The Federal Communications Commission is seeking public feedback on draft rules that would codify and supplement existing Internet principles.

The federal agency issued a notice yesterday that would ensure broadband Internet service through wired and wireless access. The draft proposed six rules, which are subject to reasonable network management, would require that a provider of Internet access service:

1. would not be allowed to prevent any of its users from sending or receiving the lawful content of the user?s choice over the Internet;

2. would not be allowed to prevent any of its users from running the lawful applications or using the lawful services of the user?s choice;

3. would not be allowed to prevent any of its users from connecting to and using on its network the user?s choice of lawful devices that do not harm the network;

4. would not be allowed to deprive any of its users of the user?s entitlement to competition among network providers, application providers, service providers and content providers;

5. would be required to treat lawful content, applications, and services in a nondiscriminatory manner; and

6. would be required to disclose such information concerning network management and other practices as is reasonably required for users and content, application and service providers to enjoy the protections specified in this rulemaking.

Comments to the proposed rules as drafted in FCC language above can be filed through the agency?s electronic filing system on http://www.fcc.gov. Initial comments are due by Thursday, Jan. 14, 2010. Reply comments are due by Friday, March 5, 2010.

The FCC will also seek feedback through open workshops on major issues as well as through the site at http://www.openinternet.gov which will include blog posts from commission staff and via IdeaScale, an online venue for exchanging policy opinion.

Reproduced below are statements that were made by the commissioners at yesterday's open meeting prior to the vote on the Open Internet Notice of Proposed Rulemaking. The first statement is from FCC chairman Julius Genachowski, followed by an approving dispatch from Commissioner Michael J. Copps and a part-dissension from Commissioner Robert M. McDowell.

Prepared statement of Julius Genachowski, chairman of the Federal Communications Commission, at the Open Commission Meeting
October 22, 2009

I?d like to begin by thanking my colleagues on the Commission. We are still getting to know each other.  Some might have expected that the issue we consider today?with its long and fraught history?might have driven us apart. That has not happened. We?ve had healthy and productive collaboration. And while there are some areas of unsurprising disagreement, the more significant fact is that there are substantial areas of agreement that are growing by the day.

Today?s Notice focuses on the Internet, the most significant technological breakthrough of our time. What started as an arcane lab experiment has developed into an unparalleled platform for innovation and investment, an engine for job creation and economic growth, and a vibrant forum for civic engagement. This development is due in large part to a single element of the Internet?s design: Its openness. The Internet is and has been an open platform and it is that openness?and the extraordinary benefits it has brought for our country?that we seek to preserve through the proceeding we launch today.

The Internet?s openness has allowed entrepreneurs and innovators, small and large, to create countless applications and services without having to seek permission from anyone. As a result, Internet pioneers with little more than a good idea and a no-frills Internet connection have built hundreds of thousands of small businesses as well as Web giants. More and more Americans depend on the Internet every day?at home, at work, in school?at our desks, and on the move. The Internet connects us to our family and friends, to the universe of knowledge, and to the working of our nation?s democracy.

The Internet has provided enormous benefits to consumers in the form of new and previously unimaginable services, competition, and choice. We wouldn?t have these services without a strong network infrastructure and the billions of dollars of private capital invested to build it. And ever-growing consumer demand is driving billions of dollars of additional investment to increase broadband capacity and improve the intelligence of networks.

And so we have a virtuous cycle of investment, innovation, jobs, and consumer benefits. According to one study, the Internet supports more than three million American jobs. A core goal of the FCC?s efforts is to preserve and promote this virtuous cycle driven by a free and open Internet. That?s how we?ll ensure that the Internet becomes an enduring engine for opportunity and prosperity for all Americans.

Given the importance of the Internet, it should come as no surprise that over the past years, the Commission has considered the question of how to safeguard the free and open Internet in more than 10 different proceedings, building a record of over 100,000 pages of comments, submitted by approximately 40,000 companies, organizations, and members of the public. In 2005, a unanimous Commission issued the Internet Policy Statement, affirming the agency?s ?duty to preserve and promote the vibrant and open character of the Internet.? In the intervening years, the Commission has enforced these principles, adopted openness conditions in a number of significant mergers, and placed openness requirements on certain spectrum licenses. Two years ago, the Commission issued a broad-ranging Notice of Inquiry that sought comment on many of the issues addressed in today?s Notice, including the topics of nondiscrimination and transparency.

