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95–295 2015

THE UNCERTAIN FUTURE OF THE INTERNET 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COMMUNICATIONS AND 

TECHNOLOGY 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

FEBRUARY 25, 2015 

Serial No. 114–12 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

(II) 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

JOE BARTON, Texas 

Chairman Emeritus 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

GREG WALDEN, Oregon 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

Vice Chairman 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Missouri 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

LARRY BUCSHON, Indiana 

BILL FLORES, Texas 

SUSAN W. BROOKS, Indiana 

MARKWAYNE MULLIN, Oklahoma 

RICHARD HUDSON, North Carolina 

CHRIS COLLINS, New York 

KEVIN CRAMER, North Dakota 

FRANK PALLONE, JR., New Jersey 

Ranking Member 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

G.K. BUTTERFIELD, North Carolina 

DORIS O. MATSUI, California 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

JERRY MCNERNEY, California 

PETER WELCH, Vermont 

BEN RAY LUJA ́ N, New Mexico 

PAUL TONKO, New York 

JOHN A. YARMUTH, Kentucky 

YVETTE D. CLARKE, New York 

DAVID LOEBSACK, Iowa 

KURT SCHRADER, Oregon 

JOSEPH P. KENNEDY, III, Massachusetts 

TONY CA ́ RDENAS, California 

(III) 

SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY

GREG WALDEN, Oregon 

Chairman 

ROBERT E. LATTA, Ohio 

Vice Chairman 

JOHN SHIMKUS, Illinois 

MARSHA BLACKBURN, Tennessee 

STEVE SCALISE, Louisiana 

LEONARD LANCE, New Jersey 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Missouri 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

CHRIS COLLINS, New York 

KEVIN CRAMER, North Dakota 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

ANNA G. ESHOO, California 

Ranking Member 

MICHAEL F. DOYLE, Pennsylvania 

PETER WELCH, Vermont 

JOHN A. YARMUTH, Kentucky 

YVETTE D. CLARKE, New York 

DAVID LOEBSACK, Iowa 

BOBBY L. RUSH, Illinois 

DIANA DEGETTE, Colorado 

G.K. BUTTERFIELD, North Carolina 

DORIS O. MATSUI, California 

JERRY MCNERNEY, California 

BEN RAY LUJA ́ N, New Mexico 

FRANK PALLONE, JR., New Jersey (ex 

officio) 

(V) 

C O N T E N T S 

Page 

Hon. Greg Walden, a Representative in Congress from the State of Oregon, 

opening statement ................................................................................................ 1 

Prepared statement .......................................................................................... 3 

Hon. Anna G. Eshoo, a Representative in Congress from the State of California, opening statement .................................................................................... 4 

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

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

Prepared statement .......................................................................................... 7 

Hon. Frank Pallone, Jr., a Representative in Congress from the State of 

New Jersey, opening statement .......................................................................... 8 

WITNESSES

Rick Boucher, Honorary Chairman, Internet Innovation Alliance ...................... 9 

Prepared statement .......................................................................................... 12 

Answers to submitted questions ...................................................................... 89 

Gene Kimmelman, President and CEO, Public Knowledge ................................. 16 

Prepared statement .......................................................................................... 18 

Robert Atkinson, Founder and President, The Information Technology & Innovation Foundation ............................................................................................ 26 

Prepared statement .......................................................................................... 28 

Answers to submitted questions ...................................................................... 92 

Larry Downes, Project Director, Georgetown Center for Business and Public 

Policy ..................................................................................................................... 41 

Prepared statement 1 ........................................................................................ 44 

Answers to submitted questions ...................................................................... 97 

SUBMITTED MATERIAL

Letters and editorials 2, submitted by Mr. Walden ............................................... 59 

Letter of February 18, 2015, from small, independent businesses and entrepreneurs to the Federal Communications Commission, submitted by Ms. 

Eshoo ..................................................................................................................... 81 

Statement of Etsy CEO, submitted by Ms. Eshoo ................................................ 84 

Letter of February 25, 2015, from the Internet Freedom Business Alliance 

to the Committee, submitted by Ms. Eshoo ....................................................... 87 

1The attachments to Mr. Downes’ testimony can be found at http:// 

docs.house.gov/meetings/if/if16/20150225/103018/hhrg-114-if16-wstatedownesl-20150225.pdf. 2The information can be found at http://docs.house.gov/meetings/if/if16/ 

20150225/103018/hhrg-114-if16-20150225-sd009.pdf. 

(1) 

THE UNCERTAIN FUTURE OF THE INTERNET 

WEDNESDAY, FEBRUARY 25, 2015 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY, COMMITTEE ON ENERGY AND COMMERCE, Washington, DC. 

The subcommittee met, pursuant to call, at 10:33 a.m., in room 

2322 of the Rayburn House Office Building, Hon. Greg Walden 

(chairman of the subcommittee) presiding. 

Members present: Representatives Walden, Latta, Barton, 

Shimkus, Blackburn, Scalise, Lance, Guthrie, Olson, Kinzinger, 

Bilirakis, Johnson, Collins, Cramer, Upton (ex officio), Eshoo, 

Doyle, Yarmuth, Clarke, Loebsack, Rush, DeGette, Matsui, Lujan, 

and Pallone (ex officio). 

Staff present: Gary Andres, Staff Director; Ray Baum, Senior 

Policy Advisor for Communications and Technology; Leighton 

Brown, Press Assistant; Andy Duberstein, Deputy Press Secretary; 

Gene Fullano, Detailee, Telecom; Kelsey Guyselman, Counsel, 

Telecom; Peter Kielty, Deputy General Counsel; Grace Koh, Counsel, Telecom; David Redl, Counsel, Telecom; Charlotte Savercool, 

Legislative Clerk; David Goldman, Democratic Chief Counsel, Communications and Technology; Margaret McCarthy, Democratic Professional Staff Member; Ryan Skukowski, Democratic Legislative 

Assistant, Jeff Carroll, Democratic Staff Director; Tiffany 

Guarascio, Democratic Deputy Staff Director; and Tim Robinson, 

Democratic Chief Counsel. 

OPENING STATEMENT OF HON. GREG WALDEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OREGON 

Mr. WALDEN. If Members would take their seats and our guests. 

We appreciate everyone being here. The subcommittee will come to 

order. Before we begin, I would like to remind our guests in the 

audience the chair is obligated under the rules of the House and 

rules of the committee to maintain order and preserve decorum in 

the committee room. The chair appreciates the audience’s cooperation in maintaining that order. 

Good morning and welcome to the subcommittee on Communications and Technology’s hearing on ‘‘The Uncertain Future of the 

Internet.’’ Tomorrow, the Federal Communications Commission is 

expected to adopt an order that may not ultimately provide net 

neutrality protections for American consumers, that might lay the 

ground for future regulation of the Internet, that may raise rates 

for the American Internet users, and that could stymie Internet 

adoption, innovation, and investment. This Order may be the salVerDate Nov 24 2008 12:29 Aug 20, 2015 Jkt 037690 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 114\114-12 CHRIS
2 

vation of edge providers that fear speculative ISP practices or it 

may be the beginning of regulation of all platform providers wherever they sit on the Internet. We just don’t know, and it doesn’t 

have to be this way. 

Let us take a moment to point out that Chairman Upton and I 

asked for this process to be more open than is usual. We asked the 

Chairman of the FCC to release the draft Order, the rules and the 

jurisdictional arguments for the rules, before the Commission vote, 

so that people could really understand what they were getting 

themselves into. I recognize that it is not customary for the FCC 

to release its document before a vote, but then again, it is not customary for an FCC proceeding to attract the attention of an HBO 

comedian or scores of protesters and cat mascots parading in front 

of the FCC and Chairman Wheeler’s Georgetown home, nor is it 

customary to have the President add his weight to steer an independent agency’s decision. Our calls for transparency have been 

echoed by others to no avail. In short, we are still in the dark on 

the net neutrality rules, and we don’t have to be. 

Uncertainty is what we hoped to stave off by introducing legislation that would clearly demarcate the FCC’s authority over the 

Internet. Most of you know I did not see the need for net neutrality 

rules, and some of my colleagues had to be dragged ‘‘kicking and 

screaming’’ toward our draft bill. Thanks for that remark, John 

Shimkus. Despite our reservations, we came to the table with legislation for two reasons. The first is that not one of us disagrees, not 

one of us disagrees, with the four principles adopted by the FCC 

in 2005, the first principle being consumers are entitled to access 

the lawful Internet content of their choice. We all agree on that. 

Number two, consumers are entitled to run applications and services of their choice, subject to the need of law enforcement. Three, 

consumers are entitled to connect their choice of legal devices that 

do not harm the network. And four, consumers are entitled to competition among network providers, application and service providers, and content providers. 

The Internet has been a catalyst for our modern information 

economy and culture precisely because of these guiding principles. 

But the current draft Order, which will purportedly subject the 

Internet to monopoly-era regulation under Title II of the Communications Act, threatens to throw all of this out the window and to 

generate significant uncertainty that will impact the industry, its 

investors, and ultimately its consumers. 

Accordingly, the second reason that we have offered legislation is 

to quell that wave of uncertainty. No more trips to the D.C. Circuit 

for the FCC, at least on this issue. Our economy and our communities are better served by ISPs that can invest in services rather 

than in lawyers. We are all better served by an agency with clear 

jurisdiction rather than one that engages in policymaking by litigation. I think that this is something that everyone would support, 

but I have yet to find anyone willing to engage in a real negotiation 

over what this bill should look like. I am not above asking again. 

So let’s talk about how we can work together to solve the problem 

and end the uncertainty. The door remains open. 

So today our hearing is intended to lay out some of the questions 

we have been asking and to explore the uncertainty surrounding 

3 

these new proposed rules. Our panel of witnesses today contains 

several veterans of this debate. Mr. Boucher, in particular, welcome 

back. You sat right here in this very chair with a gavel that looked 

a lot like this one when the FCC began its first attempt to enforce 

net neutrality through regulation. It is very good of you to return 

to talk to us about this same issue today. 

I hope that all of us here in the room will continue to engage in 

a productive dialogue and use the tools at our, and only our, disposal to end the net neutrality debate once and for all. 

[The prepared statement of Mr. Walden follows:] 

PREPARED STATEMENT OF HON. GREG WALDEN

Good morning and welcome to the Subcommittee on Communications and Technology’s hearing on ‘‘The Uncertain Future of the Internet.’’ Tomorrow, the FCC is 

expected to adopt an Order that may not ultimately provide net neutrality protections for American consumers; that might lay the groundwork for future regulation 

of the Internet; that may raise rates for the American Internet users; and that could 

stymie Internet adoption, innovation, and investment. This Order may be the salvation of edge providers that fear speculative ISP practices or the beginning of regulation of all platform providers wherever they sit on the Internet. We just don’t know 

and it doesn’t have to be this way. 

Let’s take a moment to point out that Chairman Upton and I have asked for this 

process to be more open than usual. We asked the Chairman to release the draft 

Order—the rules and the jurisdictional arguments for the rules—before the Commission vote, so people could really understand what they were getting themselves 

into. I recognize that it is not customary for the FCC to release its document before 

a vote, but then again, it’s not customary for an FCC proceeding to attract the attention of an HBO comedian or scores of protesters and cat mascots parading in 

front of the FCC and Chairman Wheeler’s Georgetown home. Nor is it customary 

to have the President add his weight to steer an independent agency’s decision. Our 

calls for transparency have been echoed by others to no avail. In short, we are still 

in the dark on the net neutrality rules, and we don’t have to be. 

Uncertainty is what we hoped to stave off by introducing legislation that would 

clearly demarcate the FCC’s authority over the Internet. Most of you know that I 

did not see the need for net neutrality rules, and some of my colleagues had to be 

dragged ‘‘kicking and screaming’’ toward our draft bill. (Thanks for that remark, 

John.) Despite our reservations, we came to the table with legislation for two reasons. The first is that not one of us disagrees with the four principles adopted by 

the FCC in 2005. 

(1) consumers are entitled to access the lawful Internet content of their choice; 

(2) consumers are entitled to run applications and services of their choice, subject 

to the needs oflaw enforcement; 

(3) consumers are entitled to connect their choice of legal devices that do not harm 

the network; and 

(4) consumers are entitled to competition among network providers, application 

and service providers, and content providers. 

The Internet has been a catalyst for our modern information economy and culture 

precisely because of these guiding principles. But the current draft Order, which 

will purportedly subject the Internet to monopoly-era regulation under Title II of the 

Communications Act, threatens to throw all of this out the window and to generate 

significant uncertainty that will impact the industry, its investors, and ultimately 

its consumers. 

Accordingly, the second reason that we’ve offered legislation is to quell that wave 

of uncertainty. No more trips to the D.C. Circuit for the FCC—at least on this issue. 

Our economy and our communities are better served by ISPs that can invest in 

services rather than in lawyers. We are all better served by an agency with clear 

jurisdiction rather than one that engages in policymaking by litigation. I think that 

this is something that everyone would support, but I have yet to find anyone willing 

to engage in a real negotiation over what this bill should look like. I’m not above 

asking again—let’s talk about how we can work together to solve the problem and 

end this uncertainty. The door is open. 

