski 
115 


smartinez on DSK6TPTVN1PROD with Insert offset folio 125 here 76021A.046
116 


smartinez on DSK6TPTVN1PROD with Insert offset folio 126 here 76021A.047
117 


smartinez on DSK6TPTVN1PROD with Insert offset folio 127 here 76021A.048
118 


smartinez on DSK6TPTVN1PROD with Insert offset folio 128 here 76021A.049
119 


smartinez on DSK6TPTVN1PROD with Insert offset folio 129 here 76021A.050
120 


smartinez on DSK6TPTVN1PROD with Insert offset folio 130 here 76021A.051
121 


smartinez on DSK6TPTVN1PROD with Insert offset folio 131 here 76021A.052
122 


smartinez on DSK6TPTVN1PROD with Insert offset folio 132 here 76021A.053
123 


smartinez on DSK6TPTVN1PROD with Insert offset folio 133 here 76021A.054
124 


smartinez on DSK6TPTVN1PROD with Insert offset folio 134 here 76021A.055

lJe.J)ru1111el1t of Defense systems 

ina better to do so. It is 

the process for 

to Ii satellite 

"""I:1"""m It:t;lIIl1lqU<;;:; that 
125 


smartinez on DSK6TPTVN1PROD with Insert offset folio 135 here 76021A.056

QUI!~STIONS fOR THil: RISCORI) 

THE HONORi\ .. BLE F'TUm 
126 


smartinez on DSK6TPTVN1PROD with Insert offset folio 136 here 76021A.057
127 


smartinez on DSK6TPTVN1PROD with Insert offset folio 137 here 76021A.058

QUESTIONS FOR THE REcmu> 

nIl': HONORAULE BlJ"F]~ 
128 


smartinez on DSK6TPTVN1PROD with Insert offset folio 138 here 76021A.059
129 


smartinez on DSK6TPTVN1PROD with Insert offset folio 139 here 76021A.060
130 


smartinez on DSK6TPTVN1PROD with Insert offset folio 140 here 76021A.061

16 
131 


smartinez on DSK6TPTVN1PROD with Insert offset folio 141 here 76021A.062
132 


smartinez on DSK6TPTVN1PROD with Insert offset folio 142 here 76021A.063
133 


smartinez on DSK6TPTVN1PROD with Insert offset folio 143 here 76021A.064

QOi':STIONS lU;(:OIW 

THE HONOIHHU:: I\'ma: IU){;ERS 
134 


smartinez on DSK6TPTVN1PROD with Insert offset folio 144 here 76021A.065
135 


smartinez on DSK6TPTVN1PROD with Insert offset folio 145 here 76021A.066
136 


smartinez on DSK6TPTVN1PROD with Insert offset folio 146 here 76021A.067

RESPONSE: The FCC team that prepared the National Broadband Plan did not 

of orotldbufld in other countries. The PltIfl !I-'(:og:mz,es 

that distrihution content over the Internet is an 

problem, but does not recommend methods fol' 

works. 
137 


smartinez on DSK6TPTVN1PROD with Insert offset folio 147 here 76021A.068

The Honorable John D. Dingell 

U.S. House of Representatives 

2328 Rayburn House Office Building 

Washington, D.C. 20515 

Dear Congressman Dingel1: 

Apri121,2010 

Attached please find my responses to the post-hearing questions from my appearance 

before the Subcommittee all Communications, Technology, and the lntemet on March 24, 2010, 

Please let me know if I can be of further assistance. 

Enclosure 
138 


smartinez on DSK6TPTVN1PROD with Insert offset folio 148 here 76021A.069

RESPONSES TO CONGRESSMAN DlNGELL 

1. On page 92, the National Broadband Plan states, "If the FCC does not receive 

authorization to conduct incentive auctions, or if the incentive auctions do not yield a 

significant amount of spectrum, the FCC should pursue other mechanisms." Will these 

"other mechanisms" be completely voluntary, as the plan makes patently clear will be 

the case for spectrum incentive auctions? Please explain your response. 

RESPONSE: 

For the Plan to work, it will not be necessary for most, or even very many licensees to 

participate in a voluntary incentive auction. If a relatively small number of broadcasters in a 

relatively small number of markets share spectrum, the Commission's staff believes we can 

free up a very significant amount of bandwidth. I believe, and the staff at the FCC believes, 

that an incentive auction will work. We do not believe that it will come to the point where it 

will be necessary to examine other mechanisms already permitted by law to achieve our 

goals. 

2. Does the Commission possess the authority, whether under the Communications Act of 

1934, the Telecommunications Act of 1996, or othenvisc, with which to require 

broadband network owners to unbundled access to their networks? Please explain 

your response, including relevant citations of statute if you believe the Commission does 

indeed possess the authority required to unbundle access to broadband networks. 

RESPONSE: 

As an initial matter, I would note that the term "unbundling" can mean different things to 

different people. Under the Communications Act, "unbundled access" describes the duty of 

incumbent local exchange carriers (ILECs) to provide requesting telecommunications 

carriers nondiscriminatory access to network elements. This obligation ofILECs is 

established in 47 U.S.C. § 2SJ(c)(3). Bell Operating Companies have a further duty to 

unbundle under 47 U.S.c. § 271(c)(2)(B). The Commission, however, is able to 

forbear from applying network-unbundling requirements if it finds that certain conditions are 

satisfied. The United States Court of Appeals for the District of Columbia Circuit has 

explained the forbearance process as follows: 

As contemplated by§ 706 [of the Telecommunications Act of 1996, now codified at 47 

U.S.C. § 1302], the FCC has utilized forbearance from certain Title II regulations as one tool 

in its broadband strategy. Forbearance decisions are governed by the Communications Act's 

§ 10, codified as amended at 47 U.S.C. § 160, which provides that any teleconm1unications 

carrier may file a petition with the FCC requesting that the Commission forbear from 

applying any Conununications Act provisions or FCC rules to specific services. Under § 10, 

the FCC must grant forbearance if enforcement is rumecessary to ensure that rates and 

practices are just, reasonable, and not unreasonably discriminatory; enforcement is 

unnecessary to protect consumers; and forbearance is consistent with the public interest, in 

that it "will promote competitive market conditions" and "enhance competition among 

providers of telecommunications services." 
139 


smartinez on DSK6TPTVN1PROD with Insert offset folio 149 here 76021A.070

AD HOC Telecom. Users Committee v. FCC, 572 FJd 903, 907 (D.C. Cir. 2009). 

3. Do you believe unbundling access to broadband networks will have a chilling effect on 

further private investments in broadband infrastructure? Please explain your 

response. 

RESPONSE: 

Fostering investment and innovation in broadband is a fundamental goal; and competition is 

a key strategy to achieve that goal in the National Broadband Plan. The Plan also 

recommends various initiatives to lowering the cost of deployment of broadband 

infrastructure. Another reconunendation of the Plan involves small businesses. The Plan 

recommends that the FCC should review its wholesale competition regulations to develop a 

coherent and effective framework and act based on that framework to ensure widespread 

availability of inputs for broadband services provided to small businesses, mobile providers 

and enterprise customers. An effective analytical framework for the FCC's wholesale access 

competition policies will enable efficient collection of any necessary data, evaluation of 

current rules and detennination of what actions are necessary to achieve the goals for robust 

competition in business and consumer market,. I assure you that I have not prejudged these 

issues. 

The National Broadband Plan, also recommends that the FCC review recent petitions for 

Commission action on competition issues within the context of rigorous analytic frameworks 

that appropriately balance the benefits of competitive entry - such as better broadband 

speeds, increased service quality, more hmovative services and lower prices - with incentives 

for carriers to make network investments. As with our other matters, we will proceed 

through an open and transparent process, basing any decisions on facts and data in the record, 

and carefully weighing the likely impacts of our decisions on our core goals of promoting 

innovation, investment, competition and protecting and empowering consumers. 

4. Does the Commission eventually intend to require unbundled access to broadband 

networks? Please explain your response. 

RESPONSE: 

See question #3 response. 

5. Chapter Five of the National Broadband Plan mentions Wireless Communications 

Services (WCS) band as a source of new spectrum. On February 16,2010, I sent a 

letter to the Commission highlighting my concern that opening this spectrum for mobile 

broadband services may result in interference with satellite radio signals, which reflects 

a 1997 declaration by Commission engineers that this would likely be the case. Please 

indicate unequivocally ("yes" or "no") whether there will be interference with satellite 

radio signals ifWCS spectrum is opened for use by mobile broadband devices. 

Further, please describe what specific actions the Commission will take to ensure there 

2 
140 


smartinez on DSK6TPTVN1PROD with Insert offset folio 150 here 76021A.071

is no interference, including the safeguards the Commission will require to stop any 

interference that may arise. 

RESPONSE: 

No. With the adoption of appropriate technical standards, the risk of interference to Satellite 

Digital Audio Radio Service (SDARS) from Wireless Communications Service (WCS) 

mobile operations is negligible. 

The standards that were adopted in 1997 were extremely conservative, to the point that they 

effectively precluded the use of 30 megahertz of spectrum that could otherwise be used to 

provide mobile broadband services to the American public. Such inefficient used of our 

spectrum resources imposes enormous costs on our economy and consumers. 

Today's wireless technology is considerably more advanced than what was available in 1997. 

Wireless networks today are designed to dynan1ically control the frequencies and power 

levels that are used by individual devices. Indeed, in July oflast year, the WCS Coalition 

conducted a demonstration of its currently available WiMax teclmology in Ashburn, V A, 

with Sirius XM, Commission staff and other interested members of the public present. The 

WCS Coalition operated actual WiMax equipment under several use scenarios while in the 

vicinity of OEM and aftermarket SOARS receivers installed in vehicles. With the exception 

of one anomaly, the Commission staff present observed no instances where the SDARS 

rcceivers experienced interference. 

The Commission has not yet adopted final rules. However, our engineers believe that we can 

and will adopt standards that are effective in preventing harmful interference. We also plan 

to adopt procedures that ",>ill help identify any potential interference before it occurs and 

promptly correct any interference that does occur. The 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. We anticipate that we will receive 

comments proposing further refinements to those proposal and we will make adjustments as 

may be appropriate before adopting the final rules so that we may more formally address our 

nation's spectrum challenges while guarding against interference with existing services such 

as SDARS. 

6. Will the Commission provide advance notice of the WCS rules, publish them, and allow 

for public comment prior to their implementation? 

RESPONSE: 

On April 2, 2010, Commission staff issued a public notice inviting comment on specific draft 

rules for the Wireless Communications Service (WCS) and Satellite Digital Audio Radio 

Service (SDARS). A copy of the notice is attached. In addition, on March 2, 20 I 0 

Commission staff met jointly with the WCS Coalition and Sirius-XM and provided 

considerable details on the rules the staff contemplated recommending to the Commission. 

Both parties provided ex parte responses that resulted in some modifications as reflected in 

the rules attached to the Public Notice. This proceeding has been ongoing for many years and 

3 
141 


smartinez on DSK6TPTVN1PROD with Insert offset folio 151 here 76021A.072

there is a voluminous record that includes proposals and counterproposals from all of the 

interested parties. Our goal is to adopt rules in the very near future so that we may more 

formally address our nation's spectrum challenges while guarding against interference with 

existing services such as SDARS. 

7. As you may be aware, I am a long-time supporter of public broadcasting, or what the 

National Broadband Plan refers to as "public media." As such, I appreciate the plan's 

acknowledgement that public media playa vital and unique role in our democracy. On 

page 92, however, the plan calls for "a trust fund for digital public media that is 

endowed by the revenues from a voluntary auction of spectrum licensed to public 

television," which I helieve is something that cannot be done without an act of 

Congress. I would imagine our country's public television stations would be cautious 

about this approach. If no public television station volunteers for this proposed 

auction, will the Commission reallocate spectrum anyway? Please explain your 

response. 

RESPONSE: 

I believe our public broadcasting system plays a vital role in our national media landscape. 

Public TV stations bring diverse, high quality programming and important news and civic 

information to communities around the nation, and have high quality educational children's 

programming on for many hours. Strengthening this system for the future and ensuring its 

longterm health is a key goal I share. 

The Plan's proposal for voluntary spectrum participation to the Mobile Future Auction does 

not distinguish between commercial and non-commercial broadcasters. Like commercial 

stations, public television stations can make a voluntary decision whether to participate or 

not. In major markets where multiple pnblic TV stations co-exist, channel sharing may be a 

compelling option to help defray costs and continue to serve local communities without 

diminishing service. I share your goal of preserving and strengthening public media. 

8. The National Broadband Plan also notes that public media are at a crossroads with 

respect to content delivery. Though there is a plethora of digitally distributed coutcnt, 

our public media system is structured predominantly around broadcast-based 

communications. To implement the National Broadband Plan, will the Commission 

propose amendments to the Public Broadcasting Act? If so, please provide those 

amendments and detailed explanations of them, including why they are necessary. 

RESPONSE: 

No specific amendments to the Public Broadcasting Act are included among the 

recommendations in the National Broadband Plan. The Plan does recommend that Congress 

consider increasing funding to public media for broadband-based distribution and content, 

including the creating of a trust fund for digital public media. 

4 
142 


smartinez on DSK6TPTVN1PROD with Insert offset folio 152 here 76021A.073

9. What is the exact number of recommendations the National Broadband Plan makes to 

the Congress? Please provide a complete list of those recommendations. In addition, 

please provide a complete list of the items in the plan that require congressional action 

or additional authority from the Congress, including an explanation of such action 

and/or additional authority. 

RESPONSE: 

There are 207 recommendations discussed in the National Broadband Plan, including the 4 

reconmlendations in the BTOP Appendix to the Plan -- or 203 recommendations without the 

Appendix. Of those, 51 recommendations are recommendations relating to Congress. 

5 
143 


smartinez on DSK6TPTVN1PROD with Insert offset folio 153 here 76021A.074

I n the Matter of 

Federal Communications Commission 

Before the 

Federal Communications Commission 

Washington, D.C. 20554 

FCC 10-114 

Framework for Broadband Internet Service GN Docket No. 10-127 

NOTICE OF INQUIRY 

Adopted: June 17,2010 Released: June 17,2010 

By the Commission: Chairman Genachowski and Commissioners Copps and Clyburn issuing separate 

statements: Commissioners McDo"veli and Baker dissenting and issuing separate statements. 

Comment Date: July 15,2010 

Reply Comment Date: August 12,2010 

TABLE OF CONTENTS 

Para. 

I. INTRODUCTION ................................................................................................................................. 3 

ll. DISCUSSION .................................................................................................................................... II 

A. Background .................................................................................................................................... II 

1. The Commission's Classification Decisions ........................................................................... 12 

2. The Commission's Established Policy Goals .......................................................................... 22 

3. Legal Developments ................................................................................................................ 25 

B. Approaches to Classification ......................................................................................................... 28 

I. Continued Information Service Classification and Reliance on Ancillary Authority ............. 30 

2. Application of All Title II Provisions ...................................................................................... 52 

3. Telecommunications Service Classification and Forbearance ................................................ 67 

C. Effective Dates ............................................................................................................................. 100 

D. Terrestrial Wireless and Satellite Services ................................................................................... 101 

E. Non-Facilities-Based Internet Service Providers ......................................................................... 106 

F. Internet Backbone Services, Content Delivery Networks, and Other Services ........................... 107 

G. State and Local Regulation of Broadband Internet and Internet Connectivity Services .............. 109 

H. Related Actions .................. .......................... ................................... .. ....................... I I I 

Ill. PROCEDURAL MATTERS ............................................................................................................. 112 

IV. ORDERING CLAUSE ...................................................................................................................... 116 

l. This Notice begins an open. public process to consider the adequacy of the current legal 

framework within which the Commission promotes investment and innovation in, and protects consumers 

oL broadband Internet service.' Until a recent decision of the United States Court of Appeals for the 

I In this Notice we use the term "broadband Internet service" to refer to the bundle of services that facilities-based 

providers sell to end users in the retail market. This bundle allows end users to connect to the Internet, and often 

includes other services such as c-mail and online storage. In prior orders we have referred to this bundle as 

"broadband Internet access service." We use the term "wired," as in "wired broadband Internet service." to 

distinguish platforms such as digital subscriber line (DSI.). fiber. cable modem. and broadband over power lines 

(continued ... ) 
144 


smartinez on DSK6TPTVN1PROD with Insert offset folio 154 here 76021A.075

Federal Communications Commission FCC 10-114 

District of Columbia Circuit,' there was a settled approach to facilities-based broadband Intell1et service, 

which combined minimal regulation with meaningful Commission oversight. The COl1lcast opinion, 

however, held that the Commission went too far when it relied on its "ancillary authority" to enjoin a 

cahle operator from secretly degrading its customers' lawful Intell1et traffic, Comcasl appears to 

undennine prior understandings about the Commission's ability under the current framework to provide 

consumers basic protections when they use today's broadband Internet services. Moreover, the current 

legal classification of broadband Intcll1et service is based on a record that was gathered a decade ago. 

Congress, meanwhile, has reaffirmed the Commission's vital role with respect to broadband, and the 

Commission has developed a National Broadband Plan recommending specific agency actions to 

encourage deployment and adoption.' 

2. These developments lead us to seek comment on our legal framework for broadband 

Internet service. In addition to seeking original suggestions from commenters, we ask questions about 

three specific approaches. First addressing the wired service offered by telephone and cable companies 

and other providers, we seek comment on whether our "infonnation service" classification of broadband 

Internet service remains adequate to support effective performance of the Commission's responsibilities. 

We then ask for comment on the legal and practical consequences of classifying Intell1et connectivity 

service as a "telecommunications service" to which all the requirements of Title II of the 

Communications Act would apply. Finally, we identify and invite comment on a third way under which 

the Commission would: (i) reaffirm that Intell1et infonnation services should remain generally 

unregulated; (ii) identifY the Internet connectivity service that is offered as part of wired broadband 

Internet service (and only this connectivity service) as a telecommunications service; and (iii) forbear 

under section 10 of the Communications Act" from applying all provisions of Title Il other than the small 

number that are needed to implement the fundamental universal service, competition and small business 

opportunity, and consumer protection policies that have received broad support. We seek comment on 

the same issues as they relate to terrestrial wireless and satellite broadband Internet services, as well as on 

other factual and legal issues specific to these wireless services that bear on their appropriate 

(".continued from previous page) 

(BPL). from platforms that rely on wireless connections to provide Internet connectivity and other services in the 

last mile. We refer to the service that may constitute a telecommunications service as "Internet conncctivity 

service" or "broadband Internet connectivity service." As discussed below~ Internet connectivity service allows 

users to communicate with others who have Internet connections. send and receive content. and run applications 

online. For administrative simplicity we incorporate the same distinction between broadband and narrowband that 

the Commission applied in the classification orders we revisit here. That is, services with over 200 kbps capability 

in at least one direction will be considered "broadband" for the particular purposes of these Notices. See. e.g" 

Appropriate r',-amell'ork/or Broadband Access 10 the 111lerl1et O .... e,. Wireline Facilities el aI., CC Docket Nos. 02-

33,01-337,95-20,98-10, WC Docket Nos. 04-242, 05-271, Report and Order and Notice of Proposed Rulemaking, 

20 FCC Red 14853, 14860 n.15 (2005) (fI"ireline Broadband Report and Order and Broadband Consumer 

Protection Sotiee), altd sub nom. lime Warner Telecom. Inc. )'. FCC, 507 F.3d 205 (3d Cif. 2007). 

2 Comeast COIp. \'. FCC 600 f3d 642 (D.C Cif. 2010) (Comeas/). 

3 See American Recovery and Reinvestment Act of2009 § 6001, 47 U.S.C § 1305(k)(2)(A), (D) (2010). The Plan 

contains dozens of recommendations to fulfill the congressional aims articulated in the Recovery Act, including 

specific proposals to increase access and affordability; maximize utilization of broadband Internet services; and 

enhance public safety, consumer welfare and education throughoutthe United States. Roughly half of the Plan's 

recommendations are directed to the Commission itself. Federal Communications Commission, FCC Sends 

.\"ational Broadband Plan to Congress (March 16, 2010), http://hraunfoss.fcc.gov/edocs_pubIic!attachmatchIDOC296880A l.pdf. 

'47 U.s.C § 160. 

2 
145 


smartinez on DSK6TPTVN1PROD with Insert offset folio 155 here 76021A.076

Federal Communications Commission FCC 10-114 

classification. We fllliher seek comment on discrete issues. including the states' proper role with respect 

to broadband Internet service. 

I. INTRODUCTION 

3. This Commission exists "[f]or the purpose of regulating interstate and foreign commerce 

in communication by wire and radio so as to make available, so far as possible. to all people of the United 

States ... a rapid. emcient. Nation-wide, and world-wide wire and radio communication service with 

adequate facilities at reasonable charges. 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 communications:" During more 

than 75 years of technological progress-from the time of tube radios and telephone switchboards to the 

modern era of converged digital services-the Commission has promoted innovation and investment in 

new communications services and protected and empowered the businesses and consumers who depend 

on them. 

4. We have held to our pro-competition and pro-consumer mission in the Internet Age. 

Indeed, for at least the last decade the Commission has taken a consistent approach to Internet servicesone that industry has endorsed and Congress and the United States Supreme Court have approved. This 

approach consists of three elements: 

i. The Commission generally does not regulate Internet content and applications; 

ii. Access to an Internet service provider via a dial-up connection is subject to the 

regulatory rules for telephone service; and 

iii. For the broadband Internet services that most consumers now use to reach the 

Internet. the Commission has refrained from regulation when possible. but has 

the authority to step in when necessary to protect consumers and fair 

competition. 

5. The first element of our consistent approach. preserving the Internet's capacity to enable 

a free and open 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:'" 

6. The second clement. oversight of dial-up access to the Internet under the common 

carriage framework of Title II of the Communications Act, is a facet of traditional telephone regulation 7 

Although Internet users increasingly depend on broadband communications connections for Internet 

access. approximately 5.6 million American households still use a dial-up telephone connection. 8 

7. The third element of the framework. restrained oversight of broadband Internet service, 

was expressed clearly on September 23,2005. for example, when the Commission released two 

companion decisions. The tirst "establishe[d] a minimal regulatory environment for wireline broadband 

Internet access scrviees."q It reclassified telephone companies' broadband Internet service offerings as 

5 47 U .S.c. § 15l. 

6 47 U.S.c. § 230(a)(4). Section 230 also supports the third element of the historical framework. 

7 See Preserring the Open Internet: Broadband InduslIY Practices, G0i Docket No. 09-191, WC Docket No. 07-52. 

Notice o[Proposed Rulemaking. 24 FCC Red 13064. 13101. para. 91 n.209 (2009) (Open fnlernet SPR.lf). 

8 Nat'! Telecomms. & Info. Admin. (NTIA). C.S. Dep't o[Commerce. Digital.\ation: 2ist CenllllJ America's 

Progress TOlrard L 'nirersal Broadband internet Access, 4-5 (2010) (Digita/Sation). 

9 Wire/inc Broadband Report and Order. 20 FCC Rcd at 14855. para. 1. 

3 
146 


smartinez on DSK6TPTVN1PROD with Insert offset folio 156 here 76021A.077

Federal Communications Commission FCC 10-114 

indivisible "information services" subject only to potential regulation under Title I of the 

Communications Act and the doctrine of ancillary authority. 10 In that decision, the Commission 

articulated its belief that "the predicates for ancillary jurisdiction are likely satisfied for any consumer 

protection, network reliability, or national security obligation that we may subsequently decide to impose 

on wireline broadband Internet access service providers."" The second decision that day adopted 

principles for an open Internet. again expressing confidence that the Commission had the "jurisdiction 

necessary to ensure that providers of telecommunications for Internet access ... are operated in a neutral 

manner:'" Earlier this year, the Commission unanimously reat1irmed in a Joil1t Statement 011 Broadband 

that "[elvery American should have a meaningful opportunity to benefit from the broadband 

communications era," and that ,.[ w lorking to make sure that America has world-leading high-speed 

broadband networks-both wired and wireless-lies at the very core or the FCC's mission in the 21st 

Century."" Together. these and other agency decisions show the Commission's commitment to 

restrained oversight of broadband Internet service. and its equally strong resolve to ensure universal 

service and protect consumers and fair competition in this area when necessary. 

8. Before the Comcast case, most stakeholders-including major communications service 

providers-shared the Commission's view that the information service classification allowed the 

Commission to exercise jurisdiction over broadband Intemet services when required." But the D.C. 

Circuit concluded that the Commission lacked authority to prohibit practices of a major cable modem 

Internet service provider that involved secret interruption oflawful Internet transmissions, which the 

Commission found were unjustified and discriminatory and denied users the ability to access the Internet 

10 "Ancillary authority" refers to the Commission's discretion under the statuto.}' provisions that establish the 

agency (Title I of the Communications Act) to adopt measures that are "reasonably ancillary to the effective 

perfonnance of the Commission's various responsibilities." enited States 1'. S.r Cable Co, 392 U.S. 157, 178 

(1962). 

II Wirchne Broadband Report and Order, 20 FCC Rcd at 14914, para. 109. 

1~ Appropriate Frameworkfor Broadband Access to the internel Ol'er fVirelinc Facilities el aI., CC Docket Nos. 02~ 

33,01-337,95-20, 98-10, GN Docket No. 00- 185, CS Docket No. 02-52, Policy Statement, 20 FCC Red 14986. 

14988, para. 4 (2005) (Internet Policy Statemel1l). 

Joint Statement on Broadband, FCC 10-42, GN Doeket No. 10-66, paras. 1,3 (reI. Mar. 16,2010) (Joint 

Statemenr on Broadband). 

14 See, e.g., Letter from Jeffry Brueggeman. General A ttomey for SBC, to Marlcne H. Dortch, Secretary, fCC. CC 

Docket Nos. 02-33, 01-337, 95-20, 98-10; CS Docket No. 02-52; GN Docket 1'<0. 00-185, attach. at 22 (filed July 

3 J, 2003) \"By regulating broadband Internet access services under Title I instead of Title II. the Commission v.,riH 

give itself the flexibility to allow market forces, not regulation, to shape broadband offerings, while at the same time 

retaining jurisdiction to intercede at some later point if necessary to protect consumers."); Reply Comments of 

National Association of Broadcasters, CC Docket Nos. 02-33, 95-20, 98-10, at 3 (July 1,2(02) ("[R]egardless ofthe 

regulatory label placed on wireline broadband Internet access services, the Commission has the flexibility to adopt 

the safeguards necessary to guarantee that consumers have access to the offerings of competing service and content 

providers." (citations omitted)); Comments of Verizon, CC Docket Nos. 02-33, 95-20, 98-10, at 42 (May 3,2002) 

("Nor should classification of broadband under Title I lead to any erosion of the consumer protection provisions of 

the Communications Act."); Comments of Cox Communications, GN Docket No. 00-185, at 27 (Dcc. I. 2(00) ("'[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 servkes that might develop in the future."); see also 

Communications. Conslimer '.\' Choice. and Broadband Deplo)'mel1l Ac! of 1006: Hearing on S. 1686 Before the S. 

COllllll. on Commerce, Science. and Tra"'portatiol1, 109th Congo (May 18,2006) (testimony of Steve Largent. 

President and CEO, CTIA - The Wireless Association~. at 3) ("The industry agrees with FCC Chairman Martin that 

the FCC already has the jurisdiction and ability to address any problems in this area .... "). 

4 
147 


smartinez on DSK6TPTVN1PROD with Insert offset folio 157 here 76021A.078

Federal Communications Commission FCC 10-114 

content and applications of their choice." Today, in the wake of the Cameos! decision, the Commission 

faces serious questions about the legal framework that will best enable it to carry ou!, with respect to 

broadband Internet service, the purposes for which Congress established the agency. Meanwhile. 

Congress has highlighted the importance of broadband networks and Internet-based content and services 

for economic growth and developmcnt and has directed the Commission to develop poliCies to address 

concerns about the pace of deployment. adoption, and utilization of broadband Internet services in the 

United States. '6 

9. COl11cost makes unavoidable the question whether the Commission's current lcgal 

approach is adequate to implemcnt Congress's directives. In this Notice, we seek comment on the best 

way for the Commission to fulfill its statutory mission with respect to broadband Internet service in light 

of the legal and factual circumstances that exist today. We do so while standing ready to serve as a 

resource to Congress as it considers additional legislation in this area. 17 

10. We emphasize that the purpose of this proceeding is to ensure that the Commission can 

act within the scope of its delegated authority to implement Congress's directives with regard to the 

broadband communications networks used for Internet access. These networks arc within the 

Commission's subject-matter jurisdiction over communication by wire and radio and historically have 

been supervised by the Commission." We do not suggest regulating Internet applications. much less the 

content of Internet communications. We also will not address in this proceeding other Internet facilities 

or services that currently are lightly regulated or unregulated, such as the Internet backbone, content 

delivery networks (CDNs), over-the-top video services, or voice-over-lnternet-Protocol (VoIP) telephony 

services. Our questions instead are directed toward addressing broadband Internet service in a way that is 

consistent with the Communications Act. reduces uncertainty that may chill investment and innovation if 

allO\\ed to continue. and accomplishes Congress's pro-consumer. pro-competition goals for broadband. 

II. DISCUSSION 

A. Background 

II. The Commission has long sought to ensure that communications networks support a 

robust marketplace for computer services operated over publicly accessible networks, from the early 

database lookup services to today's social networking sites. To provide context for the later discussion of 

the Commission's options for a suitable framework for broadband Internet service, we briefly describe 

this historical backdrop. 

1. The Commission's Classification Decisions 

12. In J 966. the Commission initiated its Computer Inquiries "to ascertain whether the 

services and facilities offered by common caJTiers are compatible with the present and anticipated 

15 Sce Camcas!. 600 F.3d at 651-60. 

16 See jf?fra para. 25. 

17 See Letter from Rep. ilenry A. Waxman, Chairman, House Committee on Energy and Commerce, and Sen. John 

D. Rockefeller, IV. Chairman. Senate Committee on Commerce, Science. and Transportation to Julius 

Genachowski, Chairman, FCC (May 5, 20 I 0) ("[ I jn the near tcrm, we want the agency to use all of its existing 

authority to protect consumers and pursue the broad objectives of the National Broadband Plan. In the long 

term, if there is a need to rewrite the Jaw to provide consumers. the Commission. and industry with a new 

framework for telecommunications policy, we are committed as Committee Chairmen to doing so."). Commenters 

may wish to address how the Commission should proceed on these issues in light of Congressional developments. 

18 See Camcas!, 600 F.3d at 646-47. 
148 


smartinez on DSK6TPTVN1PROD with Insert offset folio 158 here 76021A.079

Federal Communications Commission FCC 10-114 

communications requirements of computer users,,,'4 In Computer I, the Commission required "maximum 

separation" between large carriers that offered data transmission services subject to common carrier 

requirements and their affiliates that sold data processing services, '0 Refining this approach, in CompUler 

II and Computer III the Commission required facilities-based providers of "enhanced services" to 

separate out and offer on a common carrier basis the "basic service" transmission component underlying 

their enhanced services,2I 

\3. In the Telecommunications Act of 1996, Congress built upon the Computer Inquiries by 

codifying the Commission's distinction between "telecommunications services" used to transmit 

information (akin to offerings of "basic services") and "infonnation services" that run over the network 

(akin to "enhanced services"}." In a 1998 report to Congress. the Commission attempted to indicate how 

it might apply the new law in the Internet context. Approximately 98 percent of households with Internet 

connections then used traditional telephone service to "dial-up" their Internet access service provider, 

which was typically a separate entity from their telephone company." In the report to Congress-,widcly 

known as the "Stevens Report," after Senator Ted Stevens-the Commission stated that Internet access 

service as it was then being provided was an "information service,"" The Stevens Report declined to 

19 Regula/my & Policy Problems Presented by the Interdepende!1ce a/Computer & Comm. Serl's .. Docket No. 

16979. Notice of Inquiry. 7 FLe 2d I!. 11-12, para, 2 (1966) (Computer I ,\'otice 0/ Inquiry) (subsequent history 

omitted), 

'0 Regulatmy & Policy Problems Presented by the Interdependence a/Computer & Comm, SenT. Docket )\0, 

16979. Final Decision and Order, 28 Lee 2d 267, 270, para, 12,275, para, 24 (1971) (Computer I Final 

Decision), q(l'd slib nom, GTE Sens, Corp, v, FCC. 474 F,2d 724 (2d CiL 1973). decision on remand, 40 F,ec. 2d 

293 (1972), 

21 Amendment o/Sec/iol1 6-1, 70] of the Comm 'n 's Rules & Regs, Second Computer lnquir.r, Final Decision, 77 

F,C.C. 2d 384, 417-35. paras. 86-132. 461-75, paras, 201-31 (1980) (Computer 1/ Final Decisioll), atl'd sub 11011' 

Computer & Com",c'lIs Illdus, Ass '111', FCC, 693 F,2d 198 (D,C. Cir, 1982); Amendment a/Section 6-1.702 (!j'the 

Comm 'n 's Rules & ReI'S, (Third Computer lnqui!y), CC Docket No, 85-229, Phase I, Report and Order, 104 P,c.c. 

2d 958. para, 4 (1986) (Computer III Phase! Order) (subsequent history omitted), 

" Telecommunications Act of 1996. Pub, L. No, 104-104. § 3(a)(2), 110 Stat. 56,58·60 (1996). codified 0/47 

U,S,C § 153(20) ("The term 'information servicc' means the offering of a capability for generating, acquiring. 

storing, transforming. processing. retrieving, utilizing, or making available information via telecommunications, and 

includes electronic publishing, but does not include any use of any such capability for the management, control, or 

operation ofa telecommunications system or the management ofa telecommunications service:"), § 153(43) ("The 

term "telecommunications' means 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,"), § 153(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."), 

23 See Inquif)' Concerning the Deployment a/Advanced Telecommunications Sen'ices to All Americans in a 

Reasonable and Timely Fashion, and PossiNe Steps 10 Accelerate Such Deployment Pursuant to Sf!ction 706 of the 

Telecommunications Act oj' 1996. CC Docket )\0,98-146, Repon. 14 FCC Red 2398, 2446, para, 91 (1999); lnd, 

Anal. & Tech, Div" Wireline Comp, Bur" Trend, il1 Telephone Serrice. 2-10, chart 2, 10. 16·3. tbl. 16.1 (Aug, 

2008), 

24 Federal-State Joil1l Board on Cni1'ersai Sen'ice, CC Docket No, 96-45. Report to Congress, 13 FCC Rcd 11501, 

11536, para, 73 (1998) (Sterens Report), In a 1997 Repon and Order, the Commission had previously concluded 

that"[w)hen a subscriber obtains a connection to an Internet service provider via voice grade access to the public 

switched network, that connection is a telecommunications service and is distinguishable from the Internet service 

provider's service offering. [I)nformation services are not inherently telecommunications services," FederalState Joint Board on Cnirersal Sen'ice. Report and Order, CC Docket No, 96-45, 12 FCC Rcd 8776. 9180, para, 

789 (1997) (subsequent history and citations omitted), The Commission followcd that precedent. without funher 

analysis, in a Report and Order concerning pole attachment rates, to conclude that a cable operator providing 

(continued" ,) 

6 
149 


smartinez on DSK6TPTVN1PROD with Insert offset folio 159 here 76021A.080

Federal Communications Commission FCC 10-114 

address whether entities that provided Internet connectivity over their own network facilities were 

offering a separate telecommunications component. 25 The courts. rather than the Commission. first 

answered that question. 

14. In 2000 the United States Court of Appeals for the Ninth Circuit held that cable modem 

Internet service is a telecommunications service to the extent that the cable operator "provides its 

subscribers Internet transmission over its cable broadband facility" and an information service to the 

extent the operator acts as a "conventional [Internet Service Provider (ISP)]."c" At the time. the 

Commission's Computer Inquiry rules required telephone companies to offer their digital subscriber line 

(DSL) transmission services as telecommunications services. 27 The Ninth Circuit's decision thus put 

cable companies' broadband transmission service on a regulatory par with DSL transmission service. 

15. In 2002. the Commission exercised its authority to interpret the Act and disagreed with 

the Ninth Circuit. Addressing the classification of cable modem service, the Commission observed that 

"[t]he Communications Act does not clearly indicate how cable modem service should be classified or 

regulated."" Based on a factual record that had been compiled largely in 2000. 29 the Commission's 

(. .. continued from previous page) 

Internet service over a facility that also provides cable television service is not a telecommunications carrier. The 

Commission found it unnecessary at that time to make a decision regarding the best classification of such services. 

Implementation afSection 703(e) ({[the Telecommunications ACI qf 1996: Amendment o/the Commission's Rules 

and Policies Coreming Pole Allachments, Report and Order, CS Docket ~o. 97-151. 13 FCC Red 6777, 6794-96, 

paras. 33-34 (1998) (subsequent history omitted). See also .\al'l Cable & Telecomms. Ass'n r. Cul/POlrer Co., 534 

US. 327. 338 (2002) (noting that "the FCC ... has reiterated that it has not yet categorized Internet service"). 

" SIe1·etlS Report, 13 FCC Red at 11530, para. 60 ("[T]he matter is more complicated when it comes to offerings by 

facilities-based providers."). 11535 n.140 ("We express no view in this Report on the applicability of this analysis to 

cable operators providing Internet access service."), 11540, para. 81 ("In essential aspect, Internet access providers 

look like other enhanced-{)r information-service providers. Internet access providers. typically. own no 

telecommunications facilities."); InquilY Concerning High-SpeedAccess to Ihe Imernel Orer Cable & Olher 

Facililies: internet 01'fr Cable Dec/amlm)" Rilling: Appropriale RegulalOlY li't?almentfor Broadband Access to Ihe 

Inrernel O\'er Cable Facifilies. GN Docket "0.00-185, CS Docket "0. 02-52, Declaratory Ruling and Notice of 

Proposed Rulemaking. 17 FCC Red 4798, 4824, para. 41 (2002) (Cable ,Ifodem [)ec/amIOlY Ruling) ("The [Sterens 

Reporl] did not decide the statutory classification issue in those cases where an ISP provides an information service 

over its own transmission facilities."). aif'd sub nom. }I;at"' Cable & Teiecom!1ls. Ass 'n 1'. Brand.r internet Sen's., 

545 U.S. 967 (2005) (Brand.\); Appropriate Framell'orkfor Broadband Access to Inlemel 01'er Wireline Facililies. 

l:nil'ersal Se/Tice Obligalions 0/ Broadband Proriders, CC Docket No. 02·33, :-':otice of Proposed Rulcmaking, 17 

FCC Rcd 3019. 3027-28. paras. 14-16 (2002) ("[In the Slel'e!)S Reporl. t]he Commission recognized ... that its 

analysis focused on ISf's as entities procuring inputs from telecommunications service providers. Thus, classifying 

Internet access as an information service in this context left open significant questions regarding the treatment of 

Internet (and information) service providers that own their own transmission facilities and that engage in data 

transport over those facilities to provide an information service. In addition, the Commission did not explicitly 

address the regulatory classification of wire line broadband Internet access services," (citation omit1ed), 

l6 AT& T Corp. 1'. Cil)' ()/ Pori/and, 216 F.3d 871, 877-79 (9th Cir. 2000); but see Gul/POl!'er Co. 1'. FCC. 208 F.3d 

1263. 1275-78 (11th Cir. 2000) (holding that Internet service is neither a cable service nor a telecommunications 

service), rel"d sub 110111. Sat '/ Cahle & Telecoml11s. Ass '", il1c. 1'. Cui/ POl!'er Co., 534 U.S. 327 (2002); .\-fediaOne 

Croup. inc. 1'. Counly '!fHenrico, 97 F. Supp. 2d 712, 715 (LD, Va. 2000) (concluding that cable modem service is 

a cable service), a(rd on other grounds, 257 FJd 356 (4th Cir. 2001). 

27 Deployment of Wireline Senices Offering Adranced Telecommunicalions Capability, CC Docket ~o. 98-147, 

Memorandum Opinion and Order and Notice of Proposed Rulemaking, 13 FCC Red 24012, 24030-31, paras. 36-37 

(1998); see general(r Wireline Broadband Reporl Gnd Order, 20 FCC Rcd at 14867-75, paras. 23-40. 