Now it?s time to take the next step growing out of the record and the Commission?s experience?launching a process to craft reasonable and enforceable rules of the road to preserve a free and open Internet. Because, let?s be honest, the Commission?s actions, laudable in so many respects, have left the protection of the free and open Internet unnecessarily vulnerable and uncertain.

The problem is not merely that we?ve seen some significant situations where broadband providers have degraded the data streams of popular lawful services and blocked consumer access to lawful applications, even after the Commission adopted its openness principles.

Nor is the problem merely that, when the policies summarized in the Internet Policy Statement and its initial four principles have been enforced by the Commission, they have been attacked, including in pending litigation, precisely because they are not rules developed through the kind of notice-and-public-comment process that we should commence today.

Nor is the problem merely that the initial four principles failed to address explicitly some important concepts, such as the need for transparency when it comes to network management practices.

Nor is the problem merely that broadband providers have understandable economic incentives to favor their own content, applications, or services or to otherwise disfavor competition in ways that may not be entirely consistent with our long-term national interest in promoting consumer choice and preserving a free and open Internet for everyone.

The heart of the problem is that, taken together, we face the dangerous combination of an uncertain legal framework with ongoing as well as emerging challenges to a free and open Internet. Given the potentially huge consequences of having the open Internet diminished through inaction, the time is now to move forward with consideration of fair and reasonable rules of the road, rules that would be enforceable and implemented on a case-by-case basis. Indeed, it would be a serious failure of responsibility not to consider such rules, for that would be gambling with the most important technological innovation of our time.

An open Internet deserves an open process. Accordingly, I fully support this Notice, which will launch a fact-based, transparent, and participatory process to develop rules to preserve an open Internet. The Notice seeks to identify the hard questions the Commission must address as part of this rulemaking, and that the Commission must ultimately address based on the facts and the record before it. And the Notice contains draft rules so that all interested parties and the public can have something specific to comment upon. This is a procedural reform that has been called for by legislators and my fellow Commissioners on a bipartisan basis.

Now in the run-up to today?s meeting, there has been a deluge of rumors, and no shortage of myths and half-truths. There have also been some reasonable concerns about what the draft rules might look like. My goal has been for us to listen, to pull out and address the fair points and good ideas, regardless of source.  And our staff has worked hard to do so.

That said, do any of us think that the draft rules proposed today perfect? Are they set in stone? No?we are at the beginning of a rulemaking process, with draft rules offered in the context of a Notice that seeks to spot the issues, ask the hard questions, and seek broad public input. We?re addressing a topic of great importance, where parties have strong views based on differing perspectives and experiences, and where the choice of a single word can lead to vigorous, complex, and highly technical debates. I come to this issue with a keen recognition that we do not yet have all the answers, and that we have a lot of hard work to do. But again, that is precisely the reason to begin this chapter of the process in a way that sets the table for an informed, fruitful discussion about issues of real importance to the future of the Internet and our country.

In that spirit, we are announcing today that we will be developing a Technical Advisory Process, so that the difficult engineering questions we face are fully informed by a broad range of engineers based on sound engineering principles and not on politics. I have asked Julie Knapp, Chief of our Office of Engineering and Technology, to launch this effort, working with Sharon Gillett, Ruth Milkman, and other key senior staff leading in this process.

This will be just one part of what will be a fully participatory effort. OpenInternet.gov is open for business. We will have public workshops modeled on the success of our Broadband team?s efforts. I will continue to push our staff to develop and experiment with new participatory mechanisms for a 21st century Commission, looking for the best ways to build a fact-based process for record-building and decision-making.

While today?s proposal recognizes that there are still open questions and hard work to be done, the Notice and draft rules also reflect a set of conceptual commitments that I fully endorse.

First, the goal is and must remain without compromise preserving a free and open internet. Any rules we adopt must preserve our freedom to connect, to communicate, and to create that is the wonder of the open Internet. Each and every user of the Internet must have access to an unlimited online universe of ideas and commerce. Internet users should always have the final say about their online experience, whether it?s the software, applications or services they choose, or the networks and hardware they use to connect to the Internet.