So today, our hearing is intended to lay out some of the questions we’ve been asking and to explore the uncertainty surrounding these new rules. Our panel of witnesses today contains several veterans of this debate. Mr. Boucher, in particular, 

4 

sat in this very chair when the FCC began its first attempt to enforce net neutrality 

through regulation. It’s very good of you to return to talk to us about this same 

issue today. I hope that all of us here in the room will continue to engage in a productive dialogue and use the tools at our, and only our, disposal to end the net neutrality debate once and for all. 

Mr. WALDEN. I now recognize the gentlelady from Tennessee for 

the remainder of my time. 

Mrs. BLACKBURN. Thank you, Mr. Chairman. I want to welcome 

each of you here today. I am one of those that believes the Internet 

is a bright spot in today’s economy. It is not broken, and it does 

not need the FCC’s help in order to be effective. Title II of the 

Communications Act is the regulatory nuclear option. It will stifle 

private-sector investment in networks by creating regulatory uncertainty and lead to courtroom challenges. We know that Title II reclassification could result in as much as $11 billion in new fees and 

taxes. 

We welcome you here today. We look forward to hearing your 

viewpoints and to a lively discussion, and I yield back. 

Mr. WALDEN. I thank the gentlelady. I now recognize my friend 

from California, the Ranking Member of the Subcommittee, Ms. 

Eshoo, for an opening statement. 

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

Ms. ESHOO. Thank you, Mr. Chairman, and welcome to all of the 

witnesses, most especially our former colleague who is a Member, 

a distinguished Member, of this committee both as a chairman of 

the subcommittee and ranking member of the subcommittee. 

Mr. Chairman, I had a wonderful statement that I was going to 

read, but I received a letter from Engine. It is dated February 18 

of this year. It is addressed to the Federal Communications Commission, and I think that what they had to say and the 102 entrepreneurs and start-ups that signed the letter is really an eloquent 

statement about where we are and where we need to go. 

And it reads, ‘‘Dear Commissioners. We are the small independent businesses and entrepreneurs that Commissioner Pai referenced in his February 6, 2015, press release about the FCC’s impending net neutrality rule-making, and we write to say unequivocally that his release does not represent our views on net neutrality. Quite the opposite. Entrepreneurs and start-ups throughout 

the country have consistently supported Chairman Wheeler’s call 

for strong net neutrality rules enacted through Title II. 

‘‘For today’s entrepreneurs and start-ups, failure to protect an 

open Internet represents and existential threat. Because net neutrality is such an important issue, the start-up community has 

been engaged in the Commission’s open Internet proceeding to an 

unprecedented degree. The clear, resounding message from our 

community has been that Title II with appropriate forbearance is 

the only path the FCC can take to protect the open Internet. Any 

claim that a net neutrality plan based in Title II would somehow 

burden ‘small independent businesses and entrepreneurs with 

heavy-handed regulations that will push them out of the market’ 

is simply not true. The threat of ISPs abusing their gatekeeper 

5 

power to impose tolls and discriminate against competitive companies is the real threat to our future. 

‘‘Contrary to any unsupported claims otherwise, we believe that 

the outlined proposal that the Chairman circulated last week will 

encourage competition and innovation by preventing ISPs from 

using their gatekeeper power to distort the Internet market for 

their own private benefit. A vibrant Internet economy depends on 

an open playing field in which small, innovative entrepreneurs can 

compete with incumbents on the quality of their services, not on 

the size of their checkbook or their roster of lobbyists. In Verizon 

v. FCC, the DC Circuit stated in no uncertain terms that without 

reclassifying broadband under Title II, the FCC cannot impose the 

bright-line bands on ISP discrimination that start-ups need to compete. As such, any plan that does not include Title II reclassification cannot support strong net neutrality rules. We are pleased 

that Chairman Wheeler has recognized this simple reality. 

‘‘Chairman Wheeler’s plan is the best proposal we have seen to 

date for protecting the open Internet. While there are important 

details yet to be finalized, the substance of the rules that the 

Chairman circulated last week are encouraging. Any attempt to undermine the Chairman’s proposal through obfuscation and innuendo is not productive and certainly does not represent the opinion 

of the start-ups and entrepreneurs that have worked so hard to 

make the Internet great.’’ 

And again, the letter is from Engine, and it is signed by 102 

start-ups. And obviously that is now part of the record. I also 

would like to place in the record, ask for unanimous consent to 

place in the record, the editorial by Chad Dickerson at Etsy CEO 

that testified before the committee. 

Mr. WALDEN. Without objection. 

[The information appears at the conclusion of the hearing.] 

Ms. ESHOO. I want to yield the remainder of my time—thank 

you, Mr. Chairman—to Congresswoman Matsui. 

Ms. MATSUI. I thank the ranking member for yielding me time, 

and I welcome the witnesses here today. 

The future of this Internet has sparked unprecedented interest. 

We all know that. Let us not forget that over four million Americans took time out of their day to share their voices with the FCC 

on the future of the Internet. 

The American people overwhelmingly rejected the idea of socalled Internet fast lanes, and as a result, Chairman Wheeler 

rightly made a U-turn to ban prioritization agreements and as to 

a ban on paid prioritization is a right move for the future of the 

Internet. 

Tomorrow’s FCC vote will not be the end of the road. In some 

ways the vote will be the beginning of the fight to preserve net 

neutrality and protect consumers and encourage innovation. That 

is why it will be critical for the FCC to maintain the flexibility for 

the Internet age. 

I look forward to the FCC’s vote tomorrow, and I will continue 

to work with my colleagues on this moving forward. And I yield 

back the balance of my time. 

6 

Mr. WALDEN. The gentlelady yields back. The chair now recognizes the Chairman of the Full Committee, Mr. Upton of Michigan, 

for an opening statement. 

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

Mr. UPTON. Well, thank you, Mr. Chairman. In less than 24 

hours the FCC will begin proceedings to green light new net neutrality rules that rely on outdated utility-style regulations to govern the Internet. They are taking this path in part because of the 

limits on the FCC’s statutory authority and in part because of political pressures to act. Unfortunately, whether intended or not, 

this approach brings with it a host of consequences that have the 

potential to disrupt the Internet that we have come to know and 

rely on. 

Title II means applying regs that were never meant for this technology or marketplace and relying on unstable legal ground to refrain from applying others. It also means an inevitable return to 

the courts for net neutrality rules, which will lead to more years 

of uncertainty for consumers and providers. Until it is resolved, 

there may be no rules of the road for either consumers or industry. 

To avoid this result, Chairman Walden, Thune, and I offered 

draft legislation proposing net neutrality rules guided by the principles for an open Internet that we all share. Our committee has 

a rich history of taking on complex and difficult issues and finding 

common ground that both sides can support. 

Given what is at stake here, I had hoped this would be another 

instance of such bipartisan cooperation. While I knew that not everyone would be interested in the legislative path, I am both surprised and deeply disappointed that we have not yet been able to 

engage in a negotiation and produce a bipartisan product with our 

colleagues. But tomorrow’s commission vote does not signal the end 

of this debate, rather it is just the beginning. And I have to believe 

that as members review the FCC’s rules and hear today about the 

many problems that will result, there will be an opportunity for a 

thoughtful solution like the one we have offered: bright-line Internet rules of the roads, safeguards to encourage innovation, and enforcement mechanisms that allow the FCC to protect consumers 

without years of court battles. 

A legislative answer to the net neutrality question will finally 

put to rest years of litigation and uncertainty. Today’s hearing will 

illustrate many of the harms that could come from the FCC’s Title 

II approach to net neutrality. Let us work to avoid those landmines 

and get this done here, in Congress, where policy decisions should 

belong. There is no question that Americans deserve the most robust and innovative Internet possible. This requires clear rules tailored to protect consumers and companies. Rules like the ones we 

have put forward in our discussion draft and the same rules the 

FCC Chair, President Obama, and Democrats in Congress have 

sought for years. 

Once again, I would urge my colleagues to work with us and help 

put net neutrality into law in a way that avoids the costly, harmful 

consequences that we will hear about today. It is the right thing 

7 

to do, so let us get it done. I yield the balance of my time to the 

Vice Chair of the subcommittee, Mr. Latta. 

[The prepared statement of Mr. Upton follows:] 

PREPARED STATEMENT OF HON. FRED UPTON

In less than 24 hours the FCC will begin proceedings to green light new net neutrality rules that rely on outdated utility-style regulations to govern the Internet. 

They are taking this path in part because of the limits on the FCC’s statutory authority, and in part because of political pressures to act. Unfortunately, whether intended or not, this approach brings with it a host of consequences that have the 

potential to disrupt the Internet we have come to know and rely on. 

Title II means applying regulations that were never meant for this technology or 

marketplace, and relying on unstable legal ground to refrain from applying others. 

It also means an inevitable return to the courts for net neutrality rules, which will 

lead to more years of uncertainty for consumers and providers. Until it’s resolved, 

there may be no rules of the road for consumers or industry. 

To avoid this result, Chairman Walden, Chairman Thune, and I offered draft legislation proposing net neutrality rules guided by the principles for an open Internet 

that we all share. Our committee has a rich history of taking on complex and difficult issues and finding common ground that both sides can support. Given what 

is at stake here, I had hoped this would be another instance of such bipartisan cooperation. While I knew that not everyone would be interested in the legislative 

path, I am both surprised and disappointed that we haven’t yet been able to engage 

in a negotiation and produce a bipartisan product with our colleagues. But tomorrow’s commission vote does not signal the end of this debate; rather, it is just the 

beginning. And I have to believe that as members review the FCC’s rules and hear 

today about the many problems that will result, there will be an opportunity for a 

thoughtful solution like the one we have offered: bright line Internet rules of the 

road, safeguards to encourage innovation, and enforcement mechanisms that allow 

the FCC to protect consumers without years of court battles. 

A legislative answer to the net neutrality question will finally put to rest years 

of litigation and uncertainty. Today’s hearing will illustrate many of the harms that 

could come from the FCC’s Title II approach to net neutrality. Let’s work to avoid 

those landmines and get this done here, in Congress, where policy decisions belong. 

There is no question that Americans deserve the most robust and innovative Internet possible. This requires clear rules tailored to protect consumers and companies. 

Rules like the ones we have put forward in our discussion draft—the same rules 

the FCC Chairman, President Obama, and Democrats in Congress have sought for 

years. Once again, I ask my colleagues to work with us and help put net neutrality 

into law in a way that avoids the costly, harmful consequences we will hear about 

today. It’s the right thing to do—and we can get it done. 

Mr. LATTA. I appreciate the chairman for yielding and thanks 

very much for witnesses for being with us today. I look forward to 

your testimony. 

The FCC will vote tomorrow on a net neutrality proposal that reclasses broadband Internet access service under Title II of the 

Communications Act. I strongly disagree with this approach. Time 

and time again we hear from businesses large and small that the 

reclassification will disrupt our flourishing Internet ecosystem by 

stifling innovation and slowing investment. Subjecting a thriving, 

dynamic industry to navigate the FCC’s bureaucracy and red tape 

will adversely alter the Internet as we know it today. 

Furthermore, the FCC’s proposal will inevitably introduce legal 

and certainly due to its lack of statutory authority. The discussion 

draft brought forth by Chairman Upton and Walden is a strong indication to this issue—pardon me, a strong solution to this issue. 

A legislative fix will provide regulatory certainty and enact the 

President’s network management prohibitions without treating 

broadband as a common carrier. 

8 

I look forward to the hearing today, and Mr. Chairman, I appreciate you yielding, and Chairman Walden, I yield back. Thank you. 

Mr. WALDEN. The gentleman yields back the balance of the time. 

The chair now recognizes the Ranking Member of the Full Committee from New Jersey, Mr. Pallone. 

OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY 

Mr. PALLONE. Thank you, Mr. Chairman. As I have said before, 

net neutrality is critical because access to the Internet is critical. 

We go online to apply for jobs, to help our kids with their homework, and to grow our businesses. These are just a few of the reasons why four million Americans reached out to the FCC demanding strong network neutrality protections. Due to this overwhelming civic engagement, we are on the eve of a historic event 

at the FCC. Tomorrow the Commission is set to put into place 

what may be the strongest Internet protections consumers have 

ever had. And for all of you who called in, who wrote in, who came 

in to support net neutrality, you will see that the FCC and the rest 

of Washington knows how to listen, even if it doesn’t always appear 

that way. 

So I welcome the Republicans’ change of heart on their effort to 

legislate. I remain open to looking for ways to enshrine the FCC’s 

network neutrality protections into law, but our effort can only 

work if it is truly bipartisan which is why I am baffled about why 

we are holding this hearing today, Mr. Chairman. Just a few weeks 

ago this subcommittee met on these same issues. We all heard a 

number of major concerns with the Republicans’ discussion draft. 

We all heard that these are complicated issues that take more than 

a few weeks to sort through. This subcommittee and our Full Committee have too much other important work to do to have the same 

hearings over and over again. 

