Justification Non Substantive Change Request

Federal Communications Commission

FCC 15-24

Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Protecting and Promoting the Open Internet

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)
)
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GN Docket No. 14-28

REPORT AND ORDER ON REMAND, DECLARATORY RULING, AND ORDER
Adopted: February 26, 2015

Released: March 12, 2015

By the Commission: Chairman Wheeler and Commissioners Clyburn and Rosenworcel issuing separate
statements; Commissioners Pai and O’Rielly dissenting and issuing separate
statements.
TABLE OF CONTENTS
Para.
I. INTRODUCTION.................................................................................................................................. 1
II. EXECUTIVE SUMMARY .................................................................................................................... 7
A. Strong Rules That Protect Consumers from Past and Future Tactics that Threaten the
Open Internet ................................................................................................................................. 14
1. Clear, Bright-Line Rules ......................................................................................................... 14
2. No Unreasonable Interference or Unreasonable Disadvantage to Consumers or Edge
Providers.................................................................................................................................. 20
3. Enhanced Transparency .......................................................................................................... 23
4. Scope of the Rules................................................................................................................... 25
5. Enforcement ............................................................................................................................ 36
B. Promoting Investment with a Modern Title II ............................................................................... 37
C. Sustainable Open Internet Rules.................................................................................................... 41
D. Broad Forbearance......................................................................................................................... 51
III. REPORT AND ORDER ON REMAND: PROTECTING AND PROMOTING THE OPEN
INTERNET .......................................................................................................................................... 60
A. History of Openness Regulation .................................................................................................... 60
B. The Continuing Need for Open Internet Protections ..................................................................... 75
1. An Open Internet Promotes Innovation, Competition, Free Expression, and
Infrastructure Deployment ...................................................................................................... 76
2. Broadband Providers Have the Incentive and Ability to Limit Openness............................... 78
3. Mobile Broadband Services .................................................................................................... 86
4. The Commission Must Act to Preserve Internet Openness................................................... 102
C. Strong Rules That Protect Consumers from Practices That Can Threaten the Open
Internet ......................................................................................................................................... 104
1. Clear, Bright Line Rules........................................................................................................ 110
2. No Unreasonable Interference or Unreasonable Disadvantage Standard for Internet
Conduct ................................................................................................................................. 133
3. Transparency Requirements to Protect and Promote Internet Openness............................... 154
D. Scope of the Rules ....................................................................................................................... 186

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1. Broadband Internet Access Service....................................................................................... 187
2. Internet Traffic Exchange...................................................................................................... 194
3. Non-BIAS Data Services....................................................................................................... 207
4. Reasonable Network Management........................................................................................ 214
E. Enforcement of the Open Internet Rules...................................................................................... 225
1. Background ........................................................................................................................... 225
2. Designing an Effective Enforcement Process ....................................................................... 228
3. Complaint Processes and Forms of Dispute Resolution........................................................ 257
F. Legal Authority............................................................................................................................ 273
1. Section 706 Provides Affirmative Legal Authority for Our Open Internet Rules................. 275
2. Authority for the Open Internet Rules Under Title II with Forbearance............................... 283
3. Title III Provides Additional Authority for Mobile Broadband Services.............................. 285
4. Applying these Legal Authorities to Our Open Internet Rules ............................................. 288
G. Other Laws and Considerations ................................................................................................... 299
1. Emergency Communications and Safety and Security Authorities....................................... 300
2. Transfers of Unlawful Content and Unlawful Transfers of Content ..................................... 304
IV. DECLARATORY RULING: CLASSIFICATION OF BROADBAND INTERNET ACCESS
SERVICES ......................................................................................................................................... 306
A. History of Broadband Internet Classification .............................................................................. 310
B. Rationale for Revisiting the Commission’s Classification of Broadband Internet Access
Services........................................................................................................................................ 328
C. Classification of Broadband Internet Access Service .................................................................. 331
1. Scope ..................................................................................................................................... 336
2. The Market Today: Current Offerings of Broadband Internet Access Service .................... 341
3. Broadband Internet Access Service Is a Telecommunications Service................................. 355
4. Mobile Broadband Internet Access Service is Commercial Mobile Service ........................ 388
5. The Reclassification of Broadband Internet Access Service Will Preserve Investment
Incentives .............................................................................................................................. 409
D. Judicial Estoppel Does Not Apply Here ...................................................................................... 426
E. State and Local Regulation of Broadband Services..................................................................... 430
V. ORDER: FORBEARANCE FOR BROADBAND INTERNET ACCESS SERVICES.................... 434
A. Forbearance Framework .............................................................................................................. 435
B. Maintaining the Customer Safeguards Critical to Protecting and Preserving the Open
Internet ......................................................................................................................................... 440
1. Authority to Protect Consumers and Promote Competition: Sections 201 and 202.............. 441
2. Enforcement .......................................................................................................................... 453
C. Forbearance Analysis Specific to Broadband Internet Access Service........................................ 456
1. Provisions that Protect Customer Privacy, Advance Access For Persons with
Disabilities, and Foster Network Deployment ...................................................................... 461
2. Broad Forbearance From 27 Title II Provisions For Broadband Internet Access
Service................................................................................................................................... 493
3. Other Provisions and Regulations ......................................................................................... 528
D. Potential Objections to Our General Approach to Forbearance For Broadband Internet
Access Service ............................................................................................................................. 537
VI. CONSTITUTIONAL CONSIDERATIONS...................................................................................... 543
A. First Amendment ......................................................................................................................... 544
1. Free Speech Rights................................................................................................................ 544
2. Compelled Disclosure ........................................................................................................... 559
B. Fifth Amendment Takings ........................................................................................................... 564
1. Per Se Takings....................................................................................................................... 567
2. Regulatory Takings ............................................................................................................... 570
VII. SEVERABILITY .............................................................................................................................. 574
VIII. PROCEDURAL MATTERS ....................................................................................................... 577
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A. Regulatory Flexibility Analysis ................................................................................................... 577
B. Paperwork Reduction Act of 1995 Analysis................................................................................ 578
C. Congressional Review Act........................................................................................................... 580
D. Data Quality Act .......................................................................................................................... 581
E. Accessible Formats ...................................................................................................................... 582
IX. ORDERING CLAUSES..................................................................................................................... 583
APPENDIX A – Final Rules
APPENDIX B – Final Regulatory Flexibility Act Analysis
I.

INTRODUCTION

1.
The open Internet drives the American economy and serves, every day, as a critical tool
for America’s citizens to conduct commerce, communicate, educate, entertain, and engage in the world
around them. The benefits of an open Internet are undisputed. But it must remain open: open for
commerce, innovation, and speech; open for consumers and for the innovation created by applications
developers and content companies; and open for expansion and investment by America’s broadband
providers. For over a decade, the Commission has been committed to protecting and promoting an open
Internet.
2.
Four years ago, the Commission adopted open Internet rules to protect and promote the
“virtuous cycle” that drives innovation and investment on the Internet—both at the “edges” of the
network, as well as in the network itself. In the years that those rules were in place, significant
investment and groundbreaking innovation continued to define the broadband marketplace. For example,
according to US Telecom, broadband providers invested $212 billion in the three years following
adoption of the rules—from 2011 to 2013—more than in any three year period since 2002.
3.
Likewise, innovation at the edge moves forward unabated. For example, 2010 was the
first year that the majority of Netflix customers received their video content via online streaming rather
than via DVDs in red envelopes. Today, Netflix sends the most peak downstream traffic in North
America of any company. Other innovative service providers have experienced extraordinary growth—
Etsy reports that it has grown from $314 million in merchandise sales in 2010 to $1.35 billion in
merchandise sales in 2013. And, just as importantly, new kinds of innovative businesses are busy being
born. In the video space alone, in just the last sixth months, CBS and HBO have announced new plans
for streaming their content free of cable subscriptions; DISH has launched a new package of channels that
includes ESPN, and Sony is not far behind; and Discovery Communications founder John Hendricks has
announced a new over-the-top service providing bandwidth-intensive programming. This year, Amazon
took home two Golden Globes for its new series “Transparent.”
4.
The lesson of this period, and the overwhelming consensus on the record, is that
carefully-tailored rules to protect Internet openness will allow investment and innovation to continue to
flourish. Consistent with that experience and the record built in this proceeding, today we adopt
carefully-tailored rules that would prevent specific practices we know are harmful to Internet openness—
blocking, throttling, and paid prioritization—as well as a strong standard of conduct designed to prevent
the deployment of new practices that would harm Internet openness. We also enhance our transparency
rule to ensure that consumers are fully informed as to whether the services they purchase are delivering
what they expect.
5.
Carefully-tailored rules need a strong legal foundation to survive and thrive. Today, we
provide that foundation by grounding our open Internet rules in multiple sources of legal authority—
including both section 706 of the Telecommunications Act and Title II of the Communications Act.
Moreover, we concurrently exercise the Commission’s forbearance authority to forbear from application
of 27 provisions of Title II of the Communications Act, and over 700 Commission rules and regulations.
This is a Title II tailored for the 21st century, and consistent with the “light-touch” regulatory framework
that has facilitated the tremendous investment and innovation on the Internet. We expressly eschew the
future use of prescriptive, industry-wide rate regulation. Under this approach, consumers can continue to
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enjoy unfettered access to the Internet over their fixed and mobile broadband connections, innovators can
continue to enjoy the benefits of a platform that affords them unprecedented access to hundreds of
millions of consumers across the country and around the world, and network operators can continue to
reap the benefits of their investments.
6.
Informed by the views of nearly 4 million commenters, our staff-led roundtables,
numerous ex parte presentations, meetings with individual Commissioners and staff, and more, our
decision today—once and for all—puts into place strong, sustainable rules, grounded in multiple sources
of our legal authority, to ensure that Americans reap the economic, social, and civic benefits of an open
Internet today and into the future.
II.

EXECUTIVE SUMMARY

7.
The benefits of rules and policies protecting an open Internet date back over a decade
and must continue.1 Just over a year ago, the D.C. Circuit in Verizon v. FCC struck down the
Commission’s 2010 conduct rules against blocking and unreasonable discrimination.2 But the Verizon
court upheld the Commission’s finding that Internet openness drives a “virtuous cycle” in which
innovations at the edges of the network enhance consumer demand, leading to expanded investments in
broadband infrastructure that, in turn, spark new innovations at the edge.3 The Verizon court further
affirmed the Commission’s conclusion that “broadband providers represent a threat to Internet openness
and could act in ways that would ultimately inhibit the speed and extent of future broadband
deployment.”4
8.
Threats to Internet openness remain today. The record reflects that broadband providers
hold all the tools necessary to deceive consumers, degrade content, or disfavor the content that they don’t
like.5 The 2010 rules helped to deter such conduct while they were in effect. But, as Verizon frankly told
the court at oral argument, but for the 2010 rules, it would be exploring agreements to charge certain
content providers for priority service.6 Indeed, the wireless industry had a well-established record of
1

See, e.g., National Arts and Cultural Organizations Comments at 3 (“[B]roadband Internet service has inspired
tremendous innovation, which has in turn enabled individual artists and arts organizations to reach new audiences,
cultivate patrons and supporters, collaborate with peers, stimulate local economies and enrich cultural and civic
discourse.”); Common Cause Comments at 3-8 (arguing that the open Internet promotes free speech and civic
engagement); Letter from Lauren M. Wilson, Policy Counsel, Free Press to Marlene H. Dortch, Secretary, FCC, GN
Docket Nos. 14-28, 10-127 (filed Jan. 13, 2015) (Free Press et al. Jan. 13, 2015 Ex Parte Letter) (describing the
important role the open Internet plays in the work of public interest, social justice, and activist groups); Higher
Education and Libraries Comments at ii (“Libraries and institutions of higher education depend upon an open
Internet to carry out their missions and to serve their communities.”); Engine Advocacy Comments at 3-13 (arguing
that an open Internet has been essential to promoting entrepreneurship, economic growth, and innovation). Unless
otherwise noted, all citations to comments in this item refer to comments filed in GN Docket No. 14-28. “Remand
PN Comments” is used to denote comments that were filed in response to the Feb. 19, 2014 Public Notice released
by the Wireline Competition Bureau. See New Docket Established to Address Open Internet Remand, GN Docket
No. 14-28, Public Notice, 29 FCC Rcd 1746 (Wireline Comp. Bur. 2014). “Comments” or “Reply” are used to
denote comments filed in response to the Notice of Proposed Rulemaking released by the Commission on May 15,
2014. See Protecting and Promoting the Open Internet, GN Docket No. 14-28, Notice of Proposed Rulemaking, 29
FCC Rcd 5561 (2014) (2014 Open Internet NPRM).
2

Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014).

3

Id. at 659.

4

Id. at 645.

5

See infra Section III.B.