Many people have fought long and hard for this concept of a free and open Internet, inside and outside the Commission, making sure that we keep our eye on this powerful aspiration for our country and the world. They deserve our gratitude, and today?s action owes very much to their efforts.

Second, we must promote investment and innovation broadly. The idea that we must choose between innovation and investment on the ?edge? of the network, where content and applications are developed, or innovation and investment in the ?core? of the network, where broadband providers operate, is a false choice. Our rules can and must promote investment and innovation throughout the Internet ecosystem. I know from my own experience, and we all recognize what our Broadband team reported to the Commission at our last meeting: that very substantial investment is required for network providers to build out broadband networks for the entire country, and increase the capacity of those networks. The full potential of the Internet cannot be unleashed without robust and healthy broadband networks, and broadband providers need room to experiment with new technologies and business models in order to earn a return on their investment and deploy high-speed broadband to all Americans.

At the same time, the view that ?anything goes? is not a serious argument. And I reject the notion that we must choose between open Internet rules and investment by service providers in their networks.  This argument is somewhat routinely made when the FCC considers rules on any variety of topics. History tells us that this, too, is a false choice. FCC rules over the years have been a powerful spur to investment and innovation?especially when the agency focuses on promoting competition and choice. And in the context of net neutrality, notwithstanding the issuance in 2005 and enforcement in 2008 of the Commission?s openness principles, as well as the adoption of openness conditions in important mergers during that period, Internet service providers have continued to invest heavily in their networks. As an increasing numbers of stakeholders agree, investment in advanced and open networks is essential to our broadband future.

Third, there must be flexibility. Broadband providers must be allowed meaningful latitude to solve the difficult challenges of managing their networks and providing their customers with a high-quality Internet experience. We recognize that there are real congestion and other network-management issues, especially with respect to wireless broadband. We also recognize of course that Internet technology is developing rapidly. We understand the risk of unintended consequences. Openness rules should be sufficiently general and flexible enough to account for, and invite, technological change and progress.

Fourth, the government?s role in preserving openness is important but also modest. It should be no greater than necessary to achieve the core goal of preserving a free and open Internet. Open Internet rules should be high-level, not heavy handed. And in fact, the draft rules in the Notice are less than two pages long. The goal is to provide a fair framework in which all participants in the Internet ecosystem can operate, ultimately minimizing the need for government involvement. That is why I have emphasized the new Sixth Principle?the idea that broadband providers must be transparent about their network management practices, which should foster private resolution of disputes and reduce the need for government enforcement. That, in fact, is the overall goal of an open Internet framework.

That is also why I have been clear that government should not be in the business of running or regulating the Internet. Government should promote competition. It should protect consumers? right to access the lawful content, applications, and services of their choosing. It should ensure that there is no central authority preventing people or businesses from communicating over the Internet. It should certainly not be that central authority. As others have said: ?The minute that anyone, whether from government or the private sector, starts to control how people use the Internet, it is the beginning of the end of the Net as we know it.? There should be no confusion on this point, at home or abroad. This Commission fully agrees that government must not restrict the free flow of information over the Internet.

Fifth, the Internet must be safe and secure as well as open.  Open Internet rules should apply to lawful content, applications, and services. They are not a shield for copyright infringement, spam, or other violations of the law. They must honor the protection of users? privacy. And they must be consistent with public safety as well as homeland and national security.

Sixth, openness is essential for the Internet however it?s accessed. It doesn?t make sense to have one Internet when your laptop is plugged into a wall and another when accessing the Internet through a wireless modem. At the same time, wireless networks are different from wired networks. Given fundamental differences in technology, how, when and to what extent open Internet rules should apply to different access platforms, particularly mobile broadband, will undoubtedly vary. This is an important issue on which the Notice seeks to develop a full and informed record.

Let me close by emphasizing what I think all of us here on the dais believe. That the Internet?s openness is a precious thing and that it must be preserved and promoted. That the Commission does its job best when it has input from all stakeholders and asks hard questions that provoke vigorous debate.  And that we have great faith in the strong staff of the FCC, working with the broadest possible range of outside participants, to navigate through these complex waters.

I am pleased that there is broad agreement inside the Commission that we should move forward with a healthy and transparent process on an open Internet. I am pleased to see leaders outside the Commission working to find common ground on enforceable rules. Given the importance of an open Internet to prosperity and opportunity for all Americans, our country deserves no less.
 