For instance, the FCC just completed the most successful auction 

in history for our Nation’s airwaves. We could be spending this 

time building on that auction and establishing a spectrum pipeline 

for the future. We are nearly 2 months into the new Congress with 

very little to show for it. I think this subcommittee has enough talent to do more than just obsess over one topic at a time. Our constituents expect more of us. 

Now once we have all had time to review and evaluate the FCC 

rules and their effects, we can hopefully look for ways to find and 

reach consensus on a bipartisan legislative draft, but now is not 

that time. Now is the time for the FCC to do its work. I know that 

Chairman Wheeler will do everything in his power to release the 

FCC Order as soon as he can after the vote. To deliver on that 

promise, however, the Chairman needs the cooperation of his fellow 

Commissioners. So I ask all the Commissioners at the FCC, even 

those who may disagree with the final decision, to work with 

Chairman Wheeler to make this Order public as soon as possible. 

And I now yield the remainder of my time to the gentlewoman 

from New York, Ms. Clarke. 

Ms. CLARKE. I thank our Ranking Member, Mr. Pallone, as well 

as our Ranking Member, Ms. Eshoo, for yielding me time today. I 

9 

would also like to thank our witnesses for lending their expertise 

to today’s hearing. 

Mr. Chairman, protecting the free and open Internet is truly and 

essentially an issue of access to economic opportunity. More than 

80 percent of Fortune 500 companies require online job applications. Our constituents simply cannot compete without access to all 

that the Internet has to offer. 

In my district and across our country, people are increasingly 

moving to their smartphones and tablets as their primary access 

point to the Internet. That is especially true for the most economically vulnerable Americans. Seventy-seven percent of our low-income families rely on their mobile phones to get on line. So I support making sure that all Americans have open access to the Internet. People should be able to find the content and applications they 

want, no matter who they are or where they live. They should not 

be constrained by Internet gatekeepers, and the time has finally 

come to establish certainty in this regard. 

Therefore, I urge the Federal Communications Commission to 

finish its work. Four million Americans have called in on the FCC 

to adopt strong network neutrality protections. That eye-popping 

number demonstrates how important this is. The country has waited long enough. 

I thank you, and I yield back. 

Mr. WALDEN. The gentlelady yields back the balance of the time. 

And now we will move forward to hear from our witnesses. 

We again thank you all for being here today to share your expertise on this issue as we move forward. I want to start with former 

chairman of this subcommittee, Mr. Boucher of Virginia, who is 

with the Internet Innovation Alliance now as the Honorary Chairman. Mr. Boucher, we are delighted to have you back as we have 

all said, and we look forward to your commentary this morning. 

STATEMENTS OF THE HONORABLE RICK BOUCHER, HONORARY CHAIRMAN, INTERNET INNOVATION ALLIANCE; 

GENE KIMMELMAN, PRESIDENT AND CEO, PUBLIC KNOWLEDGE; ROBERT ATKINSON, FOUNDER AND PRESIDENT, THE 

INFORMATION TECHNOLOGY & INNOVATION FOUNDATION; 

AND LARRY DOWNES, PROJECT DIRECTOR, GEORGETOWN 

CENTER FOR BUSINESS AND PUBLIC POLICY 

STATEMENT OF RICK BOUCHER 

Mr. BOUCHER. Well, thank you very much, Chairman Walden 

and Ranking Member Eshoo and other members of the subcommittee. It is a privilege to accept the committee’s invitation to 

return to this very familiar surroundings and to share with you 

this morning my views on the best way to assure protection for network neutrality. 

As the Chairman said in the introduction, I am the Honorary 

Chairman of the Internet Innovation Alliance. It is a membership 

organization. We have 175 members including some technology 

companies. I am also a partner at Sidley Austin. We also there 

have clients who are telecommunications companies. But here 

today, I am expressing my own views, not the views of our law 

firm’s clients or of the Internet Innovation Alliance. 

10 

From the very time that the debate began about a decade ago on 

the network neutrality issue, I have been a strong proponent network neutrality and of imbedding a central network neutrality 

guarantees into our federal law. In those days I joined with now 

Senator Markey and Congresswoman Eshoo and others on this 

committee in a legislative effort that at that time was not successful to assure network neutrality guarantees. I remain a strong supporter today of network neutrality as I was then. 

I believed then as I believe today that assuring an open Internet 

is essential to maintaining the Web as a vibrant medium for free 

expression, for commerce, for education, for healthcare delivery. It 

is clearly the most capable and versatile communications medium 

that has been derived to date. 

To keep it that way, I am here today to urge that the committee 

develop a narrow bipartisan bill that gives statutory permanence 

and an assured legal foundation to network neutrality. I am concerned that if Congress does not act, all protection for network neutrality is at risk of being lost. 

FCC Chairman Wheeler has said that his reclassification Order 

that will be approved tomorrow rests on a stronger legal foundation 

than the FCC’s 2010 Open Internet Order which ultimately was 

overturned in court. And that may be true. But it certainly is going 

to be subject to legal challenge. And we can’t know today what the 

outcome that that litigation is going to be. We can predict that the 

court decision will be years into the future and coming, and that 

will be at a time that is well into the next presidential administration. We can just look at the timeline for the Verizon decision that 

declared the Open Internet Order be invalid. That didn’t come until 

more than 3 years after the suit was filed. Three years from now 

we are into the next administration. 

If the Republicans win the presidency in 2016, the next FCC will 

have a Republican majority, 3 to 2, the mirror image of what it is 

today. And it would be very unlikely to appeal and adverse court 

decision or to institute a new proceeding that would establish network neutrality guarantees. In fact, it is very likely that a Republican FCC would move very quickly to reverse tomorrow’s classification decision, even if that decision survives court determination. 

Tomorrow’s reclassification order and the network neutrality 

principles it embodies truly rests on a tenuous foundation. Without 

statutory protection, the network neutrality guarantees can be 

swept away in the next presidential election, and judging from the 

polling we are seeing today, that is going to be a very close race. 

Therefore, my sole purpose in appearing today is to say that legislation is the superior solution. That is true for those of us who 

strongly support network neutrality guarantees. It is virtually impenetrable to judicial challenge and would resolve the debate with 

statutory permanence that is simply not available through the regulatory and administrative process. 

I know the Democratic members of this committee have raised 

concerns about the draft that has been circulated by the Republicans, but I would make a couple of points in closing. First of all, 

as Chairman Walden and Chairman Upton both have indicated, 

the Republicans have made a major move toward the historic 

Democratic position in offering to place strong network neutrality 

11 

guarantees into federal law. In essence, they are offering to Democrats the very network neutrality principals that, for a decade, 

Democrats have sought to achieve. 

By the same token, Democrats have concerns, and I think it is 

important for the Republicans to acknowledge those concerns and 

address them in a bipartisan negotiation. Surely those concerns are 

subject to resolution. Candidly, I have some concerns about the 

draft legislation, and if I were on the Democratic side of the dais 

today, I would be expressing some concerns as well. 

In the end, what really matters is two key principles, first, establishing strong network neutrality guarantees perhaps using the 

FCC’s 2010 Open Internet Order as a model and secondly providing 

a continuation of the light touch information service Title I treatment of the Internet that has welcomed investment and made it a 

dynamic platform that has become the envy of the world. Everything else should be open to discussion, negotiation, and resolution. 

At the moment, both sides have leverage. Both sides have the opportunity to obtain their key priorities, and I very much hope that 

a conversation will ensue and that you will adopt legislation that 

does a service for the country and keeps the Internet open and 

maintains the light touch regulatory treatment that it enjoys today. 

Thank you very much for having me here, and I will be pleased 

to take your questions. 

[The prepared statement of Mr. Boucher follows:] 

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Mr. WALDEN. Mr. Boucher, thank you very much for your testimony and your comments. 

We now go to the President and CEO of Public Knowledge, Gene 

Kimmelman, not a stranger to our committee. We welcome your 

comments as well, sir. 

STATEMENT OF GENE KIMMELMAN 

Mr. KIMMELMAN. Thank you so much, Mr. Chairman, Ranking 

Member Eshoo, members of the subcommittee. On behalf of Public 

Knowledge, which is a non-profit that promotes creativity, freedom 

of expression on open communications platforms, I am pleased to 

appear before you this morning, and I am most honored to join 

with millions of consumers, citizens, civil rights activities, start-up 

companies, small businesses, to praise the direction that Chairman 

Wheeler at the FCC is going in his proposed rules for open Internet 

because it is those rules that will do more for our society to promote freedom of expression and opportunity on what has become 

the most important platform for economic opportunity, social mobility, as Mr. Boucher said, education, healthcare. That is the Internet. These rules are critical. 

The proposed rules as we understand them actually follow a long 

tradition of the FCC flexibly applying the mandate that this Congress has directed it to follow in preventing discriminatory practices that are unjust and unreasonable on communications platforms. They are perfectly aligned with what this Congress has 

asked in the past and update in conjunction with all the innovation 

and technology that we have seen exploding in this space, the fundamental principles that are necessary to promote freedom of expression. 

It is the Title II principles that have been undergirding through 

all of our communications infrastructure the exposure and investment, the tremendous innovation in telecommunications that we 

have experienced in the last few decades, and the enormous growth 

in the Internet economy. It is those same principles the FCC is applying as we understand it in tomorrow’s ruling. 

We think this just continues through light touch regulation as 

again Mr. Boucher referred to, the approach that this Congress has 

always been asking the FCC to be sensitive to with clarity in its 

policing tools that are necessary to guide an open Internet and prevent unreasonable discrimination on that platform. We believe that 

is all they are doing. 

Now, I understand from the comments made already this morning and more that we will hear that there are questions about regulation. There are questions about how to apply them. There are 

questions about how far they go. It is not unreasonable. It is not 

the first time. This is my third decade of going through debates 

about common carriage and discrimination going back to the breakup of AT&T through the computer inquiry, through the 1996 Act, 

and now into the Internet era. These are the very same important 

principles to discuss. 

But here is one thing I would like to highlight. I don’t know 

Chairman Wheeler that well. I have come to know him better in 

the last few years, given where he sits and what he has said, and 

here is what I have seen. This is a chairman of the FCC who is 

17 

very sensitive to the need for investment in infrastructure and expansion of broadband opportunities for Americans. This is a chairman who my perception is wants to regulate as little as possible 

to accomplish the goals that Congress has directed him to accomplish. And I therefore feel very confident that he is attuned to all 

the concerns that you are raising, he has listened to the public’s 

input, and that these proposed rules as we know them are likely 

to be consistent with that. 

So while I fully understand the interest in legislating, I would 

urge you today to sit back and see what is put forward tomorrow. 

See what will work and what you think won’t work and then consider what Congress rightfully needs to do to step in and address 

those concerns. But I will also suggest please consider if you are 

legislating addressing all the other concerns that have been legitimately raised about potential shortcomings in the Communications 

Act. 

In that endeavor, we look forward to working with you as you 

move forward. Thank you so much, Mr. Chairman. 

[The prepared statement of Mr. Kimmelman follows:] 

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Mr. WALDEN. Mr. Kimmelman, thank you for your testimony as 

always. I would just point out that we are not doing a mark-up 

today on legislation. We actually have said we are not going to do 

a mark-up until we see what the FCC does, but we wanted to hear 

from people like you about what you know about the Act at this 

point or the Order at this point. 

We will go now to Mr. Atkinson, the Founder and President, Information Technology & Innovation Foundation. Mr. Atkinson, we 

are delighted to have you here this morning to get your perspective. Please go ahead. 

STATEMENT OF ROBERT ATKINSON 

Mr. ATKINSON. Thank you, Chairman Walden and Ranking Member Eshoo and members of the subcommittee. ITIF is a think tank 

that focuses on advancing innovation and smart innovation policy. 

Let me start by arguing that I think it is time we should consign 

the term net neutrality to the dustbin of history. It is a misleading 

term. It is a bias term that has driven the debate to the false conclusion that there is a one-size-fits-all Internet and that absent 

Title II, Internet Armageddon is one decision away. 

Neither of these claims are true. Instead, what we need to be 

talking about is the need for effective network policy for the 21st 

century. Ten years from now our goal should be to have a better, 

smarter Internet than we have today, and to be sure, it should be 

a network that effectively polices abuses. We have been and have 

continued to be long supporters of the view that Internet providers 

should not be able to capriciously block or degrade or create payto-play, forced pay-to-play. That has been our position for 8 years 

now in the debate. And when we see other nations that are doing 

things like shifting to a carrier-pay model or allowing blocking competing applications, for example, of VoIP, we strongly oppose those 

and rules should do that. 

But we also need a network that supports a rich diversity of applications with the optimal levels of performance. This is not the 

telephone era where you have one application riding on one wire. 

What you have are multiple different applications with multiple 

different needs all riding on one wire. 

So the idea that we should have a rigid regulatory scheme that 

requires all traffic to be delivered the same way is a little bit like 

saying that we should force bicycles and mopeds to drive on the 

interstate with sports cars and tractor trailers. Or it is a little bit 

like the Postal Regulatory Commission telling the U.S. Postal Service that they can no longer have Priority or Express Mail. You can 

only deliver mail at one speed, and that is really what we are talking about here. 