6

Verizon Oral Arg. Tr. at 31 (“I’m authorized to state by my client [Verizon] today that, but for these rules, we
would be exploring those commercial arrangements, but this order prohibits those, and in fact would shrink the types
of services that will be available on the Internet.”). But see Letter from William H. Johnson, Vice President &
Associate General Counsel, Verizon, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 1 (filed Feb.
(continued….)

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trying to keep applications within a carrier-controlled “walled garden” in the early days of mobile
applications. That specific practice ended when Internet Protocol (IP) created the opportunity to leap the
wall. But the Commission has continued to hear concerns about other broadband provider practices
involving blocking or degrading third-party applications.
9.
Emerging Internet trends since 2010 give us more, not less, cause for concern about such
threats. First, mobile broadband networks have massively expanded since 2010. They are faster, more
broadly deployed, more widely used, and more technologically advanced. At the end of 2010, there were
about 70,000 devices in the U.S. that had LTE wireless connections. Today, there are more than 127
million.7 We welcome this tremendous investment and innovation in the mobile marketplace. With
carefully-tailored rules in place, that investment can continue to flourish and consumers can continue to
enjoy unfettered access to the Internet over their mobile broadband connections. Indeed, mobile
broadband is becoming an increasingly important pathway to the Internet independent of any fixed
broadband connections consumers may have, given that mobile broadband is not a full substitute for fixed
broadband connections.8 And consumers must be protected, for example from mobile commercial
practices masquerading as “reasonable network management.” Second, and critically, the growth of
online streaming video services has spurred further evolution of the Internet.9 Currently, video is the
(Continued from previous page)
11, 2015) (Verizon Feb. 11 Ex Parte Letter) (arguing that “[t]he ‘commercial arrangements’ referenced by counsel
had nothing to do with ‘restrict[ing] access’ to content”). Also, during the oral argument before the D.C. Circuit,
Verizon stated that “in paragraph 64 of the Order the Agency also sets forth the no charging of edge providers rule
as a corollary to the no blocking rule, and that’s a large part of what is causing us our harm here.” In response,
Judge Silberman stated, “if you were allowed to charge, which are you assuming you’re allowed to charge because
of the anti-common carrier point of view, if somebody refused to pay then just like in the dispute between C[B]S
and Warner, Time Warner . . . you could refuse to carry.” Verizon’s counsel responded: “[r]ight.” Verizon Oral
Arg. Tr. at 28.
7

Fierce Wireless, 1H2014: LTE Share 33% of all Mobile Connections in the U.S. and Canada vs. 4% Worldwide,
(Sept. 2014), http://www.fiercewireless.com/press-releases/1h2014-lte-share-33-all-mobile-connections-us-andcanada-vs-4-worldwide (reporting remarkable growth with 16 million LTE connections at the end of June 2012; 63
million LTE connections as of June 2013; 127 million LTE connections as of June 2014).
8

See, e.g., Section 6002(B) of the Omnibus Budget Reconciliation Act of 1993; Annual Report and Analysis of
Competitive Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile Services, WT
Docket No. 13-135, Seventeenth Report, 29 FCC Rcd 15311 (Wireless Tel. Bur. 2014) (17th Mobile Wireless
Report); Robert F. Roche and Liz Dale, Annual Wireless Survey Results: A Comprehensive Report from CTIA
Analyzing the U.S. Wireless Industry (June 2014); Inquiry Concerning the Deployment of Advanced
Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, and Possible Steps to
Accelerate Such Deployment Pursuant to Section 706 of the Telecommunications Act of 1996, as Amended by the
Broadband Data Improvement Act, GN Docket No. 14-126, 2015 Broadband Progress Report and Notice of Inquiry,
FCC 15-10, at para. 120 (rel. Feb. 4, 2015) (2015 Broadband Progress Report) (“We recognize that many
households subscribe to both fixed and mobile services because they use fixed and mobile services in fundamentally
different ways and, as such, view fixed and mobile services as distinct product offerings.”).
9

See supra para. 3; see also Netflix Inc., 2010 Annual Report (Form 10-K) (Feb. 18, 2011),
http://files.shareholder.com/downloads/NFLX/3969047782x0x460274/17454c5b-3088-48c7-957ab5a83a14cf1b/132054ACL.PDF; Letter from Reed Hastings, CEO and David Wells, CFO, Netflix to Shareholders
of Netflix (Jan. 20, 2015), http://ir.netflix.com/results.cfm (follow “Q4 14 Letter to shareholders” hyperlink) (for
2014, Netflix reported 39.1 million domestic streaming subscribers compared to 5.8 million domestic DVD
subscribers); Emily Steel, Cord-Cutters Rejoice: CBS Joins Web Stream, N.Y. Times (Oct. 16,
2014), http://www.nytimes.com/2014/10/17/business/cbs-to-offer-web-subscription-service.html; Brian Stelter,
ESPN on the web for $20 a month is coming soon, CNN Money (Jan. 5, 2015),
http://money.cnn.com/2015/01/05/media/dish-virtual-cable/; Alex Ben Block, Discovery Founder Launching SVOD
Service Described as Netflix "For Curious People,” Hollywood Reporter (Jan. 14, 2014),
http://www.hollywoodreporter.com/news/discovery-founder-launching-svod-service-763885; Jenelle Riley,
Amazon, ‘Transparent’ Make History at Golden Globes, Variety (Jan. 11, 2015),
http://variety.com/2015/tv/news/amazon-transparent-make-history-at-golden-globes-1201400485/.

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dominant form of traffic on the Internet. These video services directly confront the video businesses of
the very companies that supply them broadband access to their customers.10
10.
The Commission, in its May Notice of Proposed Rulemaking, asked a fundamental
question: “What is the right public policy to ensure that the Internet remains open?”11 It proposed to
enhance the transparency rule, and follow the Verizon court’s blueprint by relying on section 706 to adopt
a no-blocking rule and a requirement that broadband providers engage in “commercially reasonable”
practices. The Commission also asked about whether it should adopt other bright-line rules or different
standards using other sources of Commission authority, including Title II. And if Title II were to apply,
the Commission asked about how it should exercise its authority to forbear from Title II obligations. It
asked whether mobile services should also be classified under Title II.
11.
Three overarching objectives have guided us in answering these questions, based on the
vast record before the Commission: America needs more broadband, better broadband, and open
broadband networks. These goals are mutually reinforcing, not mutually exclusive. Without an open
Internet, there would be less broadband investment and deployment. And, as discussed further below, all
three are furthered through the open Internet rules and balanced regulatory framework we adopt today.12
12.
In enacting the Administrative Procedure Act (APA), Congress instructed expert agencies
conducting rulemaking proceedings to “give interested persons an opportunity to participate in the rule
making through submission of written data, views, or arguments.”13 It is public comment that cements an
agency’s expertise. As was explained in the seminal report that led to the enactment of the APA:
The reason for [an administrative agency’s] existence is that it is expected to bring to its
task greater familiarity with the subject than legislators, dealing with many subjects, can
have. But its knowledge is rarely complete, and it must always learn the frequently
clashing viewpoints of those whom its regulations will affect.14
13.
Congress could not have imagined when it enacted the APA almost seventy years ago
that the day would come when nearly 4 million Americans would exercise their right to comment on a
proposed rulemaking. But that is what has happened in this proceeding and it is a good thing. The
Commission has listened and it has learned. Its expertise has been strengthened. Public input has
“improve[d] the quality of agency rulemaking by ensuring that agency regulations will be ‘tested by
exposure to diverse public comment.’”15 There is general consensus in the record on the need for the
10

See Public Knowledge, Benton Foundation, and Access Sonoma Broadband (Public Knowledge) Comments at
52-53 (discussing exemption of Xfinity online video application on Xbox from Comcast’s data cap without similar
exemption for unaffiliated over-the-top video services).
11

2014 Open Internet NPRM, 29 FCC Rcd at 5562, para. 2.

12

Consistent with the Verizon court’s analysis, this Order need not conclude that any specific market power exists in
the hands of one or more broadband providers in order to create and enforce these rules. Thus, these rules do not
address, and are not designed to deal with, the acquisition or maintenance of market power or its abuse, real or
potential. Moreover, it is worth noting that the Commission acts in a manner that is both complementary to the
work of the antitrust agencies and supported by their application of antitrust laws. See generally 47 U.S.C. § 152(b)
(“[N]othing in this Act . . . shall be construed to modify, impair, or supersede the applicability of any of the antitrust
laws.”). Nothing in this Order in any way precludes the Antitrust Division of the Department of Justice or the
Commission itself from fulfilling their respective responsibilities under Section 7 of the Clayton Act (15 U.S.C.
§18), or the Commission’s public interest standard as it assesses prospective transactions.
13

5 U.S.C. § 553(c).

14

Attorney General’s Committee, Final Report of the Attorney General Committee at 102 (1941),
http://www.law.fsu.edu/library/admin/pdfdownload/apa1941.pdf.
15

Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547 (D.C. Cir. 1983) (quoting BASF
Wyandotte Corp. v. Costle, 598 F.2d 637, 641 (1st Cir. 1979)).

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Commission to provide certainty with clear, enforceable rules. There is also general consensus on the
need to have such rules. Today the Commission, informed by all of those views, makes a decision
grounded in the record. The Commission has considered the arguments, data, and input provided by the
commenters, even if not in agreement with the particulars of this Order; that public input has created a
robust record, enabling the Commission to adopt new rules that are clear and sustainable.
A.

Strong Rules That Protect Consumers from Past and Future Tactics that Threaten
the Open Internet
1.

Clear, Bright-Line Rules

14.
Because the record overwhelmingly supports adopting rules and demonstrates that three
specific practices invariably harm the open Internet—Blocking, Throttling, and Paid Prioritization—this
Order bans each of them, applying the same rules to both fixed and mobile broadband Internet access
service.
15.
No Blocking. Consumers who subscribe to a retail broadband Internet access service
must get what they have paid for—access to all (lawful) destinations on the Internet. This essential and
well-accepted principle has long been a tenet of Commission policy, stretching back to its landmark
decision in Carterfone, which protected a customer’s right to connect a telephone to the monopoly
telephone network.16 Thus, this Order adopts a straightforward ban:
A person engaged in the provision of broadband Internet access service, insofar as such
person is so engaged, shall not block lawful content, applications, services, or nonharmful devices, subject to reasonable network management.
16.
No Throttling. The 2010 open Internet rule against blocking contained an ancillary
prohibition against the degradation of lawful content, applications, services, and devices, on the ground
that such degradation would be tantamount to blocking. This Order creates a separate rule to guard
against degradation targeted at specific uses of a customer’s broadband connection:
A person engaged in the provision of broadband Internet access service, insofar as such person is
so engaged, shall not impair or degrade lawful Internet traffic on the basis of Internet content,
application, or service, or use of a non-harmful device, subject to reasonable network
management.
17.
The ban on throttling is necessary both to fulfill the reasonable expectations of a
customer who signs up for a broadband service that promises access to all of the lawful Internet, and to
avoid gamesmanship designed to avoid the no-blocking rule by, for example, rendering an application
effectively, but not technically, unusable. It prohibits the degrading of Internet traffic based on source,
destination, or content.17 It also specifically prohibits conduct that singles out content competing with a
broadband provider’s business model.
18.
No Paid Prioritization. Paid prioritization occurs when a broadband provider accepts
payment (monetary or otherwise) to manage its network in a way that benefits particular content,
applications, services, or devices. To protect against “fast lanes,” this Order adopts a rule that establishes
that:
A person engaged in the provision of broadband Internet access service, insofar as such
person is so engaged, shall not engage in paid prioritization.
16

Use of the Carterfone Device in Message Toll Telephone Service; Thomas F. Carter and Carter Electronics
Corp., Dallas, Tex. (Complainants), v. American Telephone and Telegraph Co., Associated Bell System Companies,
Southwestern Bell Telephone Co., and General Telephone Co. of the Southwest (Defendants), Docket Nos. 16942,
17073, Decision, 13 FCC 2d 420 (1968) (Carterfone), recon. denied, 14 FCC 2d 571 (1968).
17

To be clear, the protections of the no-blocking and no-throttling rules apply to particular classes of applications,
content and services as well as particular applications, content, and services.

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“Paid prioritization” refers to the management of a broadband provider’s network to
directly or indirectly favor some traffic over other traffic, including through use of
techniques such as traffic shaping, prioritization, resource reservation, or other forms of
preferential traffic management, either (a) in exchange for consideration (monetary or
otherwise) from a third party, or (b) to benefit an affiliated entity.18
19.
The record demonstrates the need for strong action. The Verizon court itself noted that
broadband networks have “powerful incentives to accept fees from edge providers, either in return for
excluding their competitors or for granting them prioritized access to end users.”19 Mozilla, among many
such commenters, explained that “[p]rioritization . . . inherently creates fast and slow lanes.”20 Although
there are arguments that some forms of paid prioritization could be beneficial, the practical difficulty is
this: the threat of harm is overwhelming,21 case-by-case enforcement can be cumbersome for individual
consumers or edge providers, and there is no practical means to measure the extent to which edge
innovation and investment would be chilled. And, given the dangers, there is no room for a blanket
exception for instances where consumer permission is buried in a service plan—the threats of consumer
deception and confusion are simply too great. 22
2.