28 Cable .Hodem Dec/aralOJY Ruling, 17 FCC Rcd at 4819, para. 32. 

7 
150 


smartinez on DSK6TPTVN1PROD with Insert offset folio 160 here 76021A.081

Federal Communications Commission FCC 10-114 

CaMe Modem Declarulorl' Ruling described cable modem service as "typically includ[ing] many and 

sometimes all of the functions made available through dial-up Internet acccss service, including content 

e-mail accounts, access to news groups. the ability to create a personal web page, and the ability to 

retrieve information from the Internet, including access to the World Wide Web."'" The Commission 

noted that cable modem providers often consolidated these functions "so that subscribers usually do not 

need to contract separately with another Internet access provider to obtain discrete services or 

applications. such as an e-mail account or connectivity to the Intemet including access to the World Wide 

Web:'" 

16. The Commission identified a portion of the cable modem service it called "Intcrnet 

connectivity:' which it described as establishing a physical connection to the Internet and interconnecting 

with the Internet backbone, and sometimes including protocol conversion, Internet Protocol (lP) address 

number assignment, domain name resolution through a domain name system (DNS). network security. 

caching, network monitoring, capacity engineering and management. fault management, and 

troubleshooting." The Ruling also noted that "[n]etwork monitoring, capacity engineering and 

management, fault management. and troubleshooting are Intemet access service functions that are 

generally perfonned at an ISP or cable operator's Network Operations Center (NOC) or back office and 

serve to provide a steady and accurate flow of infonnation between the cable system to which the 

subscriber is connected and the Internet."" The Commission distinguished these functions from "Internet 

applications [also] provided through cable modem services." including "e-mail. access to online 

newsgroups, and creating or obtaining and aggregating content:' "home pages," and "the ability to create 

a personal web page. ,,34 

17. The Commission found that cable modem service was "an offering ... which combines 

the transmission of data with computer processing. information provision. and computer interactivity, 

enabling end users to run a variety of applications,"" The Commission further concluded that, "as it 

[was] currently offered,,,'6 cable modem service as a whole met the statutory definition of"information 

service" because its components were best viewed as a "single, integrated service 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 thus concluded that 

cable modem service "does not include an offering of telecommunications service to subscribers:'" 

( ... continued from previous page) 

'9 Inquil}' Concerning High-Speed Access to Ihe Inlernel Orer Cable and Other Facilities, GN Docket '\0,00-185, 

Notice of Inquiry, 15 FCC Red 19287 (2000). 

,0 Cable .I[odem Dec/aralOly Ruling. 17 FCC Red at 4804, para. 10 (footnotes omitted). 

3J Id at 4806, para. II (footnotes omitted I. The Commission defined cable modem service as "a service that uses 

cable system facilities to provide residential subscribers with high-speed Internet access, as well as many 

applications or functions that can be used with high-speed Internet access:' Id at 4818-19. para. 3 J. 

"Id. at 4809-11. paras. 16-17 (citations omitted). 

" fd. at 4810-11, para. 17 ( citations omitted). 

34 Id at 4811, para. 18 (citation omitted). 

35 Id at 4822. para. 38. 

36 Id. at 4802, para, 7, 

" fd. at 4823, paras. 38-39. 

38 lei at 4832, para. 39. 

8 
151 


smartinez on DSK6TPTVN1PROD with Insert offset folio 161 here 76021A.082

Federal Communications Commission FCC 10-114 

18. When the United States Supreme Court considered the CaMe Modem Declarator" Ruling 

in the Brand X case. ,9 all parties agreed that cable modem service either is or includes an infonnation 

service. 40 The Court therefore focused. in pertinent part, on whether the Commission permissibly 

interpreted the Communications Act in concluding that cable modem service providers offer only an 

information service. rather than a separate telecommunications service and information service." The 

Court's opinion reaffirms 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 "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 ... involves difficult policy choices that agencies 

are better equipped to make than courts."" FUlthennore, "[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."" 

19. Tuming specifically to the Communications Act, Justice Thomas wrote: "[T]he statute 

fails unambiguously to c1assi!)' 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."" "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."" 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:·46 

20. 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."'" Justice Scalia reasoned that "the telecommunications component of cablemodem service retains such ample independent identity that it must be regarded as being on offerespecially when seen li'om the perspective of the consumer or end user."'" 

21. After the Supreme Court affirmed the Commission's authority to classify cable modem 

service. the Commission eliminated the resulting regulatory asymmetry between cable companies and 

other broadband Intemet service providers by issuing follow-on orders that extended the information 

service classification to broadband Internet services offered over DSL and other wircline facilities,'" 

power lines. 5o and wireless facilities. 51 The Commission nevertheless allowed these providers. at their 

19 See Brand X. 545 U.S. 967. 

40 See id. at 987 . 

.+! See id. at 986-87. 

42 1d at 980 (discussing Chevron ( .sA .. Inc. 1'. Sawral Res. D~f Council. Inc., 467 U.S. 837 (1984)). 

'3 !d. at 981 (quoting (,heJ'ron). 

HId. at 991. 

45 1d. at 1002-03 (internal citation and quotation marks omitted). 

'''Id at 1003 (Breyer. J., concurring). 

n Id. at 1005 (Scalia. L dissenting). 

'" Id. at 1008. 

49 Wire line Broadband Report and Order. 20 FCC Rcd at 14863-65. paras. 14-17. 14909-12. paras. 103-06. 

50 C'nited POll'<!/' Line Couneil's Petitionfor Declaratmy Ruling Regarding the Classification of Broadband OJ'e/' 

(continued ... ) 

9 
152 


smartinez on DSK6TPTVN1PROD with Insert offset folio 162 here 76021A.083

Federal Communications Commission FCC 10-114 

own discretion, to offcr the broadband transmission component of their Intemet service as a separate 

telecommunications service." Exercising that flexibility, providers-including more than 840 incumbent 

local telephone companies"-currently offer broadband transmission as a telecommunications service 

expressly separate from their Internet information service. 54 

2. The Commission's Established Policy Goals 

22. In the 1996 Act. Congress made clear its desire that the Commission promote the 

widespread availability of affordable Internet connectivity services. directing the Commission to adopt 

universal service mechanisms to ensure that "[a]ecess to advanced telecommunications and information 

services ... [is] provided in all regions of the Nation."" Congress also instructed the Commission to 

"encourage the deployment on a reasonable and timely basis of advanced telecommunications capability 

to all Americans:· 56 The Commission's classification decisions in the Cable Modem Declaratory Ruling 

and the later follow-on orders were intended to support the policy goal of encouraging widespread 

deployment of broadband. 57 The Commission's hypothesis was that classifying all of broadband Internet 

( ... continued from previous page) 

Power Line Interne! Access Serl'ice as an !t~fol'mation SefTice. we Docket No. 06-10. :-v1cmorandu11l Opinion and 

Order. 21 FCC Red 13281. 13281-82. paras. 1-2 (2006) (BPL-Enabled Broadband Order). 

51 Appropriate RegaiaTOIY 7i'earmentfor Broadband Access fa The InTerneT 01'er Wire/ess Xetll'orks. WT Docket 

No. 07-53. Declaratory Ruling. 22 FCC Red 5901. 5909-110, paras. 19-26,5912-14. paras. 29-33 (2007) (Wireless 

Broadband Order). 

52 li'ireline Broadband Report and Order, 20 FCC Red at 14858, para. 5, 14900-03. paras. 89-95, 14909-10. para. 

103: BPL-Enabled Broadband Order, 21 FCC Red at 13289. para. 15; Wireless Broadband Order. 22 FCC Red at 

5913-14. para. 33. In the 2005 order, the Commission also eliminated the Complller Inqllif), requirements for 

wireline broadband Internet service. Jl'ireline Broadband Report and Order, 20 FCC Red at 14875-98. paras. 41-85. 

51 Of those, approximately 800 incumbent local exchange carriers participate in the National Exchange Carrier 

Association. Inc. (j\;ECA) DSL Access Service Tariff. National Exchange Carrier Association. TariffF.C.C. No.5, 

pages 17-80 to 17-87.3. Section 17.6 (NECA DSL Tariff). NECA is a non-profit association that files tariffs on 

behalf of typically smaller rate-of-return carriers so those carriers do not have to file individual tarifTs. See, e.g.. 47 

C.F.R. §§ 69.601.69.603. Through that voluntary tariff. NECA members offer retail end users and wholesale 

Internet service providers a DSL access service that "enables data traffic generated by a customer-provided modem 

to be transported to a DSL Access Service Connection Point using the Telephone Company's local exchange service 

facilities." ~ECA DSL Tariff at page 8-1. Section 8.1.1. 

54 See Comments of Organization for the Promotion and Advancement of Small Te!ecommunications Companies. 

GN Docket '<0. 09-51. at 30-31 (June 8, 2009) (,,[AJII RoR[rate ofreturn]-regulated carriers (which encompasses 

most rurallLECs) offer broadband transmission on a stand-alone Title II common carrier basis. This means that 

they are required to offer that transmission at specified, non-discriminatory rates, terms. and conditions, including to 

non-facilities based Internet service providers (lSPs):' (citation omitted»). 

55 47 USc. § 254(b)(2). 

56 Telecommunications Act of 1996 § 706. codified as amended ar 47 U.S,C, § 1302. 

57 See Cable ;\/odeff1 DeclaratorI' Ruling, 17 FCC Red at 4801. para. 4 ("[C]onsistent with statutory mandates, the 

Commission's primary policy goal is to 'encourage the ubiquitous availability of broadband to all Americans."') 

(citing 47 USC. § ] 57 nl (section 706): Ji'ireline Broadband ReporT and Order. 20 FCC Red at 14855, para. I, 

14865. para. 17, 14894-96, paras. 77-79; BPL-Enabled Broadband Order. 21 FCC Red at 13281-82. para. 2, 13287, 

para. 10: lVireless Broadband Order. n FCC Red at 5902. para. 2. 5911, para. 27. 

10 
153 


smartinez on DSK6TPTVN1PROD with Insert offset folio 163 here 76021A.084

Federal Communications Commission FCC 10-114 

service as an infonnation service, outside the scope of any specific regulatory duty in the Act would help 

achieve Congress's aims." 

23. At the same time, the Commission acted with the express understanding that its 

information service classifications would not impair the agency's ability to protect the public interest For 

example, when the Commission permitted telephone companies to offer broadband Internet service as 

solely an information service, it emphasized that this new classification would not remove the agency's 

"ample" Title I authority to accomplish policy objectives related to consumer protection, network 

reliability, and national security.'9 The Wireline Broadband Report and Order thus was accompanied by 

a Broadband Consumer Protection Notice, in which the Commission sought comment on "a framework 

that ensures that consumer protection needs are met by all providers of broadband Internet access service, 

regardless ofthe underlying technology,,,6() The Commission stressed that its ancillary jurisdiction was 

"ample to accomplish the consumer protection goals we identify,"" The Commission similarly 

referenced the Broadband C(JI)SlIlIIer Protection Notice when it extended the infonnation service 

classification to broadband Internet services offered over power lines" and wireless facilities,6' 

24. On the same day it adopted the Wire line Broadband Report and Order and Broadband 

Consumer Protection Notice, moreover, the Commission unanimously adopted the Internet Policy 

State111el7l. 64 In this Statemel1/, the Commission articulated four principles "ltJo encourage broadband 

deployment and preserve and promote the open and interconnected nature of the public Internet;' and to 

)'foster creation adoption and use of Internet broadband content, applications, services and attachments, 

and to insure consumers benefit from the innovation that comes from competition,,,65 The principles are: 

consumers are entitled to access the lawful Internet content of their choice: 

consumers are entitled to run applications and use services of their choice, subject to the 

needs of law enforcement; 

consumers are entitled to connect their choice of legal devices that do not hann the network; 

and 

consumers are entitled to competition among network providers, application and service 

providers, and content providers, 66 

58 See. e.g.. Cablellodem Dec/aratOJ)' Ruling, 17 FCC Rcd at 4801. para. 4; Ihreline Broadband Report and 

Order, 20 FCC Red at 14856, para. 3 ("We are confident that the regulatory regime we adopt in this Order will 

promote the availability of competitive broadband Internet access services to consumers, via multiple platforms, 

"",hile ensuring adequate incentives are in place to encourage the deployment and innovation of broadband platforms 

consistent with our obligations and mandates under the Act."). 

59 See lI?reline Broadband Report and Order, 20 FCC Red at 149/4, para. 109, 14930, para. 146 

"old at 14929-30, para. 146 (emphasis in original). 

61!d at 14930, para. 146. 

62 See BPL-Enobled BroadhandOrder, 21 FCC Rcd at 13290-91, para. 16. 

63 See Wireless Broadband Order, 22 FCC Rcd at 5925, para. 70. 

M Internet Policy STatement, 20 FCC Red 14986. 

65 Id at 14988, paras. 4-5. 

66 / d. at 14988, para. 4. All principles are subject to reasonable network management. Id at 14988, para. 4 n.15. 

II 
154 


smartinez on DSK6TPTVN1PROD with Insert offset folio 164 here 76021A.085

Federal Communications Commission FCC 10-114 

The Commission expressed confidence that it had the "jurisdiction necessary to ensure that providers of 

telecommunications for Internet access ... are operated in a neutral manner.,,67 

3. Legal Developments 

25. Recent legislative and judicial developments suggest a need to revisit the Commission's 

approach to broadband Internet service. Since 2008, Congress has passed three significant pieces of 

legislation that reflect its strong interest in ubiquitous deployment of high speed broadband 

communications networks and bear on the Commission's policy goals for broadband: the 2008 Farm Bill 

directing the Chairman to submit to Congress "a comprehensive rural hroadband strategy." including 

recommendations for the rapid buildout of broadband in rural areas and for how federal resources can 

"best ... overcome obstacles that impede broadband deploymenC;68 the Broadband Data Improvement 

Act, to improve data collection and "promote the deployment of affordable broadband services to all parts 

of the Nation";"9 and the Recovery Act. which, among other things, appropriated up to $7.2 billion to 

evaluate, develop, and expand access to and use of broadband services,70 and required the Commission to 

develop the National Broadband Plan to ensure that every American has "access to broadband capability 

and ... establish benchmarks for meeting that goal."" In the Recovery Act, Congress fU!1her directed the 

Commission to produce a "detailed strategy for achieving affordability of such service and maximum 

utilization of broadband infrastructure and service by the public:' and a "plan for [the] use of broadband 

structure and services" to advance national goals such as public safety, consumer welfare. and 

education. n These three pieces of legislation, passed within a span of nine months, make clear that the 

Commission must retain its focus on implementing broadband policies that encourage investment, 

innovation, and eompetition. and promote the interests of consumers. 

26. Even more recently. the D.C. Circuit's rejection of the Commission's attempt to address a 

broadband Internet service provider's unreasonable traffic disruption practices has cast a shadow over the 

Commission's prior understanding of its authority over broadband Internet services. In late 2007, the 

Commission received a complaint alleging that Comcast was blocking peer-to-peer traffic in violation of 

the Internet Policy Slalemel1l. In 2008, the Commission granted the complaint and directed Comcast to 

disclose specific infonnation about its network management practices to the Commission, submit a 

compliance plan detailing how it would transition away from unreasonable network management 

practices, and disclose to the public the network management practices it intends to use going forward. 

Comcast challenged that decision in the D.C. Circuit. arguing (among other things) that the Commission 

67 Id at 14988, para. 4. Twice since, the Commission has sought comment on the need to expand on the Internet 

Policy Statemenl. See Broadband IndllslI}, Praclices, we Docket No. 07-52. Notice of Inquiry. 22 FCC Red 7894 

(2007); Open Intel'llel .\PRH, 24 FCC Rcd 13064. 

68 Food, Conservation. and Energy Act of2008, Pub. L. No. 110-246, § 6112, 122 Stat. 923. 1966 (2008) (2008 

Farm Bill). Acting Chairman Copps transmitted the report to Congress on May 22, 2009. See Rural Broadband 

Report Published illihe FCC Record. GN Docket No. 09-29. Public Notice, 24 FCC Rcd 12791 (2009). 

69 Broadband Data Improvement Act, Pub. L. No. 110-585.122 Stat. 4096 (2008) (codified at 47 U.S.c, § 1301 el 

seq.). 

See American Recovery and Reinvestment Act 0[2009. Pub. L. No. 111-5, 123 Stat. 115 (2009). 

71 47 USc. § 1305(k)(2). 

72 1d § 1305(k)(2)(B), (D). 

7i Formal Complaim of Free Press and Public KnOll'ledge Againsl Comeast CO/poralion/or Secretly Degrading 

Peer-la-Peer Applicalions: Broadband InduslIY Practices el aI., we Docket No. 07-52, Memorandum Opinion and 

Order, 23 FCC Red 13028 (2008) (C0111casl Order), \'Gcaled sub n0111. Com cast. 600 F.3d 642. 

12 
155 


smartinez on DSK6TPTVN1PROD with Insert offset folio 165 here 76021A.086

Federal Communications Commission FCC 10-114 

lacks authority to prohibit a broadband Internet service provider fi'om engaging in discriminatory 

practices that violate the four principles the Commission announced in 20057 .' 

27. On April 6. 2010. the D.C. Circuit granted Comcast's petition for review and vacated the 

Commission's enforcement decision. holding that the Commission had "failed to tie its assertion of 

ancillary authority over Comcasfs Internet service to any 'statutorily mandated responsibility.'"'' Thc 

Commission had argued that ending Comcast's secret practices was ancillary to the statutory objectives 

Congress established for the Commission in sections I and 230(b) of the Act. The court rejected that 

argument on the ground that those sections are merely statements of policy by Congress-as opposed to 

grants of regulatory authority-and thus were not sufticient to support Commission action against 

Comcast. 76 The court also rejected the Commission's position that various other statutory provisions 

supported ancillary authority. As to section 706 of the Telecommunications Act of 1996, the court noted 

that the agency had previously interpreted section 706 as not constituting a grant of authority and held 

that the Commission was bound by that interpretation for purposes of the case. 77 The court also 

rejected the agency's reliance on sections 201, 256,257. and 623 of the Communications Act.'s 

B. Approaches to Classification 

28. In light ofthe legislative and judicial developments described above, we seek comment 

on whether our existing legal framework adequately supports the Commission's previously stated policy 

goals for broadband. First, we ask whether the current information service classification of broadband 

Internet service can still support effective perfonnance of the Commission's core responsibilities. 

Second. we ask for comment on the legal and practical consequences of classifying the Internet 

connectivity component of broadband Internet service as a "telecommunications service" to which the full 

weight of Title II requirements would apply, and whether such a classification would accuratcly reflect 

the current market facts. Finally, we identity and invite comment on a third way, under which the 

Commission would classify the Internet connectivity portion of broadband Internet service as a 

telecommunications service but would simultaneously forbear, using the section 10 authority Congress 

delegated to US,79 from all but a small handful of provisions necessary for effective implementation of 

universal service, competition and small business opportunity, and consumer protection policies. 

29. The Commission has frequently expressed its commitment to protecting consumers and 

promoting innovation, investment. and competition in the broadband context'" We reaffinn that 

commitment here and ask commenters to address--in general terms. as well as in response to the specific 

questions posed below-which of the three alternative regulatory frameworks for broadband Internet 

service (or what other framework) will best position the Commission to advance these fundamental goals. 

We note that because the broadband Internet service classification questions posed in this pmi II.B 

involve an interpretation of the Communications Act the notice and comment procedures we follow here 

74 Sce Brief for Corncast Corp. at 41-54, COlllcast, 600 F.3d 642. 

" COlllcasl, 600 F.3d at 66 J Iquoting 1111. Lihrm)' Ass'/1 ,'. FCC 406 F.3d 689. 692ID.C. Cir. 2005)). 

'6!d at651-58. 

77 Id at 658-60, 

;8 !d at 660-6 L 

79 47U.s.C. § 160. 

80 See. e.g. Cable .\Iodelll DeclaralOl}' Rilling, 17 FCC Red at 480 1-02, paras. 4-6; Wirelinc Broadband Reporl alld 

Order. 20 FCC Rcd at 14855, para. I. 14929-30, para. 146. 

13 
156 


smartinez on DSK6TPTVN1PROD with Insert offset folio 166 here 76021A.087

Federal Communications Commission FCC 10-114 

are not required under the Administrative Procedure Act.81 In order to provide the greatest possible 

opportunity for public comment. however, we are soliciting initial and reply comments via the traditional 

filing mechanisms, as well as input through our recently expanded online participation tools," 

1. Continued Information Service Classification and Reliance on Ancillary 

Authority 

3D, In this part, we seek comment on maintaining the current classification of wired 

broadband Internet service as a unitary information service. Under this approach, we would rely 

primarily on our ancillary authority to implement the Commission's broadband policies. We seek 

comment on whether our ancillary authority continues to provide an adequate legal foundation. 

Throughout the last decade. the Commission has stated its consistent understanding that Title I provided 

the Commission adequate authot'ity to support effective performance of its core responsibilities." 

Commissioners. including the two former Chairmen who urged the infonnation service approach," as 

well as cable and telephone companies and other interested parties,85 individually expressed this 

understanding. In Brand X. the Supreme Court appeared to confinn this widely held view, stating that 

"the Commission remains free to impose special regulatory duties on facilities-based ISPs under its Title I 

ancillary jurisdiction."s6 The Camcas! decision. however. causes us to reexamine our ability to rely on 

Title I as the legal basis for implementing broadband policies. 

31. Some have suggested that although the D.C. Circuit rejected the Commission's theory of 

ancillary authority in Comeasl. the Commission can still accomplish many of its most important 

broadband-related goals without changing its classification of broadband Intemet service as a unitary 

infonnation service. We seek comment on the overall scope of the Commission's authority regarding 

broadband Internet service in the wake of the Comcast decision, Below we identifY and seek comment on 

several palticular concerns. 

81 See 5 U.s.C. § 553(b) (notice and comment requirements "do[] not apply" to "interpretive rules"): 5)'I1cor In(/ 

CO/po 1'. Sha/a/a, 127 F.3d 90, 94 (D.C. Cir. 1997) (change in interpretation of statute does not require notice and 

comment procedures). 

82 See inFa para. 114. 

83 See Cable ,\ladem Declarator" Ruling. 17 FCC Rcd at 4840-42, paras. 73-79; Broadband Consumer Proteelion 

SOlice, 20 FCC Red at 14929-30, para. 146: Inrernel PO/icySlalemel1l, 20 FCC Red at 14987-88, para, 4. 

84 See Cable .\ladem DeclaraIOl:l' Ruling, 17 FCC Rcd at 4867 (Sep. Stmt. ofChmn. Powell) (""The Commission is 

not left powerless to protect the public interest by classifYing cable modem service as an information service. 

Congress invested the Commission with ample authority under Title I."); /I'ire/ine Broadband Reporl and Order, 20 

FCC Rcd at 14977-78 {Stmt. of Comm'r Abernathy) ("When {he Commission tlrst issued its {entative conclusion 

that [wire line broadband Internet] services were outside the scope of Title 11.1 emphasized my commitment to 

preserving any specific regulatory requirements that are necessary for the furtherance of critical policy objectives. 

In June, the Brand X majority made clear that the Commission retains the prerogative to exercise its Title I 'ancillary 

jurisdiction' to do jusl thal."): id. al14981 (Stml. ofComm'r CoPps. concurring) ("[T]he Commission's ancillary 

authority can accommodate our work on homeland security. universal service. disabilities access, competition, and 

Internet discrimination protections-and more."); Hearing on the future of the Internet Before the S. Comm. on 

Commerce, Science and Transpol1alion, I 10th Congo (April 22, 2008) (written stmt. of the Hon. Kevin J. Martin, 

Chairman, FCC, a13) ("As the expert communications agency, it was appropriate for the Commission 10 adopt, and 

it is the Commission's role to enforce, this Internet Policy Statement. In fact, the Supreme Court in its Brand X 

decision specifically recognized the Commission's ancillary authority to impose regulations as necessary to protect 

broadband internet access."). 

85 See supra note 14. 

86 Brand X, 545 U.S. at 996. 

14 
157 


smartinez on DSK6TPTVN1PROD with Insert offset folio 167 here 76021A.088

Federal Communications Commission FCC 10-114 

a. Universal Service 

32. Can the Commission reform its universal service program to support broadband Internet 

service by asserting direct authority under section 254. combined with ancillary authority under Title I? 

AT&T, for example. observes that section 254 provides that "'[alccess to advanced telecommunications 

and i,?!ormation services should be provided in all regions of the nation:' and that the Commission's 

universal service programs "'shall" be based on this and other enumerated principles." AT&T notes that 

the Commission's information service classification for broadband lntemet service creates "tension" with 

"the text of Section 254(c)(I), which states that '[u]niversal service is an evolving level of 

telecommunications services that the Commission shall establish periodically under this section,''''' But, 

AT&T suggests, "[o]ther evidence in the statutory text makes clear that Congress did not intend to disable 

the Commission from using universal service to support information services."" For example, 

"Section 254(b) requires the Commission to use universal service to promote access to 

'advanced telecommunications and inionnation services,''' 

"Section 254(c) ... [refers] to an 'evolvil/g level of telecommunications services that the 

Commission shall establish periodically under this section[.r" and 

Section 2:;4(c)(2) "expressly authoriz[esJ the Joint Board and the Commission to 'modifTy] 

... the definition oflhe services that are supported by Fcderal universal support 

mechanisms.,,·9o The reference to "services" in section 254(c)(2) may suggest that Congress 

intended universal service policies to support information services, even though the definition 

of universal service in section 254( c)( 1) is explicitly limited to "telecommunications 

services,,·91 

AT&T explains that section 254 "contains competing directives." but asserts that "the schizophrenic 

nature of Section 254 is simply another example of the many ways in which the 1996 Act is not a 'model 

of clarity. ,,,92 

00. We seek comment on whether we may interpret section 254 to give the Commission 

authority to provide universal service support for broadband Internet service if that service is classified as 

a unitary infonllation service. Could we provide suppert to inforn1ation service providers consistent with 

section 254(e), which says that "only an eligible telecommunications carrier designated under section 

87 See Letter from Gary L. Phillips, General Attorney & Associate General Counsel, AT&T Services, Inc., to 

Marlene H. Dortch, Secretary. FCC, GN Docket Nos. 09-51, 09-47. 09,137, WC Docket Nos. 05-337, 03-109. 

attachment at 2 (Jan. 29.2010) (AT&T ['SF While Paper) (quoting and citing 47 U.S.c. § 254(b )(2) (emphasis 

added)); Letter from Gary L. Phillips. General Attorney & Associate General Counsel, AT&T Services, Inc .. to 

Marlene H. Dortch, Secretary. FCC, GN Docket Nos. 09-51. 09-137, we Docket Nos. 05-337. 03-109 (April 12, 

2010) (AT&T LSFCol/ICaSI Leller). 

" AT&T [ 'SF While Paper at 2,3 (quoting 47 U.s.c. § 254(c)( 1) (emphasis added». 

'9 1d. 

90 1d. at 3 (quoting 47 U.S.c. §§ 254(c)( 11, (el(2) (emphasis added). 

91 1d. (emphasis added to quoted statutory provisions). See also Letter from Brita D. Strandberg, Counsel to Vonage 

Holdings Corp., to Marlene Dortch, Secretary. FCC, GN Docket Nos. 09-47, 09-51, 09-137, at 5 (Jan. 27, 2010) ("It 

would be contrary to the express will of Congress to view section 254(c)(1)'s use of the term 'telecommunications 

service' in this context as somehow overriding the remainder of section 254, limiting the services eligible for 

support to old technologies. prohibiting support for advanced services commonly available to consumers in urban 

areas:'). 

9' AT& T [SF While Paper at 5 (quoting AT& T CO/po 1'. 10l1'{l Crils. Bd., 525 U.S. 366, 397 (1999). 

15 
158 


smartinez on DSK6TPTVN1PROD with Insert offset folio 168 here 76021A.089

federal Communications Commission fCC 10-114 

214(e) shall be eligible to receive specilic Federal universal service supporC·91 and ~ 14(e). which sets 

forth the framework lor designating "telecommunications carrier[sJ ... eligible to receive universal 

service supporC?91 

34. AT&T posits that even after the Comcasl decision. the Commission could bolster its 

reliance on section 254 by also relying on several other provisions of the Act. 95 First. the "necessary and 

proper clause" in section 4(i) of the Act allows the Commission to "perform any and all acts. make such 

rules and regulations. and such orders. not inconsistent with this chapter. as may be necessary in the 

execution of its functions. Second. the Act makes clear that the Commission's "core statutory 

mission" is to "make available. so far as possible. to all the people of the United States ... a rapid. 

efficient. Nation-wide and world-wide wire and radio communication service with adequate facilities at 

reasonable charges:'''' Third. the text of254. as described above. suggests that Congress intended the 

Commission to suppol1universal broadband Internet service."8 Finally. the policy directive in section 

706 of the 1996 Act instructs the Commission to encourage the deployment on a reasonable and timely 

basis of advanced telecommunications capability to all Americans. 99 AT&T contends that section 706's 

directive supports the view that section 254 provides authority for supporting broadband Internet services 

with monies from the Universal Service Fund. lOG We seek comment on AT&T's analysis. 

35. The National Cable and Telecommunications Association (NCTA) has put forward a 

similar legal theory rooted in section 254(h)(2) oCthe Communications Act. 101 That section gives the 

Commission authority ··to enhance ... access to advanced telecommunications and information services 

for all public and non-profit elementary and secondary school classrooms. health care providers. and 

libraries."'o, NCT A contends that because .. the use of broadband in the home has become a critical 

component of the American education system ... it is entirely reasonable to read the statutory directive to 

support Internet access for classrooms to include support for residential broadband service to households 

where it is reasonably likely that such service would be used for educational purposes."IO; Could the 

Commission interpret section 254(h)(2) to permit this type of support for broadband Intcl11et service? 15 

47 U.S.c. § 254(c). 

9, Id * 214(e). 

'J; .~ T& T C'SF While Paper at 5-13; AT& T CSF Comcasl [eller. 

96 47 U.S.c. § 154(i). 

"7 47 USc. § 151. 

98 AT&T CSF While Paper at 6-7. 

99 47 USc. § 1302. 

100 AT&T LSF Comcast Letter at 2. 

101 See Letter from Kyle J\1cSlarrow. President & CEO, National Cable & Telecommunications Association, to 

Julius Genachowski. Chairman. FCC. G;-'; Docket Nos. 09·51,09-191, we Docket No. 07-52 (March 1.20101 

(SClA CSF Lellerl. 

101 47 USc. § 254(h)(2). 

103 .\C7:1 ['SF Leller at 2. On May 20, 20 I 0, the Commission adopted a Notice of Proposed Rulemaking that 

proposes "10 revise our rules to allow schools with residential areas on their grounds to receive E-rate funding for 

priority one and priority two services inlhose residelllial areas in circumstances where the sludellls do nOI have 

access to comparable schooling or training if they were to reside at home." Schools and Libraries ["nil'ersal .)'ell'ice 

Supporl ,\fechanism; ,i .\oliol1al Broadband Plan/or Our Fulure. CC Docket No. 02-6. GN Docket No. 09,51. 

;-';otice of Proposed Rulemaking. FCC 10-83. para. 57 (reI. ~lay 20. lOIO). 

16 
159 


smartinez on DSK6TPTVN1PROD with Insert offset folio 169 here 76021A.090

Federal Communications Commission FCC 10-114 

this approach a permissible extension of the Commission's existing E-Rate program'? 104 Would this 

approach enable the Commission to provide support for broadband Internet service only to households 

with school-aged children. or could the Commission provide support for adult education as well? 

36. Another legal theory for promoting broadband deployment under the Commission's 

current classification of broadband Internet service rests directly on section 706 of the 1996 Act. Section 

706(a) states that the Commission "shall encourage the deployment on a reasonable and timely basis of 

advanced telecommunications capability to all Americans ... by utilizing, in a manner consistent with the 

public interest, convenience. and necessity, price cap regulation, regulatory forbearance, measures that 

promote competition in the local telecommunications market, or other regulating methods that remove 

barriers to infrastructure investment. .. I"s Section 706(c) defines "advanced telecommunications 

capability"' as "high-speed. switched. broadband telecommunications capability that enables users to 

originate and receive high-quality voice, data. graphics, and video telecommunications using any 

technology:·lo6 The D.C. Circuit rejected section 706(a) as a basis for the Commission's Comcosl order 

because "[i]n an earlier, stilt-binding order ... the Commission ruled that section 706 'does not constitute 

an independent grant ofauthority, .. ,IC>7 and "agencies 'may not ... depart from a prior policy sub 

silenlio.·" 108 We seek comment on whether the Commission should revisit and change its conclusion that 

section 706(a) is not an independent grant of authority. 109 What findings would be necessary to reverse 

that interpretation? lfthe Commission were to find that section 706(a) is an independent grant of 

authority. would that subsection, read in conjunction with sections 4(i) and 254. provide a tim1 basis for 

the Commission to provide universal service support for broadband Internet services? 

37. Some parties have suggested that the Commission could rely on section 706(b) as a 

source of authority to support broadband Internet service with Universal Service Fund money.IIO That 

section provides that: 

[tJhe Commission shalt ... annually ... initiate a notice of inquiry coneeming the 

availability of advanced telecommunications capability to all Americans .... In the 

inquiry, the Commission shall determine whether advanced telecommunications 

capability is being deployed to all Americans in a reasonable and timely fashion. If the 

Commission's determination is negative, it shall take immediate action to accelerate 

104 See SCTA ('SF l.eller attachment at 4 (citing Schools and Libraries 1.11irersal Serriee Supporl.\/eehanislI1. 

Second Report and Order and Further Notice of Proposed Rulemaking, CC Docket No. 02-6. 18 FCC Rcd 9202, 

9207, para. 15 (2003)). 

105 47 U.s.c. § 1302(a). 

IOU 47 U.S.c. § 1302(d). 

107 COnJCa.Yf, 600 F.3d at 658 (quoting Deployment qfIFireline Sen's q[fering A(.il-anced Telecomms, Capabili(.v. 13 

FCC Red 24012. 24047, para. 77 (1998). 

108 Id at 659 (quoting [TC r. Fox Telerision Stations. [nc., 129 S. Ct. 1800, 1811 (2009)). 

10<) Bllt see Reply Comments ofVerizon & Verizon Wireless, GN Docket No. 09-191. WC Docket No. 07-52, at 86 

(April 26. 2010) ("Even apart from [the Commission's] prior conclusion, because 706(a) on its face is mcrely a 

general statement of policy. '. , . the Commission is seeking to use its ancillary authority to pursue a stand-alone 

policy objective. rather than to support its exercise ofa specifically delegated power. .. · (quoting COI11CGsl. 600 F.3d 

at 659)). 

110 See Reply Comments ofVerizon & Verizon Wireless, GN Docket No. 09-191. WC Docket No. 07-52, at 89-90 

(April 26. 2010); Letter from Jonathan E. Nuechtcrlein, Counsel for AT&T. Inc" to ~1arlene Dortch, Secretary, 

FCC. GN Docket Nos. 09-51. 09-191, WC Docket No. 07-52 (April 14,2010). 

17 
160 


smartinez on DSK6TPTVN1PROD with Insert offset folio 170 here 76021A.091

Federal Communications Commission FCC 10-114 

deployment of such capability by removing barriers to infrastructure investment and by 

promoting competition in the telecommunications market. '" 

We seek comment on whether we could interpret section 706(b) as an independent grant of authority. 

Specitically. we ask whether Congress's direction that the Commission take '"immediate action" if it 

makes a negative determination about the state of broadband deployment authorizes the Commission to 

provide universal service support to spur that deployment. Would any such support be contingent on 

continued negative findings in the annual broadband availability inquiry? Under section 706(b), would 

universal service programs have to be tailored to particular geographic areas whcre deployment is 

lagging, or could the Commission implement the program on a national basis" Would the Commission be 

limited to direct support for deployment. or could the Commission interpret section 706(b) also to support 

broadband Internet services to low-income populations. such as is the case with our support for voice 

services in the Lifeline and Link Up programs? 

38. For each of these legal theories, the Commission seeks comment on the administrative 

record that would be needed to successfully defend against a legal challenge to implementation of the 

theory. Would adopting these theories be consistent with the federal Anti-Deficiency Act and 

Miscellaneous Receipts Act?'" What other issues should the Commission consider in evaluating these 

legal theories? Are there other legal frameworks that would allow us to promote universal service in the 

broadband context without revisiting our classification decisions'? 

b. Privacy 

39. The Commission has long supported protecting the privacy of users of broadband Internet 

services. In 2005, the Commission emphasized in the lI"ireline Broadband Report and Orda that 

'"[c)onsumers' privacy needs are no less imp0l1ant when consumers communicate over and use broadband 

Internet access than when they rely on [telephone) services."'" The Commission believed at the time 

that it had jurisdiction to enforce privacy requirements. and "note[d] that long before Congress enacted 

section 222 of the Act:' which requires providers oftelecommunications services to protect confidential 

information. ',he Commission had recognized the need for privacy requirements associated with the 

provision of enhanced services."'" In 2007, the Commission extended the privacy protections of section 

222 to interconnected VolP services without resolving whether interconnected VoIP services are 

telecommunications services or information services.'15 More recently. the National Broadband Plan 

recommended that the Commission work with the Federal Trade Commission (FTC) to protect 

III ~7 u.s.c. § 1302(bl. 

II::! Tile Anti-Deficiency Act prohibits the Commission from making or authorizing an expenditure or obligation that 

exceeds the amount available for it in an appropriation or fund. See 31 U.S.C. § 1341. Congress enacted the 

original Miscellaneous Receipts Act in 1849 to ensure that federal monies arc deposited into the United States 

Treasury, from \vhich 1hey may be removed only pursuant to the congressional appropriation process. See 31 U,S.C, 

§ 3302(b). 

'" Wire/inc Broadband Report and Ord<!l". 20 Fee Rcd at 14930. para. 148. 

114 / d. at 14930. para. 146, 14931. para. 149. 

115 Implementation qflhe Telecommllnh.:alions Act qf 1996- Telecommunications Carriers' ese qfCustomer 

Proprielmy .\"e/lJ"ork Information and Other Customer Informoliol1: IF-Enabled Sen'ices, ee Docket No. 96-115, 

we Docket No. 04-36. Report and Order and Further Notice of Proposed Rulemaking. 22 Fee Rcd 6927, 6954-57. 

paras. 54-59 (2007) (concluding that ePNI obligations are reasonably ancillary to the Commission's statutory 

responsibilities under sections 1,222 and 706). qff"d sllb 110m .\"atl Cable & Telecom. Ass'n 1". FCC. 555 F.3d 996 

(D.C. Cir. 2009). 

18 
161 


smartinez on DSK6TPTVN1PROD with Insert offset folio 171 here 76021A.092

Federal Communications Commission FCC 10-114 

consumers' privacy in the broadband context.'" Indeed, we fully intend that our efforts with regard to 

privacy complement those of the FTC. We seek comment on the best approach for ensuring privacy for 

broadband Internet service L1sers under the Commission's cLlrrent information service classification, and 

any legal obstacles to protecting privacy that may exist if the Commission retains that classification. 

c. Access for Individuals with Disabilities 

40. Section 255 requires telecommunications service providers and equipment manufacturers 

to make their services and equipment accessible to individuals with disabilities. unless not readily 

achievable." 7 Section 25 1 (a)(2) requires telecommunications carriers "not to install network features. 

functions, or capabilities that do not comply with the guidelines and standards established pursuant to 

section 255:"" In the 2005 Wireline Broadband Report and Order. the Commission committed to 

exercise its authority "to ensure achievement of important policy goals of section 255" in the broadband 

context."q In 2007. the Commission exercised its ancillarv authority to extend section 255 to 

interconnected VolP providers. "0 and in 1999 the Commi;sion simi'larly relied on ancillary authority to 

extend disability-related requirements to voicemail and interactive menu services. 12 , More recently. a 

unanimous Commission stated its belief that disabilities should not stand in the way of Americans' 

"opportunity to benefit from the broadband communications era."'" The Commission has also 

"6 FEDERAL CmtMUNICATlOt-:S CO~tMISSION, CONNECTING AMERICA: TilE NATIONAL BROADBAND PLAN at 55-57 

(NATIONAL BROADBANIJ PLAN); see also Comments of Electronic Privacy Information Center. GN Docket No. 09-

51. at 3 (June 8. 2009) ("[T]he Commission should exercise its ancillary jurisdiction to ensure that the national 

broadband plan includes robust privacy safeguards. lest consumers' critical broadband privacy interests go 

unaddressed."). 

11747 U.s.c. § 255. 

118 Id § 251(a)(2). 

,,9 Wire line Broadband Repol't and Order. 20 FCC Red at 1492/. para. In. 

120 IP-Enabled Scr"ic!!s: implementation a/Sections 255 and 251 (a){2) qfthe Communication,; Act ~f 193-1, as 

Enacted by the Telecommunicmions Act C!11996: Access to Telecommunications Serrice, Telecommunications 

Equipment and Customer Premises Equipment h:v Persons 1rilh Disabilities: Teleco1l11l1unicalions 

and Speech-la-Speech Sel'l'icesfi)1' lndil'iduals 1-1 'ith Heal'ing and Speech Disabililics; The ese Cif.\'11 

Olhel' Abbl'el'ialed Dialin?; Al'rangemel11s, WC Docket No. 04-36. WT Docket No. 96-198, CG Docket No. 03-123, 

CC Docket 0:0. 92-105. RepOit and Order. 22 FCC Red I 1275. 11186-89. paras. 21-24 (2007) (concluding that 

disability access regulations for interconnected VolP are reasonably ancillary to the Commission's statutory 

responsibilities under sections I and 255) (subsequent history omitted). The Commission also exercised ancillary 

authority to extend section 2:'5 telecommunications relay service obligations under the Commission's rules to 

providers of interconnected VoIP. See id at 11291, para. 32. 