So in other words, there are two threats to the Internet today, 

or potential threats. One is unreasonable discrimination which we 

have seen frankly very, very little of, and the other is the risk of 

a dumb static network that doesn’t evolve as the Internet economy 

evolves. Title II in our view is a bad idea because it embodies the 

second of those two visions instead of the first. 

But Title II is a bad idea not just because of its rigidity but because of the uncertainty it puts industry, both network providers 

and edge providers under. As the Honorable Rick Boucher said, the 

27 

notion that Title II is going to put regulations on a sure footing is 

simply wrong. To think that Title II will provide certainty for anyone but the FCC is a pipe dream. As Dr. Boucher referred to, there 

will be significant legal challenges, significant legal uncertainty, 

and certainly political uncertainty. Whoever the next president is, 

could go in either direction, could go towards banning, going back 

to Title I or could go and say we are going to reverse any kind of 

forbearance actions that this current FCC Chairman is committed 

to. So we just simply have no idea what is going to happen. 

Significantly, if Title II goes forward, there is also going to be uncertainty over its implementation. Chairman Wheeler has tried to 

mollify critics saying that he will forbear and forbear from this and 

from that and from this. But the fact that he has to give assurances is proof that Title II is a kludge of a solution. It is not a solution when you have to take whole components of it and move it off 

the table. It is a little bit trying to fit the square peg of a smart 

network policy into the round hole of Title II Telephone Regulation. 

The other problem or challenge with the Chairman’s actions is 

that many groups are going to file petitions in terms of forbearance. We already have some groups already, and I will refer to my 

colleague, Gene Kimmelman’s organization. Public Knowledge has 

asserted just last week that they intend to push to use Title II to 

require broadband providers, including new entrants into the marketplace with innovative business models deploying fiber, to serve 

all areas of a community at once. This may or may not be a valid 

view. In our view, it is not. But it has nothing to do with net neutrality. 

We have seen Free Press state, ‘‘with Title II, we have the legal 

authority to win the battles that are coming around the bend.’’ So 

this is not really an argument about net neutrality. This is an argument about broad-based regulation of network providers. 

So going forward, the only way in our view to achieve certainty, 

for edge providers and network providers, is congressional legislation, and to achieve that certainty, we would argue that balance 

needs to be the watch word as you go forward, and we need to have 

balance between the edge and the core. We need balance between 

requiring a one-size-fits-all dump pipe and allowing capricious discrimination, neither of those solutions is the right way. And frankly, we need balance between the over governance of Title II and the 

under governance of doing nothing. 

We believe that it is possible and desirable to get that kind of 

solution that serves everybody’s interest in the debate. There is a 

real moment of opportunity. What we have heard today is a broad 

consensus on the principles, and we believe that Congress should 

work together to draft the kind of framework we need for network 

policy for the 21st century. 

Thank you for the opportunity to appear before you. 

[The prepared statement of Mr. Atkinson follows:] 

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Mr. WALDEN. Mr. Atkinson, we appreciate your comments, and 

thank you for being here today. We will now go to our final witness 

this morning from the Internet Industry. He is an analyst and an 

author, Larry Downes. Mr. Downes, we are delighted to have you 

here as well. Please go ahead. 

STATEMENT OF LARRY DOWNES 

Mr. DOWNES. Thank you. Thank you, Mr. Chairman, Ranking 

Member Eshoo, and members of the subcommittee. I appreciate the 

opportunity to testify before you today. I am based in Silicon Valley, have been for over 20 years, and have been actively engaged 

in what really is the remarkable development of the broadband 

Internet ecosystem in several capacities including as an entrepreneur and advisor to start-ups and investors. 

Since March 2014 I have also served as a Project Director at the 

Georgetown Center for Business and Public Policy studying the increasingly uncomfortable tension between the accelerating pace of 

disruptive innovation and the necessarily deliberative processes of 

government. 

My written testimony focuses on four major concerns with the 

FCC’s pending proceeding which I would like to summarize now. 

Number one, Chairman Wheeler has flip-flopped from pursuing 

open Internet rules to what now appears a full-force effort to transform broadband into a public utility, threatens to end nearly 20 

years of bipartisan policy favoring light touch regulation of the 

Internet, perhaps the most successful approach to regulating an 

emerging technology in history. 

Under the visionary approach of Congress, the Clinton administration and FCC Chairman of both parties at the time and since 

the 1996 Act wisely left Internet governance to the engineeringdriven, multi-stakeholder process, a process that continues to rapidly evolve and improve the Internet’s architecture protocols and 

network management technologies. 

Number two: The May 2014 NPRM which promised to follow the, 

quote, roadmap laid out by the Verizon court to reenact the open 

Internet rules under the authority of Section 706 now appears to 

have been jettisoned in favor of an all-inclusive plan to regulate 

every node of the Internet infrastructure including peering, transit, 

and other essential but non-neutral network management principles the 2010 report and Order wisely and explicitly excluded. 

Though we have yet to see the final report and Order, it is reported 

to be over 300 pages long. Its length will challenge even its strongest proponents to say with a straight face that it is any way a simple or light touch resolution to a decade of debate over the appropriate and legally permitted role of the FCC in policing the Internet. And as we know from its 2010 counterpart, most of its most 

contentious and legally challenged aspects will be intentionally 

buried deep in the text and in hundreds of footnotes. 

The jurisdictional gymnastics were bad enough in 2010. Now, 

given the acknowledged misfit, both from a legal and policy standpoint of Title II written decades ago to closely regulate the former 

public switch telephone network monopoly, the process is already 

confounded by the need to first transform the Internet into a public 

utility and then immediately begin the process of unraveling that 

42 

decision. Having selected the blunt instrument of Title II, the FCC 

in its discretion must continually decide on its least-appropriate 

provisions in an attempt to undo them through clumsy and legally 

uncertain forbearance proceedings. At the very least, extensive forbearance invites the worst kind of rent-seeking behavior by self-interested parties throughout the Internet ecosystem. 

Number three: Recent developments in this long-running debate 

over who and how to regulate the Internet have now made clear 

that for many advocates that open Internet rules were always the 

populist tail wagging the shaggy Title II dog. Though the rhetoric 

of net neutrality remains the substance of the FCC’s pending rulemaking instead advances a long-running campaign to abandon the 

light touch model and replace it with a public utility regime, the 

goal all along for many supposed open Internet advocates. Though 

the FCC may today attempt or not to forbear from the most damaging provisions of Title II, the campaign is already preparing to 

drive the Title II wedge as far as possible which, for the most vocal 

advocates have always included mandatory unbundling, required 

build-outs, pre- or post-hoc rate regulation, universal service fees 

and other taxes, and shared jurisdiction with state public utility 

commissions. Perhaps the light touch model was wrong all along. 

Perhaps the transformation of the Internet into a public utility 

would do a better job of encouraging investment, adoption in innovation. I don’t think so, but if that is what we are debating, we 

should at least acknowledge it and move the debate to Congress 

where it obviously belongs. 

Number four: Abandoning the Verizon court’s Section 706 roadmap in favor of public utility regime as the Chairman has not hesitated to acknowledge introduces considerable legal uncertainty that 

at best will mean another 2 years or more without resolution to the 

open Internet debate. It is not simply my personal belief that Congress never intended for broadband Internet to be regulated as a 

public utility like the old telephone network. That of course has 

long been the interpretation of the 1996 Act of the FCC itself, an 

interpretation ratified in 2005 by the United States Supreme Court 

in the Brand X case. Overcoming a decade of FCC policy and Supreme Court precedent will require considerable innovation and 

outright creativity by government lawyers that will certainly take 

years to resolve one way or the other. 

There is a better way, one that removes all legal uncertainty in 

an instant and avoids many of the intended and unintended consequences of the public utility gambit. The legislation introduced 

last month in both the House and the Senate would quickly and 

cleanly resolve the FCC’s persistent jurisdictional problems and 

enact precisely the rules called for in even the most aggressive articulation of open Internet principles. Though I continue to believe 

the engineering-driven multi-stakeholder governance of the Internet is the optimal solution, one that has worked with remarkable 

efficiency since its inception, I have from the beginning supported 

the proposed legislation if only as a way to end the largely academic debate about the need for what the FCC itself calls, quote, 

prophylactic rules. 

I thank you again for the invitation and look forward to your 

questions. 

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[The prepared statement of Mr. Downes follows:] 

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[The attachments to Mr. Downes’ testimony have been retained 

in committee files and can be found at http://docs.house.gov/meetings/if/if16/20150225/103018/hhrg-114-if16-wstate-downesl20150225.pdf.] 

Mr. WALDEN. Mr. Downes, thank you, and thanks to all of our 

witnesses for testifying today. We appreciate your comments, your 

suggestions, and your concerns. I would like to ask unanimous consent to submit into the record an opinion piece written by Robert 

McDowell, former FCC Commissioner, and Gordon Goldstein that 

was in the Wall Street Journal entitled, Dictators Love the FCC’s 

Plan to Regulate the Internet; the Obama Administration’s Efforts 

to Treat the Web Like a Utility has Fans from Saudi Arabia to the 

Putin’s Kremlin. Without objection. 

[The information has been retained in committee files and can be 

found at http://docs.house.gov/meetings/if/if16/20150225/ 

103018/hhrg-114-if16-20150225-sd009.pdf.] 

Ms. ESHOO. Oh, my God. Come on. 

Mr. WALDEN. Well, I don’t generally comment on the submissions 

you have. So Mr. Downes, the United States recently returned from 

a treaty conference in South Korea where our delegation fought to 

keep the Internet from coming under the purview of the UN’s 

International Telecommunications Union. The ITU has an extensive set of regulations that apply to telecommunications including 

economic relations on interconnection. Would the FCC redefine a 

broadband Internet as a public utility telecommunications service 

within the ITU constitutional remand? And with the FCC stating 

that its regulatory powers would include Internet interconnection 

agreements, have the implications for international termination 

agreements been considered by the Commission and what effect do 

you think this will have? 

Mr. DOWNES. Thank you, Mr. Chairman. So of course, again, we 

have to qualify that we have not seen the full report. We don’t 

know exactly how they are going to do this, but certainly if we are 

talking about a telecommunications service, that is within the purview of the ITU and the treaties that the United States is subject 

to in conjunction with its membership in the ITU. 

Whether or not this is going to stand up legally, I think there 

is no question that these forces within the ITU that are eager to 

introduce things like sending network pays, models that we have 

had on telephone service and introduce that for Internet service is 

a way of subsidizing their own local broadband connections. They 

will certainly make the argument, whether they are successful or 

not, that our move undermines our longstanding commitment to 

keeping the Internet away from those kinds of telecommunications 

and settlement regimes, and really, it certainly undermines our 

moral high ground in saying so whether or not they get away with 

it or not. 

Mr. WALDEN. Under GATS, countries that declare services to be 

basic services like telephony could limit U.S. investment opportunities abroad. Up until now the USTR has argued that Internet 

broadband is a value-added service, and importantly in many country trade commitments, there are more liberal market access opportunities for value-added services as compared to basic services. 

60 

For example, China has more restrictive rules for who can obtain 

a basic service license, and China has defined services connected to 

the Internet to be basic services, a definition that the U.S. trade 

representative has challenged in the past. 

Taking this as an example, could the FCC reclassification to a 

telecommunications utility as they are doing allegedly under their 

rule change USTR negotiating positions abroad and result in closing market access and competition opportunities for U.S. companies? 

Mr. DOWNES. So I don’t feel comfortable sort of answering the 

question in terms of what it would force the USTR to do, but certainly as I say, from a rhetorical standpoint, it makes our negotiating position, our leverage, much more subject to those kinds of 

arguments coming from the countries we have been urging so 

strongly over the years to try to keep Internet as a light touch regulatory model the way we have historically done. 

Mr. WALDEN. All right. Mr. Atkinson, you raised some issues involving Mr. Kimmelman’s organization. I would like to hear you 

pursue that a bit and then get Mr. Kimmelman’s reaction as well. 

What else do you see out there in terms of what the FCC is proposing in their Open Internet Order? 

Mr. ATKINSON. Well, again, we haven’t seen it, but I would agree 

with Mr. Downes that the net neutrality argument for some 

groups, not all groups, and I don’t really believe this is true for 

most of the industry advocates, for example, in Silicon Valley, but 

the net neutrality argument in my view has been a stocking horse 

for going back to a network that is highly regulated and ultimately 

going to a network that is publically owned. I think that is the end 

goal for many, many of these organizations. They want cities or 

governments to be running these networks, and they equate them 

to roads which most roads are publically operated and publically 

funded, not all. And so I think what we will see—and I didn’t mean 

to just point out Public Knowledge alone because there are other 

groups that do that, but I noticed it last week when I was on their 

Web site. It was pretty stark. It was essentially saying that they 

would use the Title II power to require broadband providers to roll 

out broadband in a certain way. Now, if you do that, I think what 

the end rules of that will be will be much less competition because 

it is harder for new entrants to come into a market and put a little 

bit of broadband here. They may not have the capital. They may 

not have the markets right away. But if you are requiring them to 

serve an entire area from the day one, you will simply get fewer 

competitors coming into the wireline marketplace, and I think that 

is going to end up hurting. 