Re: In the Matter of Preserving the Open Internet; Broadband Industry Practices, Notice of Proposed Rulemaking (GN Docket No. 09-191, WC Docket No. 07-52)

This is an historic day at the FCC. It is historic because the Commission takes a long stride?perhaps its longest ever?toward ensuring a free, open and dynamic Internet. While in one sense today?s Notice of Proposed Rulemaking marks a natural progression from our adoption of the Internet Policy Statement in 2005, in reality it is the clearest statement yet that we will ensure that the genius of the Internet is not subverted as it leaves its infancy and begins to come of age. We must start from the premise that we are dealing with something very precious here?a technology leap as great as the printing press that was invented 570 years ago. This is perhaps the greatest small ?d? democratic platform ever devised.  In its capacity to facilitate communications?indeed, to manage almost the totality of the communications that take place among us?the potential power of this technology is awesome. It can do so much good.  Misused, it can fail itself and fail us all.  So I start from the premise that we as regulators, we as businesses, we as users?all of us?have an historic obligation to maintain the freedom of the Net.

I have advocated long and hard for the Commission to establish a mechanism to ensure that consumers have continued access to a vibrant, open Internet?an Internet that was born on openness, thrived on openness, and depends on openness to realize its going-forward potential. This Commission will act, I predict, to maintain that openness.

We need rules-of-the-road to make that happen. We need expert judgment to evaluate any and all allegations that the freedom of the Internet is being compromised.  And we need a venue with authority to redress such wrongs if, indeed, such wrongs are found.  I stated my preference for clear-cut rules, including a fifth principle of non-discrimination, at the time we adopted the Four Principles of the Internet Policy Statement. Now, four years later?having gained a lot more knowledge and some practical experience in applying the principles of Internet openness?we finally step up to the critical challenge of developing meaningful, predictable, transparent and clearly enforceable rules of the road. And we propose a sixth rule of transparency. Users have a right to know how the network is being managed and what practices providers are employing. This sixth rule of transparency is not just good policy?it is essential policy.
 
 The Notice we adopt today is not only a clarion call for Internet freedom. It is also a reasoned and rational way to get there?a data-driven, on-the-record examination of how to safeguard the benefits of the Internet for American consumers from potential gatekeeper control. The Internet must never be about powerful gatekeepers and walled gardens. It must always be about the smoothest possible flow of communications among people. As consumers increasingly access the Internet via different technology platforms, we seek to develop rules to preserve Internet openness, regardless of how consumers choose to access it. History tells us we have to do this. History tells us that when technological capability to exercise control combines with a financial incentive to do so, some will try to turn this power and opportunity to their own advantage. That doesn?t mean I expect this to become normal business practice, but even if it?s only a few who try, the risk to our interconnected and interdependent Internet is too great to take. I?m not into riverboat gambles that everything will be fine if we just look the other way.

We recognized in the Four Principles?as well as in the draft rules we propose today?that a well-considered approach to an open Internet should take into account reasonable network management.  Evolutionary and revolutionary changes can alter the landscape and even change the parameters of what is or is not reasonable at a particular time. What is reasonable today may be unreasonable tomorrow?and vice versa. What constitutes reasonable network management in a 768 Kbps world will likely be different from reasonable network management in a 50 or 100 Mbps world. And what constitutes reasonable network management in a wireless world will differ from reasonable network management in a wireline world. The proposed rules recognize this reality. And they provide the expert venue?the FCC?where consumers can come if they have concerns or complaints to make. It?s about as common-sensical a way to ensure an open and dynamic Internet as I can imagine.

The principles I pushed for in the Internet Policy Statement four years ago focused on consumer rights.  This is, after all, a consumer protection agency. While just about everybody gains from the availability of an open Internet, no one gains so much as consumers. As we move forward with draft rules, the legal language in the Notice shifts from the rights of consumers to the obligations of providers. But let?s be clear that the consumer focus has shifted not a whit. While some may prefer the broad language of the original principles, it is important to be clear as to whom the obligations apply. That said, I am pleased that we seek comment on the pros and cons of applying these rules to entities other than broadband Internet access service providers. In particular, we need to recognize that the gatekeepers of today may not be the gatekeepers of tomorrow. Our job is not so much to mediate among giants as it is to protect consumers.  