12' lmpiemenlalion "fSeclians 255 and 251 (a)(2) of the Communicalions Ael of 1931. as Enacted by the 

Telecommu17h:ations Act q( 1996; Access 10 Telecommunications Sen'ice, 7elecommunicmions Eejuipmenr and 

ClISIOIllel' Premises Fqllipmelll h,l' Persons lI'ilh Disabilities. WT Docket No. 96-198, Report and Order and Further 

Notice of Inquiry. 16 FCC Rcd 6417. 646 I. para. 106 (1999) (Section 255 Order) ("Where. as here. we have subject 

matter jurisdiction over the services and equipment involved. and the record demonstrates that implementation of 

the statute will be thwarted absent use of our ancillary jurisdiction, our assertion of jurisdiction is warranted. Our 

authority should be evaluated against the backdrop of an expressed congressional policy favoring accessibility for 

persons with disabilities:) 

m Joint Slaremenl on Broadband at I; see also Comments of Rehabilitation Engineering Research Center on 

Telecommunications Access, GN Docket Nos. 09-47. 09-51, 09-137. at 11 (Oct. 6, 2009) ("In order to ensure that 

individuals who usc hearing aids and cochlear implants arc not left out again. it is critical for the FCC to usc its 

ancillary jurisdiction to carry over the protections now afforded under existing [Hearing Aid Compatibility] laws to 

handsets used with broadband communication technologies."). 

19 
162 


smartinez on DSK6TPTVN1PROD with Insert offset folio 172 here 76021A.093

Federal Communications Commission FCC 10-114 

announced its intent to consider how "[tJo better enable Americans with disabilities to experience the 

benetits ofbroadband."'20 We seek comment on the best legal approaches to extending disability-related 

protections to broadband Internet service users under the Commission's current information service 

classification. Could we exercise ancillary authority to ensure access for people with disabilities? Could 

the Commission rely on the mandate in section 706(a) to "encourage the deployment on a reasonable and 

timely basis of advanced telecommunications capability to all Americans,"'" or the similar directive in 

section 706(b)?'" 

d. Public Safety and Homeland Security 

41. As noted above, Congress created the Commission, in part, .. tor the purpose of the 

national defense, [and] fonhe purpose of promoting safety of life and property through the use of wire 

and radio communications."'26 COl11casl did not address questions of national defense, public safety, 

homeland security, or national security. Are there bases for asserting ancillary authority over broadband 

Internet service providers for purposes of advancing such vital and clearly enumerated Congressional 

purposes'? Could the Commission use its ancillary authority as a legal foundation for protecting cyber 

security and other public safety initiatives, such as 911 emergency and public warning and alerting 

services, with respect to broadband Internet service? Specifically, could the Commission rely on 

provisions in Title I either alone or in combination with provisions in Title II or Title III to support these 

public safety purposes, as well as data reporting and/or network reliability and resiliency standards with 

respect to broadband Internet services? As noted below, Title III contains several provisions that enable 

the Commission to impose on spectrum licensees obligations that are in the public interest. 127 With the 

convergence of the various modes of communications networks, many broadband Internet services 

incorporatc wireline and wireless elemcnts. What would be the effect if the Commission employed its 

Title III authority to achieve public safety goals with respect to wireless elements of such converged 

services? Could the Commission also regulate wireline elements of such services through its Title 1ll and 

Title I authority because of the wireless elements incorporated into these services, or in the interests of 

ensuring regulatory parity and predictability? Could the Commission rely on the mandate in section 

706(a) to "encourage the deployment on a reasonable and timely basis of advanced telecommunications 

capability to all Americans"'OB to ensure the security, reliability and resiliency of wired broadband 

Internet services, or to advance other public safety and homeland security initiatives? 

e, Addressing Harmful Practices by Internet Service Providers 

42, Although thc D.C. Circuit rejected the Icgal theory the Commission relied on to address 

Comeast's interference with its customers' peer-to-peer transmissions, some have suggested that other 

theories of ancillary authority could support Commission action 10 protect against harmful practices of 

this sort For example, one commentator has proposed that the Commission assert ancillary authority 

pursuant to sections 251(a) and 256 of the Act, which address interconnection by telecommunications 

'" Federal Communications Commission, Broadhand AClion Agenda at 3, 4-5 (April 8, 2010), ami/able al 

http://www.broadband.goviplan/national-broadband-plan-action·agenda.pdf. 

'" 47 U.S.c. § 1302(a) (emphasis added). 

125 See id 1302(b). 

'26Jd.§151. 

127 See in/i'o part 11.0. 

128 See 47 U.S.c. § 1302(a). 

20 
163 


smartinez on DSK6TPTVN1PROD with Insert offset folio 173 here 76021A.094

Federal Communications Commission FCC 10-114 

carriers. l29 Although these provisions apply specifically to telecommunications carriers. the proposal 

asserts that they are not explicitly limited to the telecommunications services provided by such carriers. I", 

43. Section 251 (a) requires each carrier "to interconnect directly or indirectly with the 

facilities and equipmcnt of other telecommunications carriers:·"1 Reading section 251 (a) as limited to 

telecommunication services. it has been suggested. "would make [the Commission's] rules promoting 

interconnection irrclevant" as the major carriers move increasingly toward providing services over 

broadband Internet networks. 112 Likewise. "[i1n a world where traditional public telecommunications 

networks and newer Internet-data-transmission networks are pervasively interconnected:' it has been 

asserted. "it makes no sense to preclude the FCC's interoperability efforts [pursuant to section 2561 from 

affecting infonnation services." '" 

44. We seek comment on this reasoning. What factual findings would the Commission have 

to make to support reliance on sections 251 (a) and/or 256 with respect to broadband Internet service? 

Would those facts support exercise of authority sufticient to implement the Commission's broadband 

policies in full, or in part? Under this approach, could the Commission address conduct by broadband 

Internet service providers that are not also telecommunications carriers" Does reliance on sections 251(a) 

and 256 limit Commission authority to protect competition and consumers to only those networks that are 

interconnected with the public telephone network? Ifso. what are the practical implications of this 

limitation? What is the significance of the Comcast decision. which held that "[tJhe Commission's 

attempt to tether its assertion of ancillary authority to section 256" was nawed in that context because 

section 256 states that "[ n ]othing in this section shall be construed as expanding or limiting any authority 

that the Commission" otherwise has under law?l)4 What else should the Commission consider as it 

evaluates the significance of sections 251(a) and 256 in this proceeding? 

45. Section 202(a) of the Communications Act makes it 

unlawful for any common carrier to make any unjust or unreasonable discrimination in 

charges, practices, classifications. regulations. facilities. or services for or in connection 

with like communication service. directly or indirectly. by any means or device. or to 

make or give any undue or unreasonable preference or advantage to any particular 

person. class of persons, or locality. or to subject any particular person. class of persons, 

or locality to any undue or unreasonable prejUdice or disadvantage. 1}5 

It has been suggested that "[i]f network operators are allowed the option of offering broadband Internet 

access services on a completely unregulated basis. that option could enable them to end run Section 

202(a)" as carriers move toward providing services over broadband Internet networks. "and render that 

129 Kevin Werbach, OfTthe Hook, 95 CORNELL L. REV. 535, 571-98 (20 I 0). 

J)O Id 

11147 U.S.C. § 251(a)(I). 

132 \Verbach, supra note 129. at 589. 

133 Werbach, supra note 129. at 591 (citation omitted). See 47 U.S.c. § 256. The 2005 iFireline Broadband Report 

and Order stated that section 256 "affords the Commission adequate authority to continue overseeing broadband 

interconnectivity and reliability issues. regardless of the legal classification of wire line broadband Inteme! access 

service." Wireline Broadband Report and Order. 20 FCC Red at 14919. para. 120. 

13. COll1cast. 600 F.3d at 659; 47 U.S.C. § 256(c). 

lJ5 47 U.S.c. § 202(a). 

21 
164 


smartinez on DSK6TPTVN1PROD with Insert offset folio 174 here 76021A.095

federal Communications Commission fCC 10-114 

provision a dead letter:·,;6 We seek comment on the factual and legal assumptions underlying this 

argument. and whether this reasoning provides the Commission authority to address practices of 

broadband Internet service providers that endanger competition or consumer welfare. 

46. As the Commission argued to the D.C. Circuit in the COll1casi. ease. section 706(a) might 

also provide a basis for prohibiting hannful practices of Internet service providers. As noted above. the 

D.C. Circuit gave no weight to section 706(a) because the Commission had determined in a prior order 

that section 706(a) is not an independent grant of authority. We seek comment on the best reading of 

section 706(a). We also seek comment on whether section 706(b) could provide a legal foundation for 

rules addressing harmful practices by Internet service providers. Ifso. could the Commission adopt such 

rules on a national basis, or would it have to tailor its rules to particular geographic areas?'" Would its 

rules depend on continued negative determinations in the annual broadband availability report? 

47. The Cameos! opinion also rejected arguments that other provisions of Titles 1I,1ll, and 

VI orthe Communications Act supP0l1ed the Commission's action against Com cast because Internetenabled communications services that depend on broadband Internet service·-~such as VolP and Internet 

video services~-may affect the regulated operations of telephony common carriers, broadcastcrs, and 

cable operators. The court did not address the merits of these theories. but rather rejected them because 

they were not sufficiently articulated in the underlying Commission ordeL"8 Could such theories provide 

sufficient support for the Commission to address harmful practices of Internet service providers? What 

type of factual record would be required to support such theories'? If the Commission relied on these 

theories. could it prohibit behavior-such as the cove,1 blocking of online gaming or C-C0111merce 

services, perhaps--~that does not obviously affect scrvices clearly addressed by Titlcs II, III, or VI? Could 

the Commission rely on sections 624 or 629 of the Act to establish broadband policy related to cable 

modem service? 1:'9 

48. We also invite comment on whether the portions of section 214(a) addressing 

discontinuance. reduction. and impairment of service provide a potential basis for an assertion of ancillary 

authority regarding harmful Internet service provider practices. That provision mandates that a common 

136 Reply Comments of Center for Democracy & Technology. GN Docket No. 09·191, WC Docket 1\0.07-52. at 12 

(April 26, 2010). 

IJ7 See Reply Comments of Veri zan & Verizon Wireless. G1\ Docket No. 09·191. WC Docket No. 07·52, at 86 

(April 26. 2010) ("While [706(b)] may well provide authority for universal service support for broadband 

deployment, it does not provide a statutory basis for the sweeping [open Internet] rules proposed here - which are 

not targeted to particular geographic areas or particular customers that lack advanced telecommunications 

capabilities and, far fr0111 accelerating infrastructure deployment would deter infrastructure investment."}. 

118 Comcast, 600 F.3d at 660-61 (citing SEC 1'. ChenelY Corp.. 3 I 8 U.S. 80. 87-88 (1943)). 

139 See. eg.. 47 U.s.c. § 544(c) ("Within one year after October 5,1992, the Commission shall prescribe regulations 

which establish minimum technical standards relating to cable systems' technical operation and signal quality. The 

Commission shall update such standards periodically to reflect improvements in technology."). § 549(a) ("The 

Commission shall, in consultation with appropriate industry standard-setting organizations, adopt regulations to 

assure the commercial availability. to consumers of multichannel video programming and other services offered 

over multichannel video programming systems, of converter boxes, interactive communications equipment. and 

other equipment used by consumers to access multichannel video programming and other services offered over 

multichannel video programming systems, from manufacturers. retailers. and other vendors not affiliated with any 

multichannel video programming distributor."). 

22 
165 


smartinez on DSK6TPTVN1PROD with Insert offset folio 175 here 76021A.096

Federal Communications Commission FCC 10-114 

carrier may not "impair service to a community" without prior Commission approval. 140 Impairment in 

the section 214(a) context. refers to both ··the adequacy" and "quality" of the service provided. '" 

49. Arc there other statutory provisions that could sUpp0l1 the Commission's exercise of 

ancillary authority in this area? Do any statutory provisions preclude such action if the Commission 

retains its information service classification?'" 

50. Other harmful practices by broadband Internet service providers may involve a failure to 

disclose practices to consumers. 1·13 For instance, one problem identified by the Commission in the 

Comcast case was Comcast's failure to identify to cllstomers its practice of degrading peer-to-peer 

traffic. '44 If the Commission maintains its information services framework for broadband Internet 

services, will it havc sufficient authority to address these concerns? 

f. Other Approaches to Oversight 

51. Finally, we ask for public input on whether there are other approaches to fulfilling our 

role for broadband Internet services that would provide meaningful oversight consistent with maintaining 

robust incentives for innovation and investment. For instance, in a number of proceedings commenters 

have suggested that the Commission should pursue policies based on standards set by third p3l1ies and 

enforced by the Commission. In the Open Internet proceeding. Verizon and Google suggest that the 

Commission could create technical advisory groups "comprised of a range of stakeholders with technical 

expertise" to develop best practices. resolve disputes. issue advisory opinions, and coordinate with 

standards-setting bodies. 145 Although Verizon and Google "may not necessarily agree on which federal 

140 47 U.S.c. § 214(a). 

141 See id. ("'[Nlothing in this section shall be construed to require a cel1ificate or other authorization from the 

Commission for any installation, replacement. or other changes in plant. operation. or equipment. other than new 

construction. which will not impair the adequacy or quality of service provided."). 

'" See. e.g, Reply Comments of AT&T. GN Docket No. 09-191, WC Docket No. 07-52, at 141 (April 26. 2010) 

I""[Tlhe more intrusive aspects of the proposed rules would contradict specific provisions of the Communications 

Act no matter what the source of the Commission'sjurisdictional authority .... First. Section 3(44) bars the 

Commission from regulating an entity as a common carrier when it is providing information services, yet the broad 

'nondiscrimination' requirement proposed in the NPRM would do just that:' (citations omitted)); Reply Comments 

ofVerizon & Verizon Wireless. GN Docket No. 09-191. WC Docket No. 07-52. at 82 (April 26. 2010) ("As an 

initial matter, a regulation by definition cannot be ancillary to the Commission's authority if it is inconsistent with 

the Act " Here, the proposed rules would be squarely contrary to the Act to the extent they would impose the 

equivalent of core common carriage obligations (or worse) on information services,"), 

! .. B See ~lichael K. Powell, PreseTTing /merncf Freedom: Guiding Principles/of' the Industry. at 5 (Feb. 8. ::WO·1), 

http://hrallnfoss.fcc.goviedocs Yllblic!attachmatch!DOC-243556A l.pdf ("'F ourth. consumers should receive 

meaningful information regarding their service plans. Simply put. such information is necessary to ensure that the 

market is working. Providers have every right to offer a variety of service tiers with varying bandvvidth and feature 

options. Consumers nced to know about these choices as well as whether and how their service plans protect them 

against spam, spyware and other potential invasions of privacy."); Wire/ine Broadband Report and Order. 20 FCC 

Rcd at 14933, para. 153 ("'We seek comment on whether we should exercise our Title I authority to impose 

requirements on broadband Internet access service providers that are similar to our truth-in-billing requirements or 

are otherwise geared toward reducing slamming. cramming. or other types of telecommunications-related fraud. For 

example, during 2005, the Commission's Consumer and Governmental Affairs Bureau has received complaints 

about the billing practices of broadband Internet access services providers."). 

144 Comcast Order. 23 FCC Rcd at 13028, para. I ("Comcast"s failure to disclose the company's practice to its 

customers has compounded the harm.'"). 13058-59, paras. 52-53. 

'45 Joint Comments of Go ogle & Verizon, GN Docket No. 09-191. WC Docket?\o. 07-52, at 4-7 (Jan. 14.2010). 

23 
166 


smartinez on DSK6TPTVN1PROD with Insert offset folio 176 here 76021A.097

federal Communications Commission fCC 10-)]4 

agency does or should have authority over these matters," they "do recognize as a policy matter that there 

should be some backstop role for federal authorities to prevent harm to competition and consumers if or 

when bad actors emerge anywhere in the Internet space, and ... agree that involvement should occur only 

where necessary on a case-by-case base basis ... '·16 Commenters in other proceedings have suggested 

similar approaches. 147 We ask commenters to address whcther the Commission should pursue a regime in 

which one or more third parties playa major role in setting standards and best practices relative to 

maintaining our policy goals for broadband Internet service. Pursuant to what authority could the 

Commission create a third party advisory group? What authority could the Commission delegate to such 

a third party or third parties? Would it be appropriate for other federal governmental entities, such as the 

FTC, to have a role in such an approach? Would the Commission have sufficient ancillary authority 

under its information service framework to serve as a backstop if the third party is unable to resolve a 

dispute or implement a necessary policy') 

2. Application of All Title II Provisions 

52. Title II of the Communications Act provides the Commission express authority to 

implement. for telecommunications services. rules furthering universal service, privacy. access for 

persons with disabilities, and basic consumer protection. among other federal policies. We seek comment 

on whether the legal and policy developments discussed above and the facts of to day's broadband 

marketplace suggest a need to classify Internet connectivity as a telecommunications service. so as to 

trigger this clear authority. We also ask whether that approach would be consistent with our goals of 

promoting innovation and investment in broadband, or would result in overregulation of a service that has 

undergone rapid and generally beneficial development under our deregulatory approach. 

a. Current facts in the Broadband Marl,etplace 

53. In the Cable j[adem DeclaratorI' Rulillg. the Commission observed that "the cable 

modem service business is still nascent. and the shape of broadband deployment is not yet clear,"'!8 and 

nearly a decade has passed since the Commission examined the facts surrounding broadband Internet 

service in the Cable Modem Declarator}' Ruling. In this part we therefore ask whether or not the facts of 

today's broadband markctplace support a conclusion that providers now offer Internet connectivity as a 

separate telecommunications service.' ,q In addition to the specific questions we ask below, we seek 

comment on what facts are most relevant to this inquiry. The Commission has explained that because the 

Act defines "telecommunications service" as '''the offering of telecommunications for a fee directly 10 the 

H6!d at 6. 

147 See, e.g. Comments ofVerizon & Verizon Wireless, CG Docket No. 09-158, CC Docket No. 98-170, WC 

Docket No. 04-36, at 3-5 (Oct. 13,2009) C"[PJroviders must have the flexibility necessary to tailor their 

communications with consumers in response to changing customer needs. Thus. the appropriate model for meeting 

consumers' needs in today's competitive communications marketplace is to rely upon providers' strong incentives to 

satisfy consumers. supplemented by voluntary industry guidelines to promote the use of 'best practices'. . ."); 

Comments of National Cable & Telecommunications Association. Gl'\ Docket Nos. 09-47. 09-51. 09-137. at 5 (Jan. 

22,2010) ("Since consumer concerns vary and new services and technologies l11ust respond in these unique 

contexts, [the government] should rely on competitive market forces~ existing safeguards and industry selfregulation to protect consumers' privacy interests rather than further regulatory mandates."); Reply Comments of 

AT&T. Inc .. Cei Docket No. 09- 158. CC Docket No. 98- 170, WC Docket No. 04-36. at 24-25 (Oct. 28.2009) ("To 

be sure, some commenters question the value of a voluntary code, on the basis that such codes lack teeth. But 

AT&T has recommended that there be some mechanism to enforce providers' commitment to the proposed 

consumer disclosure and protection framework." (citations omitted)). 

148 Cable .\/adem DeciaratOlY Rilling. 17 FCC Rcd 4843-44. para. 83. 

149 We seek comment separately in part 11.0 on terrestrial wireless and satellite services. 

24 
167 


smartinez on DSK6TPTVN1PROD with Insert offset folio 177 here 76021A.098

Federal Communications Commission FCC 10-114 

public[,j' , ,. whether a telecommunications service is being provided turns on what the entity is 'offering 

... to the public: and customers' understanding of that service."'<o Similarly, in Bml1dX. the majority 

opinion noted that "[iJt is common usage to describe what a company 'offers' to a consumer as what the 

consumer perceives to be the integrated finished product:,,51 The Bmnd X dissent asserted that "[nhe 

relevant question is whether thc individual components in a package being offered stil! possess sufficient 

identity to be described as separate objects of the offer, or whether they have been so changed by their 

combination with the other components that it is no longer reasonable to describe them in that way.",52 

The BrandXmajority opinion and the dissent examined consumers' understanding of the services, 

analogies to other services. and technical characteristics of the services being provided. What factors 

should the Commission consider in order to assess the proper classification of broadband Internet 

connectivity service? 

54. SIal us of Curren I Offerings. Is wired broadband Internet service (or any 

telecommunications component thereof) held out "for a fee directly to the public. or to such classes of 

users as to be effectively available directly to the public," for instance through a tariff such as the NECA 

DSL Access Service Tariff's) or through iacilitics-based Internet service providers' public websites?'54 If 

so, we seck specific examples of such offerings. Ifnot, does the Commission have legal authority to 

compel the offering of a broadband Internet telecommunications service that is not currently offered? If 

legal authority exists, would it be appropriate for the Commission to exercise such authority? Are there 

First Amendment constraints on the Commission's ability to compel the offering of such a service? 

Would sllch a compulsion raise any concerns under the Takings Clause of the Fifth Amendment? 

55. Sen'ices Offered Today. When the Commission gathered the record for its classification 

orders. '5s broadband Internet service was offered with various services-such as e-mail. .newsgroups, and 

the ability to create and maintain a web page-that we described as "Internet applications:,156 The 

Commission understood that subscribers to broadband Internet services "usllally dridJ not need to contract 

ISO Wireline Broadband Reporl and Order. 20 FCC Red at 14910. para. 104 (quoting 47 U.S.c. § 153(46)) (citing 

Brand X, 545 U.S. at 989-90). 

15] BrandY:, 545 U.S. at 970. 

1S1 Jd at 1006-07 (Scalia, J., dissenting). 

153 See supra note 53, 

15' 47 U.S.c. § 153(46). A provider is engaged in common carriage ifit "make[s] capacity available to the public 

indifferently"; it can be compelled to offer a common carriage service if"the public interest requires common carrier 

operation of the proposed facility." Cable & Wireless PIC Memorandum Opinion and Order, 12 FCC Red 8516, 

8522. paras. 14-15 (1997); see also i.S Telecom.lss·" \'. FCC, 295 F.3d 1326, 1329 iO.C. Cir. 2002) ("(C]ommon 

carrier status turns on: (1) \vhether the carrier 'holds himself out to serve indifferently all potential users~; and (2) 

whether the carrier allows 'customers to transmit intelligence of their own design and choosing.'" (citation 

omitted)); j'irgin Islands Tel. Co. 1'. FCC, 198 F.3d 921 iO,C. Cir. 1999); .\'01'1 Ass'n of RegulalOlY LMily COI11/11 'rs 

1'. FCC 533 F.ld 601. 608-09 (D.C. Cir. 1976) ("Y~l?i'C W); Yat'l .·1.\'s·" of RegulalOlY Liilil)' COI/II/I'I'S 1'. FCC 

525 F.ld 630, 642 (D.C. Cif. 1976) (".\ARi C n. Whether a provider has made a common carriage offering "must 

be determined on a case-by-case basis." Bright House XehnJrks, LLC, el 01. l'. Veri:;on Cal{fornia, Inc., el aI., 

Memorandum Opinion and Order, 23 FCC Red 10704, 10717-19, paras. 37-40 (2008) (finding carriers olTered 

common carriage service despite lacking a tarift: website posting, or any other advertisement because providers 

self-certified themselves as common carriers, entered into publicly available interconnection agreements, and 

obtained state certificates of public convenience and necessity), atJ'dslib 110111. I'el';:on Cal .. Inc. r. FtC, 555 F.3d 

270,275-76 (D.C. Cir. 2009). 

155 See supra note 29. 

156 Cable .\Iode/11 Dec/aralOJY Ruling, 17 FCC Rcd at4811, para. 18. 

25 
168 


smartinez on DSK6TPTVN1PROD with Insert offset folio 178 here 76021A.099

Federal Communications Commission FCC 10-114 

separately" for "discrete services or applications" such as e-mail. 157 We seek comment on whether this 

remains the case. To what extent are these and other applications and services sold with wired broadband 

Internet service today'? Are providers offering the same applications and services that they did when the 

Commission began building the record in 2000, or have their offerings changed? Are these applications 

and services always packaged with Internet connectivity, or can consumers choose not to purchase them'? 

What test(s) should the Commission llse to evaluate whether pmticular features are today integrated with 

the underlying Internet connectivity? 

56. COJ1Sumer Use and Perception. Next. we seek comment on how consumers use and 

perceive broadband Internet service. Do customers today perceive that they are receiving one unitary 

service comprising Internet connectivity as well as features and functionalities, or Internet connectivity as 

the main service, with additional features and functionalities simultaneously offered and provided,)J" To 

what extent do consumers continue to rely on the features and applications that are provided as part of 

their broadband Internet service package, and to what extent have they increased their use of applications 

and services offered by third party providers? For instance, some users now rely on free e-mail services 

provided by companies such as Yahoo and Microsoft 159 social networking sites including Facebook and 

MySpace, J60 public message boards like those found in the Google Groups service, 161 web portals like 

Netvibcs, J6, web hosting services like Go Daddy, J63 and blog hosting services like TypePad. J64 How 

does the use of these third party services compare with the use of similar services offered by broadband 

Internet service providers? To what extent do consumers rely on their Internet service provider or other 

providers for security features and spam filtering? To what extent do consumers rely on their Internet 

service provider, as opposed to alternative providers, for content such as news and medical advice? To 

the extent broadband Internet service providers offer applications to conSllmers, do conSllmers view them 

157 Jd at 4806, para. II (footnotes omitted). 

J58 We note that under Commission precedent, services composing a single bundle at the point of sale-for instance, 

local telephone service packaged with voice mail-can retain distinct identities as separate offerings for 

classification purposes. Sec. e.g. Slerens Report, 13 FCC Rcd at 11530, para. 60 ("It is plain, for example, that an 

incumbent local exchange carrier cannot escape Title II regulation of its residential local exchange service simply by 

packaging that service with voice maiL·' (citation omitted)): Regulation of Prepaid Calling Serrices, we Docket 

No. 05-68, Declaratory Ruling and Report and Order, 21 FCC Rcd 7290, 7291, para. 3, 7295 (2006)( finding that 

menus allowing users to access information did not convert the telecommunications service offered by prepaid 

calling cards into an information service), vacated il1 part sub 110m. Qll"est Sen"S. Corp. \ .. FCC, 509 F.3d 531 (D.C. 

Cir. 2007); Independent Dala Commllnicmiol1s .\fam(fac/urers Associatiol1, Inc. Petition/or Declaratory Ruling that 

AT & T"s Interspal1 Frame Relay Sen·ice I< a Basic Sen·ice et ai, DA 95-2190. \lemorandum Opinion and Order, J 0 

FCC Red 13717. 13721. paras. 29-32, 13722-23. paras. 40-46 ( J995) (hame Relay Order) (finding that AT&T's 

InterSpan frame relay service could not avoid Compuler 11 and Computer 111 unbundling and tariffing requirements 

by combining basic and enhanced services). 

150 Yahoo' Inc., Yahoo! Mail, https:!llogin.yahoo.cam!configliogin_veriJY2 (last visited June J 6,2010): Microsoft 

Corp., Windows Live Hotmail, http://maiLlivc.col11(1astvisitedJune 16. 2010). 

16(, Facebook, Inc., Welcome to Facebook. http://www.facebook.com (last visited June 16, 10JO): MySpace.coJ11, 

MySpace, http://www.l11yspace.col11(lastvisitedJune 16.2010). 

J<>I Google Inc., Google Groups, http:'!groups.google.col1l(lastvisitedJune 16,1010). 

J62 Netvibes, Netvibes, http://www.netvibes.col11(lastvisitedJune 16,2010). 

16' GoDaddy.com, Domain Names, Web I lasting and SSL Certificates - Go Daddy, http://www.godaddy.com (last 

visited June 16,20101. 

164 TypePad.com, Free Blogs, Pro Blogs & Business Blogs I TypePad.com, http://www.typepad.com (last visited 

June 16,2010). 

26 
169 


smartinez on DSK6TPTVN1PROD with Insert offset folio 179 here 76021A.100

Federal Communications Commission FCC 10-114 

as an integrated pm1 of the Internet connectivity offering? To what extent do consumers today use .. the 

high-speed wire always in connection with the information-processing capabilities provided by Internet 

access"? 165 

57. .\1arketillg Practices. We also seek comment on how broadband Internet service 

providers market their services. What do broadband Intel11et service providers' marketing practices 

suggest they are offering to the public? What features do broadband Internet service providers highlight 

in their advertisements to consumers? How do the companies describe their services~ What are the 

primary dimensions of competition among broadband Internet service providers? Are cable modem and 

other wired services marketed or understood differently from each other. or in a genera!!y similar way? 

58. Technical alld Functional Characteristics. In addition. to aid our understanding of what 

carriers offer to consumers. we seek to develop a current record on the technical and functional 

characteristics of broadband Intemct service, and whether those characteristics have changed materially in 

the last decade. For example. DNS lookup is now offered to consumers on a standalone basis, 166 and web 

page caching is offered by third party content delivery networks. 107 Web browsers, for example. are often 

installed separately by users. loS We ask eommenters to describe the technical characteristics of 

broadband Internet service. including identifying those functions that are essential for web browsing and 

other basic consumer Intcl11ct activities. What are the necessary components of web browsing? How is 

caching provided to end users, and how have caching services changed over time? How do routing 

functions and DNS directory lookup enable users to access information online'? 

59. In classifying services, the Commission has taken into account the purpose of the feature 

or service at issue. For example, some features and services that meet the literal definition of "enhanced 

service." but do not alter the fundamental character of the associated basic transmission service. are 

"adjunct-to-basic" and are treated as basic (i.e., telecommunications) services even though they go 

beyond mere transmission.j(," Do any of the features and functionalities offered by broadband Internet 

service providers have relevant similarities to or differences from those that resemble an information 

service but are treated differently under Commission precedent? Similarly, which, if any. oftbe "Internet 

165 See Brand X. 545 U.S. at 990 (concluding that .. the transmission component of cable modem service is 

sufficiently integrated with the finished service to make it reasonable to describe the two as a single, integrated 

offering,)' because a '''consumer uses the high~speed \\-,ire always in connection with the information processing 

capabilities provided by Internet access, and because the transmission is a necessary component of Internet access"j. 

166 See. e.g.. Google Inc .. Google Public DNS. http:/'code.google.com/speed!public-dns(lastvisited June 16. 20JO): 

OpenDNS, OpcnDNS > Solutions> Household. http://www.opendns.comisoIutions/household (last visited June 16. 

2010) ('"Join 1he millions who've already unbundled their DNS service from their ISP's Internet connection:-). 

167 See. e.g., Akamai. Facts & Figures. http://www.akamai.com/html/about/facts_figures.html(last visited June 16. 

2010) ("Akamai delivers daily Web traffic greater than a Tier- J ISP. at times reaching more than 2 Terabits per 

second."). 

16' To give one example. the Firefox browser is provided for free by Mozilla. which estimates that it has 100 million 

users in North America. MOlilla, Firefox web browser. http://,,ww.mozilla.comien-US/firefoxifiretOx.html(last 

visited June 16,2010): MozilIa's Ql 2010 ~1etrics RepOJ1 at 3, ami/able at 

https:llwiki.molilIa.org/images/e/ed/Analyst_report_ Q 1_20 I O.pdf: see a/so Google. Inc., Google Chrome, 

http:hvww.google.com/chrome(lastvisited June 16.2010). 

16' See generalll' Computer II Fina/ Decision. 77 F.CC 2d at 421. para. 98; AT& T COlp. Petition/or DeciaratOlY 

Rilling Regarding Enhanced Prepaid Ca/Jing Card Sen·ices. Regulation of Prepaid Calling Card Sen·ices. Order 

and Notice of Proposed Rulemaking. 20 FCC Red 4826. 4831. para. 16 (2005 J (tailing Card Order and .\PR.\f), 

(l1fd sub nOIl1. AT&T,. FCC, 454 F.3d 329 (D.C. Cir. 2006). 

27 
170 


smartinez on DSK6TPTVN1PROD with Insert offset folio 180 here 76021A.101

federal Communications Commission fCC 10-114 

connectivity" functions listed in the Cahle Modem Dec!aratOlY Rulil1g fall within the management 

exceptions to the information services category. and \\'hy0 17" 

60. Some have suggested that the Commission should take account of the different network 

"layers" that compose the Internet. '" Are distinctions between the functional "layers" that compose the 

Intel'11et relevant and useful for classifying broadband Internet service? For example. the Commission 

could distinguish between physical. logical. and content and application layers. and identify some of those 

layers as elements of a telecommunications service and others as clements of an information service. (As 

discussed above, the Commission historically has distinguished between Internet connectivity functions 

and Internet applications. If the Commission adopted this approach, which of the services offered by 

wired broadband Internet service providers should be included in each category? Are the boundaries of 

each layer sufficiently clear that such an approach would be workable in practice? Would such an 

approach have implications for services other than broadband Internet service? 

61. COll1peliliol1. We also seek comment on the level of competition among broadband 

Internet service providers. The Commission adopted the unitary information service classification for 

broadband Internet services in part "to encourage facilities-based competition."m The Commission 

envisioned competition among cable operators. telephone companies. satellite providers. tenestrial 

wireless providers. and broadband-over-powcrline (BPL) providers. 174 Has the market for broadband 

Internet services developed as expected. and. if not. what is the significance for this proceeding of the 

market's actual development? 

62. Are there other relevant facts or circumstances that bear on the Commission'S application 

of the statutory definition of "telecommunications service" to wired broadband Internet service? 

b. Oefining the Telecommunications Service 

63. If the Commission were to classify a service provided as pal1 of the broadband Internet 

service bundle as a telecommunications service. it would be necessary to define what is being so 

classified. Here we ask commenters to propose approaches to defining the telecommunications service 

offered as part of wired broadband Intemet service, assuming that the Commission finds a separate 

telecommunications service is being offered today. or mllst be offered. 

170 47 U.s.c. ~ 153(20) ("The term 'information service' means the offering ofa capability for generating. 

acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via 

telecommunications. and includes electronic pUblishing, bUI does not include a17,1' use of any such capabilif:vfor the 

management. control, or operation of a le!ecommlmicario17s ,lystem 01' fhe management qf a telecommunications 

seJ'l'icl.!." (emphasis added}). 

171 See. e.g. Douglas Sicker & Joshua Mindel, Refinements afa Layered .\fode/for Telecommunications Po/ic)', I J. 

TELECOMM. & HIGH TECH L. 69. 86·88 (2002): Rob Frieden. Adiusting the Ilorioontal and I'erlica/ in 

Telecommunications Regulation: A Comparison a/fhe Tradilional and a Sell' Layered Approach\ 55 FED. COMM, 

L.J. 207 (2003); Scott .Iordan, A Layered .\'el1lurk Approach to Xet .\·elftratity, I INn. J. COMM. 427.443 (2007). 

BUI see John T. "akahata. Broadband Regulation at the Uemise of the 193-1 Act, 12 COMMLAW CONSPECTl'S 169. 

173 (2004) ("[Tlhe difficulty with immediately implememing a layered approach-whatever its merit-is that the 

Communications Act itself is not layered. Instead. as has been discussed, it is comprised of service and technology· 

based silos."). 

172 Cable jlodem Dec/amtol)' Rilling. 17 FCC Rcd at 4809·11. paras. 17-18.4822. para. 38. 

m Cable .\[odelll DeclamtOf}' Ruling. 17 FCC Red at 4840, para. 73; see also II irelil1e Broadband Report and 

Order, 20 FCC Red at 14902, para. 91. 

174 See Wire/ine Broadband Report Gnd Order, 20 FCC Red at 14856, para. 3 & 11.7,14880-81. para. 50. 

28 
171 


smartinez on DSK6TPTVN1PROD with Insert offset folio 181 here 76021A.102

Federal Communications Commission FCC 1O-11~ 

64. We have previously defined '"Internet connectivity"' to include the functions that "enable 

[broadband Internet service subscribers] to transmit data communications to and from the rest of the 

Internet."'" Identifying a telecommunications service at a similarly high level-for instance. as the 

service that provides Internet connectivity·· may be appropriate for this proceeding if a 

telecommunications service is classified. Is this approach or some other mechanism appropriate to give 

the Internet service provider latitude to define its own telecommunications service? For instance. would it 

be desirable for the Commission to identify only bare minimum characteristics of an Internet connectivity 

service? Or is it necessary for the Commission to define the functionality. elements. or endpoints of 

Internet connectivity service? What are the pros and cons of these and other approaches? Would use of 

the term "Internet connectivity servicc" in this context be unduly confusing because the Commission has 

previously defined that term to include the function of "operating or interconnecting with Internet 

backbone facilities" in order to "enable cable modem service subscribers to transmit data communications 

to and from the rest of the Internee? "6 

65. Commentcrs should also identify the pmticular aspects of broadband Internet service that 

do and do not constitute .. 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 infonnation as sent and received."J77 

Does the catalog of Internet connectivity functions provided in the Cable Madem DeciararOl:l' Rilling 

include all the functions an end user would need from its broadband Internet service provider in order to 

use the Internet? 178 Arc there other connectivity functions the Commission should consider? Can the 

Commission draw guidance from other attempts to define the functionality of an Internet connectivity 

service. such as the detlnition in NECA's DSL Access Service Tariff?i79 

c. Consequenccs of Classifying Internet Connectivity as a 

Telecommunications Service 

66. lfwe were to classify Internet connectivity service as a telecommunications service and 

take no further action. that service would be subject to all requirements of Title II that apply to 

telecommunications service or common carrier service. If the Commission chose. it could provide 

support for Internet connectivity services through the Universal Service Fund under section 254. Under 

175 /d at 4809, para. 17. 

176 See id (citations omitted): SEe afw in(i-a paras. 107-108. 

177 47 IJ.S.C. § 153(43). 

178 See Cable .\fodem Decla/'alOI)" Ruling. 17 FCC Rcd at 4809-11. paras. 17-18 ('"Internet connectivity functions 

enable cable modem service subscribers to transmit data communications to and ITom tbe rest oflhe Internet. At tbe 

most basic level. these functions include establishing a physical connection between the cable system and the 

Internet by operating or interconnecting with Internet backbone facilities. In addition. these functions may include 

protocol conversion. IP address number assignment, domain name resolution through a domain name system (D:\S). 

net\\'ork security. and caching. i\:et\vork monitoring. capacity engineering and management fault management. and 

troubleshooting are Internet access service functions tbat arc generally performed at an ISP or cable operator's 

Network Operations Center (NOC) or back office and serve to provide a steady and accurate flow of information 

between the cable system to which the subscriber is connected and the Internet. Complementing the Internet 

access functions are Internet applications provided through cable modem service,"(citations omitted)). 

179 In its tariff. NEC A offers a DSL data telecommunications service to end user and Internet service provider 

customers. The service "enables data traffic generated by a customer-provided modem to be transported to a DSL 

Access Service Connection Point using the Telephone Company's local exchange service facilities." NECA DSL 

Tariff. page 8-1. Section 8.1.1. The Access Service Connection Point is a point designated by the telephone 

company that "aggregates ADSL Access Service andlor wireline broadband Internet transmission service data traffic 

from and to suitably equipped Telepbone Company Serving Wire Centers:' lei. 

29 
172 


smartinez on DSK6TPTVN1PROD with Insert offset folio 182 here 76021A.103

Federal Communications Commission FCC 10-114 

section 222, the Commission could cnsure that consumers of Internet connectivity enjoy protections for 

their private information. Consumers with disabilities would see greater accessibility of broadband 

services and equipment under section 255. And the Commission could protect consumers and fair 

competition through application of sections 201. 202, and 20S. Would application ofal! Title 11 

requirements to the wired broadband Internet connectivity service be consistent with the approach to 

broadband Internet service described in part II.A.2. above? We seek comment on whether these benefits 

to classifying Internet connectivity as a telecommunications service would outweigh the costs of doing so, 

including the application of numerous regulatory provisions that the Commission, in its information 

service classification orders, determined should not apply.'80 Are there any elements of our framework 

that the Commission could not pursue if it adopted a Title 11 classification? Undcr Title 11 classification 

what role. if any, might be played by third party standard setting bodies?'8' 

3. Telecommunications Service Classification and Forbearance 

67. In addition to the traditional information service and telecommunications service 

approaches discussed above. we identi fy and seek comment on a third option for establishing a suitable 

legal foundation for broadband Internet and Internet connectivity scrvices. This third way would involve 

classifying wired broadband Internet connectivity as a telccommunications service (as suggested above), 

but simultaneollsly forbearing from applying 1110st requirements of Title I I to that connectivity service, 

save for a small number of provisions. 