No Unreasonable Interference or Unreasonable Disadvantage to Consumers
or Edge Providers

20.
The key insight of the virtuous cycle is that broadband providers have both the incentive
and the ability to act as gatekeepers standing between edge providers and consumers. As gatekeepers,
they can block access altogether; they can target competitors, including competitors to their own video
services; and they can extract unfair tolls. Such conduct would, as the Commission concluded in 2010,
“reduce the rate of innovation at the edge and, in turn, the likely rate of improvements to network
infrastructure.”23 In other words, when a broadband provider acts as a gatekeeper, it actually chokes
consumer demand for the very broadband product it can supply.
18

Unlike the no-blocking and no-throttling rules, there is no “reasonable network management” exception to the
paid prioritization rule because paid prioritization is inherently a business practice rather than a network
management practice.
19

Verizon, 740 F.3d at 645-46.

20

Mozilla Comments at 20.

21

See, e.g., Free Press Comments at 50 (“In packet-switching, if there is no congestion, there is no meaning to
priority.”).
22

AT&T Reply at 3 (proposing “a distinction between paid prioritization that is not directed by end users, and
prioritization arrangements that are user-driven” and that “the Commission should not categorically foreclose such
consumer-driven choices”). All Commission rules are subject to waiver requests and that principle applies to the
open Internet rules. See 47 C.F.R. § 1.925; Blanca Telephone Co. v. FCC, 743 F.3d 860, 864 (D.C. Cir. 2014)
(“When evaluating an agency’s interpretation and application of a general, discretionary waiver standard ‘[o]ur
review . . . is extremely limited.’”) (quoting BDPCS, Inc. v. FCC, 351 F.3d 1177, 1181 (D.C. Cir. 2003)). As Public
Knowledge has recognized, “the Commission must not only permit such Petitions and waiver applications, but
genuinely consider their merits [however,] the Commission has broad discretion with regard to what standard it will
apply.” Letter from Gene Kimmelman, President, Public Knowledge to Marlene H. Dortch, Secretary, FCC, GN
Docket Nos. 14-28, 10-127, at 2 (filed Nov. 7, 2014) (Public Knowledge Nov. 7, 2014 Ex Parte Letter). The Order
requires any applicant to demonstrate that the proposed paid prioritization practice “would provide some significant
public interest benefit and would not harm the open nature of the Internet.” It is very important to understand that a
party seeking a waiver is banned from an inappropriate practice. Its only recourse is to seek a waiver, and that
waiver request would not be decided until the Commission, after public comment and its own investigation, reaches
a decision.
23

Preserving the Open Internet, GN Docket No. 09-191, WC Docket No. 07-52, Report and Order, 25 FCC Rcd
17905, 17911, para. 14 (2010) (2010 Open Internet Order), aff’d in part, vacated and remanded in part sub nom.
Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014).

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21.
The bright-line bans on blocking, throttling, and paid prioritization will go a long way to
preserve the virtuous cycle. But not all the way. Gatekeeper power can be exercised through a variety of
technical and economic means, and without a catch-all standard, it would be that, as Benjamin Franklin
said, “a little neglect may breed great mischief.”24 Thus, the Order adopts the following standard:
Any person engaged in the provision of broadband Internet access service, insofar as
such person is so engaged, shall not unreasonably interfere with or unreasonably
disadvantage (i) end users’ ability to select, access, and use broadband Internet access
service or the lawful Internet content, applications, services, or devices of their choice, or
(ii) edge providers’ ability to make lawful content, applications, services, or devices
available to end users. Reasonable network management shall not be considered a
violation of this rule.
22.
This “no unreasonable interference/disadvantage” standard protects free expression, thus
fulfilling the congressional policy that “the Internet offer[s] a forum for a true diversity of political
discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.”25
And the standard will permit considerations of asserted benefits of innovation as well as threatened harm
to end users and edge providers.
3.
23.

Enhanced Transparency

The Commission’s 2010 transparency rule, upheld by the Verizon court, remains in full

effect:
A person engaged in the provision of broadband Internet access service shall publicly
disclose accurate information regarding the network management practices,
performance, and commercial terms of its broadband Internet access services sufficient
for consumers to make informed choices regarding use of such services and for content,
application, service, and device providers to develop, market, and maintain Internet
offerings.26
24.
Today’s Order reaffirms the importance of ensuring transparency, so that consumers are
fully informed about the Internet access they are purchasing and so that edge providers have the
information they need to understand whether their services will work as advertised. To do that, the Order
builds on the strong foundation established in 2010 and enhances the transparency rule for both end users
and edge providers, including by adopting a requirement that broadband providers always must disclose
promotional rates, all fees and/or surcharges, and all data caps or data allowances; adding packet loss as a
measure of network performance that must be disclosed; and requiring specific notification to consumers
that a “network practice” is likely to significantly affect their use of the service. Out of an abundance of
caution and in response to a request by the American Cable Association, we also adopt a temporary
exemption from these enhancements for small providers (defined for the purposes of the temporary
exception as providers with 100,000 or fewer subscribers), and we direct our Consumer & Governmental
Affairs Bureau to adopt an Order by December 15, 2015 concerning whether to make the exception
permanent and, if so, the appropriate definition of “small.” Lastly, we create for all providers a “safe
harbor” process for the format and nature of the required disclosure to consumers, which we believe will
result in more effective presentation of consumer-focused information by broadband providers.
4.

Scope of the Rules

25.
The open Internet rules described above apply to both fixed and mobile broadband
Internet access service. Consistent with the 2010 Order, today’s Order applies its rules to the consumer24

Benjamin Franklin, Poor Richard’s Almanac (1757).

25

47 U.S.C. § 230(a)(3).

26

47 C.F.R. § 8.3.

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facing service that broadband networks provide, which is known as “broadband Internet access service”27
(BIAS) and is defined to be:
A mass-market retail service by wire or radio that provides the capability to transmit
data to and receive data from all or substantially all Internet endpoints, including any
capabilities that are incidental to and enable the operation of the communications
service, but excluding dial-up Internet access service. This term also encompasses any
service that the Commission finds to be providing a functional equivalent of the service
described in the previous sentence, or that is used to evade the protections set forth in
this Part.
26.
As in 2010, BIAS does not include enterprise services, virtual private network services,
hosting, or data storage services. Further, we decline to apply the open Internet rules to premises
operators to the extent they may be offering broadband Internet access service as we define it today.
27.
In defining this service we make clear that we are responding to the Verizon court’s
conclusion that broadband providers “furnish a service to edge providers” (and that this service was being
treated as common carriage per se). As discussed further below, we make clear that broadband Internet
access service encompasses this service to edge providers. Broadband providers sell retail customers the
ability to go anywhere (lawful) on the Internet. Their representation that they will transport and deliver
traffic to and from all or substantially all Internet endpoints includes the promise to transmit traffic to and
from those Internet endpoints back to the user.
28.
Interconnection. BIAS involves the exchange of traffic between a broadband Internet
access provider and connecting networks. The representation to retail customers that they will be able to
reach “all or substantially all Internet endpoints” necessarily includes the promise to make the
interconnection arrangements necessary to allow that access.
29.
As discussed below, we find that broadband Internet access service is a
“telecommunications service” and subject to sections 201, 202, and 208 (along with key enforcement
provisions). As a result, commercial arrangements for the exchange of traffic with a broadband Internet
access provider are within the scope of Title II, and the Commission will be available to hear disputes
raised under sections 201 and 202 on a case-by-case basis: an appropriate vehicle for enforcement where
disputes are primarily over commercial terms and that involve some very large corporations, including
companies like transit providers and Content Delivery Networks (CDNs), that act on behalf of smaller
edge providers.
30.
But this Order does not apply the open Internet rules to interconnection. Three factors
are critical in informing this approach to interconnection. First, the nature of Internet traffic, driven by
massive consumption of video, has challenged traditional arrangements—placing more emphasis on the
use of CDNs or even direct connections between content providers (like Netflix or Google) and last-mile
broadband providers. Second, it is clear that consumers have been subject to degradation resulting from
commercial disagreements,28 perhaps most notably in a series of disputes between Netflix and large last-

27

We note that our use of the term “broadband” in this Order includes but is not limited to services meeting the
threshold for “advanced telecommunications capability,” as defined in Section 706 of the Telecommunications Act
of 1996, as amended. 47 U.S.C. § 1302(b). Section 706 defines that term as “high-speed, switched, broadband
telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and
video telecommunications using any technology.” 47 U.S.C. § 1302(d)(1). The 2015 Broadband Progress Report
specifically notes that “advanced telecommunications capability,” while sometimes referred to as “broadband,”
differs from the Commission’s use of the term “broadband” in other contexts. 2015 Broadband Progress Report at
n.1 (rel. Feb. 4, 2015).
28

See Letter from Sarah J. Morris, Senior Policy Counsel, Open Technology Institute, New America Foundation to
Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 10-127, 14-28 (filed Oct. 30, 2014), Attach. MLab, ISP
(continued….)

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mile broadband providers. But, third, the causes of past disruption and—just as importantly—the
potential for future degradation through interconnection disputes—are reflected in very different
narratives in the record.
31.
While we have more than a decade’s worth of experience with last-mile practices, we
lack a similar depth of background in the Internet traffic exchange context. Thus, we find that the best
approach is to watch, learn, and act as required, but not intervene now, especially not with prescriptive
rules. This Order—for the first time—provides authority to consider claims involving interconnection, a
process that is sure to bring greater understanding to the Commission.
32.
Reasonable Network Management. As with the 2010 rules, this Order contains an
exception for reasonable network management, which applies to all but the paid prioritization rule (which,
by definition, is not a means of managing a network):
A network management practice is a practice that has a primarily technical network
management justification, but does not include other business practices. A network
management practice is reasonable if it is primarily used for and tailored to achieving a
legitimate network management purpose, taking into account the particular network
architecture and technology of the broadband Internet access service.
33.
Recently, significant concern has arisen when mobile providers’ have attempted to justify
certain practices as reasonable network management practices, such as applying speed reductions to
customers using “unlimited data plans” in ways that effectively force them to switch to price plans with
less generous data allowances. For example, in the summer of 2014, Verizon announced a change to its
“unlimited” data plan for LTE customers, which would have limited the speeds of LTE customers using
grandfathered “unlimited” plans once they reached a certain level of usage each month. Verizon briefly
described this change as within the scope of “reasonable network management,” before changing course
and withdrawing the change.
34.
With mobile broadband service now subject to the same rules as fixed broadband service,
the Order expressly recognizes that evaluation of network management practices will take into account
the additional challenges involved in the management of mobile networks, including the dynamic
conditions under which they operate. It also recognizes the specific network management needs of other
technologies, such as unlicensed Wi-Fi networks.
35.
Non-Broadband Internet Access Service Data Services. The 2010 rules included an
exception for “specialized services.” This Order likewise recognizes that some data services—like
facilities-based VoIP offerings, heart monitors, or energy consumption sensors—may be offered by a
broadband provider but do not provide access to the Internet generally. The term “specialized services”
can be confusing because the critical point is not whether the services are “specialized;” it is that they are
not broadband Internet access service. IP-services that do not travel over broadband Internet access
service, like the facilities-based VoIP services used by many cable customers, are not within the scope of
the open Internet rules, which protect access or use of broadband Internet access service. Nonetheless,
these other non-broadband Internet access service data services could be provided in a manner that
undermines the purpose of the open Internet rules and that will not be permitted. The Commission
expressly reserves the authority to take action if a service is, in fact, providing the functional equivalent of
broadband Internet access service or is being used to evade the open Internet rules. The Commission will
vigilantly watch for such abuse, and its actions will be aided by the existing transparency requirement that
non-broadband Internet access service data services be disclosed.

(Continued from previous page)
Interconnection and Its Impact on Consumer Internet Performance, A Measurement Lab Consortium Technical
Report (Oct. 28, 2014) (MLab ISP Interconnection Report).

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5.

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Enforcement

36.
The Commission may enforce the open Internet rules through investigation and the
processing of complaints (both formal and informal). In addition, the Commission may provide guidance
through the use of enforcement advisories and advisory opinions, and it will appoint an ombudsperson.
In order to provide the Commission with additional understanding, particularly of technical issues, the
Order delegates to the Enforcement Bureau the authority to request a written opinion from an outside
technical organization or otherwise to obtain objective advice from industry standard-setting bodies or
similar organizations.
B.