 Though we may differ in some respects on the substance of today?s proceeding, I want to commend the spirit of collegiality and compromise that my colleagues have shown in shaping the Notice we adopt today. I know we often say this at these agenda meetings, but?wow!?it was really true here?like I?ve seldom seen before. Chairman Genachowski has set a new tone of openness. He has consulted with the experts, studied the record, met with stakeholders large and small, walked the halls of the Eighth Floor to understand the concerns of his colleagues and to search for the resolution of differences. The Notice is much the better for it. You will see in this Notice of Proposed Rulemaking something we haven?t often seen in other NPRMs in recent years?the actual language of the proposed rules!  How?s that for a change? And how better to stimulate discussion and build a meaningful record than giving the public something specific to react to? Moreover, to ensure a thoughtful, well-considered and participatory result?one that?s based on the best possible record?we ask many questions and refrain from tentative conclusions. Also, we seek to fully develop the record by providing an extensive period for public comment. So, Mr. Chairman, I salute you for not just the substance of what we will shortly vote on, but on the process that brings this item to us and that will continue to move us forward.

Now the ball is in the public arena. The Notice earnestly solicits stakeholder input?indeed, the proceeding will rise or fall on the quality of such input. Final action will be forthcoming in this proceeding.  This Commission will act, and it will act on the record it amasses. What will help us most is not flocks of Chicken Littles running around proclaiming ?the sky is falling,? but rather facts, data and the real world experiences of innovators, entrepreneurs, industries small and large, consumers, and anyone interested enough to give us the benefit of their thoughts, experiences and recommendations. So, operating on the old adage that decisions without you can sometimes be decisions against you, I urge every individual and every group with an interest to bring us the best and brightest thinking of which they are capable.

In addition to thanking the Chairman, I want to commend my three other colleagues. If their engagement on this item is any indication?and I think it is?of how this new Commission will conduct its deliberations, I am very optimistic about what we can accomplish. I appreciate the input we have already received from a wide gamut of stakeholders and can report that this did indeed make a difference. Finally, I am enormously grateful to my hard-working staff, and the Chairman?s, and my colleagues? and to the Bureaus who all worked very long, very hard and very successfully to bring us this far. Thanks for a job well done.
 

STATEMENT OF
COMMISSIONER ROBERT M. McDOWELL
DISSENTING IN PART, CONCURRING IN PART

RE: Preserving the Open Internet, GN Docket No. 09-191; Broadband Industry Practices, WC Docket No. 07-52

At the outset, I would like to thank the Chairman for his graciousness and good faith as well as for the energetic spirit of cooperation he has maintained throughout his brief tenure, and especially in the past three weeks as we have examined this Notice of Proposed Rulemaking. Although we may sometimes disagree on substance, I commend him on his persistent eagerness to maintain an open and constructive dialogue with his fellow commissioners in an effort to promote a healthy process for this agency.  And today we do disagree on substance. I do not share the majority?s view that the Internet is showing breaks and cracks, nor do I believe that the government is the best tool to fix it. I also disagree with the premise that the Commission has the legal authority to regulate Internet network management as proposed.

Nonetheless, it is important for everyone to remember that today the Commission is starting a process, not ending one. The window of opportunity for dialogue is just beginning to open. Furthermore, today?s action provides ample opportunity for the public to comment on a wide universe of issues. In that vein, I thank the Chairman for including in today?s Notice of Proposed Rulemaking the text of proposed rules for public comment. For too long the Commission has fallen into the habit of obscuring from public view the text of proposed rules. I am delighted that the Chairman has taken this step toward better transparency. The Chairman should also be complimented on providing a long and thorough comment period during which I hope a deep and substantial record based on the facts, the law and the public interest will emerge to illuminate a path to a sensible resolution of these important issues.

All of us can agree that the Internet is a tool that should maximize freedom. Consumers should be able to enjoy the fruits of Internet freedom, and the Internet itself should operate under freedom. America?s policies, and the policies of all governments, should seek to strengthen such freedoms. We all agree that an open Internet should be preserved. Accordingly, in today?s spirit of collegiality, those who disagree with the substance of today?s Notice, which carries with it the caption ?Preserving the Open Internet,? should not be presumed opposed to an Open Internet.   