6S. Specifically, ifthc Commission decided, after appropriate analysis, to classify wired 

broadband Internet connectivity (and no other component of wired broadband Internet service) as a 

telecommunications service, it could simultaneously forbear from applying all but a handful of core 

statutory provisions-sections 20l, 202, 208. and 254~~to the service. Two other provisions that have 

attracted longstanding and broad support in the broadband context·-sections 222 and 255-might also be 

implemented for the connectivity service, perhaps aftcr the Commission provides guidance in subsequent 

proceedings as to how they will apply in this context. We seek comment on this third approach, and 

whether it would constitute a framework for broadband Internet service that is fundamentally consistent 

with what the Commission, Congress, consumer groups. and industry bclieved the Commission could 

pursue under Title I before the COl71casl decision. 

a. Forbearing To Maintain the Deregulatory Status Quo 

69. In recognition of the need to tailor the Commission's policies to evolving markets and 

technologies. Congress gave the Commission in 1996 the authority and responsibility to forbear from 

applying provisions of the Communications Act when cettain criteria are met, '82 and specifically directed 

the Commission to usc this new power to "encourage the deployment on a reasonable and timely basis of 

advanced tdecoml11unications capability to all Americans."'" In typical forbearance proceedings. a 

petitioner-usually a telecommunications service provider-tiles a petition seeking relief from a 

provision of the Act that applies to it. The Commission "shalr' grant the requested rcliefif: 

(I) enforcement of such regulation or provision is not necessary to ensure that the 

charges, practices. classifications, or regulations by, for, or in connection with that 

1811 See generally Remarks of Commissioner Robert M. McDowell, The Best Broadband Plan/or America' nrst. Do 

.\"0 Harm (Frce State Foundation Keynote) . .Ian. 29. 2010, at 9·15 (discussing the costs of applying Title II 

regulations to broadband services). 

)81 , See supra part II.B.I.f. 

'S2 See 47 U.s.c. § 160. 

18] !d. * 1302. 

30 
173 


smartinez on DSK6TPTVN1PROD with Insert offset folio 183 here 76021A.104

Federal Communications Commission FCC 10-114 

telecommunications carricr 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. 184 

In ordinary forbearance proceedings, therefore, the Commission must make a predictive judgment 

whether, without enforcement of the provisions or regulations in question, charges and practiccs will be 

just and reasonable, consumers will be protected, and the public interest will be served. 185 

70. The forbearance analysis here has a different posture. The Commission would not be 

responding to a carrier's request to change the legal and regulatory framework that currently applies. 

Rather, it would be assessing whether to forbear from provisions of the Act that. because of our 

information service classification. do /lot apply at the time of the analysis. 186 In this situation, could the 

Commission simply observe the current marketplace for broadband Internet services to determine whether 

enforcing the currently inapplicable requirements is or is not necessary to ensure that charges and 

practices are just and reasonable and not unjustly or unreasonably discriminatory, whether application of 

the requirements is or is not necessary for the protection of consumers. and whether applying the 

requirements is or is not in the public interest?J87 

b. Identifying the Relevant Telecommunications Service and 

Telecommunications Carriers 

71. In this part of the Notice we assume, solely for purposes of fi'aming the forbearance 

option, that the Commission has decided to classify the Internet connectivity service underlying 

broadband Internet service as a telecommunications service. Section 10 provides that "the Commission 

shall forbear from applying any regulation or any provision of this chapter to a telecommunications 

carrier or telecommunications service, or class of telecommunications carriers or telecommunications 

services" if certain criteria are met. I" The relevant "telecommunications service" would be Internet 

connectivity service as the Commission defines it. The "class of telecommunications carriers" at issue 

184/d. § 160(a). "In making the determination under subsection (a)(3) [that forbearance is in the public interest,] the 

Commission shall consider whether forbearance from enforcing the provision or regulation will promote competitive 

market conditions, including the extent to which such forbearance will enhance competition among providers of 

telecommunications services. If the Commission determines that such forbearance will promote competition among 

providers of telecommunications services, that determination may be the basis for a Commission finding that 

forbearance is in the public interest:' Jd. § 160(b). 

185 Jd. § 160(a); see. e.g .. Federal-Slale .Joinl Board 0/1 L'lIi\'ersal Ser\'ice. Pelilion ofTracFone IVireless. Inc. /01' 

Forbearance/rom 47 (Se. § 21He)(l)(1) and./7 e.FR. § 5L!OJ(i), CC Docket No. 96-45. Order. 20 FCC Rcd 

15095, 15099. para. 6 n.25 (2005), modified il1 pari, 24 FCC Red 3375 (2009). 

186 Under section 10, the Commission may forbear on its o\\'n motion. See 47 U.s.c. § 160(a). If the statutory 

criteria are met, the Commission is compelled to forbear just as if it were responding to a carrier's petition. Id. 

187 47 U.s.c. § 160(a). Section 10 allows the Commission to consider forbearance li'om requirements that do not 

currently apply or may not apply even in the absence of forbearance. See AT& T /I1C. 1'. FCC, 452 F.3d 830, 837 

(D.C. Cir. 20(6) ("We hold ... that the Commission may not refuse to consider a petition's merits solely because 

the petition seeks forbearance from uncertain or hypothetical regulatory obligations."). 

188 47 U.S.c. § 160(a). 

31 
174 


smartinez on DSK6TPTVN1PROD with Insert offset folio 184 here 76021A.105

Federal Communications Commission FCC 10-114 

would comprise the providers of the Internet connectivity service identified as a telecommunications 

service. ls9 

72. In this proceeding, however, we do not intend to disrupt the status quo for incumbent 

local exchange carriers or other common carriers that choose to offer their Internet transmission services 

as telecommunications services. 190 Nor do we propose to alter the status quo with regard to the 

application of section 254(k) and related cost-allocation rules to these carriers. I'll We therefore seek 

comment on excepting from forbearance any carrier that elects to be subject to the full range of Title II 

requirements. and on the mechanism that would be most suitable for a carrier to make such an election. 

c. Defining the Geographic Scope for Analysis 

73. Section 10 rcquires the Commission to forbear from unnecessary requirements "in any or 

some of [carriers'] geographic markets." '

" By its terms section 10 requires no ··particular ... level of 

geographic rigor:' and the Commission has flexibility to adopt an approach suited to the circumstances. m 

The Commission decisions classifying broadband Internet service did not rely on any particular, defined 

geographic area. Instead. where those decisions evaluated the state of the marketplace. they did so "in 

view oflargertrends:· 194 The 2005 Wire/ine Broadband Report and Order granted forbearance on a 

nationwide basis. 19< The Commission has adopted a similar approach to evaluating the broadband 

marketplace in other forbearance decisions. 196 Given that backdrop. and the fact that the forbearance 

discussed here would be designed to maintain a deregulatory status quo for wired broadband Internet 

service that applies across the nation. the same approach may be warranted here. with the effect that 

forbearance would be granted or denied on a nationwide basis. We seek comment on this approach. If 

commenters suggest a more granular geographic market as is sometimes used in other forbearance 

procecdings. we ask them to address whether such an approach would be legally required. 

d. Identif)'ing the Provisions of Title II from Which the Commission 

Would FOI'bear 

74. The forbearance option contemplates a determination not to apply all but the small 

number of provisions of Title II that provide a solid legal foundation for the Commission to implement its 

established broadband policies. In this part, we seek comment on declining to forbear from the three core 

provisions of Title II-sections 201, 202. and 208. We also seek comment on whether we should decline 

to forbear from section 254 in order to ensure that the Commission has clear authority to pursue universal 

service goals for broadband services. And we seek comment on whether we should decline to forbear 

from two other provisions sections 222 and 255 ,that speak to two other broadband issues the 

184 See id § 153(44). 

190 See supra notes 53. 179 (describing the offering in the NECA tariff. pursuant to which approximately 800 

incumbent local exchange carriers offer DSL transmission). 

191 See IUrchne Broadband Rcport and Order, 10 FCC Red at 14927-29. paras. 139-44. 

192 47 U.s.c. § 160(a). 

19) Ear/hUnk. Inc. 1". FCC. 462 F.3d I. 8 (D,C. Cir. 2006); Ad !-foc Telecomms. Csers ("0/11111, \". FCC. 572 F.3d 903, 

908 (D.C. Cir. 2009) (quoting Ear/hUnk). 

194 In'eline Broadband Repotl and Order. 20 FCC Red at 14880-81. para. 50. 

195 1d at 14901-02, paras. 91-93. 

196 Pe/ilion/or Forbearance ()(Ihe I i!ri:on 7dephone Companies PurslIonllo.r (, '),C § 160("). el al. WC 

Docket Nos. 01-338. 03-235. 03-260, 04-48. Memorandum Opinion and Order. 19 FCC Rcd 21496 (2004) (Section 

271 Broadband Forbearance Order). afJd SIIb 110111, Ear/hUnk \", FCC, 462 F.3d I. 

32 
175 


smartinez on DSK6TPTVN1PROD with Insert offset folio 185 here 76021A.106

Federal Communications Commission FCC 10-114 

Commission has believed it can address (customer privacy and access by persons with disabilities). We 

further seek comment on whether forbearing from any of the remaining provisions of Title II is beyond 

our forbearance authority or otherwise should be rejected. 

75. Evciusionsfi-om Forbearance: Seclions 201,202, and 208. The Commission has never 

exercised its authority under section 10 to forbear from these three fundamental provisions of the Act. 

although it has been asked to do so on many occasions. 197 In addition to being consistent with our 

precedent. a determination not to forbear from these core provisions would comport with Congress's 

approach to commercial mobile radio services (CMRS), such as cell phone services. In 1993, CMRS 

services were still nascent, and Congress specified in a new section 332(c)(1 )(A) of the Communications 

Act that although Title II applies to CMRS, the Commission may forbear from enforcing any provision of 

the title other than sections 201,202. and 208. 1'" After Congress gave the Commission broader 

forbearance authority in the Telecommunications Act of 1996, the Commission considered a petition to 

forbear from sections 201 and 202 as applied to certain CMRS services. The Commission rejected that 

forbearance request, finding that even in a competitive market those provisions are critical to protecting 

consumers. 199 

76. Applying sections 20 I and 202 could provide the Commission direct statutory authority 

to protect consumers and promote fair competition, yet allow the Commission to avoid burdensome 

regulation.'oo For example, while CMRS providers are subject to sections 201 arid 202. they do not tile 

jqi See. e_g, Qll'lo'st Pefifion/or Forbearance Cnder -17 L.S'.C § 160(c} jj'om Tille If and Compufer Inquiry Rules 

ll'ith Respecl to Broadband Serrices, Memorandum Opinion and Order, WC Docket No. 06-125, 23 FCC Red 

12260,12292, para. 64 (2008) (Qll'est Enlerprise Broadband Forbearance Order); Pelilion of the Embarq Local 

Operafing Companies/or Forbearance L'l1der -17 C,s'C ,\' 160((')/rol71 Application a/Compu/flr Inquil}' & Certain 

Tille II Common-Carriage Requiremenls. 22 FCC Rcd 19478, 19508, para 59 (2007), a{rd slIb nOIll. AD llOC 

Telecolll. C'sers COlllllliTtee r. FCC, 572 F.3d 903 (D.C. Cir. 2009); Pelition of..jT&T Inc./or Forbearance ender,,7 

eSc. § 160(c)/i'01/1 Title II and Compuler InquilY Rules 1I'ill1 Respecllo liS BroadbandSelTices. el al., 

'>1emorandum Opinion and Order, WC Docket No. 06-125, 22 FCC Red 18705 18737-38, para. 67 (2007) IAT & l' 

Enrelpr;se Broadband Forbearance Order). afrd sub nOIll . .-ID IIOC Telecom. Csers CommiTtee 1'. FCC, 572 F.3d 

903 (D.C. Cir. 2009); Petilion olACS of Anchorage. Illc. Pursuant 10 SeclionlO of the Communications .·Ict 0/ 

193-1, as amended In esc § 160(c))./or Forbearancefrom Cerlain Dominant Carrier Regulalion ~lfts 

intersfate Access Services, anelfor Forbearal7ce a/Title If Regulation of Its Broadband Sen'ices, in the Anchorage. 

Alaska. Incumbel1l Loml b-change Carrier Studv Area, ~lemorandum Opinion and Order, 22 FCC Rcd 16304. 

16360, para. 128 (2007): Pelilion ofSBC Communications. Inc./or Forbearancefrolllihe Applicalion olTille If 

Common Carrier Regulalionlo II' Plalform Sen'ices, Memorandum Opinion and Order, 20 FCC Red 9361,9368, 

para. 17 (2005) (SBC II' Plarlarm Senices Forbearance Order), per./or re1'le1l' granted on other grounds sub nom. 

AT&T Inc. \'. FCC, 452 F.3d 830 (D,C, Cir. 2006); Personal Communications Industry Association Broadband 

Personal Communications Se/"icc5' Alliance's Pelf/ion for Forbearance for Broadhand Personal Communications 

Senice.l, Memorandum Opinion and Order and Notice 'of Proposed Rul~making, 13 FCC Red 16857. 16866, para. 

18 (1998) (PCIA Forbearance Order). 

198 47 USc. § 332(e)( 1 )(A). 

199 See PClA Forbearance Order. 13 FCC Rcd at 16865, para. 15 ("[Sjections 201 and 202 lie at the heart of 

consumer protection under the Act. Congress recognized the core nature of sections 201 and 202 when it excluded 

them from the scope of the Commission's forbearance authority under section 332(c)(I)(A):'), 16868, para. 23 

('"Assuming all relevant product and geographic markets become substantially competitive, moreover, carriers may 

still be able to treat sOl11e customers in an unjust, unreasonable, or discriminatory manner:'), 16870, para. 29 ("[W]e 

are not convinced that any harm caused by sections 20 I and 202, to competition or otherwise, outweighs the public 

interest benefits of these provisions."). 

'OG After the COI1lCasl decision, a number of broadband service providers expressed their acceptance of the basic 

standards articulated in sections 201 and 202, and enforced under section 208. See, e.g, Reply Comments of 

Comcast Corp., GN Docket No. 09-191, WC Docket No. 07-52, at 26 (April 26, 2010) ("'[TJhe Commission should 

(continued .... ) 

33 
176 


smartinez on DSK6TPTVN1PROD with Insert offset folio 186 here 76021A.107

Federal Communications Commission FCC 10-114 

tariffs because the Commission forbore hom section 203. 20} We seek comment on these issues as well as 

how to address in any forbearance analysis the existing agency rules that have been promulgated under 

sections 20 I and 202. 201 

77. In addition. we seek comment on not forbearing from section 208 and the associated 

procedural rules. Would the enforcement regime that would apply if we enforce only section 208 be 

sutlicient if we decide to forbear from the damages and jurisdictional provisions of sections 206 (carrier 

liability for damages), 207 (recovery of damages and forum election), and 209 (damages awards)'? Would 

forbearance from these additional provisions render enforcement under section 208 procedurally or 

substantively deficient, or would section 208 (together with Title V of the Act)'0' provide the 

Commission adequate authority to identit'Y and address unlawful practices involving broadband Internet 

service? 

78. Eyciusion./i'ol1l Forbearance: Sectioll 25.1. Section 254. the statutory foundation of our 

universal service programs. requires the Commission to promote universal service goals, including 

"[a]ccess to advanced telecommunications and information services ... in all regions of the Nation.,,2u.} 

In March 2010, a unanimous Commission endorsed reform of universal service programs to "encourage 

targeted investment in broadband infrastructure and emphasize the importance of broadband to the future 

of these programs.""" Reforming universal service to encompass broadband is also a keystone of the 

National Broadband Plan.")6 Our current universal service support programs, including our high-cost 

program and our low-income programs. address deployment and income-related adoption barriers for 

voice. The Plan recommends that the Commission provide high-cost and low-income support that 

(".continued from previous page) 

embrace the strong guidance against an overbroad rule and. instead. develop a standard based on . unreasonable and 

antieompetitive discrimination .. ,,); Repl) Comments of Sprint Nextel Corp., GN Docket No. 09-191, WC Docket 

No. 07-52. at 23 (April 26. 2010) ("The unreasonable discrimination standard contained in Section 202(a) of the Act 

contains the very flexibility the Commission needs to distinguish desirable from improper discrimination."); Reply 

Comments of A T&T Inc., GN Docket 1\:0.09-191. WC Docket No. 07-52. at 33-34 (April 26, 2010) ("And no one 

has seriously suggested that Seclion 202 should itselfbe amended to remove the 'unreasonable' qualifier on the 

ground that the qualifier is too 'murky' or 'complex: Seventy-five years of experience have shown that qualifier to 

be both administrable and indispensable to the sound administration of the nation's telecommunications laws." 

(emphasis in original)). 

201 See 47 C.F.R. § 10.15(c): Implementation a/Sections 3(n) and 332 qfthe (ommlmicaliolls Act - ReglilalOl:v 

Trealmelll ol:\fobile Sen-ices. Second Report and Order, 9 FCC Red 1411, 1480, para. 179 (1994) (subsequent 

history omitted) (C,\IRS Tille If Forbearance Order); Orlollr. FCC, 352 ['3d 415 (D.C. CiT. 2003) (affirming 

Commission's decision that sections 201 and 202 did not prohibit CMRS provider from enlering individually 

negotiated pricing arrangements). 

202 Compare. e.g. C,\fRS Tille II Forbearance Order. 9 FCC Red at 1475-90. paras. 164-213 (forbearing from 

numerous provisions of Title II without identHying the accompanying rules) lrith Petilion ofQ"'esl Communications 

Inl '/ Inc for Forbearance/rom Ei?forCemenl Qlthe lommission's Dominant larrier Rules As Tlwv .ippZl' .~fter 

Secliol1 272 SUI1Sels. WC Docket No. 05-333. Memorandum Opinion and Order. 22 fCC Red 5207, 5236. paras. 56, 

57 (2007) (identifying the specific rules. promulgated under sections 203 and 214. from which the Commission 

forbears). 

20) See, e.g, 47 USC §§ 501. 502 (authority to issue fines); § 503(b) (authority to impose forfeitures); § 504 

(procedures regarding forfeitures). 

204 47 U.S.C § 254(b)(2). 

205 Joint Slaleme11l on Broadband at :::!. 

106 See, e.g, NATlO"lAL BROADBA1\D PLAN at 144. 

34 
177 


smartinez on DSK6TPTVN1PROD with Insert offset folio 187 here 76021A.108

Federal Communications Commission FCC IO-II~ 

ensures that all households have the ability to subscribe to a high-quality broadband connection that 

provides both broadband and voice services, 

79, Two subsections of section 254 bear particularly on whether to forbear irom this 

universal servicc provision, First. section 254( c) defines universal service as "an evolving level of 

telecommunications serrice,"'os By not forbearing from section 254(c), the Commission would retain 

clear authority to support the availability and adoption of broadband Internet connectivity service through 

refonlled high-cost and low-income programs in the Universal Service Fund,,09 

80, Second, section 254(d) requires all providers of telecommunications service to contribute 

to the Universal Service Fund on an equitable and nondiscriminatory basis, "0 Should the Commission 

apply the mandatory contribution requirement to broadband Internet connectivity providers? If so, should 

we delay implementation of the contribution obligation, through temporary forbearance or other means, 

until the Commission adopts rules governing specifically how broadband Internet connectivity providers 

should calculate their contribution consistent with the requirement that all telecommunications carriers 

"contribute[] on an equitable and nondiscriminatory basis:' possibly as pal. of comprehensive Universal 

Service Fund refonn?211 

81. If commenters suggest that we should forbear from applying the support provisions of 

section 254 in the context of broadband I nternet connectivity service, we ask them to provide alternative 

proposals to ensure universal availability of broadband Internet connectivity services, and to assess the 

legal sustainability of proposed alternatives, If commenters suggest that we forbear from (or delay) 

applying the mandatory contribution p,'ovisions of section 254, what would be the consequences for the 

Universal Service Fund?211 

82. Possible Exc1usion{!'oll1 Forhearance: Section 222, Section 222 of the Communications 

Act requires providers of telecommunications services to protect their customers' confidential 

information, as well as proprietary infol1llation of other telecommunications service providers and 

equipment manufacturers,2IJ As discussed above, the Commission has supported applying this provision 

in the broadband context. n! Section 222 would appear to provide the Commission clear authority to 

implement appropriate privacy requirements for broadband Internet connectivity, We question, however, 

whether it would be in the public interest to apply section 222 to broadband Internet connectivity service 

immediately, It might be more effective for the Commission to interpret the specific provisions of section 

222, including the definition of "customer proprietary network information:' in the broadband context 

before requiring broadband Internet connectivity providers to comply, Proceeding otherwise could cause 

confusion and disparity among broadband Internet connectivity providers, and confusion for consumers, 

107 5.;..,£! id at 145. 172. 

208 47 LJ.S,c. § 254(0) (emphasis added), 

209 lJur sec supra paras. 3~-38 (noting that major providers have suggested that the Commission has authority under 

section 254 and Title r to provide universal service support to broadband as an information service). 

21() 47 LJ.S,C, § 254(d), 

211 See id: ~ATIOl'AL BROADBAND PLAN at 140-51 

:;u The Commission has statutory authority to assess any provider of interstate telecommunications if that would 

serve the public interest. See 47 USc. § 254(d), Nothing in this Notice should be understood to limit the 

Commission's ability to exercise this authority during the pendency oflhis proceeding, 

m {d, § 222, 

21,,), S'ee supra para. 39. 

35 
178 


smartinez on DSK6TPTVN1PROD with Insert offset folio 188 here 76021A.109

Federal Communications Commission FCC 10-114 

Compliance with section 222 could also be more expensive if the provision took effect immediately, and 

we later adopted specific rules. On the other hand. most providers are already subject to privacy 

requirements, at least for other services they provide; their costs of immediate compliance with section 

222 may not outweigh the benefit to consumers of quick assurance of their privacy while using broadband 

Intemet connectivity services. '15 In addition, section 631 of the Communications Act requires cable 

operators to fulfill cettain obligations with respect to consumer privacy for cabIc or "other scrvice[ s r to 

which a consumer subscribes."6 The term "other service" includes "any wire or radio communications 

service provided using any of the facilities of the cable operator that are used in the provision of cable 

service."'" How should the obligations of sections 222 and 631 be reconciled for cable operators 

offering broadband Internet service'? More broadly, we seck comment on the application of section 222 

to any wired broadband Internet connectivity service that may be c1assitled as a telecommunications 

service, and on whether the public interest would be served by pennitting section 222 to apply in the 

absence of new implementing rules 218 

83. One aspect of retaining the information service classitlcation for broadband Internet 

service (other than for the Internet connectivity telecommunications service that may be offered 

separately with broadband Internet service) is that it minimizes interference with the FTC's ability to 

enforce the Federal Trade Commission Act's prohibition of unfair, deceptive, or anticompetitive practices 

by broadband Intemet service providers. Section 5(a)( I) ofthc FTC Act declares to be unlawful all 

"[uJnfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or 

affecting commerce.,,219 but section 5(a)(2) of the FTC Act restricts the FTC's ability to enforce this 

215 Section 222 generally applies to "telecommunications carriers." 47 U.s.C § 222(a). Section 631 of the 

Communications Act generally applies to "cable operatorls]" in their provision of "cable service or other service," 

and protects subscribers' "personally identifiable information:' Id ~ 551 (a)( l). 

"6 47 U.S.C § 551. 

2i'ld § 55 I (a)(2)(B). See Applications/or Consent 10 Ihe Transfer ofConll'01 of Licenses and Seclion 2U 

Authori=aNons By Time Warner Inc. and America Online, Inc .. Tran.~lerors, to .10/, Time Warner lnc., 7i"Gl7Sferee. 

CS Docket No. 00·30, \1emorandum Opinion and Order, 16 FCC Red 6547, 6664-65. paras. 277-79 (2001) 

(requiring AOL Time Warner to certifY that it is and remains in compliance with section 631 of the Act); Cable 

.\{odem DeciaralOl)' !iuling, 17 FCC Red at 4853-54, paras. 111-12 ("[Section 631) has been interpreted by a court 

to encompass Internet service provided via a cable system. In light of our determination in the Declaratory 

Ruling that cable modem service is an information service, we believe that cable modem service would be included 

in the category of 'other service' for purposes of section 631." (citing Applicalioll oflhe ('niled Slates /01' all Order 

Pursual1f to 18 esc § 2703(D). 157 F. Supp. 2d 286, 291 (S.D.N.Y. 2001) (''This specific definition [in 47 G.S.C 

§ 551) of 'other service' plainly includes internet service transmitted via a cable system:')), 

2lS The Commission has previously forborne temporarily from applying a statutory provision or regulation, In 

1994. soon after Congress authorized the Commission to deregulate wireless services, the Commission forbore 

temporarily from requiring or permitting CMRS providers to file tariffs for interstate access service. See 

Implementation q(Secfions 3(n) and 332 qfthe Communications Act, RegulatOl~v 7i-ealment qf,Hohile SeITiees, GN 

Docket NO. 93-252, Second Report and Order. 9 FCC Red 1411. 1480. para. 179 (1994). In 1999. the Commission 

forbore temporarily from enforcing number portability requirements for wireless carriers. See Cel/ular 

Telecommunications Ind1l5;try .1ssociatiol1 's Pelilion/or Forhearance From Commercial.Hobile Radio Services 

.\·umner Portability Obligations. el ai., WT Docket No. 98- 229. CC Docket No. 95-116, Memorandum Opinion and 

Order. 14 FCC Red 3092, 3103-04. para. 23. 3112-13, paras, 40-42 (1999), And in 2005, the Commission 

temporarily forbore from carrier eligibility requirements for universal service support, to provide victims of 

Hurricane Katrina access to wireless phone service. See Federal-Stale Joint Board on Cnil'ersai Senice. et al .. CC 

Docket Nos. 96-45. 02-6, WC Docket Nos. 02-60,03-109, Order, 20 FCC Red 16883, 16893-94, paras. 19-20 

(2005). 

"!9 

- 15 U.S.C § 45(a)( I). 

36 
179 


smartinez on DSK6TPTVN1PROD with Insert offset folio 189 here 76021A.110

Federal Communications Commission FCC 10-114 

prohibition with respect to common carrier activities,"" We seek comment on how the Commission 

might use its authority under section 222 to ensure privacy for users of Internet connectivity without 

significantly compromising the FTCs ability to address privacy issues involving broadband Internet 

scrvices and applications, 

84, Possible EXc/lisionfi'om Forbearance: Section 255. Seetion 255 requires 

telecommunications service providers to make their services accessible to individuals with disabilities. 

unless not reasonably achievable.'" As discussed above. the Commission has repeatedly expressed its 

intent to apply this requirement in the broadband context 222 

85. We seek comment on the appropriateness of implementing section 255 to ensure that 

Americans with disabilities have access to broadband Internet connectivity services. As with section 222. 

might it be appropriate to apply section 255 only after a separate noticc-and-comment proceeding that 

allows detailed consideration of disabilities-access issues in the broadband context? We seek comment 

on implementation questions and other issues related to the application of section 255, 

86, Scope ofForhearalice Generally. We believe that the six sections we have just 

discussed-sections 20 I, 20::. 208. 222. 254, and 255--could compose a sufficient set of tools for 

effecting the established policy approach and implementing the Commission's goals for 21 st Century 

communications. Are there others that should be added to this list? Some provisions of Title II relate 

directly or indirectly to the effective application and enforcement of the six provisions we have identified. 

Section 214, for example. deals primarily with "Extension of Lines" yet contains section 2l4( e), which 

provides the framework for detennining which carriers are eligible to pat1icipate in universal service 

support programs. '" Similarly, section 251 (a)(2) directs telecommunications carriers "not to install 

network features, functions. or capabilities that do not comply with the guidelines and standards 

established pursuant to section 255."'" and section 225 establishes the telecommunications relay services 

program. 225 Is application of these or any other provisions of Title II required to allow effective 

implementation and enforcement of the six provisions identified above? If so. should the Commission 

exempt such provisions from forbearance for administrative reasons, if this third approach to 

classification is adopted0 

87. Are there provisions of Title II from which we lack authority to forbear? Section 10(a) 

directs the Commission to forbear from applying regulations or provisions of the Communications Act to 

telecommunications carriers or services in those instances where the Commission determines that the 

particular provision is unnecessary to ensure that carrier "charges. practices. classifications, or regulations 

... are just and reasonable and are not unjustly or unreasonably discriminatory;" enforcement of such 

regulation is "not necessary for the protection of consumers;" and forbearance is consistent with the 

public interest"6 We ask whether section 1 0 provides authority to forbear from provisions of the statute 

that do not directly impose obligations on carriers. For example. section 224 provides the framework for 

the Commission's regulation of pole attachments. including the rates therefor. Does section 10 provide 

the Commission authority to forbear from section 224 insofar as it imposes rate-related obligations on the 

''" See id § 45(a)(2). 

'" 47 U.S.c. § 255, 

222 See supra para. 40. 

'" 47 U.s.c. § 21+(e) (designation of "eligible telecommunications carriers"). 

nl!d §2SI(a)(2). 

'" Id § 22S(C/. 

Id. § 160(a)( 1)-(3). 

37 
180 


smartinez on DSK6TPTVN1PROD with Insert offset folio 190 here 76021A.111

Federal Communications Commission FCC 10-114 

Commission and utilities that own poles, rather than on telecommunications carriers or 

telecommunications services?'" Similarly, section 253 permits the Commission to preempt state 

regulations that prohibit the provision of telecommunications services.'" Does section 10 provide the 

Commission authority to forbear from section 253, which does not impose obligations on 

telecommunications carriers? If the Commission were to forbear from section 253, how would the 

Commission's general authority to preempt inconsistent state requirements be affected? 

88, Congress created the Commission in part "for the purpose of the national defense, [and] 

forthe purpose of promoting safety of life and property through the use of wire and radio 

communication.,,)29 Would it be consistent with the Commission's mission with respect to promoting 

safety of life and property. and consumer protection generally, to forbear from the portions of section 

214(a) that address discontinuance, reduction, or impairment of service? Would it be consistent with our 

mission to forbear from section 214( d), which allows the Commission to require a carrier "to provide 

itself with adequate facilities for the expeditious and efficient performance of its service": 23() or section 

218, which permits the Commission to "inquire into the management of the business of all carriers subject 

to this Ace?'" Does section I 0 provide authority to forbear from these provisions? Should the 

Commission exclude them from forbearance so it may proceed \\'ith, for example, cybersecurity or data 

gathering initiatives, or would authority under sections 201 and 202 (or other provisions) be sufficient?'" 

How would forbearance li'om these provisions affect the Commission's ability to promote adequate 

service to underserved communities? 

89. Also with regard to our national defense and homeland security mission, we note that 

section 229 directs the Commission to implement the provisions of the Communications Assistance for 

Law Enforcement Act (CALEA). '" CALEA is a separate statute that requires "telecommunications 

carriers" to meet certain assistance capability requirements in support of electronic surveillance,'" The 

Commission has previously found that CALEA's definition of"telecommunications carrier" is broader 

than the definition of "telecommunications carrier" in the Communications Act,'" All service providers 

227 fd. § 160(a) ("[TJhe Commission shall forbear from applying any regulation or any provision of this Act to a 

telecommunications carrier or telecommunications service ... :'). 

228 fd. § 253(a), (d) (providing that "[nJo State or local statute or regulation, or other State or local legal requirement, 

may prohibit or have thc effect of prohibiting the ability of any entity to provide any interstate or intrastate 

telecommunications service" and that the Commission shall preempt such a statute, regulation, or local requirement 

in certain circumstances). 

fd. § lSI. 

210 fd. § 214(d). 

"J M§218, 

232 In our recent Surl'irabilily .Yotice qf Inqu;IT and Cerrtficatiol1 Program .YoNce qf l11quily, we sought comment 

on our authority to act to adopt certain broadband policies. 5'ee Effects on Broadband Communications SCl1rork..'i of 

Dumage to or F{lilllre o(-"eMork Eqlliplllelll or Serere Overload, PS Docket 10-91, Notice of Inquiry, FCC 10-62, 

paras. 8-9 (April 21,20 I 0); C)'ber Securi(1' Certification Program, PS Docket No. 10-93, Notice of Inquil)', FCC 

10-63, paras. 10- I I (April 21. 20 I 0). Today's Notice complements. but does not supplant, those two notices. 

m 47 U.s.c. § 229Ia). 

21" Section 101, et seq. ofCALEA, 47 U.s.c. § 1001, et seq. 

235 Commun;caliol1s Assistance/or Lall' Ef?forcemenl Act and Broadband Access and Serrices, First Report and 

Order and Further Notice of Proposed Rulemaking, 20 FCC Rcd 14989, 14993, para. 10 (2005) (CILl:.A First 

Report alld Ordel), per/or rel'iell' denied sub 1101ll . ..Jill. Council on Educ. 1'. FCC. 451 F.3d 226 (D.C. Cir. 2006) 

(upholding the Commission's interpretation of CALEA 's definition of"telecommunications carrier"), 

38 
181 


smartinez on DSK6TPTVN1PROD with Insert offset folio 191 here 76021A.112

Federal Communications Commission FCC 10-114 

that are "telecommunications carriers" under the Communications Act are also "telecommunications 

carriers" subject to CALEA.''" and some providers-including facilities-based broadband Internet access 

providers-are subject to CALEA even if they are not "telecommunications carriers" as defined in the 

Communications Act. en Specifically, the Commission held in 2005 that "faeilities-hased providers of 

anv type of broadband Internet access service. including but not limited to wireline. cable modem. 

satellite. wireless. fixed wireless. and broadband access via powerline are subject to CALEA:",g Thus. it 

appears that regardless of whether we maintain the current statutory classification for broadband Internet 

service or ciassifY Internet connectivity (or some other service) as a telecommunications service. CALEA 

will continue to apply to these providers. We seek comment on this analysis. In addition. as we do with 

regard to the sections described just above. we seek comment on whether section 10 would provide 

authority to forbear from section 229, and on whether forbearance from application of section 229 would 

be consistent with the purposes for which CALEA was enacted and the public interest. '" Finally. we 

emphasize that section I 0 docs not provide the Commission authority to forbear from provisions of 

CALEA or any other statute other than the Communications Act. '.In 

90. Section 257(c) requires the Commission to make periodic repOlis to Congress concerning 

the elimination of previously identified barriers to market entry by entrepreneurs and other small 

businesses. W This obligation applies to "the provision and ownership oftelccommunications and 

information services" and thus applies regardless of the legal classification of broadband Internet service 

and broadband Internet connectivity service. It thus would appear that none of the three alternative 

approaches suggested here would affect the Commission's duty to make the mandated reports. Nor. 

given the importance oflowering barriers to market entry. do we contemplate any circumstance in which 

it would be sound policy to cease making the repOlis. We seek comment on these issues and on how best 

to ensure that the obligation of section 257( c) is preserved in this context. 

91. We further seek comment on whether there are provisions of Title II that would require 

interpretation even after forbearance. For example, would forbearance from section 203 mean that 

carriers may not tile tariffs even if they want to. or just that they are not required to do so?'" Would the 

236 fd at 14992, para. 9 0.17; see also Communications Assistancefor Lml' E,?forcement Ael, Second Report and 

Order, 15 FCC Rcd 71 05. 7J 14, para. 17 (2000) (all entities previously classified as "common carriers" for purposes 

of the Communications Act are telecommunications carriers for purposes of CAL EA. as are cable operators and 

electric and other utilities to the extent they offer telecommunications services for hire to the public); 

Communications .·tvsistance/or Law Ef?forcement Act and Broadband Access and Sen'ices, Notice of Proposed 

Rulemaking and Declaratory Ruling. 19 FCC Red 15676. 15695. para. 39 (2004) (noting that CALEA 

unambiguously applies to all "common carriers offering telecommunications services for sale to the public" as so 

classified under the Communications Act and that such common carriers are subject to CALEA regardless of the 

technology they deploy to offer their service, including packet technology). 

CJL£.i First Report and Order. 20 FCC Red at 14991-15012. paras. 8-45. 

!d. at 1500 I, para. 24. A broadband Internet service provider is subject (0 CALEA with regard to its "switching 

and transmission" functions, but not vvith regard to "storage functions of its c~mail service. its web-hosting and DNS 

lookup functions or any other ISP functionality of its Internet access service." Id at 15008. para. 38. 

,,9 Section 103(a)( I )-( 4) of CALEA, 47 USc. S I 002(a)( I )-( 4). 

240 47 USC. * 160(a) ("[T]he Commission shall forbear from applying any regulation or any provision of this ·Jet 

.... ") (emphasis added). 

'" Id § 257(c). 

242 lei § 203. 

39 
182 


smartinez on DSK6TPTVN1PROD with Insert offset folio 192 here 76021A.113

Federal Communications Commission FCC 10-114 

Commission's review of transactions involving providers of broadband Internet connectivity service be 

affected if the Commission forbore from applying section 2140 '" 

92. We also seek comment on whether there are approaches superior or complementary to 

forbearance that the Commission should consider as means of easing regulatory burdens. For example. in 

the past the Commission has "streamlined" the statutory procedures that apply to non-dominant 

carriers. '" and has granted blanket authority to all carriers under section 214 to provide domestic 

interstate services and to construct. acquire. or operate any domestic transmission line.'" Is any similar 

approach appropriate herc? 

93. Finally. we seek comment on the role of third party standard setting bodies if the 

Commission were to adopt one of the deregulatory approaches described here."" 

e. Application of the Statutory Forbearance Criteria 

94. Charges, Practices, Classifications. and Regulalions. In 1002. when the Commission 

decided to classify cable modem service as an information service. only 12 percent of American adults 

had broadband at home.24' Now nearly two·thirds of American adults use broadband at home. '" In just 

the last two years. home broadband use has grown more than 25 percent. '" The quality and availability 

of broadband services continue to improve. with cable and telephone companies investing about $20 

billion in wireline broadband capital expenditures in 2008 and about $18 billion in 2009. 250 As described 

in the National Broadband Plan ... [tJoP advertised speeds available from broadband providers have 

increased in the past few years. Additionally. typical advertised download speeds to which consumers 

subscribe have grown approximately 20%, annually for the last 10 years:"" 

95. Still. a number of reported incidents suggest there is a role for the Commission. 

Comcast's secret disruption of its customers' peer-to-peer communications. which the Commission 

determined to be unjustified. is one example.'" There have been recent reports involving: AT&T's 

'0) Id § 214. 

~44 Policy and Rilles Concerning Rates/or Lompelitil'e Common Carrier Serl'ices and Facilities AUlhori::.at;oJ1s 

Therefi)r. CC Docket ~o. 79-252, First Report and Order, 85 FCC 2d I (1980) (Compeliti]"e Carrier Firsl Report 

and Order) (subsequent history omitted). 

245 See [mplemci1laliol1 ofSection.f02(b)12)(J) qfthe Telecommunications Aci of 1996; Pelilion/or Forbearance qf 

the Independelll Telephone & Telecommunications Alliance. CC Docket ~o. 97-11; AAD File ~o. 98-43,Report and 

Order and Second \lemorandum Opinion and Order, 14 FCC Red 11364. 11372, para. 12 ('"[W]ith blanket 

authority. unlike forb(.'arance. we retain the ability to stop extremely abusive practices against consumers by 

withdrawing the blanket section 214 authorization that allows the abusive carrier to operate."); 47 C.F .R. § 63.0 l. 

2·'" See supra part II.B.I.f. 

247 JOHN B. HORRIGA~ & LEE RAI'IE. THE BROADBAND DIFFERLNCE: How ONLiOiE BEHAVIOR CHANGES WlTlIIllGHSPEED INTERNET CONNECTIONS. PEW IN1 ERNET & AMERICAN LIFE PRO.lEC r 9 (2002). 

248 John B. Horrigan. Broadband Adopaon and Cse in ·lmericCl. 3 (Fed, Commc'ns Comm'n Omnibus Broadband 

Initiative. Working Paper No.1. 2010). 

249 NTIA. Digilal XatiO/l, supra note 8. at 4. 

250 ~ATIO:-iAL BROADllMD PLAN at 37·38 (citations omitted). 

25' Id at 20,38 (citations omined). 

152 See supra para, 26. 

40 
183 


smartinez on DSK6TPTVN1PROD with Insert offset folio 193 here 76021A.114

Federal Communications Commission FCC IO-\).j 

alleged failure to deliver OSL service at the speeds promised~2" allegations that although RCN promised 

subscribers "fast and uncapped" broadband, it delayed or blocked peer-to-peer file transfers without 

users' knowledlIe or consent~ 25,' and Windstream's redirection of subscribers who used the default search 

function in the Firefox web browser to a Windstrcam "landing page ... 255 Furthennore, legislative 

developments described above suggest that Congress is not satisfied with the pace of broadband 

deployment, adoption, and utilization. 2

% 

96, We seck commcnt on whethcr, in light of the current charges, practices, classifications. 

and regulations of broadband Internet connectivity serviee providers, it would be consistent with section 

I O(a)( I) for the Commission to forbear from all provisions of Title II except the six identified provisions. 