Promoting Investment with a Modern Title II

37.
Today, our forbearance approach results in over 700 codified rules being inapplicable, a
“light-touch” approach for the use of Title II. This includes no unbundling of last-mile facilities, no
tariffing, no rate regulation, and no cost accounting rules, which results in a carefully tailored application
of only those Title II provisions found to directly further the public interest in an open Internet and more,
better, and open broadband. Nor will our actions result in the imposition of any new federal taxes or fees;
the ability of states to impose fees on broadband is already limited by the congressional Internet tax
moratorium.
38.
This is Title II tailored for the 21st Century. Unlike the application of Title II to
incumbent wireline companies in the 20th Century, a swath of utility-style provisions (including tariffing)
will not be applied. Indeed, there will be fewer sections of Title II applied than have been applied to
Commercial Mobile Radio Service (CMRS), where Congress expressly required the application of
Sections 201, 202, and 208, and permitted the Commission to forbear from others. In fact, Title II has
never been applied in such a focused way.
39.
History demonstrates that this careful approach to the use of Title II will not impede
investment. First, mobile voice services have been regulated under a similar light-touch Title II approach
since 1994 — and investment and usage boomed.29 For example, between 1993 and 2009 (while voice
was the primary driver of mobile revenues), the mobile industry invested more than $271 billion in
building out networks, during a time in which industry revenues increased by 1300 percent and
subscribership grew over 1600 percent.30 Moreover, more recently, Verizon Wireless has invested tens of
billions of dollars in deploying mobile wireless services since being subject to the 700 MHz C Block open
access rules, which overlap in significant parts with the open Internet rules we adopt today.31 But that is
not all. Today, key provisions of Title II apply to certain enterprise broadband services that AT&T has
29

See Implementation of Sections 3(n) and 332 of the Communications Act, Regulatory Treatment of Mobile
Services, GN Docket No. 93-252, Second Report and Order, 9 FCC Rcd 1411 (1994) (CMRS Second Report &
Order) (forbearing from various Title II requirements for CMRS).
30

See CTIA Wireless Industry Indices: Annual Wireless Survey Results: A Comprehensive Report from CTIA
Analyzing the U.S. Wireless Industry Year-End 2013 Results, 2014 at 25, 76, 97.
31

See Verizon Communications, Inc., Financial Reporting Quarterly Reports 2008-2014 (Form 10-K)
http://www.verizon.com/about/investors/quarterly-reports/ (last visited Feb. 23, 2015); see also Service Rules for the
698-746, 747-762 and 777-792 MHz Bands; Revision of the Commission's Rules to Ensure Compatibility with
Enhanced 911 Emergency Calling Systems; Section 68.4(a) of the Commission's Rules Governing Hearing AidCompatible Telephones; Biennial Regulatory Review-Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and
Harmonize Various Rules Affecting Wireless Radio Services; Former Nextel Communications, Inc. Upper 700 MHz
Guard Band Licenses and Revisions to Part 27 of the Commission's Rules; Implementing a Nationwide, Broadband,
Interoperable Public Safety Network in the 700 MHz Band; Development of Operational, Technical and Spectrum
Requirements for Meeting Federal, State and Local Public Safety Communications Requirements Through the Year
2010; Declaratory Ruling on Reporting Requirement under Commission's Part 1 Anti-Collusion Rule, WT Docket
Nos. 07-166, 06-169, 06-150, 03-264, 96-86, PS Docket No. 06-229, CC Docket No. 94-102, Second Report and
Order, 22 FCC Rcd 15289, 15364, paras. 203-204 (2007) (700 MHz Second Report and Order); 47 C.F.R. § 27.16.

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described as “the epicenter of the broadband investment” the Commission seeks to promote.32 Title II has
been maintained by more than 1000 rural local exchange carriers that have chosen to offer their DSL and
fiber broadband services as common carrier offerings. And, of course, wireline DSL was regulated as a
common-carrier service until 2005—including a period in the late ‘90s and the first five years of this
century that saw the highest levels of wireline broadband infrastructure investment to date.33
40.
In any event, recent events have demonstrated that our rules will not disrupt capital
markets or investment. Following recent discussions of the potential application of Title II to consumer
broadband, investment analysts have issued reports concluding that Title II with appropriate forbearance
is unlikely to alter broadband provider conduct or have any negative effect on their value or future
profitability.34 Executives from large broadband providers have also repeatedly represented to investors
that the prospect of regulatory action will not influence their investment strategies or long-term
profitability; indeed, Sprint has gone so far to say that it “does not believe that a light touch application of
Title II, including appropriate forbearance, would harm the continued investment in, and deployment of,
mobile broadband services.”35 Finally, the recent AWS auction, conducted under the prospect of Title II
regulation, generated bids (net of bidding credits) of more than $41 billion—further demonstrating that
robust investment is not inconsistent with a light-touch Title II regime.36

32

Comments of AT&T, Inc., WC Docket No. 05-25, at 2-3 (filed Apr. 16, 2013).

33

See US Telecom Research Brief, Latest Data Show Broadband Investment Surged in 2013 at 2, Chart 2 (Sept. 8,
2014) (wireline broadband capital expenditures peaked at $79 billion in 2000),
http://www.ustelecom.org/sites/default/files/documents/090814%20Latest%20Data%20Show%20Broadband%20In
vestment%20Surged%20in%202013.pdf.
34

See, e.g., Philip Cusick et al., Net Neutrality: Prepared for Title II but We Take Less Negative View, J.P. Morgan,
(Nov. 11, 2014) (“We wouldn’t change any of the fundamental assumptions on cable companies under our coverage
under Title II, and shares are likely to rebound over time.”); Paul Gallant, Title 2 Appears Likely Outcome at FCC,
but Headline Risk May Exceed Real Risk, Guggenheim Securities, LLC, (Dec. 8, 2014) (“We would not view a Title
II decision by the FCC as changing the existing Washington framework for cable broadband service. The
marketplace reality under Title II would be far less problematic for cable/telcos than most believe.”); Paul de Sa et
al., Bernstein Research, (Nov. 17, 2014) (“We think net neutrality is largely irrelevant for fundamental value drivers.
But headline noise in the coming months will likely result in fears about price regulation, increasing volatility and
perhaps temporarily depressing cable & telco equity values.”).
35

Letter from Stephen Bye, Chief Technology Officer, Sprint, to Chairman Wheeler, FCC, GN Docket No. 14-28, at
1 (filed Jan. 16, 2015) (Sprint Jan. 16. 2015 Ex Parte Letter); see also Transcript of Verizon Communications
Presents at UBS 42nd Annual Global Media and Communications Conference Call, Seeking Alpha (Dec. 9. 2014),
available at http://seekingalpha.com/article/2743375-verizon-communications-vz-presents-at-ubs-42nd-annualglobal-media-and-communications-conference-transcript?all=true&find=John%2BHodulik (quoting Verizon CFO
Fran Shammo as saying “I mean, to be real clear, I mean this does not influence the way we invest. I mean we’re
going to continue to invest in our networks and our platforms, both in Wireless and Wireline FiOS and where we
need to. So nothing will influence that. I mean if you think about it, look, I mean we were born out of a highly
regulated company, so we know how this operates.”); Brian Fung, Verizon: Actually Strong Net Neutrality Rules
Won’t Affect our Network Investment, Washington Post (Dec. 10, 2014), http://www.washingtonpost.com/blogs/theswitch/wp/2014/12/10/verizon-actually-strong-net-neutrality-rules-wont-affect-our-network-investment/; Brian
Fung, Comcast, Charter and Time Warner Cable All Say Obama’s Net Neutrality Plan Shouldn’t Worry Investors,
Washington Post (Dec. 16, 2014), http://www.washingtonpost.com/blogs/the-switch/wp/2014/12/16/comcastcharter-and-time-warner-cable-all-tell-investors-strict-net-neutrality-wouldnt-change-much/; Letter from Angie
Kronenberg, COMPTEL to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (filed Dec. 11, 2014)
(COMPTEL Dec. 11, 2014 Ex Parte Letter).
36

See John Eggerton, AWS-3 Powers Past $44 Billion, Broadcasting & Cable (Dec. 16, 2014),
http://www.broadcastingcable.com/news/washington/aws-3-powers-past-44-billion/136438.

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FCC 15-24

Sustainable Open Internet Rules

41.
We ground our open Internet rules in multiple sources of legal authority—including both
section 706 and Title II of the Communications Act. The Verizon court upheld the Commission’s use of
section 706 as a substantive source of legal authority to adopt open Internet protections. But it held that,
“[g]iven the Commission’s still-binding decision to classify broadband providers . . . as providers of
‘information services,’” open Internet protections that regulated broadband providers as common carriers
would violate the Act.37 Rejecting the Commission’s argument that broadband providers only served
retail consumers, the Verizon court went on to explain that “broadband providers furnish a service to edge
providers, thus undoubtedly functioning as edge providers’ ‘carriers,’” and held that the 2010 no blocking
and no unreasonable discrimination rules impermissibly “obligated [broadband providers] to act as
common carriers.”38
42.
The Verizon decision thus made clear that section 706 affords the Commission
substantive authority, and that open Internet protections are within the scope of that authority. And this
Order relies on section 706 for the open Internet rules. But, in light of Verizon, absent a classification of
broadband providers as providing a “telecommunications service,” the Commission could only rely on
section 706 to put in place open Internet protections that steered clear of regulating broadband providers
as common carriers per se. Thus, in order to bring a decade of debate to a certain conclusion, we
conclude that the best path is to rely on all available sources of legal authority—while applying them with
a light touch consistent with further investment and broadband deployment. Taking the Verizon
decision’s implicit invitation, we revisit the Commission’s classification of the retail broadband Internet
access service as an information service and clarify that this service encompasses the so-called “edge
service.”
43.
Exercising our delegated authority to interpret ambiguous terms in the Communications
Act, as confirmed by the Supreme Court in Brand X,39 today’s Order concludes that the facts in the
market today are very different from the facts that supported the Commission’s 2002 decision to treat
cable broadband as an information service and its subsequent application to fixed and mobile broadband
services. Those prior decisions were based largely on a factual record compiled over a decade ago,
during an earlier time when, for example, many consumers would use homepages supplied by their
broadband provider. In fact, the Brand X Court explicitly acknowledged that the Commission had
previously classified the transmission service, which broadband providers offer, as a telecommunications
service and that the Commission could return to that classification if it provided an adequate
justification.40 Moreover, a number of parties who, in this proceeding, now oppose our reclassification of
broadband Internet access service, previously argued that cable broadband should be deemed a
telecommunications service.41 As the record reflects, times and usage patterns have changed and it is
clear that broadband providers are offering both consumers and edge providers straightforward
transmission capabilities that the Communications Act defines as a “telecommunications service.”
44.
The Brand X decision made famous the metaphor of pizza delivery. Justice Scalia, in
dissent, concluded that the Commission had exceeded its legal authority by classifying cable-modem
service as an “information service.”42 To make his point, Justice Scalia described a pizzeria offering

37

Verizon, 740 F.3d at 650.

38

Id. at 653.

39

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980-81 (2005) (Brand X).

40

Id. at 986, 1001.

41

See infra para. 314 & n.810.

42

Id. at 1005 (Scalia, J., dissenting).

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delivery services as well as selling pizzas and concluded that, similarly—broadband providers were
offering “telecommunications services” even if that service was not offered on a “stand-alone basis.”43
45.
To take Justice Scalia’s metaphor a step further, suppose that in 2014, the pizzeria owners
discovered that other nearby restaurants did not deliver their food and thus concluded that the pizzadelivery drivers could generate more revenue by delivering from any neighborhood restaurant (including
their own pizza some of the time). Consumers would clearly understand that they are being offered a
delivery service.
46.
Today, broadband providers are offering stand-alone transmission capacity and that
conclusion is not changed even if, as Justice Scalia recognized, other products may be offered at the same
time. The trajectory of technology in the decade since the Brand X decision has been towards greater and
greater modularity. For example, consumers have considerable power to combine their mobile broadband
connections with the device, operating systems, applications, Internet services, and content of their
choice. Today, broadband Internet access service is fundamentally understood by customers as a
transmission platform through which consumers can access third-party content, applications, and services
of their choosing.
47.
Based on this updated record, this Order concludes that the retail broadband Internet
access service available today is best viewed as separately identifiable offers of (1) a broadband Internet
access service that is a telecommunications service (including assorted functions and capabilities used for
the management and control of that telecommunication service) and (2) various “add-on” applications,
content, and services that generally are information services. This finding more than reasonably interprets
the ambiguous terms in the Communications Act, best reflects the factual record in this proceeding, and
will most effectively permit the implementation of sound policy consistent with statutory objectives,
including the adoption of effective open Internet protections.
48.
This Order also revisits the Commission’s prior classification of mobile broadband
Internet access service as a private mobile service, which cannot be subject to common carrier regulation,
and finds that it is best viewed as a commercial mobile service or, in the alternative, the functional
equivalent of commercial mobile service. Under the statutory definition, commercial mobile services
must be “interconnected with the public switched network (as such terms are defined by regulation by the
Commission).”44 Consistent with that delegation of authority to define these terms, and with the
Commission’s previous recognition that the public switched network will grow and change over time, this
Order updates the definition of public switched network to reflect current technology, by including
services that use public IP addresses. Under this revised definition, the Order concludes that mobile
broadband Internet access service is interconnected with the public switched network. In the alternative,
the Order concludes that mobile broadband Internet access service is the functional equivalent of
commercial mobile service45 because, like commercial mobile service, it is a widely available, for profit
mobile service that offers mobile subscribers the capability to send and receive communications,
including voice, on their mobile device.
49.
By classifying broadband Internet access service under Title II of the Act, in our view the
Commission addresses any limitations that past classification decisions placed on the ability to adopt
strong open Internet rules, as interpreted by the D.C. Circuit in the Verizon case.
50.
Having classified broadband Internet access service as a telecommunications service, we
respond to the Verizon court’s holding, supporting our open Internet rules under the Commission’s Title
43

Id. at 1007-09.