So I think we will see more and more of that as—my prediction 

is if Title II decision is made tomorrow, you will see sort of a period 

of quiet for maybe 3 or 4 months, and then you will start seeing 

this next sort of wave. Well, we have done that for net neutrality 

but what about this? What about prices? What about discrimination? 

So I think it is just really the first step that we are going to be 

seeing here. 

Mr. WALDEN. I appreciate that. Mr. Kimmelman? 

61 

Mr. KIMMELMAN. Thank you. I think Mr. Atkinson has fundamentally misunderstood what was a Q&A session that was reported on our Web site. It was a response to the question about is 

there a concern for red-lining as broadband is built out, denying 

service to low-income marginalized communities? And our staff indicated that there was a concern. We didn’t call for regulating everyone. 

Mr. WALDEN. All right. 

Mr. KIMMELMAN. And I think as Mr. Atkinson knows, we have 

supported differing treatment of dominant and non-dominant carriers for years and years and years. Everyone knows as competition 

grows, you need to let start-ups get into a market and challenge 

the dominant players. 

So I think that is just a misunderstanding. 

Mr. WALDEN. All right. Mr. Atkinson, anything else? Five seconds. 

Mr. ATKINSON. Well, I would be happy to submit to the committee the actual statement that a Public Knowledge employee researcher—— 

Mr. WALDEN. All right. 

Mr. ATKINSON [continuing]. Puts on there, and it is very clear 

that they intend to use Title II for this purpose. 

Mr. WALDEN. All right. My time is expired. I recognize my friend 

from California, Ms. Eshoo. 

Ms. ESHOO. Thank you, Mr. Chairman, and thank you to all the 

witnesses. 

First on the issue of equating the open Internet rules with repressive government attempts at online censorship I really think is 

misinformed and irresponsible. Several of the governments seeking 

to expand the UN and ITU role in Internet governance are actively 

engaged in blocking their citizens’ access to information online. 

And that is very important to have down in the record. This is the 

opposite of U.S. policy. This is not U.S. policy. It is the stark opposite of it. 

We adopted the open Internet rules to protect consumers’ access 

to the content of their choosing. That is one of the basic tenants 

of an open Internet. So I think it is important to get that down for 

the record. 

I have several questions. I doubt that I am going to be able to 

ask all of them. I ask that you keep your answers brief. Mr. 

Downes, you are really lathered up about this. Last week T–Mobile—this is on the issue of investment and this whole notion, wild 

accusations that the market is going to be chilled, there isn’t going 

to be any investment. Last week T–Mobile became the second 

major wireless carrier to downplay the implications of Title II on 

their ability to continue investing. So how do you reconcile T–Mobile’s statements and similar comments by Sprint with your belief 

that the FCC action will threaten the long-term health and continued investment in broadband? 

Mr. DOWNES. OK. Thank you, Ms. Eshoo. I can’t obviously comment on what T–Mobile and Sprint are thinking and their reasoning, but what I can say is, you know, under this light touch bipartisan policy we have had the last 20 years, we have had over 

a trillion dollars of investment in broadband—— 

62 

Ms. ESHOO. No, but I am asking you, the charge is, and it has 

been made by those that oppose essentially my position and those 

like-minded individuals and organizations, it is a very serious 

charge that has been made. So can you reconcile it? Do you have 

proof? Is there lack of investment? Is there already a chill? Do you 

have information from the New York Stock Exchange or others? I 

think it is one thing to say we are concerned about something. It 

is another thing to make a charge that, A, is definitely going to 

happen and is going to produce B. 

So let me move on to Rob Atkinson. Thank you. Good friends. I 

am an Honorary Co-Chair of ITIF and proud to be. In the absence 

of robust broadband competition, I think there is an even greater 

need for strong enforceable open Internet rules. Now, your testimony doesn’t raise this issue, but the facts I think point to rather 

dismal picture. At speeds of 25 MB per second, nearly half of 

Americans have just one choice. At slower broadband of 10 MB per 

second, 30 percent of all Americans still have only one choice. 

So what would you propose be done to enhance broadband competition? And just be as brief as possible. If you have like maybe 

three bullet points? 

Mr. ATKINSON. Well, first of all, as we have written on that, no 

country in the world has a majority of its connections over 25 MB, 

even North Korea certainly doesn’t. Even South Korea. 

Ms. ESHOO. Yes, but we are talking about the United States of 

America. So I am asking—— 

Mr. ATKINSON. Right, but my point is that—— 

Ms. ESHOO [continuing]. You a very direct question. 

Mr. ATKINSON. Congresswoman, my point on that is simply 25 

MB I think is a standard that is just too high. No country meets 

it. So we do have robust competition, more around the 10 to 15 MB 

range where we have a lot of providers competing. 

But I would agree with you. I don’t think competition—you could 

have more competition or less competition. I would fully agree. It 

doesn’t mean that we shouldn’t have rules because even with competition, you can have abuse. So I agree with you we need rules. 

Ms. ESHOO. OK. I am going to ask you to stop so I can get to 

our friend, Rick Boucher. And it is wonderful to see you, and thank 

you for being here today. 

Eight years ago you introduced the Community Broadband Act 

of 2007, yourself and then-Representative Upton, as a way to overturn state bans on municipality-built broadband networks to spur 

deployment. Would you still stand with that today? 

Mr. BOUCHER. My views have not changed, Congresswoman 

Eshoo. 

Ms. ESHOO. Good. 

Mr. BOUCHER. I believed then and believe today that where the 

incumbent providers are not offering an adequate service and in 

many places their service is either quite slow or in some very rural 

communities and reaches of the community is non-existent. If a 

community wants to step up and provide a broadband service that 

enhances economic development, then it ought to be free to do so. 

I would just note that in one community in my formal congressional district, the City of Bristol, the public utility there that is 

city owned overbuilt the incumbent provider and offers a gigabitVerDate Nov 24 2008 12:29 Aug 20, 2015 Jkt 037690 PO 00000 Frm 00068 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 114\114-12 CHRIS
63 

level network that has been tied directly to the creation of more 

than 1,000 jobs in that community. 

So yes, I think it makes a lot of sense. I indicated that my testimony here today is entirely my own views, and you have asked for 

my view and I can assure you that my view has not changed. 

Ms. ESHOO. Well, that is wonderful, and I hope that the FCC 

Chairman’s proposal includes what you began many years ago. 

Thank you. I think my time has more than expired. 

Mr. WALDEN. The gentlelady yields back. The chair now recognizes the gentlelady from Tennessee, the Vice Chair of the Full 

Committee, Ms. Blackburn, for 5 minutes. 

Mrs. BLACKBURN. Thank you, Mr. Chairman, and thank you to 

each of you for your time to be here. Our constituents are really 

concerned about this issue. As I said in my opening remarks, they 

don’t think the Internet is broken and they don’t understand why 

the FCC would be trying to step in. So we appreciate hearing from 

you. 

Another thing that I hear and I want to take my questions this 

direction is the issue of new fees and taxes. I know Progressive Policy Institute had a study, and they said maybe $11 billion in new 

fees and taxes. And then January 16 the Washington Post ran a 

story attacking that figure, but then they noted that through interviews with tax and regulation experts that Title II reclassification 

would likely, and I am quoting, ‘‘cost some consumers something.’’ 

And we know that Chairman Wheeler is, as Mr. Atkinson, you 

pointed out, there has been discussion about forbearance from applying universal service fees on broadband and other components. 

So we do have concern about this in the reclassification, that it will 

lead to some amount of increased fees and taxes. And February 2 

the New York Times ran a piece titled In Net Neutrality Push, the 

FCC is Expected to Propose Regulating Internet Service as a Utility. And in that piece, David Farber, Professor Farber from Carnegie Mellon, and I think all of you probably are familiar with him. 

He helped to design parts of the backbone of the Internet. And as 

we say in Tennessee, it was not done by Al Gore. It was done by 

others. But the article states Professor Farber commented, ‘‘Regulating the Internet like a telecom service potentially opens up a 

Pandora’s Box.’’ 

And he advised that information services are typically free of 

taxes while telecommunications services are not especially at the 

state level. 

So what I want to ask you all, looking at these components, from 

Progressive Policy Institute, the review of that by the Post, the 

comments as in the New York Times by Professor Farber, does 

anyone on the panel dispute the conclusions of Dr. Farber, the Progressive Policy Institute, and the Washington Post? Mr. 

Kimmelman? Go ahead. 

Mr. KIMMELMAN. Ms. Blackburn, I certainly dispute the implications of that is being said. What is being said is if there will be 

new taxes and fees. My understanding is the chairman’s proposal 

will have no new federal taxes and fees. He is forbearing from a 

portion of Section 254 as I understand it from his own description 

of what he will propose tomorrow. So there will be no federal taxes 

and fees. 

64 

As to state and local government, which I believe is what Dave 

Farber was also referring to, it is today the case that every state 

can decide on its own what it wants to tax, what it wants to impose 

fees on, subject to limitations that this Congress is and has imposed on the Internet tax moratorium legislation which you can adjust as need be to make sure that state and local governments do 

not go beyond what you think is reasonable. 

Mrs. BLACKBURN. OK. So Mr. Kimmelman, you are disagreeing 

with the conclusions of Dr. Farber? You disagree with him as one 

of the architects of the Internet? 

Mr. KIMMELMAN. I don’t believe he is the architect of tax systems. I believe that is your job here and what state governments 

do, and he presented—— 

Mrs. BLACKBURN. OK. So you are—— 

Mr. KIMMELMAN [continuing]. A point of view of what he thinks 

might happen somewhere and—— 

Mrs. BLACKBURN. OK. I am going to interrupt you again—— 

Mr. KIMMELMAN [continuing]. That is plausible but it is not a 

statement of fact. 

Mrs. BLACKBURN [continuing]. So we can continue on this. So let 

me ask you this. How much do you anticipate it is going to cost 

consumers and private industry, especially if USF funds are eventually applied to Internet access? And most people agree, even Free 

Press, that reclassification would lead to some net increase in taxes 

and fees of about $4 billion. So what do you really think? 

Mr. KIMMELMAN. I am hopeful, Ms. Blackburn, that the FCC will 

review its universal service rules, will do something about the approximately 10 percent, way-too-inflated fee that all of us are paying—— 

Mrs. BLACKBURN. OK. 

Mr. KIMMELMAN [continuing]. On our telephone bills and figure 

out a better system where we actually all pay less. I believe—— 

Mrs. BLACKBURN. Mr. Kimmelman—— 

Mr. KIMMELMAN [continuing]. That is certainly plausible. 

Mrs. BLACKBURN [continuing]. Let me ask you this in my few 

seconds that remain. Were you or your organization, Public Knowledge, privy to any of the closed-door sessions at the White House 

where there was a discussion on what the net neutrality order 

would look like coming from the FCC? 

Mr. KIMMELMAN. No. No, Ms. Blackburn. We were not privy to 

any—— 

Mrs. BLACKBURN. Have you seen draft language? 

Mr. KIMMELMAN. No, I have not. 

Mrs. BLACKBURN. Yield back. 

Mr. WALDEN. The gentlelady yields back, and I now recognize 

Mr. Pallone. 

Mr. PALLONE. Thank you, Mr. Chairman. As I said just a few 

weeks ago at the subcommittee’s other open Internet hearing, one 

of the important aspects of net neutrality is ensuring that the FCC 

stands ready to protect consumer privacy, whether with regard to 

consumers needing telephone access or consumers needing 

broadband Internet access. Yet yesterday Administrator Strickland 

confirmed to me that the White House intends to release as early 

as this week its Consumer Privacy Bill of Rights proposal which 

65 

could effectively strip the FCC of its ability to regulate consumer 

privacy. The administration has not shared the proposal with members of this committee but has shown it to industry. As confirmed 

yesterday under the current draft which I am hopeful can be modified before release, telephone, Internet or cable companies can get 

out of FCC privacy oversight by creating a self-regulatory privacy 

code of conduct through a multi-stakeholder process. Specifically, 

these companies would no longer be covered by Section 222, the 

privacy section of Title II or other similar provisions. 

So Mr. Kimmelman, I wanted to ask you. There are several concerns with the current draft privacy bill from the White House 

from basing it on a tried and failed multi-stakeholder process to potentially weakening FTC’s current authorities. However, can you 

please comment on the concept of allowing telephone, Internet, and 

other providers being relieved of their obligations under Section 

222? 

Mr. KIMMELMAN. Thank you, Mr. Pallone, and I appreciate your 

strong concerns about this. I certainly hope what you have heard 

is not accurate. I think this could be an enormous problem for consumers who have relied on the ability to protect their own personal 

privacy on telephone calls and their own viewing habits over cable 

television. That has been what Section 222 of the Communications 

Act has been applied to most generally. I certainly hope the administration is not considering rolling that back. 

Mr. PALLONE. Can I ask you, I don’t know if you wanted to respond to anything else that members have brought up so far if you 

haven’t had the opportunity and wanted to comment further? 