I f we found on the record developed in response to this Notice that the marketplace for broadband 

Internet connectivity services is operating sufficiently well with regard to competition and consumers' 

interests, then retaining only the authority in sections 20 I, 202, and 208; reforming universal service 

under section 254~ and continuing to enforce the privacy and access provisions of sections 222 and 255 

could be sufficient to address current and foreseeable future concerns, 

97. Protection alConslImers and the Public Interest. Section ]O(b) directs the Commission, 

in making its public interest analysis, to "consider whether forbearance from enforcing the provision or 

regulation will promote competitive market conditions."'" As discussed above, the goals of any action to 

classify broadband Internet connectivity as a telecommunications service would include preserving the 

Commission's ability to step in when necessary to protect consumers and fair competition, while 

generally refraining from regulation where possible. Further, the Commission has tools to promote 

competition for broadband Internet services that would be unaffected by the forbearance proposal 

discussed here.'" We seek comment on this element of the forbearance test 

f, Maintaining Forbearance Decisions 

98. We seek comment on whether, if we forbore from applying those provisions of Title II 

that go beyond minimally intrusive Commission oversight, that decision would likely endure. Section 10 

allows the Commission to revisit a decision to forbear,,,q Normally, to depart from a prior decision, an 

agency may simply acknowledge that it is doing so and provide a rational explanation for the change, 

which mayor may not need to be more detailed than the explanation for the original decision. 260 The 

agency "need not demonstrate to a court's satisfaction that the reasons for the new policy are better than 

'" See Class Action Settlement Agreement and Release and Order Preliminarily Approving Settlement; 

Conditionally Certitying Settlement Class~ Approving Notice; and Setting Date for final Approval Hearing, Schmidt 

r. AT& T, No. CV 09 688788 (Cu}ahoga Cnty., Oh. Cl. Common Pleas Ct.). 

25.t See Notice of Pendency and Settlement of Class Action at 1, Sabrina Chin 1', /?c',y COI17., No, 1 :08-CV-7349 

(SD.KY. Apr. 19,2010). 

255 See DSLReports.com, Our Response to Direct Service Concerns, hnp:!!www.dslreports.com.forum/r24074065-

Our-Response-to-Redirect-Service-Concerns (last visited ~1ay 24, 20] 0), 

256 See supra para. 25. 

25' 47U.S.C. § 160(b). 

258 See. e,g, NATIONAL BROADBAND PLAN, Chs. 4-5 (recommending that additional spectrum be made available); 

id. at pp. 47-49 (recommending that the Commission comprehensively review its wholesale competition policies)~ 

id at eh. 6 (recommending ways that existing infrastructure could be better utilized to facilitate deployment). 

"9 See t.ar/hUnk 1'. FCC, 462 F.3d at ] 2, 

260 See FCC r. Fox Telerisian Stations, Inc,. 129 S. Ct. 1800. 1811 (2009), 

41 
184 


smartinez on DSK6TPTVN1PROD with Insert offset folio 194 here 76021A.115

federal Communications Commission fCC 10-114 

the reasons for the old one.,·261 Section 10. though, requires the Commission to forbear if the statutory 

criteria are met. 262 Thus, to reverse a forbearance decision. the Commission must find that at least one of 

the criteria is no longer met with regard to a particular statutory provision. That determination would be 

subject to judicial review, and the Supreme Court has stated that an agency must "provide a more detailed 

justification than what would suffice for a new policy created on a blank slate" in instances where. for 

example. "its new policy rests upon factual tlndings that contradict those which underlay its prior policy; 

or when its prior policy has engendered serious reliance interests that must be taken into account. ,,261 

Reversal of forbearance also might be in arguable tension with section 706(a) of the 1996 Act. which 

directs the Commission to "encourage the deployment on a reasonable and timely basis of advanced 

telecommunications capability to all Americans ... by utilizing, in a manner consistent with the public 

interest. convenience. and necessity, ... regulatory forbearance.""· We seek comment on the 

Commission's authority to reverse a forbearance decision concerning broadband Internet connectivity 

service. We also seek comment on what provisions. ifany. could appropriately be included in a 

forbearance order to establish a heightened standard for justifying future "unforbearance:' 

99. If the Commission were to elect the option of classifying Internet connectivity as a 

telecommunications service but forbearing from most of Title ll, then a reviewing court could in theory 

uphold the classitlcation determination but vacate the accompanying forbearance in whole or in part. In 

that situation, the Commission could maintain the classitlcation of broadband Internet connectivity 

service as telecommunications service and allow the relevant provisions of Title lI, which the court 

restored, to apply. We seek comment on any lawfull11echanisms that (assuming adoption of the third 

classification option) could be utilized to address this theoretical situation, even if that means the 

Commission would not. in the post-litigation situation just described. ultimately maintain the 

classitlcation of Internet connectivity as a telecommunications service. 

C. Effective Dates 

100. If the Commission decided to alter its current approach to Internet connectivity service, 

affected providers might need time to adjust to any new requirements. To reflect this, the Commission 

could delay the effective date ofa classification (or classification and forbearance) decision for 180 days 

after release. or another suitable period. Moreover. as discussed above, certain provisions of Title II, such 

as sections 222, 254(d). and 255, could be phased-in on an even longer timetable. We seek comment on 

the effective date the Commission should adopt for a classification decision under one of the approaches 

proposed here, or an alternative approach identified by the commenter. 

D. Terrestrial Wireless and Satellite Services 

101. The Commission currently classifies broadband Internet service solely as an information 

service regardless of whether it is provided over cable facilities, wireline facilities, wireless facilities. or 

power lines. '6' At the same time, the Commission has in the past taken a deliberate approach to 

extending its classification framework. In particular, though the Commission had classified all cable 

modem and wireline Internet access services as information services hy 2005, it was not until 2007 that it 

261 Id (emphasis in original). 

26' 47 U.S.c. § 160(a). 

261 Fox TelerisionSlaliol1s. IlIc., 129 S. Ct. at 1811. 

'M 47 U.S.c. § 1302(a). 

265 See supra para. 21. 

42 
185 


smartinez on DSK6TPTVN1PROD with Insert offset folio 195 here 76021A.116

Federal Communications Commission FCC 10-114 

extended that classification to wireless broadband Internet services. even though the first 3G networks 

went into service in 2003. 266 

102. We seek comment on which of the thrce Icgal frameworks specifically discussed in this 

Notice, or what alternate framework, would best suppol1 the Commission's policy goals for wireless 

broadband. In addition. as the Commission recently noted in the Open b7l~met NPRM, '·there are 

technological. structural. consumer usage. and historical differences between mobile wireless and 

wirelineicable networks.,,267 We seek comment on whether these differences are relevant to the 

Commission's statutory approach to terrestrial wireless and satellite-based broadband Internet services. 

Do consumers today view wireless broadband as a substitute for wired services?268 How are terrestrial 

wireless and satellite Internet services purchased. provided, and perceivedry 

103. Several provisions of Title III of the Communications Act provide the Commission 

authority to impose on spectrum licensees obligations that are in the public interest.'69 For example, 

section 301 provides the Commission authority to regulate "radio communications" and "transmission of 

energy by radio:"" Under section 303, the Commission has the authority to establish operational 

obligations for licensees that further the goals and requirements of the Act if the obligations are in the 

"public convenience. interest. or necessity" and not inconsistent with other provisions of law.'" Section 

303 also authorizes the Commission, subject to what the "public interest. convenience. or necessity 

requires:' to "[pJrescribe the nature of the service to be rendered by each class oflicensed stations and 

each station within any class.,,172 Section 307(a) likewise authorizes the issuance of licenses "ifpublic 

convenience. interest, or necessity will be served thereby:'''' Section 3 16 provides a similar test for new 

conditions on existing licenses, authorizing such modifications if "in the judgment of the Commission 

such action will promote the public interest, convenience. and necessity.""4 On the other hand, Title III 

provides the Commission no cxpress authority to extend universal service to wireless broadband Internet 

services. We seek comment on whether these or other technical, market. or legal considerations justify 

different classification of wireless and wired broadband Interne! services. We also seek comment on 

266 Implementation (,(Section 6002(b) o(lhe Omnibus Budget Reconciliation Acl (if 1993. Annual Report and 

.Ina(rsis o/Competil;"e .\farkel Condi/ions 1Iith Respect/a Commercial ,1 IoNic Senices, WT Docket No. 05-71. 

Tenth Report, 20 FCC Red 15908, 15952. para. 114 (2005). 

Open Internet ,\PR,I[. 24 FCC Rcd at 13119. para. 159. 

268 See generally NA'IIONAL BROADBA~D PLAN a140-41 (discussing terrestrial wireless). 

_'{,'J Reexamination 0/ Roaming Obligations c:fCo!lu11I!rcial.ilobile HacHo Sen'ice Prol'iders and Other PrOl'jders cf 

.I/obile Dala Sariccs, WT Docket No. 05·265, Order on Reconsideration and Second Further Notice of Proposed 

Rulemaking, FCC 10-59, para. 66 (rei. Apr. 21, 2010). 

070 See 47LJ.s.C. § 301. See also IP-Enabled Senices .\PRlf. 19 FCC Rcd at 4918. 

:::71 Sf!e 47 U.S.C. § 303 (stating that if the "public convenience, interest, or necessity requires" the Commission shall 

'.(r). . prescribe such restrictions and conditions. not inconsistent with law. as may be necessary to carl)' out the 

provisions of this chapter"): S"cI1Uro COI1lIl1C 'l1s. [lie. \'. FCC. 9~2 F.2d 1043. 1048 (7th Cir. 1992) (Communications 

Act invests Commission with "enormous discretion" in promulgating licensee obligations that serve the public 

interest). 

'" 47 U.S.c. § 303(b). 

27' Id. § 307( a). 

2'1 See 47 U.s.c. § 316( a); see also WBEY Illc. r. ("lIited Stales, 396 F.2d 601 (2d Cif. 1968): Imercollllectioll alld 

Resale Obligaliolls Perlaining to Commercial ,llobile Radio Sen'ices, CC Docket No. 94-54, First Report and Order. 

II FCC Rcd 18455. 18459. para. 7 (citing 47 U.S.c. §§ 303(r), 309». 

43 
186 


smartinez on DSK6TPTVN1PROD with Insert offset folio 196 here 76021A.117

Federal Communications Commission FCC 10-114 

whether our approach to classification of non-facilities-based Internet service providers should be 

different in the wireless context. or the same as in the wired context. 

104. In addition, section 332 sets forth various provisions concerning the regulatory treatment 

of mobile wireless service. Sections 332( c)( I) and (c )(3). in particular. require that CMRS providers be 

regulated as common carriers under Title II of the Act.'C< To what extent should section 332 of the Act 

affect our classification of wireless broadband Internet services" Section 332( c)( I) gives the Commission 

the authority to specify certain provisions of Titie II as inapplicable to CMRS providers. If the 

Commission were to take the third way described above in the wireless broadband context. could it and 

should it apply section 332( c)( I) as well as section lOin its forbearance analysis? We also seek comment 

on whether the Commission would have reason to apply sections 201 and 202 differently to wireless and 

wired broadband Internet services. 

105. We also ask commenters to address whether, if the Commission were to alter its present 

approach to broadband Internet service, it would be preferable for the Commission to address wireless 

services at the same time that it addresses wired services. or whether there are reasons for the 

Commission to defer a decision on classification of non-wired broadband Internet services (and any 

associated forbearance if a wireless broadband telecommunications service is identified). 

E. Non-Facilities-Based Internet Service Providers 

106, In 1998. the Commission addressed non-facilities-based Internet service providers and 

concluded that they provided only information services.176 In Bralld X. Justice Scalia stated in his dissent 

that non-facilities-based Internet service providers using telephone lines to provide DSL service stand in a 

different position in the eyes of the consumer than the provider of the physical connection.'" Some 

industry members have suggested, however. that providers of Internet connectivity could avoid 

compliance with consumer protection measures by relying on non-facilities-based affiliates to offer retail 

broadband Internet service. 7

" We seek comment on what policy goals we should have for non-facilitiesbased Internet service providers, and what legal foundation for non-facilities-based Intell1et service 

providers can best SUPPO!1 effective implementation of those goals. 

F. Internet Backbone Services, Content Delivery Networks, and Other Sen ices 

107. The focus of this proceeding is limited to the classification of broadband Internet service. 

We remain cognizant that. under the Act. all information services are provided "via 

telecommunications:· 279 and therefore the use of telecommunications does not. on its own, warrant the 

identification of a separate telecommunications service component. For example, we do not intend to 

address in this proceeding the classification of information services such as e-mail hosting. web-based 

content and applications, voicemai!. interactive menu services, video conferencing. cloud computing. or 

275 See Wireless Broadband Order. 22 FCC Rcd at 5915-20. paras. 37-57 (finding that "mobile wireless broadband 

Internet access service" does not meet the definition of"commercial mobile service"' within the meaning of section 

332 cfthe Act as implemented by the Commission's C~lRS rules because such broadband service is not an 

"interconnected service." as defined in the Act and the Commission's rules). 

276 Sterens Report, 13 FCC Red at 11539-40, para. 81. 

BrandX, 545 c;,S. at 1009 n.3 (Scalia. J., dissenting). 

m See e.g, Bob Quinn. Fickell's (,hol'ge lIedux, AT&T Public Policy Blog. "lay II. 2010. 

http://attpublicpolicy.com!government-policy!pickett's-charge-reduxi 

'7

9 47 U.S.C. § 153(20). 
187 


smartinez on DSK6TPTVN1PROD with Insert offset folio 197 here 76021A.118

Federal Communications Commission FCC 10-114 

any other offering aside from broadband Internet servicc."(' Services that utilize telecommunications to 

afford access to particular stored content, such as content delivery networks, also are outside the scope of 

this proceeding. 28 ( Nor do we intend here to address or disturb our treatment of services that are not sold 

by facilities-based Internet service providers to end users in the retail market, including, for example, 

Internet backbone connectivity arrangements. In short. the Commission proposes not to change its 

treatment of services that fall outside a commonsense delinition of broadband Internet servicc. We seek 

commcnt on whether any of the thrce legal approaches described in this Notice would affect these 

services directly or indirectly. and how we should factor that into our decision-making about the treatment 

of broadband Internet service. 

108. In a separate proceeding. the Commission has asked for public comment on the treatment 

of other services (including Internct-Protocol-based voice and subscription video services) that may be 

provided over the same facilities used to provide broadband Internet service to consumers. but that have 

not been classified by the Commission.'" The Com111ission has described these as "managed" or 

"specialized" services, and recognized "that these managed or specialized services may differ from 

broadband Internet services in ways that recommend a different policy approach, and it may be 

inappropriate to apply the rules proposed here to managed or specialized services,,,283 We do not intend 

to address the classification or treatment of these services in this proceeding, We seek comment on 

whether any of the three legal approaches identified in this Notice would alTect these services directly or 

indirectly, and how we should factor that into our decision-making about the treatment of Internet 

connectivity service, 

G. State and Local Regulation of Broadband Internet and Internet Connectivity 

Scnices 

109. We also ask commcnters to address the implications for state and local regulation that 

would arise from the three proposals described above. Under each of tile three approaches, what would 

be the limits on the states' or localities' authority to impose requirements on broadband Internet service 

and broadband Internet connectivity service? 

i 10. We anticipate that if a state were to impose requirements on broadband Internet 

connectivity service or broadband Intemet service that are contrary to a COlllmission decision not to apply 

similar requirements. we would have authority under the Communications Act and the Supremacy Clause 

of the United States Constitution (Alticie Ill. section 2) to preempt those state requirements,28., In 

addition, section 10(e) provides that "[a] State commission may not continue to apply or enforce any 

provision of this Act that the Commission has determined to forbear fi'om applying."'" We seek 

280 See generally Section]55 Order. 16 FCC Rcd at 6457. para. 97 (identitying voicemail and interactive menu 

offerings as information services). 6461. para. 107 (identil'y-ing "e-mail. electronic information services. and web 

pages" as information services); Schools and Libraries Cnirersal Sen'ice Support ,\1echanisl11, CC Docket No. 02-6. 

Report and Order and Further ;";otice of Proposed Rulemaking, FCC 09-105, attach. D (Eligible Services List 

Schools and Libraries Support Mechanism for Funding Year 20 I 0) (reI. Dec. 2, 2009) ("Internet access provides a 

connection to a vast quantity of information and services, such as electronic mail and the documents and features of 

the World Wide Web."). 

'" Compare 47 USc. § 153(20) (definition of "infonnation service") lrith 47 U.S.c. § 153(43) (definition of 

"telecommunications"), 

282 Open IntemetXPR.1f. 24 FCC Red at 13116-17, paras. 148-53. 

183 lei. at 13116, para. 149. 

'" See r ·onage Preemption Order, 19 FCC Red at 22417. para, 21. 

'" 47 USc. § 160(e). 

45 
188 


smartinez on DSK6TPTVN1PROD with Insert offset folio 198 here 76021A.119

Federal Communications Commission FCC 10-114 

comment on the application of these provisions in the context of broadband Internet service and 

broadband Internet connectivity service, the states' role in the broadband marketplace, and how our 

decision to apply or not apply section 253 could relate to this authority."" 

H. Related Actions 

III. We seek comment on whether there are actions we can and should take outside the 

procecding this Notice initiates to implement the established policy approach to broadband Internet 

service. As one e\ample. the Commission could decline to pursue the "open access" policies for cable 

modem service on which the Commission sought comment in 2002 when it decided to classify cablc 

modem service as a single information service."7 We seek comment on terminating the docket initiated 

by the notice of proposed rulcmaking that accompanied the Cable Modem Declaratory Ruling, and we 

invite additional proposals. 

III. PROCEDURAL MATTERS 

A. Paperwork Reduction Act 

112. This document docs not contain proposed information collection(s) subject to the 

Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore. it does not contain 

any new or modified "information collection burden for small business concerns with fewer than 25 

employees," pursuant to the Small Business Paperwork Relief Act of2002, Public Law 107-198, see 47 

U.S.c. § 3506(c)(4). 

B. Ex Parte Presentations 

113. The inquiry this Notice initiates shall be treated as a "permit-but-disclose" proceeding in 

accordance with the Commission's ex parle rules. '" Persons making oral ex parte presentations are 

reminded that memoranda summarizing the presentations must contain summaries of the substance of the 

presentations and not merely a listing of the subjects discussed. More than a one or two sentence 

description of the views and arguments presented generally is required."" Other requirements pertaining 

to oral and written presentations are set forth in section 1.1206(b) of the Commission's rules.'"o 

C. Comment Filing Procedures 

114. Interested parties may file comments and reply comments regarding the Notice on or 

before the dates indicated on the first page of this document. Comments and reply comments may be 

filed: (I) using the Commission's Electronic Comment Filing System (ECFS), (2) using the Federal 

Government's eRulemaking Portal, or (3) by filing paper copies. In addition, ex parte comments may be 

filed at any time except during the Sunshine Period. E, parle comments may be filed: (I) using the 

Commission's Electronic Comment Filing System (ECFS). (2) using the Federal Government's 

eRulemaking Portal. (3) by filing paper copies, or (4) by posting comments and ideas on the 

Broadband.gov blog at http://blog.broadband.gov/?categoryId=494971 or on 

http://broadband.ideascale.com/a!ideafactory.do0discussionID=1127J. All filings related to this Notice 

should refer to GN Docket No. 10-127. Further, we strongly encourage parties to denlop responses 

to this Notice that adhere to the organization and structure of this Notice. 

28() See supra para, 87. 

'S7 Cable .\fodem Dec/amIDI)' Rilling, 17 FCC Red at 4839-41. paras. 72-74. 4843-47, paras. 83·93. 

'88 47 c'F.R. §§ 1.200 el seq. 

'S9 See 47 C.f.R. § 1.1206(b)(2). 

29() Id § 1.1206(b). 

46 
189 


smartinez on DSK6TPTVN1PROD with Insert offset folio 199 here 76021A.120

Federal Communications Commission FCC 10-114 

Electronic Filers: Comments may be tiled electronically using the Internet by accessing the 

ECFS: htlp://fjallfc)ss.fcc.gov/ecfs2/. 

Blog Filers: In addition to the usual methods for tiling ex parte comments. the Commission is 

allowing ex parte comments in this proceeding to be filed by posting comments on 

http://blog.broadband.goy/'?categoryId=494971 and on 

http://broadband.ideascale.com/a/ideafactory.do?discussionlD= 11271. Accordingly. persons 

wishing to examine the record in this proceeding should examine the record on ECFS. 

http://blog.broadband.govl"categoryld=494971. and 

http://broadband.ideaseale.comiaiideafactory.do?discussionlD~ 11271. Although those posting 

comments on the blog may choose to provide identifying information or may comment 

anonymously. anonymous comments will not be part of the record in this proceeding and 

accordingly will not be relied on by the Commission in reaching its conclusions in this 

rulemaking. The Commission will not rely on anonymous postings in reaching conclusions in 

this matter because of the difficulty in verifying the accuracy of information in anonymous 

postings. Should posters provide identifying information, they should be aware that although 

sllch information will not be posted on the blog. it will be publicly available for inspection upon 

request. 

Paper Filers: Pm1ies who choose to file by paper must file an original and four copies of each 

tIling. Ifmore than one docket or rulemaking number appears in the caption of this proceeding, 

tilers must submit two additional copies for each additional docket or rulemaking number. 

Filings can be sent by hand or messenger delivery. by commercial overnight courier. or by firstelass or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's 

Secretary. Office of the Secretary. Federal Communications Commission. 

All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be 

delivered to FCC Ileadquarters at 445 121h St.. SW. Room TW-A325. Washington. DC 20554. 

The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber 

bands or fasteners. Any envelopes must be disposed of b~fore entering the building. 

Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must 

be sent to 9300 East Hampton Drive. Capitol Heights. MD 20743. 

U.S. Postal Service first-class, Express. and Priority mail must be addressed to 4.+5 12''' Street 

SW. Washington DC 20554. 

Parties shall also serve one copy with the Commission's copy contractor. Best Copy and Printing. 

Inc. (BCPl). Portals II. 445 12th Street, S.W .. Room CY-B402, Washington. D.c. 20554. (202) 

'+88-5300. or via e-mail tofcc@bcpiweb.com. 

Documents in (IN Docket No.1 0-127 will be available for public inspection and copying during 

business hours at the FCC Reference Information Center. Portals II. 445 12th Street S.W .. Room 

CY-A257. Washington, D.C. 20554. The documents may also be purchased from BCPI, 

telephone (202) 488-5300. facsimile (202) 488-5563. TTY (202) 488-5562. e-mail 

fcc·(j)bcpiweb.com. 

47 
190 


smartinez on DSK6TPTVN1PROD with Insert offset folio 200 here 76021A.121

Federal Communications Commission FCC 10-1104 

D. Accessible Formats 

115. People with Disabilities: To request materials in accessible ['onnats for people with 

disabilities (Braille. large print. electronic files. audio format), send an e-mail to fcc504@:fec.gov or call 

the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice). 202-418-0432 (tty). 

IV. ORDERING CLAUSE 

116. Accordingly. IT IS ORDERED that. pursuant to the authority contained in sections 40). 

4Ul. 10.218, 303(b). 303(r). and 403 of the Communications Act of 1934, as amcnded. 47 U.s.c. 

§§ 1540). 1540). 160.218, 303(b), 303(r). and 403. this Notice oflnquiry IS ADOPTED. 

FEDERAL COMMUNICATIONS COMMISSION 

Marlene H. D011ch 

Secretary 

48 
191 


smartinez on DSK6TPTVN1PROD with Insert offset folio 201 here 76021A.122

Federal Communications Commission 

STATEMENT OF 

CHAIRMAN JULIUS GENACHOWSKI 

Re: Frameworkfor Broadband Internet Service, GN Docket No. 10-127 

FCC 10-114 

In March, we released our country's first National Broadband Plan. an unprecedented. bold 

roadmap for America's broadband future. The Commission affirmed unanimously that: "Working to 

make sure that America has world-leading high-speed broadband networks-both wired and wirelesslies at the very core of the FCC's mission in the 21 st Century:' 

In this increasingly interconnected world. broadband is our most important platform for 

investment. economic growth, and job creation--and for addressing major national challenges such as 

education, health care, and public safety. 

As the National Broadband Plan recognized. however. America lags behind where it should be on 

broadband; the rest of the world isn't standing still; and govemment has a limited but vital role to play in 

spurring ubiquitous, fast. competitive. and affordable broadband networks available to every American. 

In April. the DC Circuit issued a decision in the Comcasl case that. unfOltunately. created 

uncertainty in an area that had been widely regarded as settled. As our General Counsel has described. 

while acknowledging the agency's basic authority under the Communications Act to address issues of 

broadband access policy, the court opinion casts doubt on the particular legal theory the Commission had 

chosen to rely on for several years to support its efforts in this area. As others have described to mc. this 

unwelcome decision was a curvebalL 

Last month. I said the Commission would initiate a process to explore and ultimately find a 

solution and resolve the uncertainty created by the decision. In particular. 1 said the Commission would 

consider all appropriate legal theories that would continue the same light-touch approach to broadband 

access policy that the agency has pursued for the past decadc. 

Recently, the Chairmen of the key Senate and House Committees-Chairmen Rockefeller. Kerry. 

Waxman, and Boucher--launched a process to updatc thc Communications Act. 

Let me take this opportunity today to say clearly: I fully support this Congressional effort. A 

limited update of the Communications Act could lock in an effective broadband fi'amework to promote 

investment and innovation. foster competition, and empower consumers. I commit all available FCC 

resources to assisting Congress in its consideration of how to improve and clarify our communications 

laws. 

Meanwhile. in view of the COUlt decision, and as the Congressional Chairs have requested, the 

FCC has an obligation to move forward with an open, constructive public-comment process to ask hard 

questions. to find a solution. and resolve the uncertainty that has been created. The Congressional and 

FCC processes are complemcntary. 

It's important to note that the recent court decision did not opine on the initiatives and policies 

that we have laid out transparently in the National Broadband Plan and elsewhere. 

Our pro-investment, pro-innovation. pro-competition, pro-consumer policies remain unchanged 

and they remain essential for broadband in America. The purpose of the proceeding we launch today is to 

make sure those policies rest on a solid legal foundation by exploring and addressing the technical. legal 
192 


smartinez on DSK6TPTVN1PROD with Insert offset folio 202 here 76021A.123

Federal Communications Commission FCC 10-114 

questions the court decision raises. 

For example. American businesses and consumers need safe and secure broadband networks. yet 

the court case raises questions about the right framework for the Commission to help protect against 

cyber-attacks. 

American businesses and consumers need broadband networks that reach every community and 

every American-rural and urban. regardless of circumstances-yet the court case raises questions about 

the right framework for the Commission to help bring the benefits of broadband to the tens of millions of 

Americans and the many schools. libraries. and other anchor institutions that either do not have access to 

adequate broadband networks or can't afford the service. 

American businesses and consumers need broadband networks that will serve as a powerful 

engine for investment and innovation. yet the court case raises questions about the right framework for 

the Commission to safeguard the treedom and openness of the Internet. which has fueled extraordinary 

investment and innovation, vast consumer benefits and choice. which has led to unprecedented 

opportunities to spread knowledge and facilitate new and diverse voices and which has lor several 

years been protected by a bipartisan FCC. 

These and other issues affected by the court decision-like access by people with disabilities, like 

privacy-are real issues with real consequences for every American. and the nation's agency with 

oversight responsibility for communications has a duty to address them. 

We do so today in an open and balanced way. The Notice of Inquiry we adopt puts out for 

comment. even-handedly. several possible solutions to the challenge created by the co un case-including 

a Title I path. a full Title II path. and a middle·ground solution-the Third Way approach that I have 

previously described. The Notice also solicits new ideas. 

The Third Way approach was developed out of a desire to restore the status quo light-touch 

framework that existed prior to the coul1 case. 

It was developed as a potential response to the court decision that would reject the extremes-a 

response that rejects both the extreme of applying extensive legacy phone regulation to broadband, and 

also rejects the extreme of eliminating FCC oversight of broadband. 

Irs not hard to understand why companies subject to an agency's oversight would prefer no 

oversight at all if they had the chance. 

But a system of checks and balances in the communications sector has served our country well 

for many decades. fostering trillions of dollars of investment in wired and wireless communications 

networks. and in content. applications. and services-and creating countless jobs and consumer benefits. 

And there is no question that we need to pursue a framework and policy initiatives that encourage 

and unlock massive private investment. 

Internationally. the Third Way would enable continued leadership on communications policy and 

Internet freedom. while doing nothing would leave the U.S. virtually alone in the world in 110t having 

tools to protect broadband competition and consumers and preserve I nternet freedom and openness. 

[ suggested the Third Way approach as a reasonable and narrowly tailored path for promoting the 

massive private investment we need in broadband. and achieving broadly supported policy goals. It is a 

50 
193 


smartinez on DSK6TPTVN1PROD with Insert offset folio 203 here 76021A.124

Federal Communications Commission FCC 10-114 

preferable alternative to the approaeh of applying full Title II to broadband. an approach that is 

unacceptable to me. 

While the term "Third Way" may be new to this debate. the model on which it is based is 

familiar. The Third Way is modeled on the highly successful deregulatory approach that the FCC has 

used for almost 20 years for mobile voice services: application ofa smal! number of Title II provisions. 

with broad and reliable forbearance from all other provisions. 

The mobile voice experience has shown the wisdom of leaving pricing to competitive markets. as 

well as the ability of the Commission to forbear from rcgulation effectively and without backsliding. 

Industry has repeatedly hailed this framework as having spurred robust investment and innovation. 

So it is not sUrprising that the Third Way has received support from a broad array of businesses 

and investors, representing many billions of dollars of investment and serving millions of consumers and 

small and large enterprises. 

Supporters" who believe the Third Way is a path to boost robust investment and competition in 

the U.S.-include major American Internet and technology companies, competitive broadband access 

providers, rural mobile companies. consumer electronics manufacturers. entertainment companies. 

successful investors and entrepreneurs. as well as leading consumer groups. 

Now. as we move forward. my focus is not on any patticular legal mechanism; my desire is 

simply that we reslore the status quo and have a workable light-touch frame\\ark for broadband access. 

My core focus is on achieving vital national broadband goals to spur investment. innovation and 

our global competitiveness. In order to do that. we must solve the problem the ComeOSI case created. 

I recognize that there are pros and cons to all of the potential solutions that have been raised, and 

that this isn't an easy issue. or one without complexity. I remain open minded. I welcome the possibility 

of new ideas. 

I'm pleased that the announcement of an FCC process has already catalyzed action among 

stakeholders. I encourage these consensus-building actions and discussions to find an enforceable 

framework for broadband policy. 

"m pleased also that this process has produced healthy dialogue inside the Commission staff and 

among those of us on the bench. There arc a number of different views as we begin tackling this issue. I 

believe firmly and deeply in the benefits of a free marketplace of ideas and its potential to produce the 

best answers to hard questions, as long as all keep open minds. 

1 ask only this of all participants in this discussion. inside and outside the Commission: Let's not 

pretend that the problems with the state of broadband in America don't exist; let's not pretend that the risk 

of excessive regulation is not real. or. at the other cxtreme, that the absence of basic protections for 

competition and consumers is acceptable. 

Instead. let's put rhetoric and posturing aside, and work together to solve the problem created by 

the court case, so that we can rise together to the major 21" century challenges of achieving U.S. world 

leadership in broadband and innovation. fostering sustainable economic growth and job creation, and 

bringing the benefits of broadband to all Americans. 

51 
194 


smartinez on DSK6TPTVN1PROD with Insert offset folio 204 here 76021A.125

Federal Communications Commission 

STATEMENT OF 

COMMISSIONER MICHAEL J. COPPS 

Re: FrameH'ork/iJr Broadband Internet Sen'ice, GN Docket No. 10-127 

FCC 10-114 

Between a few big industry players who never liked the telecommunications law passed by 

Congress and previous Commissions only too ready to sacrifice the public interest to special interests. 

consumers tind themselves in quite a box. Wc are on the cusp of perhaps the greatest communications 

revolution since the printing press. yet wc enter this new Digital Age arguably shorn of the ability to offer 

consumers the most basic of protections-such as insuring their security. safeguarding their privacy, 

providing them with the bencfits of competition and making sure that dynamic new technologies are 

available to them and are open to thc maximum extent possible--without needless gatekeeper control at 

the on-ramps to the information highway. 

For much of the past decade. the FCC took American consumers on a costly and damaging ride, 

moving broadband Internet connectivity outsidc the statutory Title II framework that applies to 

telecommunications carriers. This was a major flip-flop from the historic--and generally successfulapproach of requiring non-discrimination in our communications networks. I didn't buy it---and now we 

know from its Comeosl decision that the D.C. Circuit Court of Appeals didn't buy it either. In fact, by 

taking the country on the joyless ride it did. the C0111mission essentially issued a gilt-edged invitation to 

the court to rule as it did. Previous Commissions are much morc the culprit hcre than any court. After 

all. they were relying on an approach that was fundamentally at odds with the purposes set out in the 

Telecommunications Act of 1996. Anyone who thinks Congress envisioned deploying the new 

communications technologies and services of the Digital Age without the safeguards that generations of 

consumers and consumer advocates fought for and won has missed the meaning of the law and the intent 

of our elected representatives. I cannot believe that Congress ever envisioned that its fundamental 

statutory requirements could be made obsolete by a new service offering. 

Permitting this chaotic stand-off to persist can only leave consumers. innovators and even 

broadband companies themselves on an uncertain and perilous path, Today. in an effol1 to right the 

wrong-headed policies of recent years. we tackle one of the most difficult challenges ever to confront this 

Commission. I commend Chairman Genachowksi for launching this proceeding and I encourage its 

speediest possible resolution. Some believe that. to achieve one or more of our goals, the Commission 

could try--on a case-by-case basis-to make better-articulated Title I arguments that may persuade some 

court somewhere. May be. But case-by-case inevitably becomes court case-by-court case. Down this 

path would be years and years of dead-end delays, years without the most elemental public interest 

safeguards for broadband, and years of agency paralysis. It would be death by a thousand cuts. Why rest 

our case on the weakest part of the law when relying 011 the directly applicable stronger part of the statute 

is quicker. easier and, most importantly. consumer-friendlier? More years fighting back a costly and 

seemingly endless stream of court challenges to every action the Commission takes can only consign the 

United States to the digital dust as other countrics focus on actually building out consumer-friendly 

advanced telecommunications (i.e .. broadband). 

How did we get here? It is a :,ad-----and all too hlmiliar-tale where the law was twisted to 

shamefully promote the interests of a powerful few ahead of the interests of consumers. It began in 2002 

with a Notice of Proposed Rulemaking on the classification of broadband services delivered by wireline 

providers. Then. just one month later and over the strong dissents of Commissioner Adelstein and me. 

the Commission issued a DeclaratOl)' Ruling that moved cable modem services away from any real 

oversight by classifying them as unregulated "information" services. subject only to the vague ancillary 

authority of Title I. Not only did that ruling place cable modem services into regulatory never-never land, 

but it struck at the very hemt of this agency's ability to do its job of protecting public safety. promoting 
195 


smartinez on DSK6TPTVN1PROD with Insert offset folio 205 here 76021A.126

Federal Communications Commission FCC 10-114 

universal service, ensuring disabilities access, fostering competition and safeguarding consumers in a 

broadband world. In my 2002 dissent I said that the Commission was taking "a gigantic leap down the 

road ofremoving core communications services from the statutory frameworks established by Congress, 

substituting our own judgment for that of Congress and playing a game of regulatory musical chairs by 

moving technologies and services from one statutory definition to another:' We moved the chairs-but it 

sure wasn't musical. Throw into this bubbling cauldron of trouble one subsequent agency decision atter 

another to grant big industry players forbearance from their legal requirements to promote competition 

and consumer choices and you begin to get the picture of how we spent the bulk of the past decade around 

here. 

I, for one, am worried about relying only on the good will of a few powerful companies to 

achieve this country's broadband hopes and dreams. We see what price can be paid when critical 

industries operatc with unfettered control and without reasonable and meaningful oversight. Look no 

further than the banking industry'S role in precipitating the recent financial meltdown or turn on your TV 

and watch what is taking place right now in the Gulf of ;Vlexico. 

Throughout the course of the Commission's deregulatory' binge, we were given repeated 

assurances that there was no need to worry. Somehow" e would find enough jurisdiction under Title I 

"ancillary authority" to do our job. In truth. and not to be too conspiratorial about it. I rather believe that 

those who devised this abdication of our oversight responsibilities did so fully aware of what they were 

doing and who they were really helping. And they pressed on. In 2005, the Commission extended its 

oversight abdication by reclassifYing DSL. The die had been cast by then. Justice Scalia and me to the 

contrary notwithstanding, and the challenge Commissioner Adelstein and I faced was to rescue what we 

could from the accident scene. About all we could manage was some-·albeit inadequate··-coml11itment 

that the Commission would have the ability to move forward with certain basic statutory obligations 

related to homeland security, universal service, disabilities access and competition, ifit was wont to do 

so. It wasn't often wont to do so. More formatively. we were able to win Commission adoption for the 

historic Statement aFPo/icy on Internet openness-- something which I had long advocated. We couldn't 

get all the way there in that Statement, but we laid down the markers which I hope the present 

Commission will extend in the months ahead. 

In sum, the Commission had moved its authority and oversight of advanced telecommunications 

to a part of the statute where those services would have a steep hill to climb to win even the most basic 

consumer safeguards. But let's be clear here. We still have the original authority the Commission moved 

away from. It reposes in the statute. It is there for us to use-by sun-up tomorrow. if we choose. It rests 

on history and precedent. And, soundly argued in court, it puts us on much firmer legal footing to survive 

the inevitable industry challenges that are coming anyway than does trying to stand our ground on the 

quicksand of Title I. We need to reclaim our authority. 

One other thing is at risk here-something pretty huge. I haven't yet mentioned the National 

Broadband Plan, the proud achievement of Chairman Genachowski's Broadband Team here at the 

Commission. The Team worked for nearly a year to provide our country with something it lacked (and 

almost every other leading industrial country possessed)-a national strategy to encourage the 

deployment and adoption of high-value, high-speed broadband for every citizen in the land. The Comeasl 

decision puts crucial pm1s of the National Broadband Plan in jeopardy and on hold-potentially 

squandering the nation's historic opportunity to build this vital infrastructure of the Twenty-first century 

that \\ ill open so many doors for so many people. 

We cannot let that happen, Too much is at stake. Our global competitiveness depends on this 

new telecommunications intt·astructure. Broadband is not technology for technology's sake-it is 

important because it really can be our ""Great Enabler." This is technology that intersects with every great 

53 
196 


smartinez on DSK6TPTVN1PROD with Insert offset folio 206 here 76021A.127

federal Communications Commission fCC 10-114 

challenge confronting our nation-improving energy efficiency, halting climate degradation. improving 

healthcare for all our citizens. educating our young (and our old. too), helping individuals with disabilities 

to realize their full potential, creating new public safety tools for first responders and opening the doors of 

economic and social opportunity for all. Broadband connectivity is about even more than that. 

Increasingly our national conversation. our news and information. our knowledge of one another. will 

depend upon access to the Internet. Each of these challenges I have mentioned has a broadband 

component as pat1 of its solution. None has a solution without this broadband component. Private 

enterprise must lead the way with investment and innovation in broadband. to be sure. But only when it 

is accompanied by visionary public policy and meaningful oversight can we ensure that broadband will 

get built out to places "here business has no incentive to go. We can no longer afford digital divides 

between haves and have-nots. between those living in big cities and those living in rural areas or on tribal 

lands. between the able-bodied and persons with disabilities. 

Since the Comcast decision. I have heard opponents ofreclassification make a number ofsclfserving arguments that range from the often-frivolous to the sometimes-nonsensical. For stm1ers, let me 

be clear. Despite all the spin to the contrary. we are not talking--cven remotely-about regulating the 

Internet. We are talking about meaningful oversight of the infrastructure and services that allow 

Americans to get to the Internet. This isn't about government regulating the Internet-it's about making 

sure that consumers. rather than a handful of entrenched incumbents. have maximum control over their 

access to the Internet. 

I have also heard the perplexing contention by some that the Commission cannot move back to 

Title II classification because there have been no "changed circumstances:' which are supposedly needed 

to justify such a correction. No changed circumstances', Have the mind-bending changes we have seen 

throughout the country and around the world due to broadband access to the Internet been anything shot1 

of revolutionary? I don't think so. The market for broadband technologies and services. and the ways in 

which we as a people communicate, have undergone seismic changes over just the last decade. 

Remember that it was not so long ago that many Americans were just getting used to the Internet, and 

independent Internet service providers like AOL and CompuServe were the names of the game. Since 

then, it is a few huge access providers that have become the only real broadband game in town. Resellers 

and competitive local telephone companies have been driven from the field, for the most pat1. And 

cOl11petition~ ~that wonderful goal of the 1996 Telecommunications Act~-reposes more in our hopes and 

dreams than it does on the bottom line of the monthly phone and cable bills we all get to pay. How can 

anyone fail to find "changed circumstances" in these revolutionary transformations? 

So beware of all the slick PR you hear, and remember that much of it is coming from lavishlyfunded corporate interests whose latest idea ofa "triple play" is this: (I) slash the FCCs broadband 

authority; (2) gut the National Broadband Plan; and (3) kill the open Internet. 