44

47 U.S.C. § 332(d)(2).

45

Section 332 of the Act defines “private mobile service” as “any mobile service . . . that is not a commercial mobile
service or the functional equivalent of a commercial mobile service, as specified by regulation by the Commission.”
47 U.S.C. § 332(d)(3).

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II authority and removing any common carriage limitation on the exercise of our section 706 authority.
For mobile broadband services, we also ground the open Internet rules in our Title III authority to protect
the public interest through the management of spectrum licensing.
D.

Broad Forbearance

51.
In finding that broadband Internet access service is subject to Title II, we simultaneously
exercise the Commission’s forbearance authority to forbear from 30 statutory provisions and render over
700 codified rules inapplicable, to establish a light-touch regulatory framework tailored to preserving
those provisions that advance our goals of more, better, and open broadband. We thus forbear from the
vast majority of rules adopted under Title II. We do not, however, forbear from sections 201, 202, and
208 (or from related enforcement provisions),46 which are necessary to support adoption of our open
Internet rules. We also grant extensive forbearance, minimizing the burdens on broadband providers
while still adequately protecting the public.
52.
In addition, we do not forbear from a limited number of sections necessary to ensure
consumers are protected, promote competition, and advance universal access, all of which will foster
network investment, thereby helping to promote broadband deployment.
53.
Section 222: Protecting Consumer Privacy. Ensuring the privacy of customer
information both directly protects consumers from harm and eliminates consumer concerns about using
the Internet that could deter broadband deployment. Among other things, section 222 imposes a duty on
every telecommunications carrier to take reasonable precautions to protect the confidentiality of its
customers’ proprietary information.47 We take this mandate seriously. For example, the Commission
recently took enforcement action under section 222 (and section 201(b)) against two telecommunications
companies that stored customers’ personal information, including social security numbers, on
unprotected, unencrypted Internet servers publicly accessible using a basic Internet search.48 This
unacceptably exposed these consumers to the risk of identity theft and other harms.
54.
As the Commission has recognized, “[c]onsumers’ privacy needs are no less important
when consumers communicate over and use broadband Internet access than when they rely on [telephone]
services.”49 Thus, this Order finds that consumers concerned about the privacy of their personal
information will be more reluctant to use the Internet, stifling Internet service competition and growth.50
Application of section 222’s protections will help spur consumer demand for those Internet access
46

Specifically, we do not forbear from the enforcement authorities set forth in sections 206, 207, 208, 209, 216, and
217. To preserve existing CALEA obligations that already apply to broadband Internet access service, we also
decline to forbear from section 229. 47 U.S.C. § 229. See also 47 C.F.R. §§ 1.20000 et seq.
47

47 U.S.C. § 222(a); Implementation of the Telecommunications Act of 1996: Telecommunications Carriers’ Use
of Customer Proprietary Network Information and Other Customer Information, CC Docket No. 96-115, WC
Docket No. 04-36, Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 6927, 6959, para. 64
(2007) (2007 CPNI Order).
48

See TerraCom, Inc. and YourTel America, Inc. Apparent Liability for Forfeiture, File No.: EB-TCD-1300009175, Notice of Apparent Liability, 29 FCC Rcd 13325, 13335-40, paras. 31-41 (2014).
49

Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities et al., CC Docket Nos. 0233, 01-337, 95-20, 98-10, WC Docket Nos. 04-242, 05-271, Report and Order and Notice of Proposed Rulemaking,
20 FCC Rcd 14853, 14930, para. 148 (2005) (Wireline Broadband Classification Order); see also id. at 14931, para.
149 & n.447 (noting that “long before Congress enacted section 222 of the Act, the Commission had recognized the
need for privacy requirements associated with the provision of enhanced services and had adopted CPNI-related
requirements in conjunction with other Computer Inquiry obligations”).
50

See, e.g., Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a
Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the
Telecommunications Act of 1996, as Amended by the Broadband Data Improvement Act, GN Docket No. 11-121,
Report, 27 FCC Rcd 10342, 10410, para. 154 (2012) (2012 Eighth Broadband Progress Report).

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services, in turn “driving demand for broadband connections, and consequently encouraging more
broadband investment and deployment,” consistent with the goals of the 1996 Act.51
55.
Sections 225/255/251(a)(2): Ensuring Disabilities Access. We do not forbear from those
provisions of Title II that ensure access to broadband Internet access service by individuals with
disabilities. All Americans, including those with disabilities, must be able to reap the benefits of an open
Internet, and ensuring access for these individuals will further the virtuous cycle of consumer demand,
innovation, and deployment. This Order thus concludes that application of sections 225, 255, and
251(a)(2) is necessary to protect consumers and furthers the public interest, as explained in greater detail
below.52
56.
Section 224: Ensuring Infrastructure Access. For broadband Internet access service, we
do not forbear from section 224 and the Commission’s associated procedural rules (to the extent they
apply to telecommunications carriers and services and are, thus, within the Commission’s forbearance
authority).53 Section 224 of the Act governs the Commission’s regulation of pole attachments. In
particular, section 224(f)(1) requires utilities to provide cable system operators and telecommunications
carriers the right of “nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or
controlled” by a utility.54 Access to poles and other infrastructure is crucial to the efficient deployment of
communications networks including, and perhaps especially, new entrants.
57.
Section 254: Promoting Universal Broadband. Section 254 promotes the deployment
and availability of communications networks to all Americans, including rural and low-income
Americans—furthering our goals of more and better broadband. With the exception of 254(d), (g), and
(k) as discussed below, we therefore do not find the statutory test for forbearance from section 254 (and
the related provision in section 214(e)) is met. We recognize that supporting broadband-capable networks
is already a key component of Commission’s current universal service policies. The Order concludes,
however, that directly applying section 254 provides both more legal certainty for the Commission’s prior
decisions to offer universal service subsidies for deployment of broadband networks and adoption of
broadband services and more flexibility going forward.
58.
We partially forbear from section 254(d) and associated rules insofar as they would
immediately require mandatory universal service contributions associated with broadband Internet access
service.55
51

2007 CPNI Order, 22 FCC Rcd at 6957, para. 59; see also FCC, Connecting America: The National Broadband
Plan at 55 (National Broadband Plan) (explaining that without privacy protections, new innovation and investment
in broadband applications and content may be held back, and these applications and content, in turn, are likely the
most effective means to advance many of Congress’s goals for broadband).
52

As explained in greater detail below, this Order does, however, forbear in part from the application of TRS
contribution obligations that otherwise would apply to broadband Internet access service. Section 251(a)(2)
precludes the installation of “network features, functions, or capabilities that do not comply with the guidelines and
standards established pursuant to section 255 or 256.” See infra Section V.
53

See, e.g., Letter from Kathryn Zachem, Senior Vice President, Comcast, to Marlene H. Dortch, Secretary, FCC,
GN Docket Nos. 14-28, 10-127 at 25 n.107 (filed Dec. 24, 2014) (Comcast Dec. 24, 2014 Ex Parte Letter); Letter
from Matthew Brill, Counsel for NCTA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 21 (Dec.
23, 2014) (NCTA Dec. 23, 2014 Ex Parte Letter); see also, e.g., Letter from Marvin Ammori and Julie Samuels, to
Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 1 (filed Nov. 12, 2014) (“Title II forbearance should
be implemented in such a way so as to encourage continued deployment and investment in networks by for example
preserving pole attachment rights.”).
54

47 U.S.C. § 224(f)(1).

55

The first sentence of section 254(d) authorizes the Commission to impose universal service contributions
requirements on telecommunications carriers—and, indeed, goes even further to require “[e]very
telecommunications carrier that provides interstate telecommunications services” to contribute. 47 U.S.C. § 254(d).

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59.
Below, we first adopt three bright-line rules banning blocking, throttling, and paid
prioritization, and make clear the no-unreasonable interference/disadvantage standard by which the
Commission will evaluate other practices, according to their facts. These rules are grounded in multiple
sources of statutory authority, including section 706 and Titles II and III of the Communications Act.
Second, based on a current factual record, we reclassify broadband Internet access service as a
telecommunications service under Title II. And, third, guided by our goals of more, better, and open
broadband, we exercise our forbearance authority to put in place a “light touch” Title II regulatory
framework that protects consumers and innovators, without deterring investment.
III.

REPORT AND ORDER ON REMAND: PROTECTING AND PROMOTING THE OPEN
INTERNET
A.

History of Openness Regulation

60.
These rules are the latest in a long line of actions by the Commission to ensure that
American communications networks develop in ways that foster economic competition, technological
innovation, and free expression. Ever since the landmark 1968 Carterfone decision,56 the Commission
has recognized that communications networks are most vibrant, and best able to serve the public interest,
when consumers are empowered to make their own decisions about how networks are to be accessed and
utilized. Openness regulation aimed at safeguarding consumer choice has therefore been a hallmark of
Commission policy for over forty years.
61.
In Carterfone, the Commission confronted AT&T’s practice of preventing consumers
from attaching any equipment not supplied by AT&T to their home telephones, even if the attachment did
not put the underlying network at risk.57 Finding AT&T’s “foreign attachment” provisions unreasonable
and unlawful, the Commission ruled that AT&T customers had the right to connect useful devices of their
choosing to their home telephones, provided these devices did not adversely affect the telephone
network.58
62.
Carterfone and subsequent regulatory actions by the Commission severed the market for
customer premises equipment (CPE) from that for telephone service.59 In doing so, the Commission
allowed new participants and new ideas into the market, setting the stage for a wave of innovation that

56

Carterfone, 13 FCC 2d 420.

57

Carterfone, 13 FCC 2d at 421, 427. These “foreign attachment” provisions effectively allowed the company to
extend its monopoly over phone service to the telephone equipment market as well. After AT&T prohibited use of
the Carterfone, the product’s manufacturer brought an antitrust action against AT&T and certain other telephone
companies. The district court, applying the doctrine of primary jurisdiction, asked the Commission to determine the
reasonableness and validity of the tariff and telephone companies’ practices. The manufacturer also filed a formal
complaint against certain of the telephone companies, and the Commission consolidated the two proceedings. Id. at
421-22.
58

Carterfone, 13 FCC 2d at 423-424 (“[O]ur conclusion here is that a customer desiring to use an interconnecting
device . . . should be able to do so, so long as the interconnection does not adversely affect the telephone company's
operations or the telephone system’s utility for others.”).
59

As the Commission implicitly recognized, allowing AT&T to preclude adoption of even non-harmful third-party
devices forestalled the development of a competitive telephone technology market, harming innovators and
consumers alike. See id. at 424 (“No one entity need provide all interconnection equipment for our telephone
system any more than a single source is needed to supply the parts for a space probe.”); Amendment of Section
64.702 of the Commission’s Rules and Regulations (Second Computer Inquiry), Docket No. 20828, Final Decision,
77 FCC 2d 384, 439 para. 141 (1980) (Computer II).