Mr. KIMMELMAN. I would like to say something about the ITU 

having spent a bit of time at the WCIT Conference where Rob 

McDowell was as well. I think there is a little bit of a misunderstanding or sleight of hand here of raising telecom utility as a definition which I do not believe is what, based on what I have seen 

of the statements of the Chairman of the FCC, he is proposing to 

do with his Open Internet Order and drawing things into some 

broader regulatory framework at the ITU. I just don’t believe that 

is on the table. 

On the contrary, I believe from the description that has been provided of the proposed plan, it is the actual effectuation of the U.S. 

Government’s position against Russia and China and Iran and 

other repressive regimes that we not only ask other governments 

to prevent censorship and interference with their citizens’ communications but we ourselves practice that and do not censor citizens’ 

communications on the open Internet and do not allow corporate 

gatekeepers to do the same. 

So I view it as quite consistent with our past policies. 

Mr. PALLONE. I thank you. Mr. Chairman, I just wanted to say 

I know—and Ms. Eshoo and I were talking about this earlier. The 

Republicans keep talking about court challenges, and the fact of 

the matter is that anything can be tied up in a court challenge. 

And you know, there was a time when the Republicans tried to 

avoid litigation. I specifically remember, they have and continue to 

talk about tort reform in the healthcare sector. But now it looks 

like the GOP wants to sue on everything, you know? They sue on 

the ACA. They sue on immigration reform. I am just commenting 

66 

on the fact that I really don’t quite understand why, we as a subcommittee or as a committee have to be constantly worried about 

who is going to sue who because we never know who is going to 

sue no matter what the action is by FCC or any other agency. 

So I just, a comment on the fact that I really don’t think that 

we should be deciding what to do here, based on who we think is 

going to sue who. And certainly I see that if anything, it is the Republicans that appear to be more litigious these days than our side 

of the aisle. 

I yield back. 

Mr. WALDEN. The gentleman yields back the balance of his time. 

Chair now recognizes the former chairman of the committee, Mr. 

Barton, for 5 minutes. 

Mr. BARTON. Thank you, Mr. Chairman. And we are delighted to 

have the Honorable Boucher here. It is a level of the respect and 

the amount of intimidation factor that you have not yet been asked 

a question. We are afraid of you, Mr. Boucher. But I remember well 

the debates you and I have had, some on the same side, some on 

opposite sides. And we are delighted that you are here again. We 

love Morgan Griffith. He is a great member of this committee, but 

we miss you and we wish you well. 

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

Mr. BARTON. We have talked about this issue of net neutrality, 

and Mr. Atkinson quite rightly pointed out that that is a misnomer. Net neutrality as espoused by the most aggressive proponents, there is nothing neutral about it. It is net regulation. 

What the FCC is probably going to vote on tomorrow is net nonsense. It is not going to work. It is going to be tested in court. It 

is going to fail in court. The chairman of this subcommittee and the 

Full Committee have put out a draft that would give some certainty but would maintain the premise of true neutrality. 

Now, Mr. Boucher, you are a smart guy, you know? You are a 

lot smarter than me. But you understand, and I want to commend 

you for your—you were the only one that really made any political 

comments, you know? You put it on the table. You have great candor, and I appreciate that. 

But 1934, when we passed whatever we call that Act, the Communications Act, there was one phone company basically. Now, 

there were some small rural telephone companies, but if you wanted a phone company in your particular area, you went to one company. You went to one company. Today in Ennis, Texas, if I don’t 

like my Internet provider, which is Charter Cable, AT&T will come 

in and do it for me. Verizon will come in and do it for me. There 

are any number of providers that all I have to do is pick up a solicitation letter in my mailbox or next time the phone answers say yes 

to somebody who wants to provide me different Internet services. 

There are all kinds of competition. 

Title II was passed when you had one provider. Do you agree 

with that? 

Mr. BOUCHER. Mr. Barton, I don’t disagree with anything that 

you just said. The phone—— 

Mr. BARTON. Including—and everybody else. 

Mr. BOUCHER. The tone that I would express that sentiment in 

is the following, that there is a better way. Title II is kind of a 

67 

blunt instrument. It is a relic from another era that doesn’t fit very 

well in today’s highly competitive communications market where 

you have got the world’s most capable platform for delivering information of all kinds and multiple parties delivering access to that 

platform, depending on whose service you want. Title II was never 

conceived for an environment like that. There is a better way, and 

the better way—I will come back to my original remarks—is for 

this committee—— 

Mr. BARTON. I am not going to let you filibuster too long. 

Mr. BOUCHER. Well, I am only going to take about 10 seconds 

here, but you come together on terms that are for today’s modern 

era that offer network neutrality assurances and maintain 

broadband as a lightly regulated Title I information service. That 

honestly is what is called for in today’s environment. 

Mr. BARTON. In the Chairman’s draft as he has put out, you 

would generally support it? 

Mr. BOUCHER. I think it moves in the right direction, and I think 

it is important to note how far the Republicans have now moved 

toward the historic Democratic position. 

Mr. BARTON. See, and that bothers me. 

Mr. BOUCHER. Well, I know you, and I am not surprised. But I 

hope you will see the light this time. And let me just stay that I 

think it is a major development that now everyone is talking about 

the best way to preserve network neutrality, and the best way to 

do that is a narrowly crafted statute that gives permanence to 

these principles. 

You know, we have been debating this issue now for a decade, 

and everyone has more important work to do. Mr. Wheeler at the 

FCC has more important work to do, but he is going to spend a 

lot of time responding to requests here and litigation in court unless this issue is put to rest. 

So a decade into it now, it is time to settle it. This committee 

has within its ability the power to do that—— 

Mr. BARTON. OK. I want to—— 

Mr. BOUCHER [continuing]. And both of you have an incentive. 

Both sides have an incentive to get it done. So I hope you will. 

Mr. BARTON. I want to go to Mr. Atkinson very quickly. Do you 

and the people you represent generally support what Chairman 

Walden and Chairman Upton have put out in draft form? 

Mr. ATKINSON. I would associate myself with Congressman Boucher’s remarks. I think it is in the right direction. I think there is 

room for compromise in it. I think the Democratic side has raised 

some points that have validity. Though it is not a perfect bill in my 

view, but it is a very, very important first step and it lays the 

groundwork for a legislative solution. 

Mr. BARTON. Thank you. And thank you, Mr. Chairman. I yield 

back. 

Mr. WALDEN. The gentleman’s time is expired. Now we go to the 

gentleman from Pennsylvania, Mr. Doyle, for 5 minutes. 

Mr. DOYLE. Thank you, Mr. Chairman, for holding this hearing, 

and thank you to all the witnesses, particularly my good friend and 

colleague, Rick Boucher. It is good to see you back here, Rick. 

I am excited to see the FCC take this next step tomorrow in protecting an open Internet. I think the Chairman has recognized the 

68 

passion and interest that people around the country have for this 

issue, and he has seen broad support from an array of stakeholders, from investors to venture capitalists to edge providers and 

ISP. Most recognize that the sky isn’t falling, and many applaud 

the certainty that these rules will bring to the marketplace. 

You know, this morning I was checking the stock prices for many 

of the major telecom companies, and most companies’ values were 

up. So clearly investors don’t think the sky is falling, either. Statements by executives by many of the Nation’s largest telecom companies reflect their expectation that these rules won’t change their 

investment or deployment strategies and that they believe properly 

crafted rules will not affect their businesses. 

I also want to point out that the FCC is also moving forward to 

grant a number of petitions by communities to lift restrictions on 

municipal broadband deployments. I think that is a great step in 

the right direction, and I think the communities can bring some 

much-needed competition to the broadband market. 

And finally, let me say with regards to some of the concerns expressed by Ms. Blackburn, the Washington Post fact checker looked 

at this study that she cites and completely debunked the study. 

The fact checker said the more complex the issue, the easier it is 

for politicians to obfuscate the reality of the dramatic numbers, and 

our constituents deserve better than scare tactics that deliberately 

mislead the public and gave it three Pinocchios. So I think that 

speaks to that issue. 

Mr. Kimmelman, I want to follow up on a question that Mr. 

Pallone asked you. This proposal by the White House sounds like 

it would severely undercut the FCC’s authority to prevent ISPs 

from using their position in the marketplace to do things like 

charging subscribers not to have their browsing history data-mined 

or setting super-cookies that allow users to be identified and 

tracked across the Internet. 

What benefit do you see in the FCC’s ability to enforce privacy 

protections on ISPs and what do you think would be lost if that authority was removed and vested in the FTC that may lack the authority to establish bright line rules the way the FCC could under 

Title II? 

Mr. KIMMELMAN. Mr. Doyle, I think it is a very serious concern 

if what you describe is accurate. I think that consumers across the 

country rely upon the infrastructure of communications in this 

country to protect their privacy. It has historically done so. Section 

222 has been used for that, and I think we need to look at that 

in the broadband environment. It would be extremely unfortunate 

if that were thrown out the window at this moment. 

I have a concern just based on the characterization that you provided and Mr. Pallone that the administration which had been 

working on privacy legislation 4 years ago and had brought together many stakeholders has pulled something out of the drawer 

and hasn’t maybe fully looked at changes in the environment, including the regulatory environment, since those ideas were first 

floated. And I certainly hope that they are updating that and are 

listening to the concerns raised. 

This would be a very significant concern for consumers if all of 

a sudden they thought their privacy was in jeopardy. 

69 

Mr. DOYLE. Mr. Kimmelman, some have argued that paid 

prioritization and unencumbered zero rating of apps and services 

can be beneficial to consumers. Others say that these policies could 

lead to greater barriers to entry in the marketplace and in fact 

hurt consumers by limiting the array of new businesses and startups that can climb the pay walls that these policies erect. Where 

do you stand on that? 

Mr. KIMMELMAN. Mr. Doyle, I think paid prioritization can be extremely dangerous to the Internet ecosystem that we have today. 

I constantly think back to what Tim Berners-Lee has talked about 

as permissionless innovation. He didn’t have to ask anyone to develop the World Wide Web. I think that is an important concept to 

keep in mind here. 

Now having said that, that does not mean everything is—it is 

one size fits all as Rob has said. It means there needs to be important regulatory oversight functions applied as to what a particular 

service does, whether it is beneficial to the competitive process, 

whether it opens opportunities for innovators, whether it creates a 

new competitive option in the marketplace. 

So I wouldn’t classify every service one way or the other, but in 

general, I think there should be a big alarm bell goes off when you 

see something that looks like paid prioritization as a starting point. 

Mr. DOYLE. Thank you. Mr. Chairman, I will yield back. 

Mr. WALDEN. The gentleman yields back his time. I would like 

to ask unanimous consent to submit in the record a letter from Mr. 

Mark Cuban who says the market is aware of the uncertainty the 

FCC is creating—and will respond accordingly by creating volatility, and a story in News Bay Media. Moffet Downgrades Cable 

Sector on Title II Woes. Without objection, those two items will be 

inserted in the record. 

I now turn to Mr. Olson. Are you sure it is not Mr. Shimkus, I 

believe was here? 

VOICE. Sorry, sir. 

Mr. WALDEN. Yes, Mr. Shimkus overriding my own counsel here 

for the next 5 minutes. 

Mr. SHIMKUS. Thank you. Well, it is great to be here, a great 

panel, great discussion, and again, it is good to see Rick here, although his real name is Frederick Carlisle, goes by Rick. So I did 

my due diligence. 

Mr. Atkinson, given the Title II explicitly allows for discrimination, how can the FCC place an outright ban on paid prioritization? 

Mr. ATKINSON. Well, I disagree with this notion on paid 

prioritization. If we really want to ban paid prioritization, then we 

should ban CDNs, content delivery networks, that major companies 

like Netflix use. They are paying to get their traffic as close to the 

customer as possible. And a little Silicon Valley start-up, maybe 

they can’t pay for a CDN. 

So I think this notion that somehow some kind of paid 

prioritization is OK and some kind is not. Now my position is we 

should let the market determine that. I actually think this could 

be really good for start-ups. There may be start-ups that can’t afford to use CDN services. They may want to say, I have an application that has what engineers call low latency needs. The best efforts Internet isn’t going to do that. As long as the rule says that 

70 

if you don’t pay you always get best efforts Internet, we can never 

have a system where a carrier says you have to pay to get best efforts. So that is what any congressional rule has to say. 

But if you want to go beyond it, it is like I can get a 40-cent 

stamp or whatever it costs for the mail today, but if I want to go 

beyond it as a businessperson, I have the right to get it. And I 

think that is very much pro-consumer and pro-business. 

Mr. SHIMKUS. But to have the certainty, that would require legislation. That would require language other than FCC going to the 

current Communications Act and then trying to wiggle in one section over the other. 

Mr. ATKINSON. Right. Absolutely. And that is why we supported 

so strongly Chairman Wheeler’s initial proposal because he allowed 

paid prioritization, but he said it has to be reasonable and has to 

be pro-consumer and there are some safeguards around it. But he 

backed off from that position. I am not sure why. But I think that 

was the right position. And guaranteed, if the FTC goes forward tomorrow with Title II, you won’t be able to have that level of 

customization. 