Today we launch a proceeding to look at the options available to us. Should we continue down 

our failed Title I path? Should we rely on the full range of Title II requirements and safeguards0 Or 

should we take a .. third way" by applying a limited number of fundamental provisions of Title II to 

Internet access service? I have said before that plain and simple Title II reclassification through a 

prompt-and by that I meant immediate-declaratory ruling, accompanied by limited. targeted 

forbearance n'om certain provisions-would have been the quickest and cleanest way to remove all 

question marks. Clear rules of the road don't just help consumers--they provide clarity and cet1ainty to 

business. too. My former boss. the legendary Senator Fritz Hollings. frequently reminded us that 

"business can't operate with a question mark:' Commission policies over the past decade have been 

replete with question marks for business. for consumers. for all of us. 

So let's develop the record through this Notice. as quickly as we can. Let's then analyze the 

54 
197 


smartinez on DSK6TPTVN1PROD with Insert offset folio 207 here 76021A.128

Federal Communications Commission FCC IO-1l4 

record. develop final recommendations and vote them out with the sense of urgency that the present 

situation compels. Let us put an end to a decade of detours and derailment. and ensure. for every 

American. a communications infrastructure that serves their purposes. protects their interests and 

vindicates the awesome promise of the Digital Age. 

55 
198 


smartinez on DSK6TPTVN1PROD with Insert offset folio 208 here 76021A.129

Federal Communications Commission 

DISSENTING STATEMENT OF 

COMMISSIO:-.lER ROBERT M. McDOWELL 

Re: Framework (or Broadband Internet Serl'ice. GN Docket No. 10-127 

FCC 10-114 

First. I can't emphasize enough that we all want an open Internet that maximizes consumers' 

freedom. It is important to remember that an open and freedom-enhancing Internet is what we have today 

as the result of a decades-old. bipartisan and international consensus that governments should not 

interfere with Internet network management issues. At the same time. authorities should discourage and 

punish anti-competitive conduct and they have the legal means to do so today as they have had for 

decades. 

Before I go further. however. I thank the Chairman for his graciousness and generosity 

throughout this debate. He has consistently extended his hand in a willingness to discuss the issues. r d 

like to underscore that 90 percent of what we accomplish at the FCC is not only bipartisan but unanimous 

as well. Few governmental institutions can make such a claim. That also means, however, that we 

disagree on one in 10 proceedings. Disagreement and debate are healthy and necessary components of a 

functioning democracy. Today's Notice of Inquiry is one of those moments of strong, but respectful. 

disagreement. 

Ilaving said that. I also thank the Chairman, his legal team and the bureau stafffor writing a NOI 

that contains several open-ended questions that provide ample opportunity for public comment. 

]\ionetheless, I disagree with the premise of this proceeding. Not only is the idea of classifying 

broadband Internet access as common carriage under Title II unneccssary, already it has caused harm in 

the marketplace. 

As a threshold matter, classifying broadband as a Title II service is not necessary to impicment 

the recommendations of the National Broadband Plan. The Comcast decision certainly does not affect 

our ability to reallocate spectrum, one of the central pillars ofthe Plan. Nor does the decision undermine 

our authority to reform our Universal Service program. the other major component of the Plan. In the 

unlikely event that a court decided against granting us Cherron deference in the pursuit of directly 

supporting broadband with Universal Service distributions, the FCC could tie future subsidies to 

broadband deployment. This idea was agreed to in principle by a bipartisan group of four Commissioners 

in late 2008, and 1 remain optimistic that we could successfully defend such an idea on appeal. 

In fact. the Comeasl decision was quite limited in its scope. The court merely held that Title I 

does not grant us authority to regulate Internet network management. It reasoned that the Commission 

could not do so because its ancillary authority over Internet service providers was not tethered to a 

specific Congressional mandate. In short, if the Commission would like to regulate that activity, it must 

wait for Congress to change the law. We are not Congress. 

As a young attorney 20 years ago, I cut my legal teeth on Title I L Over the decades, an 

overwhelming consensus emerged among tech companies and policy makers from both parties to insulate 

new technologies from the application of early 20th Century common carrier regulations. The 

fundamental Title II rules from the Communications Act of 1934, which the majority seeks to apply to 

today's broadband sector, are the same regulations adopted in the late 19'" Century for the railroad 

monopolies. In essence. the Commission is seeking to impose 19'" Century-style regulations designed for 

monopolies on competitive. dynamic. and complex 21" Century Internet technologies. 

The ideas put forth for comment in toda)"s NOI are not new. In fact. they were discussed and 
199 


smartinez on DSK6TPTVN1PROD with Insert offset folio 209 here 76021A.130

Federal Communications Commission FCC 10-114 

discarded in an overwhelmingly bipartisan \Vay in the 1990s. Let's look back at a 1998 Commission 

report under the leadership of Bill Kennard. Chairman during President Clinton's second term: 

Tuming specifically to the matter of Intemet access. we note that 

classifying Internet access services as telecommunications services could 

have significant consequences for the global development of the Internet. 

We recognize the unique qualities of the Internet, and do not presume 

that legacy regulatory frameworks are appropriately applied to it. 291 

Just two years later, then-Chairman Kennard said: 

It just doesn't make sense to apply hundred-year-old regulations meant 

for copper wires and giant switching stations to the IP networks of today. 

. .. We now know that decisions once made by governments can be 

made bctter and faster by consumers. and we know that markets can 

move faster than laws. 292 

And here's what the Clinton White House had to say about placing legacy regulations on the 

Internet: 

We should not assumc ... that the rcgulatory frameworks established 

ovcr the past sixty years for telecommunications. radio and television fit 

the Internet. 2") 

The regulatory regime suggested by the majority today is likely to create asymmetries in the 

market place. For example. investmcnt and innovation at the "edge" of the Internet, specifically devices 

and applications, are largely unfettered by regulation. This is as it should be. But the proposed new 

regime will place the heavy thumb of government on the scale of a free market to the point where 

innovation and investment in the "core" of the 'Net are subjected to the whims of"Mother-May-I" 

regulators. Although I have a tremendous amount of respect for my colleagues, no one can predict who 

will occupy these chairs in the future. or how they will act. Or. as Senator Olympia Snowe warned the 

Commission in a letter earlier this month: 

I am concerned about the long-term implications such classification 

could have on innovation occurring in all segments of the Intemet supply 

chain and the uncertainty that would prevail, since nothing precludes 

future Commissioners from retracting the very rules you plan to 

implcment."" 

Moreover. the agency's dramatic attempt to regulate broadband Internet access services comes at 

a time when consumers are demanding more convergence between the core and the edge. While 

,q, Federal-Slale .1oim Board 0/1 [·ni]'er.lal Sen'ice, CC Docket No. 96-45. Report to Congress. 13 FCC Red. 

11501, ~ 82 (1998). 

292 Remarks of the Honorable William E. Kennard, Chairman. FCC. Voice Ol'er XcI Conference: Il1lemel 

Telep"on]': America Is Wailing (Sept. 12, lOOO). 

24) The White House .. l framell'orkfor Global Eieclronic Commerce (July l. 1997). 

20, Letter from the Honorable Olympia Snowe, United States Senator, to the Honorable Julius Genachowski. 

Chairman.rCC (June 1,2010). 

57 
200 


smartinez on DSK6TPTVN1PROD with Insert offset folio 210 here 76021A.131

Federal Communications Commission FCC 10-114 

consumers and their suppliers in a competitive marketplace have been erasing lines of distinction 

separating tech business models, the Commission is proposing to up-end market trends and draw artiticial 

legal lines to create new regulatory silos, 

Investors and international ohservers are expressing serious concerns about what the FCC is 

poised to do. In the past two weeks I have traveled to New York and Europe. I have met with a diverse 

assortment of investors. market analysts, regulators, business people and academics. At every turn, I was 

met with confusion and questions regarding the idea of regulating broadband as an old-fashioned phone 

service. For decades now, the international consensus has been for governments to keep their hands off 

the Internet and to leave Internet governance decisions to time-tested non-governmental technical groups. 

Once that precedent is broken, it will become harder to make the case against more nefarious states that 

are meddling with the Internet in even more extensive ways than arc contemplated here. In short, we will 

have lost the moral high ground. Again, a version of this scenario was foreseen by the Clinton 

Administration's Sccretary ofCo1l1merce, William Daley, in 1997: 

[W]e have been working with the private sector to convince other nations 

of the advantages of a user empowerment approach over cumbersome 

government regulation of the Internet."" 

Analysts are counseling a wide variety of investors to withhold badly needed investment capital 

in lear of regulatory uncertainty and litigation risks. While Title II classification is being advanced in the 

name of furthering broadband deployment, it may have the unintended consequence of stunting growth in 

this sector. Or. as written this week on a business website: 

But while it's business as usual now, capital investment will come down 

if Title II becomes a reality, said Credit Suisse telecom services 

dir[ector] Jonathan Chaplin. lie said the next place companies would 

look to capture some of the return is costs, which would meanjobs.'96 

In fact, one recent economist's study estimates that a net 1.5 million jobs could be put at risk by a 

Title II classification.'"' 

These thoughts aren't coming just from Wall Street, but from those who represent America's 

small and disadvantaged businesses as well. Listen to last month's remarks of David Honig of the 

Minority Media and Telecommunications Council: 

Lender and investor uncertainty stemming from potentially years of 

litigation over Title II reclassitication could make it profoundly difficult 

for MBEs and new entrants to secure financing. MBEs, especially, 

continue to experience great dit1iculty securing access to capital in the 

", Remarks afthe Honorable William M. Daley, Secretary, U.S. Dept. of Commerce, Internet Onlinc Summit: 

Focus 011 the Children (Dec. 2,1997). 

2% .')'freef Talk. CableFAX. June 14.1010. 

297 Coleman Bazelon. The Employmem and Economh: Impacts ofXel1rork Seurrality Regulation' An Empirical 

Analysis (Apr. 23, 2010). 

58 
201 


smartinez on DSK6TPTVN1PROD with Insert offset folio 211 here 76021A.132

Federal Communications Commission FCC 10-114 

broadband space'""" 

Members of Congress also are asking the Commission to abandon the Title II route citing the 

investment and economic risk that they fear will come with it. Here is a segment of a letter from 74 

Democratic House Members: 

The uncertainty this proposal creates \\ ill jeopardize jobs and deter 

needed investment for years to come. The significant regulatory impact 

of reclassifying broadband service is not something that should be taken 

lightly and should not be done without additional direction from 

Congress. We urge you not to move forward with a proposal that 

undem1ines critically important investment in broadband and the jobs 

that come with it. ,99 

In fact, a large bipartisan majority of Congress consisting of at least 291 Members - has 

weighed in asking the Commission to discard this idea or at least to wait for Congress to act. In other 

words, a commanding majority of the directly elected representatives of the American people do not want 

the FCC to try to regulate broadband Internet access as a monopoly phone service. 

I f my colleagues feel compelled to act. however. I hope that they would keep an open mind about 

an idea I have proffered for a couple of years now and that would certainly withstand appeaL In the 

absence of new rules, which already have started to create uncertainty and will be litigated in court for 

years, let us create a new role for the FCC to spotlight allegations of anti-competitive eonduct while 

working with non-governmental Internet governance groups and consumer protection and antitrust 

agencies. In each of the small number of cases cited by proponents of network management rules, all 

were recti lied quickly, without new rules. The recently announced technical advisory group could serve 

as a component of such an endeavor. 

Additionally. it is my hope that instead of diverting precious resources towards creating new 

regulations. we focus on adopting policies that will help create abundance, competition and jobs. For 

instance. we could recapture the bipartisan and unanimous spirit of2008 when the Commission approved 

the concept of unlicensed use of the television white spaces. This effol1 needs to be reenergized. 

American consumers will benefit tremendously from the unimaginable applications and devices that will 

use white spaces. Use of this spectrum also is an antidote to potential anti-competitive conduct by 

broadband providers as it will inject more competition into the "Iast mile." For instance, if one last-mile 

broadband provider werc to act in an anti-competitive way, it would risk losing its cllstomer to a white 

spaces provider. Or. as the Commission unanimously stated in 2008: 

We also anticipate that these new devices will have economic benefits 

for consumers and businesses by facilitating the development of 

additional competition in the broadband market. '00 

'" Letter from David Honig. Counsel. ~linority Media Telecommunications Council, to \1arlene H. Dortch. 

Secretary. FCC (~lay 7. 2010). 

29') Letter from the Honorable AI Green et al. U.s. House of Representatives. to the Honorable Julius Genachowski, 

Chairman. FCC (May 24. 2010). 

'00 (:nlicensed Operation in the n· Broadcast Bands: Addilional Spectrum/or [:"Iicensed DeI'ices Beloll' 900.\IH: 

and in the 3 GHo Band. ET Docket No. 02-380. Second Report and Order and Memorandum Opinion and Order. 23 

FCC Red 16807, ~ 321Nov. 4.2008); Erratum, 24 FCC Rcd 109 (Jan. 9, 2009). 

59 
202 


smartinez on DSK6TPTVN1PROD with Insert offset folio 212 here 76021A.133

Federal Communications Commission FCC 10-114 

In sum. the Commission has many avenues it can pursue to further the cause of more broadband 

deployment and adoption without having to take on the risks associated with a Title II classification. I 

respectfully ask my colleagues to listen to the growing chorus ofa large and bipartisan majority of voices 

in Congress and consider these different paths in lieu of the course they are embarking upon now. In the 

meantimc. I fundamentally disagree with the premise that has been offered to support this item. As a 

result. I respectfully dissent. 

60 
203 


smartinez on DSK6TPTVN1PROD with Insert offset folio 213 here 76021A.134

Federal Communications Commission 

STATEMENT OF 

COMMISSIO:\'ER MIGNON L. CLYBURN 

Re: Framework jbr Broadband Internet Service. GN Docket No.1 0-127 

FCC 10-114 

Thank you Austin. and to your team for your superb work on this item. It is essential that we ask 

probing questions that enable us to gather the information required to make informed and sensible policy 

decisions. This Notice of Inquiry sets forth the leading theories about how we can accomplish our shared 

goals for broadband service in the wake of the D.C. Circuit's Cameast dccision. It affords all interested 

parties industry. public interest groups. public officials. and ordinary Americans the opportunity to 

weigh in on the specific legal and policy merits of those proposals. The item succeeds in taking a difficult 

and combustible topic and presenting it in a way that should produce meaningful and fruitful discourse. 

My fear, however. is that there are effolis underway designed to stifle at all costs our ability to 

engage in reasonahle and productive discussion about these pressing issues. Indeed. it appears that we are 

a long way from a sincere debate on the merits ofthese proposals. There is. I believe, a great deal of 

misinformation being disseminated. which is creating misplaced anxiety. 

Perhaps most notably. one of the current narratives being put forth is that proceeding with this 

inquiry -let alone a change in classification - would ti'eeze investment in the networks. This argument, 

however, is specious. First, notable telecommunications analysts at fin11S such as Bank of America 

Merrill Lynch, UBS. and Goldman Sachs have each asserted that the public reaction by industry to the 

Chairman's proposal is overblown. In fact, they believe the current landscape presents a tremendous 

buying 0ppOliunity. As one well-regarded analyst stated: 

[T]he FCC's "Third Way" reclassification largely keeps the status quo intact, with key 

points being: 1) no rate regulation. 2) 110 unbundling. to require Cable to share its 

networks, 3) the forbearance is dimcult to overturn. 4) no inconsistent state regulation, 

[(5)] provides no competitive advantage to DBS or Telco vs. Cable and [(6)] Wireless has 

a similar "Third Way" reclassification. which has not negatively impacted the business 

model.-lO ' 

Second, the public relations campaign being waged by some may itself be the catalyst for doubts 

about investment. There should be no surprise when the all-out effort to spin the Chairman's proposal as 

one that entails extcnsive regulation scares off potential investors. If you yell "The sky is falling!" 

enough times, people will eventually take cover. 

Third. as noted earlier. wireless voice communications are currently subject to a nearly identical 

regulatory regime. and that sector. as you know, has flourished. In fact. as some of my colleagues shared 

at the agenda meeting last month. the level of investment in the wireless sector has been mind-boggling. 

Investors and companies have poured billions and billions of dollars into an industry subject to Titles 11 

and Ill. Massive investmcnt has taken place and continues to take plaee under a parallel paradigm. 

But I can understand why powerful companies balk at government oversight. They view any 

government authority as a threat to their unbridled freedom. Indeed. if it were up to them. we would not 

enact rules; but rather. rely on "voluntary organizations and forums" made up solely of industry personnel 

to give us advice on how to serve as a backstop for consumers. I suppose one benefit of this model is that 

)0' Pull back is a buying opportunity. CablefSatellite. Bank of America Merrill Lynch (May 6, 2010) (Jessica Reif 

Cohen), 
204 


smartinez on DSK6TPTVN1PROD with Insert offset folio 214 here 76021A.135

Federal Communications Commission FCC to-llot 

I could significantly shorten my workday. 

The problem for me. however. is that I truly care about ensuring that everyone has the 

opportunity to get broadband through our universal service program. I take seriously the threats to our 

cyber security. I know all too well the challenge the Internet poses to our privacy. I believe strongly that 

ISP speeds and bills should be transparent. And I am committed to ensuring that people with disabilities 

have meaningful access to all that broadband has to offer. There is no effort. no matter how well-funded 

and coordinated. that will undermine my belief in these essential goals. 

Today's NOI is a positive step towards fulfilling some key aspects of the "'ational Broadband 

Plan. among other things. I intend on working closely with those companies. organizations. and 

individuals who engage seriously and f0l1hrightly with these difficult issues. By working together. I have 

no doubt that we can produce an outcome that both continues to foster investment and innovation and 

serves the American people. 

Thank you. Mr. Chairman. for showing great leadership and vision. I 3m pleased to support this 

inquiry. 

62 
205 


smartinez on DSK6TPTVN1PROD with Insert offset folio 215 here 76021A.136

Federal Communications Commission 

DISSENTING STATE\1ENT OF 

COMMISSIONER MEREDITH A. BAKER 

Re: Frameworkfor Broadbal1d Il1Iernel Service. GN Docket No. 10-127 

FCC 10-114 

The foundation of a strong national broadband policy is already in place. and we do not need to 

alter the regulatory classilication of broadband Internet access service to achieve the il11p0l1ant goals 

unanimously agreed to in the Joint Statement on Broadband. We have a proven way forward under the 

existing "information services" classification by lawfully asserting our direct and ancillary authority to 

address universal service reform. disability access. and other consensus policy goals. 303 I greatly 

appreciate the Chairman's inclusion of a robust and balanced discussion of how the COl11missiou could 

proceed based upon the existing classification. and hope this demonstrates a good faith effort to reach a 

true bipartisan solution. 

Unfortunately. I am compelled to dissent because there are significant consequences to even 

initiating this far-reaching proceeding. Although I generally support building robust public records to 

bolster the Commission's work and asking questions that lead to a developed analysis of all sides of an 

issue. this is the rare case where opening a proceeding creates so much regulatory unce11ainty that it 

harms incentives for investment in broadband infrastructure and makes providers and investors alike think 

twice about moving forward with network investments under this dark regulatory cloud. This outcome 

can only harm consumers who need better, faster. and more ubiquitous broadband today. For those that 

suggest the D.C. Circuit forced our hanel, I respectfully disagree. Nothing in the recent Comcosl decision 

requires the Commission to revisit hroadband's classification. 

I also have significant concerns that the outcome in this proceeding has been prejudged. The 

Chairman has publicly endorsed the so-called "Third Way" approach in the days leading up to this 

Notice, and I cannot support such a conclusion. At the outset. I reject the effort to re-brand a Title II 

classification with forbearance as a middle ground. it is not. There will be time to address all of the legal 

and factual infinllities of a Title II approach for broadband. and its adverse impact on capital markets, 

consumer welfare. and international rel!ulatorv nonllS. Todav, I will limit my initial comments to the 

central question of legal and regulatory predi~tability. This ;pproach will subject the Internet and 

consumers to years of litigation and uncertainty. I acknowledge that retaining our Title I f"amework is 

not without some legal risk too-no approach is. It is. however, substantially less risky than reclassifying 

broadband and overturning f0l1y years of Commission precedent codified by Congress. and affirmed by 

the cou11s. And, if legal certainty is paramount. only Congress has the ability to provide the Commission 

with clear jurisdictional footing and direction to move forward to tackle the challenges of the broadband 

age. 

It is also important to view this proceeding in context of other recent statements in which the 

Commission has conveyed a pessimistic view of competition and market conditions. First. we had the 

National Broadband Plan that did not conclude that having more that 80 percent of Americans living in 

markets with more than one provider capable of offering download speeds in excess of -+ Mpbs was a 

success. Last month. the Commission was silent as to whether a wireless market in which 91.3 percent of 

Joil1l Statement 011 Broadband. GN Docket 1'\0.10-66, FCC 10·42 (Mar. 16.2010), 

1(,) Remarks of Commissioner Meredith Attwell Baker at Broadband Policy Summit VI. The Proven Way: A 

Regulatory Approach to Promote the Public Interest by Creating Jobs. Fostering Investment. and Driving Broadband 

Opportunity (June 10.2010). 
206 


smartinez on DSK6TPTVN1PROD with Insert offset folio 216 here 76021A.137

Federal Communications Commission FCC 1O-11.t 

Americans can choose [i'om four or more providers is competitive, Then, in releasing consumer survey 

results this month, the Consumer & Governmental Affairs Bureau's headline was that 80 percent of 

households do not know their broadband speeds, The more important and positive fact to me was that 91 

percent of consumers are satisfied with their broadband speed. yet that finding received significantly less 

attention, The next test will be the section 706 report in which the Commission will have to evaluate 

whether broadband deployment is timely and reasonable, a finding that has been made in the aftirmative 

in every prior rcpol1, Taken as a whole, I have concerns that these statements represent a view that 

government should try to engineer better results. and a Title II classification would cel1ainly provide a 

stronger platform from which to take a more intrusive regulatory approach, I recognize that industry 

alone will not solve every challenge and no commercial market is perfect. but I fear that a morc proactive 

broadband regulatory approach would adversely affect consumers. competition. and investment. 

I want to thank the staff for the hard work that went into this item. and I truly appreciate that this 

Notice does not close the door on Title l. I agree with the Chairman that we share many of the same 

policy goals, and I commit to working with my colleagues constructively on a consensus broadband 

agenda. Reclassifying and regulating an entire sector of the Intemet is not nccessary to achieve this, I am 

hopeful that this proceeding vvill not divert the agency's or industry's resources and attention away from 

addressing the core spectrum, broadband adoption, and broadband deployment challenges facing our 

nation in the months to come. 

64 
207 


smartinez on DSK6TPTVN1PROD with Insert offset folio 217 here 76021A.138

The Honorable Henry A. Waxman 

Chainnan 

Committee on Energy and Commerce 

U.S. House of Representatives 

2125 Rayburn House Office Building 

Washington, D.C. 20515 

Dear Chainnan Waxman: 

Attached please find my responses to the written questions for the record 

following my appearance before the Subcommittee on Communications, Teclmology, 

and the Internet on March 25, 2010, at the hearing entitled "Oversight of the Federal 

Communications Commission: The National Broadband Plan." 

Enclosure 
208 


smartinez on DSK6TPTVN1PROD with Insert offset folio 218 here 76021A.139

Questions for the Record from the Honorable John D. Dingell 

1. On page 92, the National Broadband Plan states, "lfthe FCC does not receive 

authorization to conduct incentive auctions, or if the incentive auctions do not yield a 

significant amount of spectrum, the FCC should pursue other mechanisms." Will these 

"other mechanisms" be completely voluntary, as the plan makes patently clear will be 

the case for spectrum incentive auctions? Please explain your response. 

Connecting America: The National Broadband Plan is a document created by Federal 

Communications Commission staff. Thus I cannot speak with certainty about the full range 

of what "other mechanisms" were envisioned in their deliberations. I do note that Chairman 

Genachowski has emphasized several times that he views this undertaking as voluntary. 

Broadcasting is uniquely situated to serve the public interest by reflecting local communities 

and providing a platform for diverse voices. Sadly, reckless decisions by both the private 

sector and the public sector have wreaked havoc on our broadcasters and, more importantly, 

on American viewers. 1 certainly understand the call in the National Broadband Plan to 

examine the possibility of reallocation and auctioning of some of the broadcasting spectrum, 

and the importance of additional spectrum to expand competition and innovation in wireless 

broadband. That said, I believe that much work still needs to be done. First and foremost, I 

have encouraged a thorough examination of what spectrum is being used and for what 

purpose, to what extent it is being used, and whether any higher public interest use would be 

served by reallocation. When it comes to broadcast spectrum, I believe we need to 

understand whether an individual station is serving its public interest obligations before any 

decision is made about reallocation and auction of that spectrum, whether such action is 

voluntary or otherwise. 

2. Does the Commission possess the authority, whether under the Communications Act of 

1934, the Telecommunh!ations Act of 1996, or otherwise, with which to require 

broadband network owners to unbundle access to their networks? Please explain your 

response, including relevant citations of statute if you believe the Commission does 

indeed possess the authority required to unbundle access to broadband networks. 

Yes, the Commission does possess the authority to require broadband network owners to 

unbundle access to their networks. Section 25\(c)(3) of the Telecommunications Act of 

1996 placed a duty on incumbent local exchange carriers to provide unbundled network 

elements to requesting telecommunications carriers. It is difficult to find any ambiguity in 

this provision. 

3. Do you believe unbundling access to broadband networks will have a chilling effect on 

furtber private investments in broadband infrastructure? Please explain your 

response. 

As an initial matter, I would note that the National Broadband Plan does not propose the kind 

of unbundling the question posits. That being said, I do not believe that unbundling access to 

broadband networks would have a chilling effect on further private investments in broadband 

infrastructure. I believe that the demand for broadband is great and growing, and that there 

can be many and diverse lucrative business models for broadband deployment. 
209 


smartinez on DSK6TPTVN1PROD with Insert offset folio 219 here 76021A.140

4. Does the Commission eventually intend to require unbundled access to broadband 

networks? Please explain your response. 

I cannot speak for the membership of the Commission. Speaking as one Commissioner, I 

would be interested in a robust dialogue concerning such a requirement. 

5. Chapter Five of the National Broadband Plan mentions Wireless Communications 

Services (WCS) band as a source of new spectrum. On February 16,2010, I sent a 

letter to the Commission highlighting my concern that opening this spectrum for mobile 

broadband services may result in interference with satellite radio signals, which reflects 

a 1997 declaration by Commission engineers that this would likely be the case. Please 

indicate unequivocally ("yes" or "no") whetber there will be interference with satellite 

radio signals if WCS spectrum is opened for use by mobile broadband devices. 

Further, please describe what specific actions the Commission will take to ensure there 

is DO interference, including the safeguards the Commission will require to stop any 

interference that may arise. 

The proceeding to establish rules on interference protection among Wireless 

Communications Service (WCS) devices, Satellite Digital Audio Radio Service (SDARS) 

receivers and aeronautical flight testing equipment has been pending for too long. While we 

clearly need to unleash the mobile broadband potential of the WCS spectrum, we must 

ensure that incumbent operators are not subject to any harmful interference. Testing to see 

what kinds of interference mayor may not exist has been a challenging process, to say the 

least. I am heartened by the inclusion in the draft rules of protective guard bands of2.5 MHz 

each, reduced out-of-band emissions and other technical safeguards already included in the 

draft rules to safeguard satellite radio subscribers and other users from interference. I am 

also pleased that the draft rules duly acknowledge the fact that satellite radio is the incumbent 

service-and that, should interference occur, the new WCS entrants would have to correct it. 

These draft rules have been out for public comment, and I look forward to reviewing the 

record to maximize the use of the people's spectrum and to safeguard against interference. 

6. Will the Commission provide advance notice of the WCS rules, publish them, and allow 

for public comment prior to their implementation? 

Yes, the Commission released a public notice seeking comment on the rules related to 

interference protection among WCS, SDARS (satellite radio) and aeronautical flight testing. 

Included in the public notice is the text of the draft rules. I look forward to reviewing the full 

record to ensure that the rules provide a sound approach to facilitating mobile broadband 

operations in the WCS spectrum, while ensuring protection against harmful interference to 

the existing operators. 

7. As you may be aware, I am a long-time supporter of public broadcasting, or what the 

National Broadband Plan refers to as "public media." As sucb, I appreciate tbe plan's 

acknowledgment that public media playa vital and unique role in our democracy. On 

page 92, however, the plan call for "a trust fund for digital public media that is 

endowed by the revenues from a voluntary auction of spectrnm licensed to public 

television," which I believe is something that cannot be done with out an act of 

2 
210 


smartinez on DSK6TPTVN1PROD with Insert offset folio 220 here 76021A.141

Congress. I would imagine our country's public television stations would be cautious 

about this approach. If no public television station volunteers for this proposed 

auction, will the Commission reallocate spectrum anyway? Please explain your 

response. 

As explained in my response to Question 1, the public interest serves as my guide in 

decisions related to the allocation of the people's spectrum resource. I understand the call in 

the National Broadband Plan to examine the possibility of reallocation and auctioning of 

some of the broadcasting spectrum, and the importance of additional spectrum to expand 

competition and innovation in wireless broadband. That said, I believe that much work still 

needs to be done. First and foremost, I have encouraged a thorough examination of what 

spectrum is being used and for what purpose, to what extent it is being used, and whether any 

higher public interest use will be served by reallocation. When it comes to broadcast 

spectrum, I believe we need to understand whether an individual station is serving its public 

interest obligations before any decision is made about reallocation and auction of that 

spectrum. 

8. The National Broadband Plan also notes that public media are at a crossroads with 

respect to content delivery. Though there is a plethora of digitally distributed content, 

our public media system is structured predominantly around broadcast-based 

communications. To implement the National Broadband Plan, will the Commission 

propose amendments to the Public Broadcasting Act? If so, please provide those 

amendments and detailed explanations of them, including why they are necessary. 

I am not aware of the Commission's plans to offer any recommendations to Congress 

regarding public media beyond what is already included in the National Broadband Plan. 

9. What is the exact number of recommendations the National Broadband Plan makes to 

the Congress? Please provide a complete list of those recommendations. In addition, 

please provide a list of the items in the plan that require congressional action or 

additional authority from the Congress, including an explanation of such action and/or 

additional authority. 

Please see the response submitted by Chairman Genachowski for the requested lists and 

explanations. 

, 

, 
211 


smartinez on DSK6TPTVN1PROD with Insert offset folio 221 here 76021A.142

Questions for the Record from the Honorable Anna Eshoo 

1. A WS-3 Spectrum Deployment 

The Commission and its staff have demonstrated a sense of urgency in drafting this 

Report. I'm convinced, based on the testimony presented here, that the Commission 

recognizes the need for speed. But I continue to have some concerns, especially when it 

comes to spurring competition with new and innovative uses of the spectrum. Too many 

entrenched interests seem to be able to stop new ideas from taking root through 

delaying tactics that keep spectrum concentrated in the hands of larger carriers. 

The Commission has to work together in an expeditious fashion to deploy already 

available spectrum. If we're going to see that ]00 megabits reach 100 million homes the 

FCC has to begin to complete rulemakings faster so that we see immediate action. I am 

disappointed that the Advanced Wireless Spectrum (3) was not recommended for 

immediate deployment that's a proceeding that was teed up years ago. Businesses 

can't be expected to participate in a hackneyed process that leaves them wondering and 

losing money for years. 

Also, I have heard that the Department of Defense's (DOD) 1755-1780 MHz spectrum 

band that the National Broadband Plan is considering pairing with A WS-3 is currently 

jam packed with vital systems including drones for air strikes in Afghanistan and 

Pakistan and border security here at home, and that the systems in that band cost over 

$100 billion and cannot be relocated until 2030. Could you comment on this matter? 

I have always supported putting the public spectrum resource to the best public interest use 

for the American people, and have encouraged expeditious resolution of the outstanding 

issues related to the A WS-3 spectrum. Commission staff has had discussions with the 

National Telecommunications and Infonmation Administration, as the spectrum 

representative for Executive Branch agencies, to explore the possibility of making more 

spectrum available in the 1755-1850 MHz band. This exploration was undertaken to provide 

maximum options to the Commission for making the most effective use of the spectrum, 

including the possibility of globally hanmonized paired spectrum. llook forward to hearing 

from the staff, as well as the Executive Branch, on whether such a possibility exists-and, if 

so, whether it should be pursued. 

2. Since there is no evidence or data in the National Broadband Plan supporting this 

possible pairing, did anyone at the Commission contact DOD officials to get the real 

picture on reallocating DOD's spectrum during the preparation of the National 

Broadband Plan? 

If so, please make available to me and my colleagues the data from the DoD or the 

Administration suggesting the possibility of reallocating federal spectrum to pair with 

the A WS-3 band. 

Commission staff, in collaboration with NTIA staff, have been looking into whether there is 

a possibility of reallocating federal spectrum to pair with the A WS-3 band. I understand that 

they continue to look at and discuss this matter. 

4 
212 


smartinez on DSK6TPTVN1PROD with Insert offset folio 222 here 76021A.143

3. I want to know what you will do individually to move us forward. If you don't find 

paired spectrum by the October deadline outlined in the report, will you actually 

auction the spectrum and put it in use as soon as possible? 

I believe we need to move forward expeditiously to make the A WS-3 spectrum, in whatever 

form maximizes the public interest, available quickly. I will continue to work with my 

colleagues to prevent delay. 

4. With this in mind, I did not see any immediate, specific recommended actions in tbe 

Plan that would have the FCC create new broadband competition through the use of 

spectrum. What specific actions will you be taking in the short term, say in the next 3 

months, that will provide spectrum so we can help create new entrants to the 

broadband market? 

Competition serves a critical role in safeguarding the interests of American consumers in 

terms of price, service quality and innovation. I have long been critical of the increasing 

consolidation in the wireless market, and believe the Commission needs to quickly take steps 

to expand competitive opportunity and to ensure consumer protection. The Commission 

recently released a schedule to provide targets for implementation of many recommendations 

in the National Broadband Plan. As part of that, the Commission will soon resolve the longoutstanding issue of interference protection between Wireless Communications Service 

(WCS) broadband devices and satellite radio - to unleash the mobile broadband potential of 

the WCS spectrum while ensuring existing operators are not subject to harmful interference. 

This is the first of many actions that I hope will expand competitive pressure in the wireless 

market. The Commission will also soon address the state of competition in the U.S. wireless 

industry in the 14th Annual Wireless Competition Report. I will continue to push for the 

most robust and granular analysis possible, to help inform the agency's decision-making. 

5. Next Generation 911 

I was pleased to see a specific reference to funding for Next Generation 911. As you 

know, I joined with my colleague, John Shimkus, the Co-Chair ofthe E911 Caucus, to 

offer bipartisan, bicameral legislation to renew grants for 9-1-1 call center technology, 

and to move that technology into the next developmental phase. Have you had the 

opportunity to review the legislation and could you give me your opinion about the need 

for H.R. 4829? 

I have always appreciated your strong commitment to public safety, and welcome your 

proposed legislation. It mirrors, in many ways, the key aspects of the National Broadband 

Plan's vision for Next Generation 91 I. As recommended in the Plan, your legislation would 

reauthorize the 911 grant program, as well as the 91 I Implementation Coordination Office. I 

particularly commend those provisions that would authorize grants for Enhanced 911 and NG 

91 I implementation, condition receipt of grants on use of911 funds for their intended 

purposes, and address 911 caller location issues with respect to operators of multi-line 

telephone systems. 

6. Special Access 

I was glad to see that the Plan includes several references to making sure that special 

5 
213 


smartinez on DSK6TPTVN1PROD with Insert offset folio 223 here 76021A.144

access rates are just and reasonable. As we all know, these circuits provide critical 

connections for wireless services - including backhaul for wireless providers to small 

businesses using A TM's, to the largest retail chains placing orders with their vendors. I 

have LONG advocated tbat tbe Commission look into the pricing and competition of 

special access services and I'm glad to see that it is a priority. Are you confident that 

you have the legal authority to move ahead? 

Special Access is an issue requiring Commission attention and action. It has been pending 

here for many years, so I am pleased that the Commission now seems to be moving forward, 

I hope we will truly expedite whatever data-collection is deemed appropriate and move then 

toward some final resolution. Yes, I do believe we have adequate legal authority to 

undertake this consideration. 

7. Affordability 

The National Broadband Plan doesn't provide specifics on how to achieve bringing 

more broadband connectivity to low income and rural homes in this country, other than 

through use of the Universal Service Fund. Will tbe FCC work more closely with HUD 

to expand this needed technology? 

I am pleased with the emphasis of the National Broadband Plan on working closely with all 

relevant government agencies in bui Iding broadband infrastructure out to the entire country 

and also to work with these agencies, and many other stakeholders, to encourage adoption of 

these technologies and services by all our citizens. 

8. I'm concerned that low income homes will get hooked up, but the residents will be 

unable to maintain monthly payments. Once low income and rural households do 

acquire broadband technology, what can be done to assure that the monthly service 

charge is kept to a minimum so that the service may be maintained? 

As you reference above, the National Broadband Plan does recommend, as I have advocated 

before, expanding the Lifeline Assistance to provide subsidies to low-income households to 

apply to monthly broadband service fees. 

9. Competition Questions 

The National Broadband Plan observes that there is not a coherent and effective 

framework governing the Commission's wholesale competition regulations, including 

wireless roaming policies. Indeed, the FCC's current wireless roaming rule expressly 

permits the nation's largest wireless carriers to discriminate or exclude large 

geographic areas altogether in providing wholesale foaming services to their 

competitors. As the Plan notes, such conduct undermines longstanding competition 

policy objectives by limiting the ability of smaller carriers to gain access to the 

necessary inputs to compete. How do you intend to address this important wholesale 

competition issue in the context of wireless roaming services? 

I agree that the FCC's rule excluding wireless roaming in a requesting carrier's home market 

from roaming obligations discouraged competition, hampered innovation and investment, 

and harmed consumers. That is why I voted with my colleagues at our Open Meeting last 

month to remove the exclusion. I believe that technologically compatible carriers should 

6 
214 


smartinez on DSK6TPTVN1PROD with Insert offset folio 224 here 76021A.145

deal with each other in good faith and without discrimination when negotiating voice 

roaming. Our rules now clearly do that. 

10. The National Broadband Plan acknowledges the importance of data roaming to entry 

and competition for mobile broadband services. But the FCC's present voice roaming 

rule contains an "in-market" exclusion that expressly permits carriers to deny roaming 

service to their competitors' customers in large portions of their licensed territories. 

This exclusion, if replicated in the data roaming context, would appear to severely 

undercut the Commission's stated goal in the Plan of achieving "wide, seamless and 

competitive coverage." How does the Commission intend to address this problem? 

In the recent decision wherein we eliminated the in-market exclusion for voice, the 

Commission also moved forward with a further examination of the critical issue of access to 

data roaming. As we all know, not many Americans buy a mobile phone these days only for 

the voice service. Consumers rely upon their mobile handsets to provide a dizzying array of 

data services, and the National Broadband Plan clearly demonstrates that consumer demand 

is only growing stronger. I would have preferred to go further in our recent decision to 

actually establish the data-roaming obligation, but I can support the proposed review of the 

wireless data market, providing it is accomplished in a timely and expeditious manner. 

Consumers want data now and we need to open this door to ensure wider, seamless and 

competitive coverage as quickly as we can. 

11. Public Television - Broadcast Spectrum Issue 

As you know, public television stations are very different from commercial television 

stations with respect to their funding, their programming, their mission and the 

efficient manner in which they use spectrum to serve the public interest. Public 

television stations also have been confronting extraordinary fiscal challenges during the 

past 18 months. As tbe Commission looks ahead to rulemakings announced in tbe 

National Broadband Plan to reclaim 120 MHz of spectrum from broadcasters, can you 

give us assurances tbat public television stations will be protected from involuntary 

reallocations of spectrum? 

I have often said that public broadcasting is the jewel of America's media landscape. It so 

often appeals to the better angels of our nature and brings us programming responding to the 

ways the public airwaves should be utilized in order to serve the public interest. Public 

interest criteria always serve as my guide on decisions related to the allocation of the 

people's spectrum, and this approach applies to both commercial and public broadcasting 

spectrum. Broadcasting is uniquely situated to serve-in a free-to-all, over-the-air formatthe public interest by reflecting local communities and providing a platform for the diverse 

voices of this nation. I am pleased that public broadcasting has led the way in dedicating so 

much of its digital multi-cast capacity to the development of programming targeted to local 

community audiences and to our nation's diversity. 

I can understand the importance of additional spectrum 10 expand competition and innovation 

in wireless broadband as indicated in the National Broadband Plan and its suggestion that we 

examine the possibility of reallocating and auctioning some of the broadcasting spectrum, 

perhaps including that utilized by public broadcasting. That said, I believe that much work 

still needs to be done. First and foremost, Congress would have to authorize such an 

7 
215 


smartinez on DSK6TPTVN1PROD with Insert offset folio 225 here 76021A.146

approach. But before we get that far down the road, I have encouraged a thorough 

examination of what spectrum is actually being used, for what purpose, and whether any 

higher public interest use would conceivably be served by reallocation. When it comes to 

public broadcast spectrum, I believe we need to recognize the public interest service already 

performed by so many of these stations and factor this reality into our evaluation of the best 

public interest use of this spectrum vis a vis potential competing uses. 