With freedom in mind, the Internet is perhaps the greatest deregulatory success story of all time. It became successful not by government fiat, but by all interested parties working together toward a common goal. By definition, the Internet, a global network of networks, is a ?Wiki? environment which we all pay for, share and shape. Since it was opened up for public use, as a free society we have worked hard to ensure that the Internet remains robust, safe and open. Also, since its inception, uncounted dedicated souls have worked to ensure that the Internet works, period. Since the early days of the state-run ARPANET, network management and Internet governance initiatives have migrated further away from government regulation, not closer to it. This evolution away from government intervention has been the most important ingredient in the Internet?s success.

Early efforts to keep the Internet open and free sparked the creation of non-state-controlled Internet governance entities staffed by volunteer engineers, academics and software developers. These groups have remained largely self-governed, self-funded and nonprofit, with volunteers acting on their own and not on behalf of their employers.  No government owns or regulates them. 

For example, the Internet Society (ISOC), an umbrella organization founded in 1992, is home to the Internet Engineering Task Force (IETF) that develops technical standards for the Internet. It is a non-profit corporation with a board of trustees consisting of, and funded by, individuals and organizations in the Internet community virtually free from government influence. Several other organizations work with ISOC on a variety of Internet governance issues. Among them are: the Internet Engineering Steering Group (IESG), the Internet Research Task Force (IRTF), the Internet Research Steering Group (IRSG), and the Internet Architecture Board (IAB), among others. [1]  The P4P Working Group, which works on peer-to-peer congestion issues, is essentially no different.

Similarly, the Internet Corporation for Assigned Names and Numbers (ICANN) is a private non-profit entity that works to coordinate the Internet?s domain name system. Until last month, ICANN managed the domain name system through a joint project agreement (JPA) with the Department of Commerce.  On September 30, the Department of Commerce and ICANN announced the expiration of the JPA, yet another step away from government involvement. In place of the JPA, ICANN and the Department of Commerce have forged a new agreement that reaffirms the private sector-led model for coordination of the domain name system.
 
By creating flat Internet governance mechanisms that collaboratively work from the ?bottom-up,? rather than relying on a government-mandated ?top-down? model,  the Internet is better able to flourish as an entity that promotes freedom at all levels. By way of illustration, some argue that nations whose governments regulate the Internet less live under more freedom, while societies that regulate it more live under less freedom. Or, as Thomas Jefferson observed more than two centuries ago, ?The course of history shows that as the government grows, liberty decreases.?

As I participated in the International Telecommunications Union?s conference in Geneva two weeks ago, I was reminded how closely the international community watches the FCC?s movements. After I spoke with regulators from other nations, it became obvious to me that some countries are waiting for the U.S. to assert more government authority over the Internet to help justify an increased state role over Internet management internationally. It is not an exaggeration to say the world is watching what we do. Although we are proceeding with the best of intentions, as we examine the important issues raised in today?s Notice, we should keep in mind that our final actions inadvertently could be setting a precedent for some foreign governments with less pure motives to use in justifying stricter Internet regulation. That would be a mistake. Freedom is best served if we promote abundance, collaboration and competition over regulation and rationing. No government has ever succeeded in mandating innovation and investment.

We are here today, in part, because we have seen a deepening division between some network operators and some in the application industry. Some in the applications industry are calling for government regulation of network engineering problems that historically have been resolved through many of the collaborative bodies I?ve just mentioned. Such collaborative bodies have never failed to resolve major network management challenges. That is a track record the government simply cannot match. One of my concerns regarding today?s Notice is that its premise looks at innovation in a way that could actually deepen the division between applications and networks precisely at a time when the market is sparking unprecedented convergence between the two. 

For instance, many proponents of network management regulation speak of unfettered innovation at the ?edge? of networks ? such as on consumers? personal computers and wireless devices ? while the freedom to innovate ?in the middle? of networks should be more limited due to concerns regarding potential anticompetitive conduct by network operators. Today?s Notice and its proposed rules could be viewed as operating from a similar premise, however, which could produce counterproductive results.  Constructive public policy should subscribe to the philosophy that unfettered innovation should be encouraged equally at all points of the network ? at the edge and in the core. 