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produced technologies such as the answering machine, fax machine, and modem—thereby removing a
barrier to the development of the packet switched network that would eventually become the Internet.60
63.
Commitment to robust competition and open networks defined Commission policy at the
outset of the digital revolution as well. In a series of influential decisions, known collectively as the
Computer Inquiries,61 the Commission established a flexible regulatory framework to support
development of the nascent information economy. The Computer Inquiries decisions separated the
market for information services from the underlying network infrastructure, and imposed firm nondiscrimination rules for network access.62 This system prevented network owners from engaging in anticompetitive behavior and spurred the development and adoption of new technologies.63
64.
The principles of open access, competition, and consumer choice embodied in Carterfone
and the Computer Inquires have continued to guide Commission policy in the Internet era. As former
Chairman Michael Powell noted in 2004, “ensuring that consumers can obtain and use the content,
applications and devices they want . . . is critical to unlocking the vast potential of the broadband
Internet.”64 In recognition of this fact, in 2005, the Commission unanimously approved the Internet
Policy Statement, which laid out four guiding principles designed to encourage broadband deployment
and “preserve and promote the open and interconnected nature of the Internet.”65 These principles sought
to ensure that consumers had the right to access and use the lawful content, applications, and devices of
their choice online, and to do so in an Internet ecosystem defined by competitive markets.66

60

Michael T. Hoeker, Comment, From Carterfone to the iPhone: Consumer Choice in the Wireless
Telecommunications Marketplace, 17 CommLaw Conspectus 187, 190-91 (2008); Kevin Werbach, The Federal
Computer Commission, 84 N.C. L. Rev. 1, 20-21 (2005) (The Federal Computer Commission).
61

Regulatory & Policy Problems Presented by the Interdependence of Computer & Commc'n Servs. & Facilities,
Docket No. 16979, Final Decision and Order, 28 FCC 2d 267 (1971) (Computer I); Computer II, 77 FCC 2d 384;
Amendment of Sections 64.702 of the Commission’s Rules and Regulations (Third Computer Inquiry); and Policy
and Rules Concerning Rates for Competitive Common Carrier Services and Facilities Authorizations Thereof
Communications Protocols under Section 64.702 of the Commission’s Rules and Regulations, CC Docket No. 85229, Report and Order, 104 FCC 2d 958 (1986) (Computer III).
62

The Federal Computer Commission at 22-26; James B. Speta, A Common Carrier Approach to Internet
Interconnection, 54 Fed. Comm. L.J. 225, 264-67 (2002).
63

Robert Cannon, The Legacy of the Federal Communications Commission’s Computer Inquiries, 55 Fed. Comm.
L.J. 167, 169, 204-205 (2003) (arguing that the rules established in the Computer Inquiries “have been wildly
successful” and were “a necessary precondition for the success of the Internet”).
64

Michael K. Powell, Chairman, Federal Communications Commission, Preserving Internet Freedom: Guiding
Principles for the Industry 3, Remarks at the Silicon Flatirons Symposium (Feb. 8, 2004),
https://apps.fcc.gov/edocs_public/attachmatch/DOC-243556A1.pdf.
65

Appropriate Framework for Broadband Access to the Internet over Wireline Facilities; Review of Regulatory
Requirements for Incumbent LEC Broadband Telecommunications Services; Computer III Further Remand
Proceedings: Bell Operating Company Provision of Enhanced Services; 1998 Biennial Regulatory Review-Review
of Computer III and ONA Safeguards and Requirements; Inquiry Concerning High-Speed Access to the Internet
Over Cable and Other Facilities Internet Over Cable Declaratory Ruling; Appropriate Regulatory Treatment for
Broadband Access to the Internet Over Cable Facilities, GN Docket No. 00-185, CC Docket Nos. 02-33, 01-33, 9810, 95-20, CS Docket No. 02-52, Policy Statement, 20 FCC Rcd 14986, 14987-88, para. 4 (2005) (Internet Policy
Statement).
66

Subject to “reasonable network management,” the principles were intended to ensure consumers had the right to
(1) “access the lawful Internet content of their choice;” (2) “run applications and use services of their choice;” (3)
“connect their choice of legal devices that do not harm the network;” and (4) enjoy “competition among network
providers, application and service providers, and content providers.” Internet Policy Statement, 20 FCC Rcd at
14987-88, para. 4.

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65.
From 2005 to 2011, the principles embodied in the Internet Policy Statement were
incorporated as conditions by the Commission into several merger orders and a key 700 MHz license,
including the SBC/AT&T, Verizon/MCI, and Comcast/NBCU mergers and the Upper 700 MHz C block
open platform requirements.67 Commission approval of these transactions was expressly conditioned on
compliance with the Internet Policy Statement.68 During this time, open Internet principles were also
applied to particular enforcement proceedings aimed at addressing anti-competitive behavior by service
providers.69
66.
In June 2010, following a D.C. Circuit decision invalidating the Commission’s exercise
of ancillary authority to provide consumers basic protections in using broadband Internet services, the
Commission initiated a Notice of Inquiry to “seek comment on our legal framework for broadband
Internet service.”70 The Notice of Inquiry recognized that “the current legal classification of broadband
Internet service is based on a record that was gathered a decade ago.”71 It sought comment on three
67

SBC Communications, Inc. and AT&T Corp. Applications for Approval of Transfer of Control, WC Docket No.
05-65, Memorandum Opinion and Order, 20 FCC Rcd 18290, 18392, para. 211 & Appx. F (2005) (SBC/AT&T
Merger Order); Verizon Communications Inc. and MCI, Inc. Applications for Approval of Transfer of Control, WC
Docket No. 05-75, Memorandum Opinion and Order, 20 FCC Rcd 18433, 18537, para. 221 (2005) (Verizon/MCI
Merger Order); Applications of Comcast Corporation, General Electric Company and NBC Universal, Inc. for
Consent to Assign Licenses and Transfer Control of Licenses, MB Docket No. 10-56, Memorandum Opinion and
Order, 26 FCC Rcd 4239, 4275, para. 94 & n.213 (2011) (Comcast/NBCU Merger Order);700 MHz Second Report
and Order, 22 FCC Rcd at 15364, paras. 203-204; 47 C.F.R. § 27.16.
68

SBC/AT&T Merger Order, 20 FCC Rcd at 18392, para. 211 & Appx. F; Verizon/MCI Merger Order, 20 FCC Rcd
at 18537, para. 221; Comcast/NBCU Merger Order, 26 FCC Rcd at 4275, para. 94 & n.213; 700 MHz Second
Report and Order, 22 FCC Rcd at 15364, paras. 203-204; 47 C.F.R. § 27.16. Additionally, the Commission used
the Internet Policy Statement principles as a yardstick to evaluate other large-scale transactions, such as an
Adelphia/Time Warner/Comcast licensing agreement, and the AT&T/BellSouth merger. Applications for Consent
to the Assignment and/or Transfer of Control of Licenses, Adelphia Communications Corporation, (and
Subsidiaries, Debtors-In-Possession), Assignors, to Time Warner Cable Inc. (Subsidiaries), Assignees, Adelphia
Communications Corporation, (and Subsidiaries, Debtors-In-Possession), Assignors and Transferors, to Comcast
Corporation (Subsidiaries), Assignees and Transferees, Comcast Corporation, Transferor, to Time Warner Inc.,
Transferee, Time Warner Inc., Transferor, to Comcast Corporation, Transferee, MB Docket No. 05-192,
Memorandum Opinion and Order, 21 FCC Rcd 8203, 8299, para. 223 (2006); AT&T Inc. and BellSouth
Corporation Application for Transfer of Control, WC Docket No. 06-74, Memorandum Opinion and Order, 22 FCC
Rcd 5662, 5727-28, para. 119 (2007) (AT&T/BellSouth Merger Order).
69

These actions resulted in a 2005 consent decree by DSL service provider Madison River requiring it to
discontinue its practice of blocking Voice over Internet Protocol (VoIP) telephone calls, and a 2008 Order against
Comcast for interfering with peer-to-peer file sharing, which the Commission found “contravene[d] . . . federal
policy” by “significantly imped[ing] consumers’ ability to access the content and use the applications of their
choice.” Madison River Communications, File No. EB-05-IH-0110, Order, 20 FCC Rcd 4295 (Enforcement Bur.
2005) (Madison River Order); Formal Complaint of Free Press and Public Knowledge Against Comcast
Corporation for Secretly Degrading Peer-to-Peer Applications; Broadband Industry Practices; Petition of Free
Press et al. for Declaratory Ruling that Degrading an Internet Application Violates the FCC's Internet Policy
Statement and Does Not Meet an Exception for “Reasonable Network Management,” File No. EB-08-IH-1518, WC
Docket No. 07-52, Memorandum Opinion and Order, 23 FCC Rcd 13028, 13054, 13057, paras. 44, 49 (2008)
(Comcast Order).
70

Framework for Broadband Internet Service, GN Docket No. 10-127, Notice of Inquiry, 25 FCC Rcd 7866, 7867,
para. 2 (2010) (Broadband Framework NOI), citing Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010). The
D.C. Circuit held that the Commission could not rely solely on ancillary authority in taking enforcement action
against Comcast. Id. at 652. Further, the court held that another potential source of authority, section 706 of the
Telecommunications Act of 1996, likewise could not support the Commission’s action because the Commission was
bound in Comcast by a prior determination that section 706 did not constitute such a grant of authority. Id. at 65859.
71

Broadband Framework NOI, 25 FCC Rcd at 7867, para. 1.

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separate alternative legal frameworks for classifying and regulating broadband Internet service: (1) as an
information service, (2) as a telecommunications service “to which all the requirements of Title II of the
Communications Act would apply,” and (3) solely as to the “Internet connectivity service,” as a
telecommunications service with forbearance from most Title II obligations.72 The Notice of Inquiry
sought comment on both wired and wireless broadband Internet services, “as well as on other factual and
legal issues specific to . . . wireless services that bear on their appropriate classification.”73
67.
In December 2010, the Commission adopted the Open Internet Order,74 a codification of
the policy principles contained in the Internet Policy Statement. The Open Internet Order was based on
broadly accepted Internet norms and the Commission’s long regulatory experience in preserving open and
dynamic communications networks.75 The Order adopted three fundamental rules governing Internet
service providers: (1) no blocking; (2) no unreasonable discrimination; and (3) transparency.76 The noblocking rule and no-unreasonable discrimination rules prevented broadband service providers from
deliberately interfering with consumers’ access to lawful content, applications, and services, while the
transparency rule promoted informed consumer choice by requiring disclosure by service providers of
critical information relating to network management practices, performance, and terms of service.77
68.
The antidiscrimination rule contained in the Open Internet Order operated on a case-bycase basis, with the Commission evaluating the conduct of fixed broadband service providers based on a
number of factors, including conformity with industry best practices, harm to competing services or end
users, and impairment of free expression.78 This no unreasonable discrimination framework applied to
commercial agreements between fixed broadband service providers and third parties to prioritize
transmission of certain traffic to their subscribers.79 The Open Internet Order also specifically addressed
paid prioritization arrangements.80 It did not entirely rule out the possibility of such agreements, but made
clear that such “pay for priority” deals and the associated “paid prioritization” network practices were
likely to be problematic in a number of respects. Paid prioritization “represented a significant departure
from historical and current practice” that threatened “great harm to innovation” online, particularly in
connection with the market for new services by edge providers.81 Paid priority agreements were also
viewed as a threat to non-commercial end users, “including individual bloggers, libraries, schools,
advocacy organizations, and other speakers” who would be less able to pay for priority service.82 Finally,
paid prioritization was seen giving fixed broadband providers “an incentive to limit the quality of service
provided to non-prioritized traffic.”83 As a result of these concerns, the Commission explicitly stated in
the Open Internet Order that it was “unlikely that pay for priority would satisfy the ‘no unreasonable
discrimination’ standard.”84
72

Id. at 7867, para. 2.

73

Id.

74

2010 Open Internet Order, 25 FCC Rcd 17905.

75

Id. at 17906, para. 1; 2014 Open Internet NPRM, 29 FCC Rcd at 5568, para. 21.

76

2010 Open Internet Order, 25 FCC Rcd at 17906, para. 1.

77

Id.

78

Id. at 17946, paras. 74-75.

79

Id. at 17947, para. 76.

80

See infra Section III.C.1.c.

81

Id.

82

Id.

83

Id.

84

Id.

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69.
In order to maintain flexibility, the Commission tailored the rules contained in the Open
Internet Order to fit the technical and economic realities of the broadband ecosystem. To this end, the
restrictions on blocking and discrimination were made subject to an exception for “reasonable network
management,” allowing service providers the freedom to address legitimate needs such as avoiding
network congestion and combating harmful or illegal content.85 Additionally, in order to account for
then-perceived differences between the fixed and mobile broadband markets, the Open Internet Order
exempted mobile service providers from the anti-discrimination rule, and only barred mobile providers
from blocking “consumers from accessing lawful websites” or “applications that compete with the
provider’s voice or video telephony services.”86 Lastly, the Open Internet Order made clear that the rules
did not prohibit broadband providers from offering specialized services such as VoIP; instead, the
Commission announced that it would continue to monitor such arrangements to ensure that they did not
pose a threat to Internet openness.87
70.
Verizon subsequently challenged the Open Internet Order in the U.S. Court of Appeals
for the D.C. Circuit, arguing, among other things, that the Open Internet Order exceeded the
Commission’s regulatory authority and violated the Act.88 In January 2014, the D.C. Circuit upheld the
Commission’s determination that section 706 of the Telecommunications Act of 1996 granted the
Commission authority to regulate broadband Internet service providers,89 and that the Commission had
demonstrated a sound policy justification for the Open Internet Order. Specifically, the court sustained
the Commission’s findings that “absent rules such as those set forth in the Open Internet Order,
broadband providers represent a threat to Internet openness and could act in ways that would ultimately
inhibit the speed and extent of future broadband deployment.”90
71.
Despite upholding the Commission’s authority and the basic rationale supporting the
Open Internet Order, the court struck down the no-blocking and antidiscrimination rules as at odds with
section 3(51) of the Communications Act, holding that it prohibits the Commission from exercising its
section 706 authority to impose common carrier regulation on a service not classified as a
“telecommunications service,” and section 332(c)(2), which prohibits common carrier treatment of
“private mobile services.”91 The D.C. Circuit vacated the no-blocking and antidiscrimination rules
because it found that they impermissibly regulated fixed broadband providers as common carriers,92
which conflicted with the Commission’s prior classification of fixed broadband Internet access service as
an “information service” rather than a telecommunications service.93 Likewise, the court found that the
85

47 C.F.R. § 8.5.

86

Id.