12. Would you elaborate on the sequencing of the rulemakings for reclaiming the broadcast 

spectrum and the creation of incentive auctions in the National Broadband Plan? As 

you know, only the Congress can authorize the creation of incentive spectrum auctions 

in which the contributors of spectrum could receive some of the proceeds. I am 

particularly interested in the proposal for the creation of a digital media trust fund to 

be created from the proceeds of incentive auctions of spectrum contributed by public 

television stations. If Congress does not authorize such incentive auctions, will these 

other rulemakings go forward in any event? 

The scope and timing of FCC proceedings are, as you know, generally guided by the Office 

of the Chairman. Recently that Office shared with us a chart of "Proposed 2010 Key 

Broadband Action Agenda Items," and that information has been made public online here: 

It :11W»'w.brQadband. ovl lanlbroadb@d-action-a endil:itemshtml. The schedule beyond 

general time periods has not been announced. 
216 


smartinez on DSK6TPTVN1PROD with Insert offset folio 226 here 76021A.147

Questions for tbe Record from tbe Honorable Mike Rogers 

1. A group of cable and satellite companies recently weigbed in with Congress and the 

FCC complaining about the so-called retransmission consent process. Congress 

established retransmission consent as a free market negotiation between distributors 

and broadcasters. These distributors are asking for tbe government to meddle in tbese 

negotiations with broadcasters. It is concerning for me to hear appeals for the Federal 

government to intervene and affect potential progress at the negotiation table. 

Government intervention can make it mucb more difficult for private parties to 

determine the fair-market value of the property in question. 

a. Do you share my concern about the unintended consequences of the government 

even considering intervention in the marketplace? 

I do have concerns about the unintended consequences of both government action and 

inaction and have always urged that the Commission try to comprehend these 

consequences prior to acting on the various proceedings before us. 

b. Do you believe you that the Communications Act grants the Commission the 

authority to intervene in these private negotiations? 

This is a question the Commission is currently asking as we solicit comments through the 

March 19,2010 Public Notice issued by the FCC's Media Bureau (DA 10-474 in MB 

Docket No. 10-71). I would be reluctant to opine further on this question until the 

Commission has a complete record in front of it. 

2. As we all know, broadband is central to our economic recovery and we are grateful to 

have the benefit of a plan to guide us. While the Plan recognizes the strides we have 

made in deploying broadband to Americans, it also discusses areas that the Commission 

believes is impeding that deployment. In particular, the broadband plan discusses the 

special access market. 

a. Would you please discuss your vision on the way forward with the special access 

market? 

It is my understanding that, upon review of the special access data collected as part of the 

current proceeding, the Commission will determine whether it is appropriate to amend 

the pricing flexibility Order addressing special access rates. I support moving forward on 

all special access matters before the Commission--they have been pending for too many 

years. Furthermore, I support Chairman Genachowski's mission to ensure that the 

rulemaking process is fact-based and data-driven. 

b. When discussing the wire line competition recommendations in Chapter 4 of the 

National Broadband plan, did you have in mind any specific type of customer? 

When considering any issue before the FCC on competition, my first concern is with the 

consumers, both residential and enterprise, to whom these services are being delivered 

and who in the final analysis pay for them. 

9 
217 


smartinez on DSK6TPTVN1PROD with Insert offset folio 227 here 76021A.148

c. Does Chapter 4 of the National Broadband plan impose any restrictions or 

limitations as to the class of customer for which these services would be made 

available? 

The National Broadband Plan provides recommendations for actions by the FCC, 

government agencies and the Congress. The document itself does not create law, adopt 

rules or implement any action. 
218 


smartinez on DSK6TPTVN1PROD with Insert offset folio 228 here 76021A.149

The Honorable John D. Dingell 

Responses/i'om Commissiol7er Robert ,1/ .lfcDOll'ell 

,\fay 5,2010 

rage f of 15 

I, On page 92. the National Broadband Plan states. "Ifthe FCC does not receive 

authorization to conduct incentive auctions. or if the incentive auctions do not yield a 

significant amount of spectrum. the FCC should pursue other mechanisms," Will 

thcsc "other mechanisms" be completely voluntary, as the plan makc patently clear 

will be the case for spectrum incentive auctions? Please explain your response, 

I have called tor any auction ofbmadcast spectrum to be completely voluntary, In 

addition. I have asked that the COlllmission explore our existing authority under Section 

336 of the COl11munications Act to provide television bmadcasters an incentive to lease 

their spectrum, Focusing on this statutorily permissible and voluntary mechanism for 

leasing parts of the aimaves may be an easier path to accelerating deployment of 

advanced \vireless services. as opposed to the more coercive means referred to in the 

National Broadband Plan, 

2. Does the Commission possess the authority. whether under the Communications Act 

of 1934. the Telecommunications Act of 1996. or otherwise. with which to require 

broadband network owners to unbundle access to their networks? Please explain your 

response. including relevant citations of statute if you believe the Commission does 

indeed possess the authority required to unbundled access to broadband networks. 

It is my opinion that. on the whole. the Commission lacks the authority to require 

broadband nct\\ork owners to unbundle access to their networks. 

3. Do you believe unbundling access to broadband networks will have a chilling effect 

on further private investments in broadband infrastructure? Please explain your 

response. 

Yes. ifhistorj is our guide. As part of the 2003 Triennia! Rel'ielr Order (TRO). the 

Commission established a deregulatory policy regarding ne\\ broadband intl"astructure. 

The Commission rules that this infi"astructure should not be burdened by unbundling 

access requirements, The TRO \\'as subject to much debate and litigation. \\ hich 

ultimately resulted in the deregulatory policy being upheld. In the meantime. the 

telecomlllunications companies continued to make significant il1\ estment in deploy ing 

tiber throughout our natioll, In reality. the policy of not requiring newly laid broadband 

infrastructure (0 be subject to unbundling access rules encouraged this investment in 

these new nel\\ orks. 

It does not make sense to re-regulate an industry that has already invested billions of 

dollars in deploying broadband. Such a I11lWe \\ould lead to years ofrulel11akings and 

litigation. And. as recent history tcaches us, the imposition of unbundling rules Oil 

broadband infi'astructure \\ould discourage future investment in the network. This 

outcome \\ould be directly contrary to the stated goals of the National Broadband Plan. 
219 


smartinez on DSK6TPTVN1PROD with Insert offset folio 229 here 76021A.150

Respol1ses/i"ol11 Commissioner Robert .\f. .1/Cf)Ol!'e!! 

.\fay 5, 20ll! 

Page 2 of 15 

4. Does the Commission eventually intend to require unbundled access to broadband 

networks? Please explain your response. 

Respectfully. I cannot predict the COlllmission's course regarding this issue. but I 

hope the Commission does not pursue such policies. 

5. Chapter Five of the National Broadband Plan mcntions Wirelcss COlllmunications 

Services (WCS) band as a source of new spectrum. On February 16, 20 I 0, I sent a 

letter to the Commission highlighting my concern that opening this spectrulll for 

mobile broadband services may result in interference with satellite radio signals, 

which reflects a 1997 declaration by Commission engineers that this would likely be 

the case. Please indicate unequivocally Cyes" or "no") whether there will be 

interference with satellite radio signals ifWCS spectrum is opened for use by 

broadband mobile devices. Further, please describe what specific actions the 

Comlllission will take to ensure there is no interference, including the safeguards the 

COlllmission will require to stop any interference that may arise. 

I regret that I do not) ct ha\t~ the answer to this question because this is an issue that 

is currently under active discussion. I am pleased that the Commission will address this 

longstanding matter at our meeting on Ma) 20. Be assured that as, part ofm) preparation 

for this meeting. I am fully engaged in analyzing and discussing these and other questions 

\vith our in-house engineers. my colleagues. and interested pal1ies. I applaud Chairman 

Genacho\Vski for taking up not only the technical rules about \\ hich you have inquired. 

but also the rules pertaining to license renewal and performance requirements. each of 

which has been pending for some time. I understand that we \\ill handle these issues in a 

comprehensive manner and in "hort order. I am hopeful that the Commission's actions 

\\ill bring needed certainty to these licensees. 

6. Will the Commission provide advance notice of the WCS rules, publish them, and 

allow for public comment prior to their implementation? 

Yes. on April 2. the Commission stafT released a Pliblic .Yotice seeking comment on 

proposed rules in this area. Those comments \\ere due on April 16. 

7. As you may be aware, I am a long-time supporter of public broadcasting, or what the 

National Broadband Plan refers to as "public media." As such, I appreciate the plan's 

acknowledgement that public media playa vital and unique role in our democracy. 

On page 92. however. the plan calls for "a trust fund for digital public media that is 

endowed by the revenues for a voluntary auction of spectrum licensed to public 

television," which I believe is something that cannot be done without an act of 

Congress. I would imagine our country's public television stations would be cautious 
220 


smartinez on DSK6TPTVN1PROD with Insert offset folio 230 here 76021A.151

Responsesfi'om Commissioner Robel'! .If .I!cDOlreli 

.\lay 5. 2010 

Page 3 of /5 

about this approach. Ifno public tclcvision station volunteers for this proposed 

auction, will the Commission reallocate spectrum anyway? Please explain your 

response. 

Although I support efforts to e:\plore opportunities for broadc<lsters to voluntaril) 

lease or relinquish some or all of their spectrum. I do not favor coercive reallocation of 

broadcast licensees' spectrum (regardless ofthc licensee's status as noncomlllercial or 

cOlllmercial). 

8. The National Broadband Plan also notes that public media are at a crossroads with 

respect to content delivery. Though there is a plethora of digitally distributed content, 

our public media system is structured predominantly around broadcast-based 

communications. To implement the National Broadband Plan, will the Commission 

propose amendments to the Public Broadcasting Act? If so, please provide those 

amendments and detailed e:\planations of them, including why they are necessary. 

It is my understanding that the Commission does not have a proposal before it 

concerning recommendations Ji.'r amending the Public Broadcasting Act. I respectfully 

defer to Chairman GenachO\I sf.; i \Iith respect to future plans for any such initiative. 

9. What is the exact number of recommendations the National Broadband Plan makes to 

the Congress'? Please provide a list of those recommcndations. In addition, please 

provide a complete list of the items in the plan that require congressional action or 

additional authority from the Congress, including an explanation of such action 

and/or additional authority. 

I respectfully defer to Chairman Genacho\lski and the team of the OfJice of 

Broadband Initiativc concerning the precise number and nature of the recol11mendations 

that they included in the National Broadband Plan. 
221 


smartinez on DSK6TPTVN1PROD with Insert offset folio 231 here 76021A.152

The Honorable Anna G. Eshoo 

1. A WS-3 Spectrum Deplovment 

Responsesfrol11 Commissioner Robert .\/. .\fcDOlrelI 

.\lay 5. l010 

Page -I of 15 

The Commission and its statfhave demonstrated a sense of urgency in drafting this 

Report. I'm convinced. based on the testimony presented here. that the Commission 

recognizes the need for speed. But I continue to have some concerns. especially 

when it comes to spurring competition with new and innovative uses of the spectrum. 

Too many entrenched interests seem to be able to stop new ideas from taking root 

through delaving tactics that keep spectrum concentrated in the hands of larger 

carriers. 

The Commission has to work together in an expeditious fashion to deploy already 

available spectrum. lfwe're going to see that 100 megabits reach 100 million homes 

the FCC has to begin to complete rulemakings faster so that we see immediate action. 

I am disappointed that the Advanced Wireless Spectrum (3) was not recommended 

for immediate deployment - thafs a proceeding that was teed up years ago. 

Businesses can't be expected to participate in a hackneyed process that leaves them 

wondering and losing money for years. 

Also. I have heard that the Department of Defense's (DOD) 1755-1780 MHz 

spectrum band that the National Broadband Plan is considering pairing with A WS-3 

is currently jam packed with vital systems including drones for air strikes in 

Afghanistan and Pakistan and border security here at home. and that the systems in 

that band cost over $100 billion and cannot be relocated until 2030. Could you 

comment on this matter? 

I regret that I do not haH~ information on any use(s) of the spectrum located in 

the 1755-1780 MHz band by the Department of Defense. I respectfully deter to Chairman 

GenachO\\ski on this matter. 

2. Since there is no evidence or data in the National Broadband Plan supporting this 

possible pairing, did anyone at the Commission contact DOD officials to get the real 

picture on reallocating DOD's spectrum during the preparation of the National 

Broadband Plan? 

Neither I nor Illy stan' has been in touch with DOD ofticials regarding this matter. 

respectfully deter to Chairman Gen3chowski on this matter. 

If so. please make available to me and my colleagues the data from thc DoD or the 

Administration suggesting the possibility of reallocating federal spectrum to pair with 

the A WS-3 band. 
222 


smartinez on DSK6TPTVN1PROD with Insert offset folio 232 here 76021A.153

IIesponsesjiY)!J1 Commissioner IIober' ,If. ,\/CD01l'cll 

.\lay 5, 2()]o 

Page 5 of 15 

3. I want to know what you v,ill do individually to move liS forward. Ifyoll don't find 

paired spectrum by the October deadline outlined in the report, will you aetually 

auction the spectrum and put it in use as soon as possible? 

I respectfully defer to Chairman Genachll\\ ski on this matter. 

4. With this in mind, I did not see any immediate. specific recommended actions in the 

Plan that would have the FCC create nevv broadband competition through the use of 

spectrum. What specific actions will you be taking in the short term, say in the next 3 

months. that will provide spectrum so we can help create new entrants to the 

broadband market? 

Here again. I respectfully deler to Chairman Genachowski. 
223 


smartinez on DSK6TPTVN1PROD with Insert offset folio 233 here 76021A.154

5. Next Generation 911 

Responses/rom Commissioner Roberl .\/. .\fc/)(]ll'ell 

.I/ay 5. cO /0 

Page 6 of 15 

I was pleased to see a specific reference to funding for Next Generation 911. As you 

know. I joined with my colleague. John Shimkus, the Co-Chair of the E911 Caucus, 

to offer bipartisan. bicameral legislation to renew grants for 9-1-1 call center 

technology. and to move that technology into the next dcvelopmental phase. Have 

you had the opportunity to review the legislation and could you givc me your opinion 

about the need for H.R. 4829? 

Yes. I havc revicm::d the Ncxt Gcncration 9-1-1 Prescrvation Act of20 I O. 1 

commend you and Congressman Shimkus on your leadcrship in this area for cosponsoring the E911 bill in the 108\11 Congress and for pursuing efforts to reauthorize the 

E911 grant program during this Congress. It is critical that public safety answering 

points have the proper tools to pinpoint the location of an emergency when someone calls 

911. and your work on this legislation will help. 

I notice that the reauthorization calls for the grants to be managed solely by the 

National Telecommunications and Information Administration (NTIA) rathcr than jointly 

by both NTIA and the National Highway Traffic Safcty Administration. I commend) our 

commonsensc proposal because it IVOlild provide the public safety community II ith a 

streamlined process tl1r grant applications and \\ould avoid needless confusion that often 

arises Ivhen tlVO or more agencies are involved in jointly managing a grant program. 

Finally. upon enactment of the legislation. I am prepared to work with Chairman 

Genaehowski and all ofmy colleagues to seek and review analyses regarding current and 

potential 911 location capabilities of multi-line telephone systems. 

6. Special Access 

I was glad to see that the Plan includes several references to making sure that special 

access rates are just and reasonable. As we all know, these circuits provide critical 

connections for wireless services including backhaul for wireless providers to small 

businesses using A TM·s. to the largest retail chains placing orders with their 

vendors. I have LONG advocated that the Commission look into the pricing and 

competition of special access services and I'm glad to see that it is a priority. Are 

you confident that you have the legal authority to move ahead? 

Generally speaking. the Commission has exercised legal authority over special access 

pursuant to 47 U.S.c. ~§ 20 I and 202. One question that remains. however. is whether 

Commission action to re-regulate special access 1\ oLild be upheld in court absent a strong 

factual basis supporting such a decision. 

With the rollollt of more and more new communications technologies coming over 

the horizon. especially I\ireless technologies. the special access market will become e\·en 

more important than it is today as the primary means for backhaul. Dcbates over policy. 

and the important subsequent decisions that often emcrge. should be firmly grounded not 

only in 13\\ but in solid facts as well. Rendering rules on an unsure factual foundation is 
224 


smartinez on DSK6TPTVN1PROD with Insert offset folio 234 here 76021A.155

RespolIses]i'om Commissioner Robert .I/. .\/cD01l'ell 

.1 fay 5.201(1 

Page 7fifl5 

akin to building a house 011 quicksand. As the General Accounting Office (GAO) and 

others have observed in the past. the Commission necds a more complete record of where 

special access and other comparable facilities are located before I\e can determine the 

appropriate lelel of regulation or deregulatioll- for special access services. 

For several years I haw proposed that the Commission collect granular data on the 

state of the special access market from all providers to allO\\ the Commission to move 

forward in this important area. I commend Chairman Genachowski for issuing a public 

notice last fall to seek comment on \1 hat anal~ tical framework the Commission should 

use. Subsequently. the Commission has received input in response. II hich is currently 

under consideration in the Wireline Competition Bureau. I look fomard to Ilurking lIith 

my colleagues on l1e:-.:t steps as lie review the record. 

7. Affordabilitv 

The National Broadband Plan doesn't provide specifics on how to achieve bringing 

more broadband connectivity to low income and rural homes in this country, other 

than through use of the Universal Service Fund. Will the FCC work more closely 

with BUD to expand this needed technology? 

I respectfully defcr to Chairman Genachol\ ski on any potential FCC inter-agency 

interaction. 

8. I'm concerned that low income homes will get hooked up, but the residents will be 

unable to maintain monthly payments. Once low income and rural households do 

acquire broadband technology, what can be done to assure that the monthly service 

charge is kept to a minimum so that the service may be maintained? 

Currently, Lifeline and Link Up universal service programs provide discounts for 

provision of telephone service to low-income consumcrs. The Commission recently sent 

a referral to thc Federal-State Joint Board on Universal Service (Joint Board) seeking 

guidance on it numbcr of issucs regarding these programs. As part of that referral. the 

Commission sought guidance fj'om the Joint Roard regarding potentially e:-.:panding the 

current programs to support broadband. I look forward to hearing back from the Joint 

Board on this topic. 

9. Competition Questions 

The National Broadband Plan observes that there is not a coherent and effective 

framework governing the Commission's wholesale competition regulations, including 

wireless roaming policies. Indeed, the FCCs current wireless roaming rule e:-.:pressly 

permits the nation's largest wireless carriers to discriminate or exclude large 

geographic areas altogether in providing wholesale roaming services to their 

competitors. As the Plan notes, such conduct undermines longstanding competition 

policy objectives by limiting the ability of smaller carriers to gain access to the 
225 


smartinez on DSK6TPTVN1PROD with Insert offset folio 235 here 76021A.156

Nesponses/i'om Commissioner Nobel'! .\/. .\kD01reli 

.\Jay 5.2010 

Page 8 ()f 15 

necessary inputs to compete. How do you intend to address this important wholesale 

competition issue in the context of wireless roaming services? 

On April 21. ! joined my colleagues in unanimous support for a moditication of our 

roaming rules. I 3m pleased that this new rule balances a number of other competing 

interests such as promoting competition among multiple \\ireless carriers. encouraging 

new entry into the \\ ireless market. and providing incentives for all carriers to invest and 

innovate. 

In our August 2007 order on roaming. \\hich I supported. the Commission ruled that 

automatic voice roaming is a common carrier service subject to Title II of the Act. At the 

same time. however. the Commission did not extend that decision to those carriers that 

\vere requesting voice roaming in geographic areas where they held spectrum licenses to 

provide vvireless services. In making this exclusion for "home roaming:' \\e reasoned 

that imposing an automatic roaming obligation in home markets might discourage buildout in these markets and. therefore. undermine facilities-based competition. 

Ne\eliheless. we rccognized the impoliancc of roaming and encouraged \\ireless carriers 

to continue to negotiatc and reach automatic roaming contracts in those home markets. 

In the interv ening years. through numerous meetings \\ith an array of interested 

parties. I learned that the great majority of carriers seeking regulatory relief in this area 

\\ere successfully continuing to strike new roaming deals in the marketplace. On the 

other hand. I also learned that. in some instances. the home roaming exclusion 

unintentionally created confusion. The rule led some to conclude that a carricr 

effectively had no right to request roaming in any market \vhere it held spectrum. and the 

\\ould-be host carrier had no obligation to negotiate roaming arrangements for those 

markets. Carriers also complaincd that they had no rights under Title II te) seek relief 

fi'om the COlllmission for those disputes arising trom roaming requests in home markets. 

As a result. for several years now. interested parties have sought to modify the home 

market exclusion in a number of cumbersome \\ays. 

The good news is that the entire Commission agrced on a new course. Specifically. 

we recognized that the belter. simpler path is to eliminate the home market exclusion 

completely. We also clarified that wireless carriers have statutory rights to complain to 

the Commission. even if they seek automatic voice roaming arrangemcnts \\ithin a home 

markct. By setting forth factors that the COl11mission would consider in the e\ ent of a 

complaint. \1 e prcl\'ided a ti-ame\\ork that will provide both sidcs - the host and the 

requesting carriers \vith greater incentives to succeed in negotiating roam ing 

agreements based on reasonable terms and conditions. We allowed market forces to 

drive flexible deals among market players to give consumers the benetit of seamless. 

nationwide voice services. 

10. The National Broadband Plan acknowledges the importance of data roaming to entry 

and competition for mobile broadband services. But the FCC's present voicc 

roaming rule contains an "in-market" exclusion that expressly pcrmits carriers to deny 
226 


smartinez on DSK6TPTVN1PROD with Insert offset folio 236 here 76021A.157

Respoi1Ses/i'om Commissioner Rober! :If. .lfcD01reli 

.Ifay 5, 20 f() 

Page 9 Rf!5 

roaming service to their competitors' customers in large portions of their licensed 

territories. This exclusion, if replicated in the data roaming context. would appear to 

severely undercut the Commission's stated goal in the Plan of achieving "wide. 

seamless and competitive coverage." How does the Commission intend to address 

this problem? 

Also on Apri I 21. I joined \\ ith my colleagues to support a Further Noti.:e of Proposed 

Rulemaking seeking additional comment on data roaming. For some time no\\'. I have 

requested that interested parties submit for our consideration a legal analysis setting forth 

the means to this end. The question is simple: Given that. in 2007. the Commission 

classified \\ireless broadband services as Title I Ivithout dissent. is there a legall) 

sustainable path to mandate automatic data roaming? I have sought this anal:- sis well 

before the D.C. Circuit's recent ruling in the COli/cast case. which casts even more doubt 

on our jurisdiction in this area. I am hopeful that coml11enters will give us their analyses 

of how the COl11cast decision aiTects our abilit:) to regulate dat;] roaming. I look forward 

to learning more. 

In the meantime. I \vill continue to strongly encourage parties to continue to enter into 

roaming deals. including those that include data. As the Further Notice states. "in the t\\O 

) ears since our 2007 Further Notice on data roaming. the wireless broadband industry has 

experienced a rapid evolution. 1\ ilh significant economic. technological. and regulatory 

developments. including del'elopments in net\lork and devicc technologies. spectrum use 

and availability. market participants. network deployments. and consumer demand and 

usage patterns." I highlight these positive developments to point out that they have 

occurred even IV ithout an FCC mandate for automatic data roaming. 

II. Public Television - Broadcast Spectrum Issue 

As you know, public television stations are very different from commercial television 

stations with respect to their funding. their programming. their mission and the 

efficient manner in which they use spectrum to serve the public interest. Public 

television stations also have been confronting extraordinary fiscal challenges during 

the past 18 months. As the Commission looks ahead to rulemakings announced in the 

National Broadband Plan to reclaim 120 MHz of spectrum from broadcasters. can 

you give us assurances that public television stations will be protected from 

involuntary reallocations of spectrum? 

Whilc I support cfforts to explore opportunities for broadcasters to voluntarily lease 

or relinquish some or all of their spectrum. I do not favor coercive reallocation of 

broadcast licensees' spectrulll (regardless of the liccnsee's status as either noncommercial 

or commercial). 

12. Would you elaborate on the sequencing of the rulemakings for reclaiming the 

broadcast spectrum and the creation of incentive auctions in the National Broadband 

Plan? As you know, only the Congress can authorize the creation of incentive 
227 


smartinez on DSK6TPTVN1PROD with Insert offset folio 237 here 76021A.158

Respol1ses./i'ol11lommissioner Robert ,If. ,lfcDOlrell 

JJay 5.2010 

Page f() of 15 

spectrum auctions in which the contributors of spectrum could receive some of the 

proceeds. I am particularly interested in the proposal for the creation of a digital 

media trust fund to be created from the proceeds of incentive auctions of spectrum 

contributed by public television stations. If Congress does not authorize such 

incentive auctions. will these other rulemakings go forward in any event? 

Chairman Genachowski sets the agenda for the Commission's work on rulemaking 

proceedings. I respectfully defer to him as to the sequencing of proposals concerning 

broadcast spectrum or implementation of any incentive auction authority that Congress 

may grant to us. 
228 


smartinez on DSK6TPTVN1PROD with Insert offset folio 238 here 76021A.159

The Honorable Cliff Stearns 

Re,'ponses<f/'om Commissioner Roher! -'1. JtcDOll'tdl 

.\ fay 5, ]() 10 

Page II 0/,15 

I. The FCC has not had mllch sliccess in predicting market developments and setting 

technology mandates. Does the broadband plan's proposal to create retail gateway 

device mandates worry you? 

I have raised a cautionary note about this proposal. II hieh is the subject ofa newl) 

laullched Commission inquiry dubbed the "All Video" ("AIlVid") proceeding. My 

concern at this point is not that the idea necessarily bcks merit on policy grounds - at 

least if the development and deployment of such devices II ere voluntary - but because 

the gO\ernl11ent does not have a great track record in fllshioning detailed technical 

mandates that actually llperate as intended. Moreover. it appears that the marketplace 

already is moving rapidly, I\ithout any gOI emment push. toward the stated objective of 

the AIIVid proceeding: the rapid delivery ofln1t:rnet-based services through the TV 

screen. 
229 


smartinez on DSK6TPTVN1PROD with Insert offset folio 239 here 76021A.160

The Honorable Mike Rogers 

Responsesfimn COli/missioner Robert .\1. .\1CDOlfCIl 

I/ay 5,2010 

Page 12(~rI5 

I. A group of cable and satellite companies recently weighed in with Congress and the 

FCC complaining about the so-called retransmission consent process. Congress 

established retransmission consent as a free market negotiation between distributors 

and broadcasters. 

These distributors are asking for the government to meddle in these negotiations with 

broadcasters. 

It is concerning for me to hear appeals for the Federal government to intervene and 

affect potential progress at the negotiation table. Government intervention can make it 

much more difficult for private parties to determine the fair-market value of the 

property in question. 

a. Do you share my concern about the unintended consequences of the 

government even considering intervention in the marketplace? 

Yes. 

b, Do you believe you that the Communications Act grants the Commission the 

authority to intervene in these private negotiations? 

The Communications Act grants the Commission only limited authority to 

intervene in disputes concerning retransmission consent. Section 325 of the Act 

express I) states that the COl11mission l11a) take action only in cases in \\ hich 

either a broadcaster or a multichannel video provider fails to "negotiate in good 

faith:' The statute goes on to state that requests fix "different to terms and 

conditions" does not constitute bad faith when those requests "are based on 

competitive marketplace considerations." In m)' view. theret()fe. the Commission 

lacks legal authority to interject itself into most retransmission disputes. "hich 

t} pically center on price terms. 

2. As we all know, broadband is central to our economic recovery and we are grateful to 

have the benefit of a plan to guide us. While the Plan recognizes the strides we have 

made in deploying broadband to Americans, it also discusses areas that the 

Commission believes is impeding that deployment. In particular. the broadband plan 

discusses the special access market. 

a. Would you please discuss your vision on the way forward with the special 

access market? 

With the rollout of Illore and more new communications technologies coming 

over the horizon. especially in the wireless area. the special access market ,yill 

become even l110rc important than it is today as the primary means for backhaul. 
230 


smartinez on DSK6TPTVN1PROD with Insert offset folio 240 here 76021A.161

Responses/i'om Commissioner Robel"! ,\f. ,\fcDOlrell 

,\[ay 5. ](1/0 

Page 13 of 15 

Debates 0\ er policy. and the important subsequent decisions that often emerge. 

should be firmly grounded not only in la\\ but in solid facts as \\ell. Rendering 

rules on an unsure factual toundation is akin to building a house on quicksand. 

As the General Accounting Office (GAO) and others hale observed ill the past. 

the COlllmission needs a more complete record 01\\ here special access and other 

comparable facilities are located before \\e can determine the appl'llpriate le\'el of 

regulation- or deregulation·· tor special access services. 

For several years I have proposed that the Commission collect granular data 

on the state of the special access market from all providers to allow the 

Commission to mOle t(Jr\\ard in this important area. I commend Chairman 

Genacho\\ski for issuing a public notice last tall to seek comment on \1 hat 

analytical trame\\ork the Commission should use. Subsequently. the Commission 

has received input in response. which is currently under consideration in the 

\"/ireline Competition Bureau. I look fomard to working \,ith my colleagues on 

next steps as lIe review the record. 

b. When discussing the wire line competition recommendations in Chapter 4 of 

the National Broadband plan, did you have in mind any specific type of 

customer? 

The National Broadband Plan was not drafted by m) oftice. and the Plan \\as 

not voted on by the Commissioners. Therefore.! respt:ctfully deler to the 

Chairman and the Oflice of Broadband Initiative on this question. 

c. Does Chapter 4 of tile National Broadband plan impose any restrictions or 

limitations as to the class of customer for which these services would be made 

available? 

The National Broadband Plan was not drafted by m) oflice. and thc Plan was 

not voted on by the Commissioners. Thert:fore. I respectfully defer to the 

Chairman and the Office of Broadband Initiative on this question. 
231 


smartinez on DSK6TPTVN1PROD with Insert offset folio 241 here 76021A.162

The Honorable Marsha Blackburn 

Responses/i'o/JI COlllmissioner Rohert ,11. ,\fcDOl!"e!! 

,\fay 5,2010 

Page !-I (!f 15 

1. Can you expand upon the notion that Net Neutrality rules could complicate efforts to 

enforce laws against illegal content online? I am concerned with language in the plan 

that recommends expanding Fair Use. 

I agree with you that the proposed Net Neutrality rules ma) complicate elTclrts to 

reduce the distribution of illegal content online. While it is true that the proposed rules 

try to canoe out protected content. the mere cxistence of such rules could have a chilling 

effect on prO\ iders as they try to work II ith the content community in the marketplace to 

find the most eftectile Ilays to th"art the illegal distribution of content. 

Recommendations 15.7 and 15.9 of the N3tional Broadband Plan collectively call 

upon Congress to amend the Copyright Act to provide "digital public media" and others a 

broader exemption under the "fair use" provision of the statute f()f various 

"noncommerciar' uses of the works of others. The Plan notes that the Copyright Act lIas 

amended to promote greater noncommercial uses of copyrighted material in the predigital era. when the act of making and distributing unauthorized copies lIas considerably 

more difficult than it is today. I am concerned that the Plan's recommendations do not 

appear to address the ncw legal ramifications created by digital technology and the 

Internet. We lin~ in an era I\hen the ease of copying and distributing a creator's \lork 

electronically. e\"en if initially done with good intent for \alid purposes, can set offa 

chain ofinfi'ingements that could undermine the marketplace value ofa \york. The Plan's 

recoll1mendations for copyright la\\ amendments seem to ignore the balance of interests 

engaged in fierce and ongoing policy debates about hO\I the fair use provision should 

I\ork in toda) 's digital environment. 

2. Would you agree that broadening this definition would make it easier for the work of 

artists to be used by others without fair (or any) compensation? 

Because COP) right is outside the e:-,:pertise of the Commission. I am concerned that 

the National Broadband Plan has offered recommendations that may nol be the result of a 

full balancing of the issues creatcd by today's technologies, particularly the easy copying 

and dissemination of protected works for unauthorized uses. I respectfully defer to the 

e:-,:pertise of Congress in striking the appropriate balance for copyright protection of 

I\orks in electronic form. 

3. The National Broadband Plan suggests that data broadband deployment should be 

collected at the census block level. With more than eight million census blocks in the 

U.S., reporting at this level would be e:-,:eeptionally granular and burdensome to 

broadband providers. Do you think these proposals go too far? Wouldn't the cost of 

these obligations outweigh their benefit? 
232 


smartinez on DSK6TPTVN1PROD with Insert offset folio 242 here 76021A.163

Responses,ti'om Commissioner Robei'I .If. .11cIJ01l'e/l 

Itoy 5.20/0 

Fage /5 o1l5 

Until 2008. the Commission collected data li'om \\ireline providers on a zipcode-byzipcodc basis as part ofa process commonly referred to as "'Form 47T data collection. 

Starting \Iith the June 2009 data collection. the Commission began collecting the number 

of broadband subscribers by Census Tract. broken dOlI n by speed tier and technolog~ 

type. It is 111) understanding that the Chairman \\ ill circulate a Notice of Proposed 

Rulemaking in the fourth quarter of this year e;;ploring whether the Commission should 

collect broadband availability data at the Census Block level. While I generally believe it 

is helpful tor the Commission to have access to data on as granular basis as possible. I 

understand the concerns of some \Iho think that requiring too much detailed information 

could t(wce providers to e;;pend resources on data collection to the detriment of 

deployment eft(Jrls. I intend to keep these COIKerns in mind II hen this debate continlles 

later this year. 
233 


smartinez on DSK6TPTVN1PROD with Insert offset folio 243 here 76021A.164

FEDERAL COMMUNICATIONS COMMISSION 

The Honorable Henry A. Waxman 

Chainnan 

Comminee on Energy and Commerce 

U.S. House of Representatives 

2125 Rayburn House Office Building 

Washington. DC 20515 

Dear Chairman Waxman: 

May 5. 2()j() 

Please tind enclosed my v,Tittel1 responses to fi'ol11 certain Members of 

the Cmmnitlee regarding the held 1\larch betbre the Subcommittee on 

Communications. lntemet entitled "Oversight of the Federal 

Communications The National Broadband Plan:' 

P]c,\SC contact me a1(202)4] 8-2100 if you have any questions. 

Sincerely. 

Enclosure 

Strel.'l \\'u"hingwn, I}C. 10554 (:202141 S<? 100 
234 


smartinez on DSK6TPTVN1PROD with Insert offset folio 244 here 76021A.165

RESPONSES OF FCC COMMISSIONER MIGNON L. CLYBURN TO 

QUESTIONS FOR THE RECORD FOLLOWING MARCH 25, 2010 

The Honorable John D. Dingell 

1. On page 92, the National Broadband Plan states, "If the FCC does not receive 

authorization to conduct incentive auctions, or if the incentive auctions do not yield a 

significant amount of spectrum, the FCC should pursue other mechanisms." Will 

these "other mechanisms" be completely voluntary, as the plan makes patently clear 

will be the case for spectrum incentive auctions? Please explain your response. 

Answer: My understanding is thallhe Plan only recommends incentive auctions that are 

completely voluntary. As I read it, there is nothing in the Plan that suggests that such 

auctions would be mandatory. At this point I am unaware of any "other mechanisms," as 

I believe the Plan was written with the full confidence that voluntary auctions would be 

successful. 

2. Does the Commission possess the authority, whether under the Communications 

Act of 1934, the Telecommunications Act of 1996, or otherwise, with which to 

require broadband network owners to unbundle access to their networks? Please 

explain your response, including relevant citations of statute if you believe the 

Commission does indeed possess the authority required to unbundle access to 

broadband networks. 

Answer: I understand that the term "unbundle" may have different meanings for 

different people. There are several provisions in the Communications Act of 1934, as 

amended, that specifically address unbundling of networks. First, Section 251(c)(3) 

requires incumbent local exchange carriers to provide nondiscriminatory access to 

network elements on an unbundled basis, at any technically feasible point at just and 

reasonable rates, terms, and conditions. In addition, Section 271(c)(2)(B) provides 

further duties for Bell Operating Companies to unbundle their network elements on a 

nondiscriminatory basis. 

Section 10 of the Communications Act allows the Commission to forbear from eertain 

Title II regulations for a telecommunications carrier or class of carriers. Section lO(a) 

rcquires that the Commission grant forbearance where it determines that enforcement of 

the regulation is unnecessary to ensure that rates and practices are just, reasonable, and 

not unreasonably discriminatory; enforcement is unnecessary to protect consumers; and 

forbearance is consistent with the public interest, in that it "will promote competitive 

market conditions" and "enhance competition among providers of telecommunications 

services." The Commission has forborne from certain Title II regulations for certain 

network elements used to provide broadband services pursuant to Section 10 of the 

Communications Act and Section 706 of the Telecommunications Act of 1996, which is 

now codified at 47 U.S.C. § 1302. 
235 


smartinez on DSK6TPTVN1PROD with Insert offset folio 245 here 76021A.166

3. Do you believe unbundling access to broadband networks will have a chilling 

effect on further private investments in broadband infrastructure? Please explain 

your response. 

Answer: As stated at the beginning of Chapter 4 of the National Broadband Plan. 

broadband has played a significant role in driving the creation of a wide variety of 

products and services in recent years. Moreover, that Chapter states that competitive 

forces are an essential key to driving investment and innovation in the broadband 

ecosystem and are crucial for promoting consumer welfare. However, the Plan notes that 

the Commission currently lacks the detailed information it needs to examine fully the 

competitive state of the broadband ecosystem. As such, the Plan recommends that the 

Commission 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 Plan also observes that various inputs from incumbents are used by competitors to 

provide broadband service, and it recommends that the Commission comprehensively 

review its wholesale competition regulations, in addition to its ongoing review of recent 

petitions concerning certain inputs purchased from incumbents that are used by 

competitors. 

This data is essential for us to understand whether there is sufficient competition in the 

market on an ongoing basis and whether or not that competition is producing the optimal 

innovation and investment in networks. We must also be mindful that, at the end of the 

day, we must do what is best for American consumers. I will consider all of these 

elements as we move forward. 

4. Does the Commission eventually intend to require unbundled access to 

broadband networks? Please explain your response. 

Answer: Please see my responses to questions 3 and 4 above. 

2 
236 


smartinez on DSK6TPTVN1PROD with Insert offset folio 246 here 76021A.167

5. Chapter Five of the National Broadband Plan mentions Wireless 

Communications Services (WCS) band as a source of new spectrum. On February 

16, 2010, I sent a letter to the Commission highlighting my concern that opening this 

spectrum for mobile broadband services may result in interference with satellite 

radio signals, which reflects a 1997 declaration by Commission engineers that this 

would likely be the case. Please indicate unequivocally ("yes" or "no") whether 

there will be interference with satellite radio signals if WCS spectrum is opened for 

use by mobile broadband devices. Further, please describe what specific actions the 

Commission will take to ensure there is no interference, including the safeguards the 

Commission will require to stop any interference that may arise. 

Answer: The FCC's Office of Engineering Technology has informed me that, with the 

adoption of appropriate technical standards, the risk of interference to Satellite Digital 

Audio Radio Service (SDARS) from WCS mobile operations is negligible and that the 

Commission can adopt standards that are effective in preventing harmful interference. 

The Commission also plans to adopt procedures that will help identify any potential 

interference before it occurs and promptly correct any interference that may occur. The 

FCC staff issued a public notice on April 2, 2010, inviting comment on the specific draft 

l1lles, including both the technical standards and interference resolution mechanisms. 

Notably, the proposed l1lles include a requirement that "WCS licensees must select base 

station sites and frequencies, to the extent practicable, to minimize the possibility of 

harmful interference to operations in the SDARS 2320-2345 MHz band." We anticipate 

that we will receive comments proposing further refinements to the proposals and we will 

make adjustments as may be appropriate before adopting the final rules so that we 

address our nation's spectrum challenges while guarding against interference with 

existing services such as SDARS. 

6. Will the Commission provide advance notice of the WCS rules, publish them, and 

allow for public comment prior to their implementation? 

Answer: On April 2, 2010, Commission staff issued a public notice inviting comment on 

draft l1lles for the WCS and SDARS. In addition, on March 2, 2010, Commission staff 

met jointly with the WCS Coalition and Sirius-XM and provided eonsiderable details on 

the l1lles the staff contemplated recommending to the Commission. Both parties 

provided ex parte responses that resulted in some modifications as reflected in the l1lles 

attached to the Public Notice. This proceeding has been ongoing for many years and there 

is a voluminous record that includes proposals from all of the interested parties. Our goal 

is to adopt rules in the very near future so that we address our nation's spectrum 

challenges while guatding against interference with existing services such as SDARS. 