As a practical matter, it is fast becoming impossible to separate the two. Consumers are telling the marketplace that they don?t want networks that operate merely as ?dumb pipes.? Sometimes they want the added value and efficiency that comes from intelligence inside networks as well. Those who oversimplify this issue as a zero sum scenario between a dumb pipe and smart edge versus a smart pipe and dumb edge offer only a false choice that does not reflect the realities of today?s market. I hope that yesterday?s joint blog post between Google and Verizon Wireless on the importance of the consumer Internet experience is the start of continued collaboration and dialogue among these two communities.     

Some questions that I hope get addressed in the record are: Is the Commission suggesting today that the government draw a bright line of distinction between networks and applications in an effort to justify regulation in this space? If so, should not the Commission refine its view because networks and applications are converging faster than regulators can measure? Otherwise, would the Commission not be favoring one market player over another absent evidence of an abuse of market power?

For example, Cisco builds Internet routers that contain over 28.1 million lines of code. How are we to ascertain whether each line of code offers a pure operating system function or some other application that adds value?  Should that be the Commission?s role? Can we make such determinations efficiently?   Do we even have the statutory authority to do any of this?  [2] These thorny questions abound, and I strongly encourage commenters to fill the record with solid facts and legal theories to substantiate their points of view.
 
Furthermore, as we go forward, I hope we can explore the differences between discriminatory conduct and anticompetitive conduct. The public interest would be better served if the debate would focus more on this dichotomy. During the course of this debate, many have confused the important difference between discriminatory conduct and anticompetitive conduct. But the reality is that the Internet can function only if engineers are allowed to discriminate among different types of traffic. The word ?discriminate? carries with it negative connotations, but to network engineers it means ?network management.? Discriminatory conduct, in the network management context, does not necessarily mean anticompetitive conduct. 

For example, to enjoy online video downloads without interruption or distortion, consumers expect video bits to be given priority over other bits, such as email bits. Such conduct is discriminatory, but not necessarily anticompetitive. If discriminatory conduct were to become anticompetitive conduct, then could it not be addressed in the context of competition and antitrust laws? While today?s Notice provides an opportunity to comment on the applicability of such laws, I hope that the record will contain a relevant market analysis before we venture further. Without a finding of a concentration of market power and abuse of such power in the broadband market, additional regulation is likely not warranted. 
In fact, just over two years ago the Commission launched an inquiry into the state of the broadband services market. We cast a wide net in an effort to harvest evidence of fundamental market failure, and we came up empty. Similarly, after a lengthy and thorough market analysis, the Federal Trade Commission (FTC) issued a report on the state of the broadband market just 27 months ago. In a unanimous and bipartisan 5-0 vote, the FTC strongly cautioned against imposing Internet regulation, saying:

[W]e suggest that policy makers proceed with caution in evaluating calls for network neutrality regulation ?.  No regulation, however well-intended, is cost-free, and it may be particularly difficult to avoid unintended consequences here, where the conduct at which regulation would be directed largely has not yet occurred. ?  Policy makers should be very wary of network neutrality regulation. [3]
What tectonic market changes have occurred since the 2007 FTC report that would warrant a change in  policy?  Since the Supreme Court?s decision in Brand X,  [4] we have been busy taking broadband services out of the common carriage realm of Title II and classifying them as largely unregulated Title I information services due to market conditions. [5]  So an important question to ask might be to what degree would a lack of a change in market conditions threaten the viability of any new regulations on appeal? 

Some point to less than a handful of troublesome actions ? some several years old ? by a few market players as sufficient evidence to justify a new regulatory regime. An important fact lacking in this debate is that once these actions were brought to light, however, all were resolved without imposing new regulations. Additionally, given the context of the uncountable number of Internet communications that occur every day, is such a small number of quickly resolved incidents evidence that the Internet is breaking to the point of needing more regulation? 

As the Commission embarks upon this regulatory journey, we should do so with our eyes wide open regarding the potential consequences of our actions, be they beneficial or harmful and intended or unintended. For instance, the recent 700 MHz auction teaches important lessons about unintended consequences. I cast the only dissent against the open access requirements because the evidence in the record told me that the market was already headed toward offering more device and application portability. As it turns out, not only were several WiFi-enabled handsets already on the market at the time of our order, but, more importantly, several carriers, device manufacturers and application providers were working together to produce open devices and networks long before even a draft of the 700 MHz order was contemplated. At the time, I also did not think that the rule would achieve the advertised goal of attracting a new national broadband provider. Additionally, I was concerned that larger carriers would avoid the encumbered spectrum and outbid smaller players in the smaller, unregulated spectrum blocks.  Sadly, my fears proved to be correct, but I wish I had been wrong.  Hopefully, we can all learn from that experience: Even with the best of intentions, our rules can produce unpredictable outcomes that cause unforeseen harms.