87

2010 Open Internet Order, 25 FCC Rcd at 17928, para. 30, 17966, para. 114.

88

Verizon, 740 F.3d 623.

89

Id. at 635-42.

90

Id. at 645.

91

Id. at 656-59. Common carriage, which applies to certain entities like telephone service providers, imposes
restrictions on the degree to which a service provider can enter into individualized agreements with similarlysituated customers. Id. at 651-52.
92

Verizon, 740 F.3d at 655-58 (vacating the Commission’s rule prohibiting “unreasonable discrimination” by fixed
broadband providers on the theory that it “so limited broadband providers’ control over edge providers’
transmissions that [it] constitute[d] common carriage per se” and finding that the no-blocking rules “would appear
on their face” to impose common carrier obligations on fixed and mobile broadband providers); see also 2014 Open
Internet NPRM, 29 FCC Rcd at 5600-01, para. 114.
93

Verizon, 740 F.3d at 650; see also United Power Line Council’s Petition for Declaratory Ruling Regarding the
Classification of Broadband over Power Line Internet Access Service as an Information Service, WC Docket No.
06-10, Memorandum Opinion and Order, 21 FCC Rcd 13281 (2006) (BPL-Enabled Broadband Order); Appropriate
Framework for Broadband Access to the Internet over Wireline Facilities; Universal Service Obligations of
(continued….)

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no-blocking rule as applied to mobile broadband conflicted with the Commission’s earlier classification
of mobile broadband service as a private mobile service rather than a “commercial mobile service.”94 The
Verizon court held that the “no unreasonable discrimination” standard adopted in the Open Internet Order
was insufficiently distinguishable from the “nondiscrimination” standard applicable to common carriers.95
Central to the court’s rationale was its finding that, as formulated in the Open Internet Order, both rules
improperly limited fixed broadband Internet access providers’ ability to engage in “individualized
bargaining.”96
72.
Following the D.C. Circuit’s ruling, on May 15, 2014 the Commission issued a Notice of
Proposed Rulemaking (2014 Open Internet NPRM) to respond to the lack of conduct-based rules to
protect and promote an open Internet following the D.C. Circuit’s opinion in Verizon v. FCC.97 The
Commission began the NPRM with a fundamental question: “What is the right public policy to ensure
that the Internet remains open?”98 While the NPRM put forth various proposals, it sought broad comment
on alternative paths to the right public policy solution—including areas such as the proper scope of the
rules; the best ways to define, prevent, and treat violations of practices that may threaten an open Internet
(including paid prioritization); enhancements to the transparency rule; and the appropriate source of legal
authority to support new open Internet rules.99
73.
The Commission took many steps to facilitate public engagement in response to the 2014
Open Internet NPRM—including the establishment of a dedicated email address to receive comments, a
mechanism for submitting large numbers of comments in bulk via a Comma Separated Values (CSV) file,
(Continued from previous page)
Broadband Providers; Review of Regulatory Requirements for Incumbent LEC Broadband Telecommunications
Services; Computer III Further Remand Proceedings: Bell Operating Company Provision of Enhanced Services;
1998 Biennial Regulatory Review – Review of Computer III and ONA Safeguards and Requirements; Conditional
Petition of the Verizon Telephone Companies for Forbearance Under 47 U.S.C. § 160(c) with Regard to Broadband
Services Provided via Fiber to the Premises; Petition of the Verizon Telephone Companies for Declaratory Ruling
or, Alternatively, for Interim Waiver with Regard to Broadband Services Provided via Fiber to the Premises;
Consumer Protection in the Broadband Era, WC Docket Nos. 04-242, 05-271, Report and Order and Notice of
Proposed Rulemaking, 20 FCC Rcd 14853, 14855, para. 1 (2005) (Wireline Broadband Classification Order);
Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities; Internet Over Cable
Declaratory Ruling; Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities,
GN Docket No. 00-785, CS Docket No. 02-52, Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCC
Rcd 4798, 4801, para. 4 (2002) (Cable Modem Declaratory Ruling), aff’d, Nat’l Cable & Telecomms. Ass’n v.
Brand X Internet Servs., 545 U.S. 967 (2005).
94

Verizon, 740 F.3d at 650; Appropriate Regulatory Treatment for Broadband Access to the Internet Over Wireless
Networks, WT Docket No. 07-53, Declaratory Ruling, 22 FCC Rcd 5901 (2007) (Wireless Broadband Classification
Order).
95

Verizon, 740 F.3d at 656.

96

In making its determination, the Verizon court relied on a previous decision in which it upheld the Commission’s
data roaming requirements against a common carrier challenge. Cellco P'ship v. FCC, 700 F.3d 534 (D.C. Cir.
2012). The Verizon court emphasized that, unlike the data roaming rules at issue in Cellco, which explicitly left
room for individualized negotiations, the Open Internet Order did not attempt to “ensure that [the] reasonableness
standard remains flexible.” Cellco, 700 F.3d at 548; Verizon, 740 F.3d at 657.
97

See generally 2014 Open Internet NPRM, 29 FCC Rcd 5561.

98

Id. at 5563, para. 2.

99

Id. at 5563, para 4. The Commission proposed to “retain the definitions and scope of the 2010 rules,” adopting
the text of the 2010 no-blocking rule under a revised rationale, and enhancing the transparency rule that remained in
place after Verizon. Id. at 5564-65, para. 10. The 2014 Open Internet NPRM also proposed to add a separate layer
of protection against anti-competitive conduct by service providers that would otherwise be permissible under the
no-blocking rule. This new rule would require that service providers “adhere to an enforceable legal standard of
commercially reasonable practices” in the provision of broadband Internet access service. Id.

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and the release of the entire record of comments and reply comments as Open Data in a machine-readable
format, so that researchers, journalists, and other parties could analyze and create visualizations of the
record.100 In addition, Commission staff hosted a series of roundtables covering a variety of topics related
to the open Internet proceeding, including events focused on different policy approaches to protecting the
open Internet,101 mobile broadband,102 enforcement issues,103 technology,104 broadband economics,105 and
the legal issues surrounding the Commission’s proposals.106
74.
The public seized on these opportunities to comment, submitting an unprecedented 3.7
million comments by the close of the reply comment period on September 15, 2014, with more
submissions arriving after that date.107 This record-setting level of public engagement reflects the vital
nature of Internet openness and the importance of our getting the answer right in this proceeding.
Quantitative analysis of the comment pool reveals a number of key insights. For example, by some
estimates, nearly half of all comments received by the Commission were unique.108 While there has been
some public dispute as to the percentage of comments taking one position or another, it is clear that the

100

Dr. David A. Bray, FCC Chief Information Officer, Official FCC Blog, An Update on the Volume of Open
Internet Comments Submitted to the FCC (Sept. 17, 2014), http://www.fcc.gov/blog/update-volume-open-internetcomments-submitted-fcc; Dr. David A. Bray, FCC Chief Information Officer, Official FCC Blog, An Additional
Option for Filing Open Internet Comments (Sept. 11, 2014), http://www.fcc.gov/blog/additional-option-filing-openinternet-comments; Gigi B. Sohn, Special Counsel for External Affairs, Office of the Chairman, Official FCC Blog,
FCC Makes Open Internet Comments More Accessible to Public (August 5, 2014), http://www.fcc.gov/blog/fccmakes-open-internet-comments-more-accessible-public.
101

Open Internet Roundtable, Policy Approaches to Ensure an Open Internet, Sept. 16, 2014 (recording available at
http://www.fcc.gov/events/open-internet-roundtable-policy-approaches).
102

Open Internet Roundtable, Mobile Broadband and the Open Internet, Sept. 16, 2014 (recording available at
http://www.fcc.gov/events/open-internet-roundtable-mobile-broadband).
103

Open Internet Roundtable, Effective Enforcement of Open Internet Requirements, Sept. 19, 2014 (recording
available at http://www.fcc.gov/events/open-internet-roundtable-technological-aspects).
104

Open Internet Roundtable, Technological Aspects of an Open Internet, Sept. 19, 2014 (recording available at
http://www.fcc.gov/events/open-internet-roundtable-technological-aspects).
105

Open Internet Roundtable, Economics of Broadband: Market Successes and Market Failures, Oct.2, 2014
(recording available at http://www.fcc.gov/events/open-internet-roundtable-economics).
106

Open Internet Roundtable, Internet Openness and the Law, Oct. 7, 2014 (recording available at
http://www.fcc.gov/events/open-internet-roundtable-law).
107

Gigi B. Sohn, Special Counsel for External Affairs, Office of the Chairman, Official FCC Blog, FCC Releases
Open Internet Reply Comments to the Public (Oct. 22, 2014, updated Dec. 23, 2014), http://www.fcc.gov/blog/fccreleases-open-internet-reply-comments-public. In order to accommodate this unprecedented level of public
involvement, both the comment and reply comment periods were extended via public notice. See Wireline
Competition Bureau Will Treat as Timely Filed Any Comments Filed in Response to the Open Internet Notice of
Proposed Rulemaking and the Framework for Broadband Internet Access Service Refreshing the Record Public
Notice if Filed by July 18, 2014, GN Docket Nos. 10-127, 14-28, Public Notice, 29 FCC Rcd 8335 (Wireline Comp.
Bur. 2014); Wireline Competition Bureau Extends Deadline for Filing Reply Comments in the Open Internet and
Framework for Broadband Internet Service Proceedings, GN Docket Nos. 14-28, 10-127, Public Notice, 29 FCC
Rcd 9714 (Wireline Comp. Bur. 2014).
108

Knight Foundation, Decoding the Net Neutrality Debate at 14 (2014),
http://www.knightfoundation.org/features/netneutrality/ (Knight Foundation, Decoding the Net Neutrality Debate);
see also Bob Lannon & Andrew Pendleton, What Can We Learn From 800,000 Public Comments on the FCC's Net
Neutrality Plan? (Sept. 2, 2014), http://sunlightfoundation.com/blog/2014/09/02/what-can-we-learn-from-800000public-comments-on-the-fccs-net-neutrality-plan/.

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majority of comments support Commission action to protect the open Internet.109 Comments regarding
the continuing need for open Internet rules, their legal basis, and their substance formed the core of the
overall body of comments. In particular, support for the reclassification of broadband Internet access
under Title II, opposition to fast lanes and paid prioritization, and unease regarding the market power of
broadband Internet access service providers were themes frequently addressed by commenters.110 In
offering this summary, we do not mean to overlook the diversity of views reflected in the impressively
large record in this proceeding. Most of all, we are grateful to the public for using the power of the open
Internet to guide us in determining how best to protect it.
B.

The Continuing Need for Open Internet Protections

75.
In its remand of the Commission’s Open Internet Order, the D.C. Circuit affirmed the
underlying basis for the Commission’s open Internet rules, holding that “the Commission [had] more than
adequately supported and explained its conclusion that edge provider innovation leads to the expansion
and improvement of broadband infrastructure.”111 The court also found “reasonable and grounded in
substantial evidence” the Commission’s finding that Internet openness fosters the edge provider
innovation that drives the virtuous cycle.112 The record on remand continues to convince us that
broadband providers—including mobile broadband providers—have the incentives and ability to engage
in practices that pose a threat to Internet openness, and as such, rules to protect the open nature of the
Internet remain necessary. Today we take steps to ensure that the substantial benefits of Internet
openness continue to be realized.
1.