Mr. SHIMKUS. I have been told to make sure I answered the same 

way. I am not sure why, but I think I know why. Rick, you have 

looked at the European use of broadband, and it is obviously a different way of handling that. Obviously the concern and part of this 

debate is that by moving into Title II, we may be falling into the 

same trap as the European community. Can you address that? 

Mr. BOUCHER. The Internet Innovation Alliance with which I am 

affiliated, did a study which we published about 3 weeks ago. The 

results of that are on the Alliance’s Web site. And in that study, 

we took a close look at the broadband performance of Europe 

versus the United States. We did that in parallel to the regulatory 

structures that prevail in Europe and also in the United States. 

In the United States we have historic light touch regulation 

going back about a decade now for broadband, and that light touch 

regulatory environment has been very welcoming to investment. 

In the European Union for about the same period of time, going 

back to about 2002, they have had a more intrusive regulatory regime characteristic of their regime and most of the member states 

of the EU is something called unbundling and least access over the 

last mile. And that basically means that competitors are welcomed 

on to the incumbent’s network at a set price, at a regulated rate. 

The history is pretty clear that in the European Union that least 

access requirement has impeded investment, and on virtually every 

measure of Internet capability, the European Union is behind the 

United states, behind in access to broadband capabilities on the 

part of the public, behind in terms of speed, behind in investment 

on both the wired and wireless side and even the European Commission has now concluded that the reason their performance is 

lagging is because of the intrusive regulatory structure that they 

have and has recommended to the member states that for next generation networks, the fiber optic deployments, the gigabit level networks that are only now beginning to come to Europe, even though 

we have them more commonly in the United States, that the member states should not apply the least access regime, saying that to 

do so would impede investment. 

71 

So the simple conclusion we reach in our study is that at the 

very time when we appear to be moving now toward Europe in 

terms of a regulatory posture with Title II reclassification. Europe 

is now moving our way and lightening up its regulatory structure. 

Now, the FCC is proposing to forbear from imposing least access, 

but I will be very surprised if Title II is adopted, if you don’t see 

some competitive carriers suing, saying that the FCC did not have 

an adequate record to undertake that level of forbearance and saying that now that Title II applies, there has to be least access. Rob 

Atkinson earlier said that Title II is going to create a lot of uncertainty. This is yet another example of where I think it will. 

Mr. SHIMKUS. Thank you. 

Mr. WALDEN. The gentleman’s time expired. We now go to Mr. 

Yarmuth for 5 minutes. 

Mr. YARMUTH. Thank you, Mr. Chairman. Rick, it is good to see 

you. Thanks to all the panelists. Now we have heard arguments 

that the FCC’s net neutrality rules will make Internet speeds offered to American consumers as slow as those in Europe. But according to Akamai’s most recent State of the Internet Report, average U.S. Internet speeds ranked behind what consumers can get in 

Moldova and 20 other countries. 

I will address this to Mr. Kimmelman. Do you think that American broadband consumers are getting a good deal as compared to 

their European counterparts? 

Mr. KIMMELMAN. Thank you, Mr. Yarmuth. I think it is really 

hard to do apples-to-apples comparison of the U.S. and Europe. 

Some of their rules are European Union-wide. Some of them are 

nation-specific. So it is a bit tricky. 

But in general, there are some policies they are imposing that 

are much more government driven, that much more come out of a 

single provider monopoly environment, and they can keep prices 

low and they can open up their platforms. And then they have 

other problems. 

And I think the better way to think about it is can we do better 

here with our speeds and with our deployment, and I think the answer is clearly yes. I don’t think it is to follow a European model 

as such, and I don’t think Title II is anywhere near the same as 

what most of the Europeans have done. But I think the goal of actually pushing up speeds of reaching higher for what has now become this essential platform for economic and social growth in our 

society, absolutely, yes. We should be pushing as hard as possible. 

Mr. YARMUTH. Some of your fellow panelists seem to take a different view of the current state of consumer choice in the American 

broadband market. I know in my district, there is one provider that 

dominates the market. Essentially that is the only game in town. 

What is your view on the level of broadband competition our constituency currently enjoy? 

Mr. KIMMELMAN. I think there are a number of different measurements that are being used. The FCC is now pushing the envelope to really push for greater deployment. But by anything other 

than a snail’s pace, we lack robust competition in our broadband 

market, particularly for the delivery of video quality services. And 

so often one provider, sometimes two. Mr. Barton I guess is lucky 

to have, fortunate to have more. Some people can use wireless for 

72 

a variety of services but usually not the most robust video delivery 

system. 

So we suffer from a very significant problem and lack of competition. 

Mr. YARMUTH. And what about the issue of cost versus quality 

and service? How do we rate in terms of what consumers pay for 

quality video? 

Mr. KIMMELMAN. Well, again I hate to say anything too definitive 

because different countries have different rules, different frameworks. But there is no doubt there are some countries that have 

faster speeds and better quality. And I would just urge the committee to look at what are the policies that go with those that actually deliver that. Sometimes it is with greater government involvement, and that is something to actually consider as a matter of 

tradeoff. 

Mr. YARMUTH. Just as a matter of principle, if you have one provider with very little regulation, then the odds of getting good service at a reasonable cost are lower than if you had either multiple 

providers in a vibrant competition or some kind of heavy-handed 

regulation. 

Mr. KIMMELMAN. Absolutely. And I will just point out that going 

way back in history, we did have more of the open market that Mr. 

Atkinson was talking about, and it was bedlam. There was a refusal to interconnect in the early 1900s which led to the development of the AT&T monopoly with a set of public obligations that 

came with it. 

So obviously a different timeframe, but I just raise the admonition. The economics of that could still be problematic, that interconnection is not something that has traditionally worked well in 

a totally free-market environment. 

Mr. YARMUTH. Great. Thank you, Mr. Chairman. I yield back. 

Mr. WALDEN. The gentleman yields back the balance of his time. 

The chair now recognizes the gentleman from New Jersey, Mr. 

Lance, for 5 minutes. 

Mr. LANCE. Thank you, Mr. Chairman. Mr. Atkinson, in your testimony you eschew the term net neutrality in favor of a more generic term, network policy. You say, and I quote, any network policy for the 21st century recognizes that the Internet is not inherently neutral and that while some forms of traffic differentiation 

can be anti-consumer or stifle innovation, other forms may enable 

innovative new services. And I would like you to elaborate. Perhaps 

that might be in healthcare or educational fields, but I ask for your 

expertise into how this could further innovation. 

Mr. ATKINSON. So I think one of the things that has been striking about this debate is the absence of the voice of network engineers. The Internet has never been neutral, and it is not neutral 

now. In the Internet engineering space, there are different priorities that network traffic receives because frankly, if your email 

goes and you get it 50 milliseconds late, you don’t notice and you 

don’t care. But if your two-way video with your doctor is 50 milliseconds late, you basically cannot have that conversation with your 

doctor. Fifty milliseconds is way too long. 

So the idea that we would treat all traffic the same is essentially 

an anti-consumer. It is going to stifle these kinds of innovations. 

73 

If I can just make one quick point about the question on competition, we released a report last year called The Whole Picture where 

we looked at competition. Using the OECD data, we have the third 

most-competitive intermodal broadband market in the world. We 

are almost tied with Korea and Canada. We have more intermodal 

competition, in other words, two providers serving each home, than 

any other country. The reason there are a few countries ahead of 

us like Japan, like Korea, is really two factors. They have very high 

population density. They are serving apartment buildings largely. 

Super-easy to do. And secondly, they have put in massive government subsidies. Now, we can have an argument about whether that 

is a good policy or a bad policy, but many of these countries have 

used public monies from tax incentives and grants. 

So this notion that somehow we are lagging behind because of 

the light touch regulation I think is mistaken. 

Mr. LANCE. Thank you and I appreciate that point. You said in 

your testimony the almost certain legal challenges to the FCC’s 

Order and the uncertainty that would in turn create as evidence 

that a legislative route would be better than the FCC’s reclassifying broadband under Title II. How long do you think the legal 

challenge would last if this were to occur? 

Mr. ATKINSON. I imagine it would begin quite soon, and I would 

agree with Congressman Boucher, I think you are talking 3, maybe 

4 years before we would end up with any sign of real decision and 

certainty, whether this we can do a go or no-go. 

Mr. LANCE. Thank you, and others on the panel are certainly 

willing to—— 

Mr. BOUCHER. Let me just—— 

Mr. LANCE. Yes, thank you, Congressman. Yes. 

Mr. BOUCHER. Just to look at the most recent decision in this 

space. It was the Verizon decision of the D.C. Circuit. 

Mr. LANCE. Yes, sir. 

Mr. BOUCHER. It invalidated the FCC’s 2010 Open Internet 

Order. 

Mr. LANCE. Yes. 

Mr. BOUCHER. More than 3 years from the time the suit was filed 

until the decision was handed down. You know, my point is that 

puts us into the next presidential administration. If there is a Republican FCC at that point, the network neutrality for all practical 

purposes is gone. There will no longer be network neutrality assurances. Those who strongly support network neutrality should be 

looking for greater permanence. A statutory alternative offers that. 

Mr. LANCE. And regarding the former case, did that go, sir, to 

the Circuit Court here at the DC—— 

Mr. BOUCHER. Yes. 

Mr. LANCE. And of course, in this situation, there is the potential 

that it could be appealed further and the Supreme Court might 

grant, sir, and that would even be a longer period of time. 

Mr. BOUCHER. Yes. 

Mr. LANCE. Yes. Thank you. Mr. Downes, you have cited in your 

testimony how network management technologies could exist regarding oversight of the FCC. Do you believe that this will lead to 

reduced investment and innovation on the part of ISPs in 

broadband networks? 

74 

Mr. DOWNES. Well, it depends I think on how far the FCC goes 

now or in the future in terms of this public utility regime. Obviously we have investment in our public utilities including the 

wireline telephone network, but it is clearly not at the same pace 

and at the same froth level as what we have seen in the last 20 

years under the light touch regime. 

Mr. LANCE. Thank you, and Mr. Chairman, I yield back 16 seconds. 

Mr. WALDEN. The gentleman yields back the balance of his time. 

The chair now recognizes Ms. DeGette next up. 

Ms. DEGETTE. Thank you, Mr. Chairman. You know, as a supporter of net neutrality, I have been glad to see that the latest debate has led to a consensus around principles of access to lawful 

content, no harmful discrimination, and transparency. These are 

really the core principles that have been laid out, both in the Republican draft and also in Democratic proposals, and also the 

White House is in favor of this and most importantly maybe is 

what our constituents expect when they use the Internet. But of 

course, the constituents expect much more than just an open Internet. They expect faster speeds, affordable prices, and access to new 

and innovative content. 

So for the last decades, the virtuous cycle of investment and innovation have given consumers these advantages as well. I know 

there is disagreement among the panel about the best way to implement net neutrality, but I want to step back to the core net neutrality principles, and I want to ask each member of this panel the 

same question. And this can be answered yes or no. Are the net 

neutrality principles of access to lawful content, no harmful discrimination, and transparency if properly implemented compatible 

with the continued investment necessary to give consumers the 

broadband experience they expect? Mr. Boucher? 

Mr. BOUCHER. Yes. 

Ms. DEGETTE. Mr. Kimmelman? 

Mr. KIMMELMAN. Absolutely, yes. 

Ms. DEGETTE. Mr. Atkinson? 

Mr. ATKINSON. Yes. 

Ms. DEGETTE. And Mr. Downes? 

Mr. DOWNES. Yes, especially the way you phrased it, yes. 

Ms. DEGETTE. Thank you. So I am glad that we all agree that 

strong net neutrality can be an unambiguous win for consumers. 

I want to—do you want me to ask this? 

Mr. LUJAN. If—— 

Ms. DEGETTE. OK. 

Mr. LUJAN [continuing]. You want to yield. 

Ms. DEGETTE. I will yield—let me ask one more question. Then 

I will yield to you if that is OK. Mr. Lujan has an excellent question that he wants to ask. Mr. Kimmelman, some have suggested 

that the power of the free market is sufficient to protect the open 

Internet, but in your testimony you pointed out that some of the 

biggest ISPs have admitted there is a business advantage to violating open Internet principles. Is this merely a theoretical concern 

or have we seen cases of business actually trying to gain an advantage on their competitors by violating net neutrality principles? 

75 

Mr. KIMMELMAN. We have seen examples, Ms. DeGette. Fortunately we have had rules in place or we have had rules proposed 

for a long period of time that have very effectively disciplined most 

market behavior. And so we haven’t seen a lot, but we have seen 

this and it is very simple. It can be advantageous to the bottom 

line to favor one’s own content, to favor one’s own preferential relationships in content providers to make more money. And so there 

is nothing nefarious about it. It is a natural economic incentive—— 

Ms. DEGETTE. Right. 

Mr. KIMMELMAN [continuing]. For these ISPs to pursue suction 

actions. 

Ms. DEGETTE. Thanks. Of course, Congressman Boucher, we all 

agreed up here after your testimony that we should just hire you 

as a mediator to work out this legislation. So I want to ask you. 