Looking toward the future, network engineers forecast that Internet traffic will grow fivefold in the next three to four years.  They also predict that when all television and video is personalized and sent over the Internet, there will be 30 times more traffic than today?s network can accommodate. These traffic levels could materialize in less than 10 years, depending on how quickly user viewing habits change.  Such congestion in the core requires constant and careful investment and management to ensure that consumers get the experience they expect  while service providers expand their networks. Hopefully, all of us can also agree today that we will avoid adopting policies that may inadvertently stunt the growth of the network.

With that in mind, I want to again thank Chairman Genachowski for providing edits that allow for ample opportunity to comment on ways to achieve the goal of preserving an open Internet without additional regulation. Policies that promote abundance and competition serve as an antidote to potential anticompetitive conduct. If one market player were to manipulate Internet content or applications in an anticompetitive manner, sufficient competition would obviate the need for regulation by offering consumers multiple choices in ?last-mile? providers. During the past few years, the Commission has worked diligently to adopt policies that have produced more last-mile competition by: making it easier for competitors to deploy fiber into American neighborhoods, auctioning new slices of the radio spectrum for powerful new broadband services and opening up the television ?white spaces? for unlicensed uses. 
 
In the past decade, however, most American consumers have had only two broadband platforms to choose from: a cable company and a phone company. This limited choice has produced a fear among proponents of regulation that last-mile providers could act in anticompetitive ways that limit consumer freedom on the Internet. But the reality is the days of the broadband duopoly are ending.  Robust competition is budding, and more is on the way. Moreover, as we work on our National Broadband Plan for Congress, we should be mindful that investors of all sizes, as well as objective market analysts, have warned us that new regulation may frighten away critical investment capital needed to build America?s broadband future. [6]

I hope that we will seriously consider the idea of having the Commission play a leadership role in helping to spotlight instances of market failure and conveying them to appropriate non-governmental collaborative bodies for review and action in an effort to avoid the unintended consequences of new regulation. This model, supported by strict enforcement of our antitrust laws, could very well provide the benefits sought by proponents of new rules without incurring the unexpected costs of a new regulatory regime.

Although I respectfully disagree with the factual and legal predicates that have produced this item today, I agree that if we are to have rules the proper way to proceed is a notice of proposed rulemaking containing the text of proposed rules. These issues are complicated and highly technical and deserve the lengthy comment period the Chairman has suggested. The longer time frame may also allow us to receive guidance from the court on our legal authority to proceed as may be decided in the Comcast/BitTorrent appeal.

Let me reiterate that this is the beginning of a process. No irreversible decisions have been made. We have started a debate in the context of a healthy process. We can agree in part and disagree in part and be respectful and collegial about it all. I hope that all of us are entering into this with open minds that can be changed purely by the facts and law. I also thank the staff for their openness to ideas, hard work and diligence in preparing this Notice. 

So it is in this spirit of collegiality and good faith that I respectfully dissent in part (on the factual and legal predicates) and concur in part (on the process).

But instead of ending on that note, let me close with a quote from someone we all know and who had a great deal of influence over how the Internet became privatized.

Though government played a role in financing the initial development of the Internet, its expansion has been driven primarily by the private sector.For electronic commerce to flourish, the private sector must continue to lead. Innovation, expanded services, broader participation, and lower prices will arise in a market-driven arena, not in an environment that operates as a regulated industry.
 
Accordingly, governments should encourage industry self-regulation wherever appropriate and support the efforts of private sector organizations to develop mechanisms to facilitate the successful operation of the Internet. Even where collective agreements or standards are necessary, private entities should, where possible, take the lead in organizing them. [7]

This, of course, comes from the Presidential Directive announcing the ?Framework for Global Electronic Commerce? signed by President Bill Clinton in 1997. As we go forward, I think it may be advice worth heeding.