3 
237 


smartinez on DSK6TPTVN1PROD with Insert offset folio 247 here 76021A.168

7. As you may be aware, 1 am a long-time supporter of public broadcasting, or 

what the National Broadband Plan refers to as "public media," As such, I 

appreciate the plan's acknowledgement that public media playa vital and unique 

role in our democracy. On page 92, however, the plan calls for "a trust fund for 

digital public media that is endowed by the revenues from a voluntary auction of 

spectrum licensed to public television," which I believe is something that cannot be 

done without an act of Congress. I would imagine our country's public television 

stations would be cautious about this approach. If no public television station 

volunteers for this proposed auction, will the Commission reallocate spectrum 

anyway? Please explain your response. 

Answer: I, too, am a strong supporter of public media. I am not aware of any intention 

to require the reallocation of spcctrum currcntly dedicated to public media. I would not 

support such a blunt instrument at this time. 

8. The National Broadband Plan also notes that public media are at a crossroads 

with respect to content delivery. Though there is a plethora of digitally distributed 

content, our public media system L<; structured predominantly around broadcastbased communications. To implement the National Broadband Plan, will the 

Commission propose amendments to the Public Broadcasting Act? If so, please 

provide those amendments and detailed explanations of them, including why they are 

necessary. 

Answer: Through the Commission's Future of Media project, public media will play an 

important role in our overall analysis of the news and information marketplace. Indeed, 

the Commission recently held a very productive workshop focused primarily on public 

media. Public media clearly plays an integral role in the way communities and the nation 

as a whole receives news and information, and I hope the Commission continues to 

encourage the viability and expansion of such outlets going forward. 

4 
238 


smartinez on DSK6TPTVN1PROD with Insert offset folio 248 here 76021A.169

9. What is the exact number of recommendations the National Broadband Plan 

makes to the Congress? Please provide a complete list of those recommendations. In 

addition, please provide a complete list of the items in the plan that require 

congressional action or additional authority from the Congress, including an 

explanation of such action and/or additional authority. 

Answer: The Plan does not tally the exact number of recommendations nor have we been 

provided a complete and separate list of those recommendations outside of the Plan itself. 

My understanding is that the Chairman's office could produce the number and list for 

your office. 

5 
239 


smartinez on DSK6TPTVN1PROD with Insert offset folio 249 here 76021A.170

The Honorable Anna G. Eshoo 

1. The Commission and its staff have demonstrated a sense of urgency in drafting 

this Report. I'm convinced, based on the testimony presented here, that the 

Commission recognizes the need for speed. But I continue to have some concerns, 

especially when it comes to spurring competition with new and innovative uses of 

the spectrum. Too many entrenched interests seem to be able to stop new ideas 

from taking root through delaying tactics that keep spectrum concentrated in the 

hands of larger carriers. 

The Commission has to work together in an expeditious fashion to deploy already 

available spectrum. If we're going to see that 100 megabits reach 100 million homes 

the FCC has to begin to complete rulemakings faster so that we see immediate 

action. I am disappointed that the Advanced Wireless Spectrum (3) was not 

recommended for immediate deployment - that's a proceeding that was teed up 

years ago. Businesses can't be expected to participate in a hackneyed process that 

leaves them wondering and losing money for years. 

Also, I have heard that the Department of Defense's (DOD) 1755-1780 MHz 

spectrum band that the National Broadband Plan is considering pairing with A WS3 is currently jam packed with vital systems including drones for air strikes in 

Afghanistan and Pakistan and border security here at home, and that the systems in 

that band cost over $100 billion and cannot be relocated until 2030. Could you 

comment on this matter? 

Answer: My understanding is that FCC staff members met with staff members of the 

NTIA. Based on those preliminary discussions, the Chairman's office determined that it 

was worth pursuing the possibility of relocating some federal agency communications 

services from the 1755-1780 MHz band. The National Broadband Plan recommends a 

reasonable deadline for continuing discussions to pursue that possibility. The Plan also 

makes clear, however, that, if there is not a strong possibility of reallocation of federal 

spectrum, the FCC should proceed promptly to adopt final rules in 2010 and auction the 

A WS-3 spectrum on a stand-alone basis in 2011. 

2. Since there is no evidence or data in the National Broadband Plan supporting 

this possible pairing, did anyone at the Commission contact DOD officials to get the 

real picture on reallocating DOD's spectrum during the preparation of the National 

Broadband Plan? If so, please make available to me and my colleagues the data 

from the DOD or the Administration suggesting the possibility of reallocating 

federal spectrum to pair with the A WS-3 band. 

Answer: I was not privy to any such discussions with DOD. My understanding is that 

interagency discussions did take place as part of the Plan's preparation. I was pleased to 

see that a reasonable deadline was placed on any discussion of this sort so that we can 

move forward in a sensible manner should no pairing take place. 

6 
240 


smartinez on DSK6TPTVN1PROD with Insert offset folio 250 here 76021A.171

3. I want to know what you will do individually to move us forward. If you don't 

find paired spectrum by the October deadline outlined in the report, will you 

actually auction the spectrum and put it in use as soon as possible? 

Answer: I share the view expressed in the Plan that if we do not find paired spectrum by 

the deadline, the spectrum should be auctioned and put to its highest and best use as soon 

as possible. 

4. With this in mind, I did not see any immediate, specific recommended actions in 

the Plan that would have the FCC create new broadband competition through the 

use of spectrum. What specific actions will you be taking in the short term, say in 

the next 3 months, that will provide spectrum so we can help create new entrants to 

the broadband market? 

Answer: The Plan recommends a number of relevant actions that the Chairman has 

indicated he will pursue in the near term. For example, at the Commission's May 20 

agenda meeting, we will vote on whether to adopt an Order that would make available an 

additional 25 megahertz of spectrum for mobile broadband servicc in much of the United 

States. The Commission is also aiming to adopt in short order a Notice of Proposed 

Rulemaking that would propose changes to the rules for mobile satellite services (MSS), 

such as gating criteria before deployment of Ancillary Terrestrial Component services, 

that would enable MSS licensees to offer consumers additional choices for mobile 

broadband services. 

5. I was pleased to see a specific reference to funding for Next Generation 911. As 

you know, I joined with my colleague, John Shimkus, the Co· Chair of the E911 

Caucus, to offer bipartisan, bicameral legislation to renew grants for 9·1·1 call 

center technology, and to move that technology into the next developmental phase. 

Have you had the opportunity to review the legislation and could you give me your 

opinion about the need for H.R. 4829? 

Answer: I support the goals of H.R. 4829. Consumers have every right to expect to be 

able to communicate with public safety agencies using the full range of applications that 

they use with others. 1 SUppOlt statutory and regulatory measures that will add broadband 

capabilities such as texting, photo, video, email, location to existing 9-1-1 functionalities 

and provide more location information to PSAPs. 

7 
241 


smartinez on DSK6TPTVN1PROD with Insert offset folio 251 here 76021A.172

6. I was glad to see that the Plan includes several references to making sure that 

special access rates are just and reasonable. As we all know, these circuits provide 

critical connections for wireless services - including backhaul for wireless providers 

to small businesses using ATM's, to the largest retail chains placing orders with 

their vendors. I have LONG advocated that the Commission look into the pricing 

and competition of special access services and I'm glad to see that it is a priority. 

Are you confident that you have the legal authority to move ahead? 

Answer: As stated in the National Broadband Plan, special access circuits are typically 

sold by incumbent local exchange cmTiers to businesses and competitive providers to 

connect customer locations and networks, and they "playa significant role in the 

availability and pricing of broadband service." National Broadband Plan at 48. Pursuant 

to the Commission's authority under Sections 201 through 205 of thc Communications 

Act, the FCC has an obligation to ensure that rates charged by telecommunications 

caITiers are just and reasonable, and that they m'e nondiscriminatory. In addition to 

Sections 201 through 205, the Commission previously has cited Sections 1,2, 4(i), 4(j), 

and 303 as its legal authority for implementing special access regulations. See, e.g., 

Special Access Ratesfor Price Cap Local Exchange Carriers, WC Docket No. 05-25, 

AT&T Corp. Petition for Rulemaking to Reform Regulation of Incumbent Local Exchange 

Carrier Rates for Interstate Special Access Services, RM -1 0593, Order and Notice of 

Proposed Rulemaking, 20 FCC Rcd 1994, 9[ 136 (2005) citing 47 U.S.C. §§ 151, 152, 

154(i), 154(j), 201-205, and 303. As you note, the Commission currently is considering 

the appropriate analytical framework for its review of special access offerings, and the 

Plan recommends that the Commission ensure that special access rates, terms, and 

conditions are just and reasonable given their significant role in the provision of 

broadband service. 

7. The National Broadband Plan doesn't provide specifics on how to achieve 

bringing more broadband connectivity to low income and rural homes in this 

country, other than through use of the Universal Service Fund. Will the FCC work 

more closely with HUD to expand this needed technology? 

Answer: The Plan acknowledges the importance of interagency work, including 

partnering with HUD on key initiatives. For example, the Plan recommends that NTIA 

should explore the potential for public-private partnerships to improve broadband 

adoption by working with other federal agencies, including HUD, that already serve 

communities with low adoption rates. The Plan states that a public-private partnership 

program specifically targeting people living in HUD-subsidized housing could reach 

more than nine million low-income people. The Plan also recommends that the federal 

government should develop regional and community broadband benchmarks within 

economic development planning and programs, including "HUD and USDA's 

Empowerment Zone, Enterprise Community and Renewal Community programs [that] 

encourage the revitalization of impoverished urban and rural communities through 

economic, physical and social investments." The Plan further provides that these 

programs should include a community technology assessment that measures broadband 

availability, prices, and rate of adoption and that HUD and USDA should require 

8 
242 


smartinez on DSK6TPTVN1PROD with Insert offset folio 252 here 76021A.173

community plans to establish goals for increasing broadband adoption and use in the 

communities they servc. 

8. I'm concerned that low income homes will get hooked up, but the residents will 

be unable to maintain monthly payments. Once low income and rural households do 

acquire broadband technology, what can be done to assure that the monthly service 

charge is kept to a minimum so that the service may be maintained? 

Answer: I understand this concern, and it is one that I share. The Plan discusses two 

specific ways to address this issue. First, it recommends that the Commission should 

expand Lifeline Assistance (Lifeline) and Link-Up America (Link-Up) to make 

broadband more affordable for low-income households. It specifically provides that the 

FCC and states should require eligible telecommunications carriers (ETCs) to perm.it 

Lifeline customers to apply Lifeline and Link-Up discounts to any service or package that 

includes basic voice service. Thus, Lifeline consumers could apply their monthly 

discount to bundled offerings of both broadband and voice services, helping to make 

broadband more affordable for low income consumers. The Plan also recommends that 

the consumer should be able to select any broadband service provider that meets 

minimum criteria no matter the technology offered in order to "maximize consumer 

choice and stimulate innovation in serving low-income users." Moreover, the Plan 

recommends that the Commission begin pilot programs to determine which parameters 

most effectively increase adoption among low-income users. Second, the Plan 

recommends that the Commission consider free or very low-cost wireless broadband as a 

means to address the afford ability barrier to adoption. This could be achieved by the 

Commission licensing spectmm through an auction, conditioned on the offering of a free 

or very low-cost broadband service which would provide a basic package of broadband 

applications. 

9. The National Broadband Plan observes that there is not a coherent and effective 

framework governing the Commission's wholesale competition regulations, including 

wireless roaming policies. Indeed, the FCC's current wireless roaming rule expressly 

permits the nation's largest wireless carriers to discriminate or exclude large 

geographic areas altogether in providing wholesale roaming services to their 

competitors. As the Plan notes, such conduct undermines longstanding competition 

policy objectives by limiting the ability of smaller carriers to gain access to the 

necessary inputs to compete. How do you intend to address this important wholesale 

competition issue in the context of wireless roaming services? 

Answer: On April 16, 2010, the Commissioner adopted a Roaming Order on 

Reconsideration and Second Further Notice of Proposed Rulemaking. The Second 

Further Notice of Proposed Rulemaking seeks comment on a number of issues related to 

extending automatic roaming obligations to certain mobile data services, including mobile 

broadband Internet access, that are provided without interconnection to the public 

switched telephone network. This proceeding is intended to address the Plan's 

recommendation that the Commission should develop roaming policies that are consistent 

ilTespective of the mobile services being offered to consumers. 

9 
243 


smartinez on DSK6TPTVN1PROD with Insert offset folio 253 here 76021A.174

10. The National Broadband Plan acknowledges the importance of data roaming to 

entry and competition for mobile broadband services. But the FCC's present voice 

roaming rule contains an "in-market" exclusion that expressly permits carriers to 

deny roaming service to their competitors' customers in large portions of their 

licensed territories. This exclusion, if replicated in the data roaming context, would 

appear to severely undercut the Commission's stated goal in the Plan of achieving 

"wide, seamless and competitive coverage." How does the Commission intend to 

address this problem? 

Answer: The Roaming Order on Reconsideration that the Commissioner adopted in April 

repealed the home market exclusion rule that the Commission had adopted in 2007. By 

repealing this home market exclusion, the Commission safeguards consumers' 

expectations of seamless coverage ilTespective of whether they are calling from their 

carrier's home market or from the home market of another. Since the Commission's goals 

in the Second Further Notice of Proposed Rulcmaking on data roaming include adopting 

consistent roaming policies, I expect that, if the Commission does impose roaming 

obligations on additional data services, such as mobile broadband Internet access services, 

it would not adopt a home market exception to roaming for such services. 

11. As you know, public television stations are very different from commercial 

television stations with respect to their funding, their programming, their mission 

and the efficient manner in which they use spectrum to serve the public interest. 

Public television stations also have been confronting extraordinary fiscal challenges 

during the past 18 months. As the Commission looks ahead to rulemakings 

announced in the National Broadband Plan to reclaim 120 MHz of spectrum from 

broadcasters, can you give us assurances that public television stations will be 

protected from involuntary reallocations of spectrum? 

Answer: I have no intention to subject public television stations to involuntary 

reallocations of spectrum. Public television plays an important role in our communities 

and is a key contributor to our mission to ensure that the public interest is served. 

12. Would you elaborate on the sequencing of the rulemakings for reclaiming the 

broadcast spectrum and the creation of incentive auctions in the National Broadband 

Plan? As you know, only the Congress can authorize the creation of incentive 

spectrum auctions in which the contributors of spectrum could receive some of the 

proceeds. I am particularly interested in the proposal for the creation of a digital 

media trust fund to be created from the proceeds of incentive auctions of spectrum 

contributed by public television stations. If Congress does not authorize such 

incentive auctions, will these other rulemakings go forward in any event? 

Answer: The Chairman has released a schedule of the Commission's projected 

proceedings for the remainder of 2010. As part of that schedule, the Chairman intends to 

produce a "Broadcast TV Spectrum Innovation NPRM" in the third quarter of this year. 

It is not yet clear exactly what will be included in this proposed rulemaking, but the Plan 

makes clear that Congress has an essential role to play in authorizing the Plan's proposed 

10 
244 


smartinez on DSK6TPTVN1PROD with Insert offset folio 254 here 76021A.175

incentive spectrum auctions. It is thus difficult to imagine that the Conunission could 

adopt any rules to conduct such auctions witho)Jt appropriate Congressional authority. 

11 
245 


smartinez on DSK6TPTVN1PROD with Insert offset folio 255 here 76021A.176

The Honorable Mike Rogers 

1. A group of cable and satellite companies recently weighed in with Congress and 

the FCC complaining about the so-called retransmission consent process. Congress 

established retransmission consent as a free market negotiation between distributors 

and broadcasters. 

These distributors are asking for the government to meddle in these negotiations 

with broadcasters. 

It is concerning for me to hear appeals for the Federal government to intervene and 

affect potential progress at the negotiation table. Government intervention can make 

it much more difficult for private parties to determine the fair-market value of the 

property in question. 

a. Do you share my concern about the unintended consequences of the 

government even considering intervention in the marketplace? 

Answer: The Commission must always consider any proposed regulatory 

intervention very carefully. Any time we review a proposed action, we must 

weigh the benefits of such intervention against all possibJe costs. This is 

something we are called upon to do each and every day. 

The case of retransmission consent is certainly no different. There is a 

complex regime that both Congress and the Commission have developed 

that governs the actions of broadcasters and MVPDs. There are many 

moving pieces that have created the marketplace in which such negotiations 

occur. The Commission will be mindful of all of these elements as it 

receives comments on the petition it has recently put out for public 

comment. 

b. Do you believe you that the Communications Act grants the Commission the 

authority to intervene in these private negotiations? 

Answer: I am looking forward to reviewing the comments we receive as a result 

of the retransmission consent review petition we recently put out for comment. 

The petition raises important legal questions, and I look forward to reading the 

comments and consulting with our Office of General Counsel to determine the 

range of authority granted by Congress to the Commission under the Act. 

12 
246 


smartinez on DSK6TPTVN1PROD with Insert offset folio 256 here 76021A.177

2. As we all know, broadband is central to our economic recovery and we are 

grateful to have the benefit of a plan to guide us. While the Plan recognizes the 

strides we have made in deploying broadband to Americans, it also discusses areas 

that the Commission believes is impeding that deployment. In particular, the 

broadband plan discusses the special access market. 

a. Would you please discuss your vision on the way forward with the special 

access market? 

Answer: The Commission currently is considering the appropriate analytical 

framework for its review of special access offerings. The Plan recommends that 

the Commission ensure that special access rates, terms, and conditions are just 

and reasonable given their significant role in the provision of broadband service. 

Commission staff is reviewing the record, and I look forward to hearing its 

recommendations in this proceeding. 

b. When discussing the wire line competition recommendations in Chapter 4 of 

the National Broadband plan, did you have in mind any specific type of 

customer? 

Answer: My understanding of Chapter 4 of the National Broadband Plan 

prepared by the staff is that competition in the broadband markets for both 

residential broadband services and enterprise broadband services are discussed, 

and the Plan provides recommendations to encourage competition in both areas. 

c. Does Chapter 4 of the National Broadband plan impose any restrictions or 

limitations as to the class of customer for which these services would be made 

available? 

Answer: Chapter 4 of the Plan states that special access circuits are used by both 

enterprises and competitive broadband providers "to connect customer locations 

and networks .... " It is not my understanding that it proposes a restriction or 

limitation on the type of customer that can purchase special access circuits. 

13 
247 


smartinez on DSK6TPTVN1PROD with Insert offset folio 257 here 76021A.178

Responses to 

QUESTIO"lS FOR THE RECORD 

From 

COMMISSIONER MEREDITH A. BAKER 

FEDERAL CO:\'IMCNICA nONS COMMISSIOJli 

May 5, 2010 
248 


smartinez on DSK6TPTVN1PROD with Insert offset folio 258 here 76021A.179

The Honorable John Dingell 

\. On Page 92, the l\ational Broadband Plan States, "If the FCC does not receive 

authorization to conduct incentive auctions, or if the incentive auctions do not yield a 

significant amount of spectrum, the FCC should pursue other mechanisms." Will these 

"other mechanisms" be completel}' voluntary. as the plan mal..es patently clear will be the 

case for spectrum incentive auctions? Please explain your response. 

I believe that any reallocation of broadcast spectrum. through incentive auctions or otherwise. must be 

voluntary, It can and should be a win-win situation for broadcasters. mobile broadband providers. and 

consumers. However. with respect to alternatives to incentive auctions, I would have to defer to the 

Chairman as to different approaches. and would hope that any alternatives would also be voluntary. 

2. Does the Commission possess the authority, whether under the Communications Act of 

1934. the Telecommunications Act of 1996, or otherwise, with which to reqUire broadband 

network owners to unbundle access to their networks? Please explain your response, 

including relevant citations of statute if you belien the Commission does indeed possess the 

authority required to unbundle access to broadband networks. 

No. Although section 251(c)(3) of the Communications Act of 1934. as amended (Act). gives the 

Commission limited authority to require unbundled access for provision of telecommunications services 

under certain circumstances. broadband Internet access services have been classified by the Commission 

as intimnation services and not telecommunications services. and therefore. could not bc subject to 

unbundling under the statute. 

3. Do you believe unbundling access to broadband networks will have a chilling effect on 

further private investments in broadband infrastructure? Please explain your response. 

Yes. I believe that we must avoid re-opening settled regulatory battles or changing our successful 

market-based regulatory framework mid-course in a manner that could chill the private investment we so 

desperately need in our broadband intl·astrueture. Specifically. we must reject any proposed regulation 

that seems to selectively forget our long and checkered history with govennnent-manufactured 

competition . 

.t. Does the Commission enntually intend to require unbundled access to broadband 

networks? Please explain your response. 

While I cannot predict what the Commission might do in the future. I would actively oppose efforts to 

impose an unbundling regime on broadband Internet access service providers-both because I believe we 

lack statutory authority. and it would have severe consequences for investment in broadband and 

innovation in the Internet to the detriment of consumers. 

1. 
249 


smartinez on DSK6TPTVN1PROD with Insert offset folio 259 here 76021A.180

5. Chapter Five of the National Broadband Plan mentions Wireless Communications Services 

(WCS) band as a source of new spectrum. On February 16, 2010, I sent a letter to the 

Commission highlighting my concern that opening this spectrum for mobile broadband 

services may result in interference with satellite radio signals, which reflects a 1997 

declaration by Commission engineers that this would likely be the case. Please indicate 

unequivocally ('yes" or "no") whether there "ill be interference with satellite radio signals 

if WCS spectrum is opened for use by mobile broadband devices. Further, please describe 

what specific actions the Commission will take to ensure there is no interference, including 

the safeguards the Commission will require to stop any interference that may arise. 

I would defer to the Chainnan's technical advisers inlhe Office of Engineering and Technology (OET) 

who advise lhat the answer is "No." 

6. Will the Commission provide adv'ance notice of the WCS rules, publish them, and allow for 

public comment prior to their implementation? 

The FCC staff issued a public notice on April 2, 2010, inviting commcnt on the draft wes rules, 

including both the technical standards and interterence resolution mechanisms. 

7. As you may be aware, I am along-time supporter of public broadcasting, or what the 

National Broadband Plan refers to as "public media." As such, I appreciate the plan's 

acknowledgement that public media plays a yital and unique role in our democracy. On 

page 92, howeYer, the plan calls for "a trust fund for digital public media that is endowed 

b~' the reHnues from a yoluntar~' auction of spectrum licensed to public teleyision," which I 

believe is something that cannot be done without an act of Congress. I would imagine our 

country's public television stations would be cautious about this approach. If no public 

television station yolunteers for this proposed auction, will the Commission reallocate 

spectrum anyway? Please explain your response. 

I agree that a trust fund for proceeds ofth~ auction for noncommercial stations would rcquir~ 

congressional action. I want to work collaborativel), with the broadcast industry and other stakeholders to 

ensure that the broadcast spectrum licensing rules provide sufficient flexibility to leverage new digital 

technologies. We nced to ensure that those rules account for the unique characteristics of both public 

broadcasting and commercial broadcasters going forward. 

3 
250 


smartinez on DSK6TPTVN1PROD with Insert offset folio 260 here 76021A.181

8. The National Broadband Plan also notes that public media are at a crossroads with respect 

to content delivery. Though there is a plethora of digitally distributed content, our public 

media system is structured predominantly around broadcast-based communications. To 

implement the National Broadband Plan, will the Commission propose amendments to the 

Public Broadcasting Act? If so, please prm'ide those amendments and detailed explanations 

of them, including why they al'e necessary? 

Similar to the challenges faced by many industries today. Public Broadcasting is going through the 

transition from an analog to a digital "arid, Public Broadcasting in Michigan is taking promising steps to 

leverage these new technologies and platforms. Thanks to the DTV transition. Detroit Public TV 

(WTVS) and other PBS television stations in Michigan are providing high definition content and mUltiple 

multicast channels or additional content. Both public television and radio have also invested heavily in 

online presences with web-based content and podcasts. Michigan Radio has similarly invested in an 

iPhone application to provide broader access to its Michigan-based content. Nationally. the Corporation 

of Public Broadcasting (CPB) has recently announced funding for the National Public Radio (NPR)-

administered Public Media Platform to help facilitatc access to multimedia puhlic broadcasting content to 

support efforts of Michigan Radio and other news ourlcts. Whilc I defer to the Chairman as to whether or 

not specific proposed amendments will be forthcoming to facilitate these ongoing digital efforts. I will 

continue to work in close coordination with the CPB. Public Broadcasting Service (PBS). and NPR to 

ensure that valuable public broadcasting content continues to reach viewers on Illultiple platforms. 

9. What is the exact number of recommendations the National Broadband Plan makes to the 

Congress? Please provide a complete list of those recommendations. In addition, please 

provide a complete list of the items in the plan that require congressional action or 

additional authority from the Congress, including an explanation of such action andlor 

additional authority. 

Of the 207 total recommendations in the National Broadband Plan. 51 are directed to the Congress. 

defer to the Chairman and his team for a full catalogue of those recommendations. As we move forward 

with connecting the last five percent of U.S. households to terrestrial broadband services and encouraging 

greater broadband adoption in the third ofhollseholds that choose not to subscribe to broadband today. the 

Commission will need to work closely with Congress and affected stakeholders to deliver successfully on 

the promise of affordable and universall: available broadband. I look forward to working with you and 

your staff on the challenges ahead. 

4 
251 


smartinez on DSK6TPTVN1PROD with Insert offset folio 261 here 76021A.182

The Honorable Anna G. Eshoo 

l. A WS-3 Spectrum Deplovment 

The Commission and its staff have demonstrated a sense of urgency in drafting this Report. I'm 

convinced, based on the testimon~' presented here, that the Commission recognizes the need for 

speed. But I continue to have some concerns, especially when it comes to spurring competition with 

new and innovative uses of the spectrum. 

Too many entrenched interests seem to be able to stop new ideas from taking root through delaying 

tactics that keep spectrum concentrated in the hands oflarger carriers. 

The Commission has to work together in an expeditious fashion to deploy already available 

spectrum. If we're going to see that 100 megabits reach 100 million homes the FCC has to hegin to 

complete mlemakings faster so that we see immediate action. I am disappointed that the Advanced 

Wireless Spectrum (3) was not recommended for immediate deployment - that's a proceeding that 

was teed up years ago. Businesses can't be expected to participate in a hackneyed process that 

leaves them wondering and losing money for years. 

Also, I have heard that the Department of Defense's (DOD) 1755-1780 MHz spectrum band that the 

National Broadband Plan is considering pairing with A WS-3 is currently jam packed with vital 

systems including drones for air strikes in Afghanistan and Pakistan and border security here at 

home, and that the s)'stems in that band cost over $100 billion and cannot be relocated until 2030. 

Could )'ou comment on this matter? 

I agree we need 10 provide businesses with c1car direction and timely decisions on all agency matters, 

particularly spectrum availability. We must also ensure our short-term and 10ng-tcnTI spectrum policies 

promote the most efficient use of spectrum for the betterment of U.S. consumers. I, therefore. support the 

Chairman's balanced approach of conducting a thorough review of available spectrum to pair with the 

A WS-J spectrum with a cOlTesponding clear deadline for final Commission decision. 

2. Since there is no evidence or data in the "Iational Broadband Plan supporting this possible 

pairing, did anyone at the Commission contact DOD officials to get the real picture on reallocating 

DOD's spectrum during the preparation ofthe National Broadband Plan? 

Ifso, please make available to me and my colleagues the data from the DOD or the Administration 

suggesting the possibility of reallocating federal spectrum to pair with (he A WS-3 band. 

I defer to the ChainTIan on particular contacts with DOD or other administration officials on the potential 

availability of spectrum to pair with the A WS-3 spectrum. 

3. I want to know what you will do individually to move us forward. If)'ou don't lind paired 

spectrum by the October deadline outlined in the report, will you actually auction the spectrum and 

put it in use as soon as possible? 

I commit to working with the Chairman and the other Commissioners on evaluating the possibility of 

pairing federal spectrum with the A WS-3 band. I also pledge to work towards licensing and auction rules 

for the A WS-3 band that promotes the t1exible and dynamic use of that spectrum, and will support eff01ts 

to schedule the auction as expeditiously as possible. 

5 
252 


smartinez on DSK6TPTVN1PROD with Insert offset folio 262 here 76021A.183

4. With this in mind, I did not see any immediate, specific recommended actions in the Plan that 

would have the fCC create new broadband competition through the use of spectrum. What specific 

actions will you be taking in the short term, say in the next 3 months, that will provide spectrum so 

we can help create new entrants to the broadband market? 

I agree that mobile broadband services. particularly next generation 40 services. provide a viable 

competitive broadband option for consumers and can serve as a broadband entry point for ncw adopters. 

The Plan outlined the need for a comprehensive and long-term spectrum framework that will ensure 

mobile broadband providers have sufficient spectrum and flexible licensing rules to provide the most 

robust services possible. Taking steps to implement those recommendations in a timely manner is 

critical. and I will sllppot1 all Commission efforts that allow for more flexible and efticient use of 

spectrum resources. 

5. Next Generation 911 

I was pleased to see a specific reference to funding for Next Generation 911. As you know, I.joined 

with my colleague, John Shimkus, the Co-Chair of the E911 Caucus, to offer bipartisan, bicameral 

legislation to renew grants for 9-1-1 call center technology, and to move that technOlogy into the 

next developmental phase. Have you had the opportunity to review the legislation and could you 

give me your opinion about the need for H.R. 4829? 

I commend your leadership on ensuring our pllblic safety infrastructure is not constrained to the analog 

world. Next generation technologies and services will provide new means to promote public safety. 

improve call center operations. and facilitate enhanced emergency response. 

6. Special Access 

I was glad to see that the Plan includes several references to making sure that special access rates 

are just and reasonable. As we all know, these circuits provide critical connections for wireless 

services - including hackhaul for wireless providers to small businesses using A TM's, to the largest 

rctail chains placing orders with their vendors. I have LONG advocated that the Commission look 

into the pricing and competition of special access services and I'm glad to see that it is a priority. 

Are you confident that you have the legal authority to move ahead? 

I supp0l1ed the staffs recent public notice to scek comment on the appropriate analytical framework for 

evaluating the special access market. I have committed to work with my Commission colleagucs to 

evaluate the state of the special access market and need for regulatory changes. if any. based on the 

competitive data developed in the record evidence of the proceeding. 

7. Affordability 

The National Broadhand Plan doesn't provide specifics on how to achieve bringing moo'e 

broadband connectivity to low income and rural homes in this country, other than through use of 

the Universal Service fund. Will the FCC work more closely with HUD to expand this needed 

technology? 

I defer to the Chairman on pal1icular contacts with HUD or other administration officials but I generally 

support coordination aeross the federal government to ensure that we are getting the most efficient and 

effective results for federal eftclrts in extending broadband connectivity to all Americans. 

8. I'm concerned that low income homes will get hooked up, but the residents will be unable to 

maintain monthly payments. Once low income and rural households do acquire broadband 

6 
253 


smartinez on DSK6TPTVN1PROD with Insert offset folio 263 here 76021A.184

technology, what can be done to assure that the monthly service charge is kept to a minimum so 

that the service may be maintained? 

The Commission should continue to foster a regulatory environment that encollrages competition among 

service providers because consumers generally, and low-income consumers in particular. benefit from the 

lower prices and better quality of service that results frol11 a choice of broadband providers. 

9, Competition Questions 

The National Broadband Plan observes that there is not a coherent and effective framework 

governing the Commission's wholesale competition regulations, including wireless roaming policies, 

Indeed, the FCC's current wireless roaming rule expressly permits the nation's largest wireless 

carriers to discriminate or exclude large geographic areas altogethel' in providing wholesale 

roaming services to their competitors, As the Plan notes, such conduct undermines longstanding 

competition policy objectives by limiting the ability of smaller carriers to gain access to the 

necessary inputs to compete. How do you intend to address this important wholesale competition 

issue in the context of wireless roaming sen·ices? 

The Commission last month updated its voice roaming rules to address the "home market" exception by 

establishing a market-driven approach to ensure that voice services are available to consumers in all parts 

of the country, regardless of their service provider. We will review on a case-by-case basis any denials of 

reasonable requests for voice roaming services. 

10. The National Broadband Plan acknowledges the importance of data roaming to entry and 

competition for mobile broadband services. But the FCC's present voice roaming rule contains an 

"in-market" exclusion that expressly permits carriers to deny roaming sen·iee to their competitors' 

customers in large portions of their licensed territories. This exclusion, if replicated in the data 

roaming context, would appear to severely undercut the Commission's stated goal in the Plan of 

achieving "wide, seamless and competitive coverage." How does the Commission intend to address 

this problem? 

The Commission last month addressed the "home market" exception in the context of voice roaming as 

described in response to Question 9 above. At the same time, the Commission sought additional 

comment on data roaming rules, which is a distinct and separate market. I support this cautious approach 

on data roaming that reflects impOliant statutory authority questions as well as operational concerns that 

our data roaming rules could inadvertently stifle the evolution of data roaming relationships that already 

exist or inhibit further buildout investment and innovation. 

11. Public Television - Broadcast Spectrum Issue 

As lOU know, public television stations are very different from commercial television stations with 

I'espect to their funding, their programming, their mission and the efficient manner in which they 

use spectrum to serve the public interest. Public television stations also haH been confronting 

extraordinary fiscal challenges during the past 18 months. As the Commission looks ahead to 

rulemakings announced in the National Broadband Plan to reclaim 120 MHz of spectrum from 

broadcasters, can you give us assurances that public television stations will be protected from 

inmluntary reallocations of spectrum? 

I helieve that any reallocation of noncommercial broadcast spectrum, through incentive auctions or 

otherwise. mllst be voluntary. It can and should be a win-win situation for broadcasters. mobile 

broadband providers. and consumers. 

7 
254 


smartinez on DSK6TPTVN1PROD with Insert offset folio 264 here 76021A.185

12. Would )'OU elaborate on the sequencing of the rulemakings for reclaiming the broadcast 

spectrum and the creation ofincentive auctions in the National Broadband Plan? As you know, 

only the Congress can authorize the creation of incentive spectrum auctions in which the 

contributors of spectrum could receive some of the proceeds. I am particularly interested in the 

proposal for the creation of a digital media trust fund to he created from the proceeds of incentive 

auctions of spectrum contributed by public television stations. If Congress does not authorize such 

incentive auctions, will these other rulemakings go I'orwar'd in any cvent? 

I agree that a digital media trust fund for proceeds of the auction for noncommercial stations would 

require congressional action. I defer to the Chairman on the sequencing of specific proceedings. 

8 
255 


smartinez on DSK6TPTVN1PROD with Insert offset folio 265 here 76021A.186

The Honorable Cliff Stearns 

l. The FCC has not had much success in predicting market developments and setting technology 

mandates. Does the broadband plan's proposal to create retail gateway device mandates worry 

you? 

I agree that the Commission should be careful not to mandate particular technological solutions that 

would freeze into place the current state of technology. In considering retail gateway proposals, we must 

craft flexible rules that foster continued investment and innovation both on the network and device level. 

and avoid locking in today's technology. 

2. I am pleased to see that the broadband plan recommends making another 500 MHz available for 

wireless broadband. Still, this does us little good if we don't have the right auction rules. In light of 

the problems auction conditions have caused recently, would you agree we should not adopt any 

more conditions on business models in the future, such as the free tier requirements and other 

restrictions that special interests like M2Z have heen advocating? 

Our spectrum policy should provide lor flexible use of spectrum resources and our auction and licensing 

rules should avoid mandating particular technologies or businesses plans. A tlexible approach will help 

ensure the most efficient use of our fInite spectrum resources, and ensure that tomorrow's entrepreneurs 

are not hamstrung by limits at1ifIciaily imposed on spectrum resources today. 

9 
256 


smartinez on DSK6TPTVN1PROD with Insert offset folio 266 here 76021A.187

The Honorable Mike Rogers 

1. A group of cable and satellite companies recently weighed in with Congress and the FCC 

complaining about the so-called retransmission consent process. Congress established 

retransmission consent as a free market negotiation hetween distributors and broadcasters. 

These distributors are asking for the gonrnment to meddle in these negotiations with broadcasters. 

\! is concerning for me to hear appeals for the Fedel'al government to intervene and affect potential 

progress at the negotiation table. Government inten'ention can make it much more difficult for 

private parties to determine the fair-market value of the property in question. 

a. Do }'OU share m)' concern about the unintended consequences of the government even 

considering inten'ention in the marketplace? 

We should be careful to avoid dictating the terms of private retransmission consent contracts or 

interfering with how commercial negotiations proceed, Our focus should be on what additional rules. if 

any, are appropriate to ensure that consumers are not adversely affected or confused by these private 

negotiations, I am hopeful that affected stakeholders can develop industry best practices to better inform 

consumers about these negotiations, 

b. Do you believe you that the Communications Act grants the Commission tbe authority to 

intervene in these private negotiations? 

In creating the retransmission consent rules. Congress gave the Commission limited authority to ensure 

that these private negotiations are conducted in good faith. We will need to evaluate whether any 

proposed reforms would be consistent with this limited oversight role, 

2. As we all know, broadband is central to our economic recovery and we are grateful to have the 

benefit of a plan to guide us. While the Plan recognizes the strides we have made in deploying 

broadband to Americans. it also discusses areas that the Commission believes is impeding that 

deployment. In particular, the broadband plan discusses the special access market. 

a. Would )'OU please discuss your \'ision on the way forward with tbe special access market? 

The stafTrecently sought comment on the appropriate analytical framework for evaluating the special 

access market. I have committed to work with my Commission colleagues to evaluate the state of the 

special access market and need for regulatory changes. if any. based on the competitive data developed in 

the record evidence of the proceeding, 

b. When discussing the wire line competition recommendations in Chapter 4 of the National 

Broadband plan, did you have in mind any specific t)'pe of customel'? 

I have expressed concerns about the recommendations of the Plan addressing competition in wholesale 

broadband markets. As we consider the Plan's recommendations in detail. we should build upon the 

strong regulatory foundation that we have before us. harnessing private investment, encouraging 

entrepreneurs and inventors to drive bettcr broadband to more people, whoever they arc and wherever 

they live. 

We have the oPPo!1Lmity for incremental and targeted steps to drive broadband deployment to the 7 

million unreached households identiticd in the Plan. We should, therefore. avoid re-opening settled 

regulatory battles. as recommended in Chapter 4. or changing our market-based regulatory framework 

10 
257 


smartinez on DSK6TPTVN1PROD with Insert offset folio 267 here 76021A.188

mid-course in a manner that could chill the private investment we so desperately need in our broadband' 

infrastructure. 

c. Does Chapter 4 of the National Broadhand plan impose any restrictions or limitations as to the 

class of customer for which these services would he made availahle? 

As discussed above. I have concerns about re-opening the settled regulatory battles. as recommended in 

Chapter 4. or changing our market-based regulatOt)' framework mid-course in a manner that could chill 

the private investment. in turn negatively affecting all classes of customers. 

II 
258 


smartinez on DSK6TPTVN1PROD with Insert offset folio 268 here 76021A.189

The Honorable Marsha Blackburn 

I. Studies indicate broadband providers invest three-to-four times as much as the content 

providers, and that each dollar invested by broadband providers creates about twice as many jobs 

as each dollar invested by the content providers. Given that fact and the current condition of our 

economy wouldn't }'OU agree that the FCC should promote these investments in every way it can 

and not propose polic)' changes which could weaken the incentives for those investments? 

Yes, As we consider the Plan's recommendations in detail, our broadband policy should be focused on 

those efforts directly tied to promoting adoption, deployment. and facilities-based competition. We 

should build upon the strong regulator: foundation that we have before us. harnessing private investment. 

encouraging entrepreneurs and inventors to drive better broadband to more people. whoever they are and 

wherever they live. 

2. To its great credit, the National Broadband Plan is what you had hoped for - a very data driven 

document. However, there is a stark contrast between all that rhetoric and the fact you have not 

used that approach in your Open Internet proceeding. Twenty members of the House wrote you in 

support of undertaking a market analysis prior to proposing these regulations. Your own report 

acknowledges the U.S. market structure is relatively unique in that people in most parts of the 

country have been ahle to choose from at least two wireline, facilities-based broadband platforms 

for many years. What is the exact problem that justifies this kind of regulation? At the very least, I 

don't understand all this talk of data driven analysis that appears abandoned the first time the 

results might be inconvenient to fulfilling a campaign promise. 

I have serious reservations about moving forward on the course set out in the Open 1l1tcI'I7ct Notice 0/ 

Proposed Rulemokil1g. I support the open Internet and the free flow of lawful content over the Internet, 

and I do not think that we can tolerate anticompetitive conduct that hanns consumers. It is not clear to 

me, however, that there is a systemic failure that warrants government intervention in the market to 

achieve those goals. I have grave concern that net neutrality regulation risks distOliing the market and 

creating effects we cannot predict. Most importantly. I am worried that a shift in rcgulatol) direction at 

this stage could be detrimental to investment in broadband and innovation on the Internet. 

12 

o