You said we need to have narrow bipartisan legislation, but you 

single out the network neutrality principles as a key non-negotiable 

element. So why do you think the debate has moved past negotiations over network neutrality principles? 

Mr. BOUCHER. I think very simply because both sides now have 

quite a bit of leverage, and when both sides have leverage roughly 

equal, and I think that is the situation today, it is the optimal circumstance for legislating. 

There are two key principles that really matter here, and the 

first of these is that the Republican offer for imbedding strong network neutrality principles in the statute be accepted by Democrats. 

In return for that, we ought to be continuing to treat broadband 

by the proven method and that is an information service subject to 

Title I with light regulation. We have had that for a decade, and 

we have developed the most capable Internet by virtually every 

measure that exists anywhere in the world. If you add all of our 

ecosystem of the Internet together, it is the envy of the world. Let 

us not upset that very workable formula. Keep Title I in place. 

Those are the two key principles of legislation. 

Ms. DEGETTE. Thanks. 

Mr. BOUCHER. And I think the fact that Republicans have moved 

as far toward the Democratic position as they have is really a 

major development. It is noteworthy, and it is because of the leverage the Democrats now have as a consequence of the reclassification decision. 

Ms. DEGETTE. Thanks. And I yield the balance of my time for follow-up to Mr. Lujan. 

Mr. LUJAN. Thank you very much. I thank the lady from Colorado. Mr. Atkinson, something that you said earlier caught my attention. You said in regards to Mr. Boucher that that Mr. Boucher 

had valid issues regarding the Republican discussion draft. Can 

you expound on that? 

Mr. ATKINSON. Well, I am not in a position to go into a significant amount of detail, but I think there are 2 key points there. One 

is there are valid issues because there are no Democrats who supported that. And so you cannot get this bill passed with the President signing it unless there is some compromise. So I think that 

is point number one. Point number two is the FCC—I think the bill 

could go slightly further giving the FCC some authority. Now what 

I think the bill rightly does, under 706 for example, there us unlimVerDate Nov 24 2008 12:29 Aug 20, 2015 Jkt 037690 PO 00000 Frm 00081 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 114\114-12 CHRIS
76 

ited authority. 706, you can use that to justify pretty much anything, and that is clearly too broad and was clearly too broad when 

it was passed in ’96. 

So there needs to be some constraints on the FCC in our view, 

but also at the same time they need some abilities to be able to 

go out and effectively police issues. 

Mr. BOUCHER. If I may, Mr. Lujan, since you were asking about 

my thoughts and if the Chair will just indulge me for a moment, 

I am going to take issue a little bit with what Mr. Atkinson just 

said about 706. I did note at the outset that I had some issues with 

the Republican draft. I am going to be very candid to say that I 

think when the draft suggests that Section 706 not be deemed an 

affirmative grant of authority to the FCC, that does go too far. And 

that is not a necessary provision in order either to assure that we 

have strong network neutrality principles in the statute or to continue the light touch regulatory treatment that broadband enjoys 

today. 

So as a starting point while Democrats sit down with Republicans to negotiate an agreeable statutory formulation, I would 

hope Republicans would say, you know, that does go fairly far. We 

acknowledge your concerns. We are willing to take that provision 

out. To me that would be a sensible step to take. 

Mr. WALDEN. The gentleman’s time, gentlelady’s time, has expired, and we appreciate the comments from former member, 

former chairman. At least we are having those discussions with 

you. Mr. Collins for 5 minutes. 

Mr. COLLINS. I want to thank the witnesses today. It seems as 

though the discussion now has moved from net neutrality to Title 

II because we have all coalesced around the concept of net neutrality. So Mr. Atkinson, you brought up the point that you are 

fairly certain litigation is the next step absent congressional legislation. I think I heard Mr. Downes say that could be 2-plus years. 

So I am a private-sector guy, an entrepreneur. You make investments based on as much certainty as you can get. That is kind of 

a rhetorical statement. And as you introduce uncertainty, doesn’t 

mean it is all or nothing. Some would say, well, isn’t there going 

to be investment? Well, sure there is. But the more investment I 

think the better to certainly grow broadband and the others. We 

want more investment, not less. It is my belief as a private-sector 

guy, uncertainty brings less investment than certainty. And as I 

now look at where we are with the upcoming rule as we understand it from the FCC, it is disappointing to say the least that the 

FCC in what they are going to do, relative to Title II, the consequences of what I call that overreach will be uncertainty. And 

with that, less investment than otherwise. It doesn’t mean no investment but less investment, and that is not a good thing which 

is why I think I am very happy to hear a lot of consensus. It is 

the role of Congress to push forth a bill. If we do so, we do it in 

a bipartisan way that should trump what the FCC is going to do. 

And so Mr. Atkinson, I would like to talk a little more about the 

litigation piece, where you see it coming, how quickly you see it 

coming, and if you agree with me that in the arena of litigation absent something else, there will be less investment than more. 

77 

Mr. ATKINSON. I do agree with you. It won’t be catastrophic but 

at the margin there will be likely less investment if we go down 

this path. 

I also would like to point out the uncertainty, really, I think is 

for both sides on this debate. I mean, there is a legitimate argument I think that the advocates of net neutrality make that Silicon 

Valley entrepreneurs or other offers, they need some level of certainty. You know, are they going give me 5 years to know? Carriers 

do this. Totally agree with this. Carriers need certainty. My concern with Title II and what the Commission is doing is it really is 

not providing certainty. It is providing certainty in a way for 

maybe a year or 2 or 3, but don’t forget. We have an election coming up, and just say for the hypothetical, 50/50 chance. That means 

you have a 50/50 chance that you are not going to have any rules 

I agree with you on the legal challenge. I think what we will see, 

as Mr. Downes said, rent-seeking from particular carriers with particular interests or other groups who will go in and say, you know 

what? We can gain a slight advantage over our competitors if we 

challenge the FCC on this particular component. And that is perfectly reasonable for them to do. It just will gum up the entire process. 

Mr. COLLINS. Now, as I understand it, there is something around 

1,000 provisions in Title II, and we have heard rumors anyway 

that they are going to forbear on this one, this one, and another 

one? Maybe forbear on the ROI as we limit returns on electric utilities, true monopolies that they would forbear on that piece which 

would be the death of the Internet if they decided the rate of return could be 6 percent or something like that. But with a thousand provisions, and we don’t know which ones they will forbear 

on or not. Isn’t it also in the uncertainty realm once they have Title 

II, they forbear now, a year from now, 2 years from now a different 

president. They decide not to forebear. So I will go back again. I 

am encouraged to hear I think almost a coalescing. We need congressional legislation on net neutrality. Title II is just a wet blanket on it, and perhaps that is part of the incentive that has brought 

us together. Well, let us not question that. We are I think more together than not. But especially, would you agree that those thousand provisions and forbearing or not is really what is going to 

have this gummed up? 

Mr. ATKINSON. I would definitely agree with that, that this is 

going to provide anything but certainty. 

Mr. COLLINS. Mr. Downes, any comments in our last 30 seconds? 

Mr. DOWNES. Yes, while I agree with Mr. Atkinson, and as I say, 

I am just baffled by the Chairman’s decision here because as he 

himself said, when the DC circuit ruled in the Verizon case, it provided him a roadmap and an invitation to reenact the 2010 rules 

under Section 706. It was, you know, certainly not without legal 

risk but certainly nothing compared to the legal risk now of Title 

II and all the forbearance proceedings that will go with it. 

Mr. COLLINS. All right. I want to thank all the panel today. I 

yield back, Mr. Chairman, my last 10 seconds. 

Mr. WALDEN. The gentleman yields back the balance of his time. 

And now we turn to the gentleman from Illinois, Mr. Rush, for 5 

minutes. 

78 

Mr. RUSH. I want to thank you, Mr. Chairman. Mr. Chairman, 

I had been involved in another hearing, a Joint Subcommittee 

hearing downstairs. And so I have not been able to participate as 

fully as I would like. But the time that I have been here, this has 

been quite interesting to me. I certainly want to take a moment to 

join in with the chorus of welcoming our esteemed colleague, Chairman Boucher back again. Your time on this subcommittee where 

I served with you was really an era of enlightenment for me. So 

I really want to thank you so much for your contributions, and I 

wish that we were spending as much time on reforming program 

carriage rules as we are on these issues that we are discussing, net 

neutrality and associated issues. 

Reforming carriage rules especially as it relates to independent 

networks. I think that is something that we need to get to. That 

said, a free and open Internet with unfiltered access is what I believe we all want. You believe the Title II reclassification is not a 

viable solution in addressing net neutrality. In your years as chairman of this subcommittee, do you really believe that the FCC will 

be able to forbear all of the onerous provisions from Title II? 

Mr. BOUCHER. Thank you very much, Mr. Rush, and thank you 

for your kind words and your words of welcome as I return to the 

committee to offer some views. 

I think it is challenging for the FCC to undertake forbearance 

without the development of a complete record that justifies each of 

the forbearance steps. And the FCC’s record in developing its forbearance decisions is really pretty thin. My guess, and I am just 

guessing, is that a lot of the basis of the litigation that is going to 

be upcoming is going to be challenging the absence of an adequate 

record for the FCC to take its various actions in association with 

this reclassification, forbearance among those actions. 

So the short answer to your question is I think Chairman Wheeler is trying to forbear from the most onerous provisions of Title II 

such as tariffing requirements, rate regulation, least access and 

unbundling. He is making a serious effort to do that. I think his 

decision to do that is going to be significantly challenged in court, 

and we don’t know what the outcome can be. 

Coming back to my core point today, that is yet another reason 

that it is in the interest of everyone to use this moment to provide 

permanent protection for network neutrality, to do so in a statute, 

and also in that statute continue the light touch Title I treatment 

that has been so successful here for the last decade. 

Mr. RUSH. You point out that the Republican discussion draft 

would codify transparency requirements and prohibit blocking, 

throttling, and paid prioritization. What is your position on including a ban on zero rating practices? 

Mr. BOUCHER. I am going to forgo dissecting the legislative draft 

in any detail because I think that is uniquely the responsibility of 

the subcommittee, and there are clearly provisions in the legislative draft that ought to be open to discussion and negotiation as 

long as in the end what is achieved is the embedding of network 

neutrality principles and light touch regulation. This subcommittee 

will perform a great service. 

So I would leave to the bipartisan conversation a discussion of 

the specific elements that are in the draft legislation. 

79 

Mr. RUSH. Mr. Chairman, I yield back. 

Ms. ESHOO. I appreciate the gentleman yielding the remainder of 

his time. I think it is very important to raise the issue when it 

comes to legislation that there not be an automatic assumption 

that because there is the recognition that these three items are 

mentioned in the bill that they are automatically banned. There 

are problems in the legislation because there is no follow-up by the 

agency that has jurisdiction. In fact, the agency is prohibited on behalf of the American people to implement these so-called prohibitions. 

So there is a distance to go, and this really needs to be addressed 

if there is ever any hope—and no one has raised this from the 

panel, and it is a very important item I think for all of us to know. 

There was something raised earlier about thousands of things in 

Title II. There are actually, what, 47 sections in Title II with only 

a handful that in my view need to be used relative to the regulations. 

Mr. Chairman, I would like to ask for unanimous consent to submit a letter for the record from the Internet Freedom Business Alliance that supports the action the FCC is taking tomorrow on net 

neutrality. 

Mr. WALDEN. Of course. Without any objection. 

Ms. ESHOO. Thank you very much. 

[The information appears at the conclusion of the hearing.] 

Mr. WALDEN. Yes. And I must just respond to my colleague. 

There are actually a thousand, exactly a thousand provisions within the CFRs. That is where the rules are. That is the reference I 

believe Mr. Collins was making. And as for our draft legislation, 

the FCC would have complete and total enforcement capability to 

enforce the law. And so I would disagree with the characterization 

by my colleague. 

And I would ask unanimous consent to submit for the record a 

number of items including a story quoting the Chief Operating Officer, Mike Sievert of T–Mobile where he says while there is nothing in there that gives us deep concern about our ability to continue executing our strategy, he said the reclassification is not the 

most desirable approach. Without objection. 

We have a series of documents concerned with the partisan Title 

II approach including editorial from the Washington Post, a letter 

signed by Mark Cuban and others to the Commission. Some other 

publications I think have been shared with the minority, and without objection those will be in. We have some documents regarding 

people’s views affecting small business from Barbara Espen, Counsel for the American Cable Association and ex parte that we would 

submit for the record. 

Consumer Impact I believe is the next one from the Progressive 

Policy Institute that as much as $11 billion per year might be put 

on consumers’ backs as a result of Title II reclassification, and we 

have information for the record regarding successful U.S. approach 

with European history with approach the FCC plans to take, a 

number of articles and statements. And I think that is the bulk of 

our submissions for the record. Without objection they will be submitted as well. 

80 

We thank our witnesses for your clarity to this issue and for your 

sharing your comments. We look forward to see what the Commission does and eventually actually having the opportunity to read 

the 332 alleged pages of whatever it is they are going to vote on 

tomorrow. So with that, the committee stands adjourned. 

[Whereupon, at 12:26 p.m., the subcommittee was adjourned.] 

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