An Open Internet Promotes Innovation, Competition, Free Expression, and
Infrastructure Deployment

76.
In the 2014 Open Internet NPRM, we sought comment on and expressed our continued
commitment to an important principle underlying the Commission’s prior policies—that the Internet’s
openness promotes innovation, investment, competition, free expression, and other national broadband
goals.113 The record before us convinces us that these findings, made by the Commission in 2010 and
upheld by the D.C. Circuit, remain valid. If anything, the remarkable increases in investment and
innovation seen in recent years—while the rules were in place—bear out the Commission’s view.114 For
109

An initial analysis of 800,000 comments performed by the Sunlight Foundation estimated that “less than 1
percent of comments were clearly opposed to net neutrality.” Bob Lannon & Andrew Pendleton, What Can We
Learn From 800,000 Public Comments on the FCC's Net Neutrality Plan? (Sept. 2, 2014),
http://sunlightfoundation.com/blog/2014/09/02/what-can-we-learn-from-800000-public-comments-on-the-fccs-netneutrality-plan/. A subsequent study of reply comments found that “[n]on-form-letter submissions had a similar
sentiment distribution as comments in the first round, at less than 1% opposed to net neutrality.” Andrew Pendleton
& Bob Lannon, One Group Dominates the Second Round of Net Neutrality Comments (Dec. 16, 2014),
http://sunlightfoundation.com/blog/2014/12/16/one-group-dominates-the-second-round-of-net-neutralitycomments/.
110

Knight Foundation, Decoding the Net Neutrality Debate at 15.

111

Verizon, 740 F.3d at 644.

112

Id.

113

2014 Open Internet NPRM, 29 FCC Rcd at 5570, para. 25.

114

See, e.g., AARP Comments at 9 (explaining that pro-innovation and pro-competition regulatory certainty is
needed to protect the exponential economic growth and economic benefits enabled by the Internet); Bright House
Networks (Bright House) Comments at 1-2 (discussing the positive trend in investment and enhancement of Internet
access services and competitive choices that took place under the prior open Internet rules); Communications
Workers of America & National Association for the Advancement of Colored People (CWA & NAACP) Comments
at 4 (“The ‘virtuous circle’. . . has led to nearly $230 billion in capital expenditures by the leading network and edge
providers over the three-year period since the Open Internet Order took effect (2011 to 2013). Network providers
were responsible for a full 84 percent of these capital expenditures, or $193 billion.”); Internet Innovation Alliance
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example, in addition to broadband infrastructure investment,115 there has been substantial growth in the
digital app economy, video over broadband, and VoIP, as well as a rise in mobile e-commerce.116 Overall
Internet adoption has also increased since 2010.117 Both within the network and at its edges, investment
and innovation have flourished while the open Internet rules were in force.
(Continued from previous page)
Reply at 7 (explaining that private capital investment in broadband networks has also grown under the open Internet
rules); Online Publishers Association Comments at 3-4 (“For content innovation to continue flourishing online . . .
the Commission should, consistent with the 2010 Open Internet Order, adopt open Internet principles that continue
to encourage investment and innovation in content creation. . . .”).
115

In the 2015 Broadband Progress Report, the Commission explained that “[b]roadband networks continue to
grow due to significant investments by private industry. Some reports indicate that broadband providers invest tens
of billions of dollars each year to further extend the reach of their networks, with providers spending a total $1.3
trillion since 1996 and $75 billion in 2013 alone.” 2015 Broadband Progress Report at para. 139. Additionally, the
Commission noted that “[f]rom December 2011 to December 2013, Americans without access to a fixed 25 Mbps/3
Mbps broadband service or higher declined approximately 11 percentage points for the United States as a whole,
declined 12 percentage points in rural areas, and declined 11 percentage points in urban areas.” Id. at para. 84. See
also, e.g., AT&T Comments at 9 (“U.S. investment in broadband networks shows no signs of slowing: USTelecom
reports that broadband capital expenditures rose from $64 billion in 2009 to $68 billion in 2012. AT&T has
[devoted] more than $20 billion annually to capital investment.”); CenturyLink Comments at 4-5 (stating that
“AT&T, Verizon, and CenturyLink, alone, report annual capital investment (of which the vast majority is for
broadband network build-out) over the last three years in the approximate average amounts of $20 billion, $16
billion, and $3 billion, respectively. On the cable side, Comcast, Time Warner and Charter report annual broadband
network investment of approximate average amounts of $5 billion, $3 billion, and $2 billion, respectively, over this
same time period . . . . Moreover, a University of Pennsylvania report shows that per capita network investment in
the United States is more than twice that of Europe.”); NCTA Comments at 7-8 (“Broadband providers in the U.S.
have invested an astounding $1.2 trillion in private capital since 1996 to develop and deploy advanced broadband
networks. Over the past two decades, the broadband industry has invested an average of $70 billion a year in our
nation’s wired and wireless broadband networks. And this investment is only accelerating; in fact, since 2012,
broadband providers in the United States have laid more high-speed fiber cables than in any similar period since
2000.”); Public Knowledge Comments at 25 (“[I]n June 2013, the number of [wireless] connections with
downstream speeds of at least 10 Mbps increased by 118% over June 2012, to 103 million connections, including 45
million mobile connections. The most recent FCC data on Internet access service shows that the number of mobile
Internet subscription connections with speeds over 200 kbps in at least one direction increased by 18% year over
year to 181 million.”).
116

See, e.g., Internet Innovation Alliance Reply at 7; Iridescent Networks Comments at 5 (explaining that “[t]he
spread of mobile broadband and the extensive usage on the mobile networks is increasing at incredibly accelerating
rates”); Massachusetts Department of Telecommunications and Cable (MDTC) Comments at 2 (noting that
according to the Census Bureau of the U.S. Department of Commerce, “there was an estimated $71.2 billion dollars
in retail e-commerce sales in the first quarter of 2014”); Roku Comments at iv, 3 & n.3 (stating that “Internet video
traffic [was] estimated at 66 percent of all traffic in 2013 and expected to rise to nearly 79 percent in just four years”
and that “the number of Americans that most often stream shows is up three percent since 2012, and that nearly a
quarter of Americans say that they watch more streaming television than they did a year ago”); Telecommunications
Industry Association (TIA) Comments at 8 (Regarding VoIP, “the number of residential VoIP subscribers through
cable [rose] 10.1 percent in 2013 to 25 million. The non-cable VoIP market more than doubled between 2009 and
2012. The overall residential VoIP market will increase from 35.9 million subscribers in 2013 to 46.8 million in
2017.”); Writers Guild of America, West (WGAW) Comments at 6 (“The number of online videos viewed each
month by Americans has increased from 7.2 billion in January of 2007 to 52.4 billion in December of 2013.
Meanwhile, the segment of Americans who watch or download videos has grown from 69% of adult internet users
in 2009 to 78% in 2013.”).
117

See, e.g., Internet Innovation Alliance Reply at 7 (“In January, the well-respected Pew Center noted that 87
percent of Americans now use the Internet, up 8 percent from 2010, marking another ‘explosive adoption’ of
Internet usage.”) (citing Susannah Fox and Lee Rainie, The Web at 25 in the U.S. 4, Pew Research Internet Project
(2014)); see also 2015 Broadband Progress Report at para. 92 (explaining that from December 31, 2011 to
December 31, 2013 “[a]doption grew 23 percentage points for fixed 25 Mbps/3 Mbps broadband service or higher
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77.
The record before us also overwhelmingly supports the proposition that the Internet’s
openness is critical to its ability to serve as a platform for speech and civic engagement,118 and that it can
help close the digital divide by facilitating the development of diverse content, applications, and
services.119 The record also supports the proposition that the Internet’s openness continues to enable a
“virtuous [cycle] of innovation in which new uses of the network—including new content, applications,
services, and devices—lead to increased end-user demand for broadband, which drives network
improvements, which in turn lead to further innovative network uses.”120 End users experienced the
benefits of Internet openness that stemmed from the Commission’s 2010 open Internet rules—increased
consumer choice, freedom of expression, and innovation.121
(Continued from previous page)
(7 percent to 30 percent), 20 percentage points for fixed 3 Mbps/768 kbps service or higher (45 percent to 65
percent) and 6 percentage points for fixed 768 kbps/200 kbps service or higher (68 percent to 74 percent)”).
118

See, e.g., Asian Americans Advancing Justice (AAJC ) Comments at 1-2 (explaining that a free and open Internet
is critical for a variety of reasons including: “level[ing] the playing field for free speech, including for small and
marginalized communities [and] empower[ing] our community to organize politically and promote civic
engagement”); American Civil Liberties Union (ACLU) Comments at 2 (arguing that “[t]he equitable provision of
high quality access to a free and open Internet, and especially the closing of the digital divide, represents one of the
most important free speech challenges of the information age. As information technology advances apace, the
meaningful exercise of our constitutional rights – including the freedoms of speech, assembly, press and the right to
petition government – has become literally dependent on broadband internet access”); Open Media and Information
Companies Initiative (Open MIC) Comments at 3 (noting that “Open Internet principles also promote free speech,
civic participation, democratic engagement and marketplace competition, as well as robust broadband adoption and
participation in the Internet community by minorities and other socially and economically disadvantaged groups”).
119

See, e.g., AOL Comments at 2 (explaining that “[t]he Internet’s openness has fostered innovation and
investment—both in advancements in network deployment and the services that ride upon them—creating . . . a
virtuous circle, where richer and more diverse content on the ‘edge’ jump-starts demand, which brings about
infrastructure investment, which brings about even richer and more diverse content”); CWA and NAACP Comments
at 1 (“Preserving an open and free Internet consistent with the need to promote job-creating investment and closing
the digital divide in our nation’s high speed networks is critical to safeguard our nation’s economic, social, and
democratic fabric and future.”); European Digital Rights Comments at 2 (warning that “[a]n end to net neutrality in
the USA will come at severe costs to innovation and competition, privacy and freedom of communication”); Online
Publishers Association Comments at 3-4 (“For content innovation to continue flourishing online . . . and for
broadband to serve more social objective[s], the Commission should adopt open Internet principles that continue to
encourage investment and innovation in content creation, and ensure that the Internet is an open platform that
supports consumer choice and the open exchange of ideas and information.”).
120

See 2010 Open Internet Order, 25 FCC Rcd at 17910-11, para. 14. See also, e.g., Common Cause Comments at
2 (noting that “[i]ncreased broadband adoption and new service offerings demonstrate that Open Internet protections
foster the ‘virtuous circle’ of innovation, generating both consumption and new discourse, driving additional
investment and yet more creative applications”); Comcast Comments at 2 (explaining that substantial benefits such
as economic growth, innovation, competition, free expression, and broadband investment and deployment are
“closely tied to the Internet’s openness, which enables a ‘virtuous circle’ of innovation”); Higher Education and
Libraries Comments at 5 (explaining that Internet openness is an essential driver of the “virtuous circle,” and “[t]he
unimpeded flow of knowledge, information, and interaction across the Internet enables the circle of innovation, user
demand, and subsequent broadband expansion that have generated the dramatic social, cultural, and economic
benefits acknowledged by the Commission, the courts, and the nation as a whole”); Online Publishers Association
Comments at 1 (“An open Internet enables innovators to create and offer new content, applications and services, and
it allows development and distribution of new technologies by a broad range of sources, including broadband
providers that operate the network.”); WTA – Advocates for Rural Broadband (WTA) Comments at 1 (arguing that
“Internet openness will be promoted and enhanced as service providers are encouraged and enabled to invest in the
deployment of higher and higher broadband capacities that enable their customers to obtain faster and more
affordable access to new content, applications and services”).
121

2014 Open Internet NPRM, 29 FCC Rcd at 5570, para. 25; see also, e.g., ACLU Comments at 2 (“The equitable
provision of high quality access to a free and open internet, and especially the closing of the digital divide,
(continued….)

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Broadband Providers Have the Incentive and Ability to Limit Openness

78.
Broadband providers function as gatekeepers for both their end user customers who
access the Internet, and for various transit providers, CDNs, and edge providers attempting to reach the
broadband provider’s end-user subscribers.122 As discussed in more detail below, broadband providers
(including mobile broadband providers) have the economic incentives and technical ability to engage in
practices that pose a threat to Internet openness by harming other network providers, edge providers, and
end users.
a.

Economic Incentives and Ability

79.
In the 2014 Open Internet NPRM, we sought to update the record with information about
new and continuing incentives for broadband providers to limit Internet openness. As explained in detail
in the Open Internet Order, broadband providers not only have the incentive and ability to limit openness,
but they had done so in the past.123 The D.C. Circuit found that the Commission “adequately supported
and explained” that, absent open Internet rules, “broadband providers represent a threat to Internet
openness and could act in ways that would ultimately inhibit the speed and extent of future broadband
deployment.”124 The record generated in this proceeding convinces us that the Commission’s conclusion
in the Open Internet Order—that providers of broadband have a variety of strong incentives to limit
Internet openness—remains valid today.
(Continued from previous page)
represents one of the most important free speech challenges of the information age. As information technology
advances apace, the meaningful exercise of our constitutional rights- including the freedoms of speech, assembly,
press and the right to petition government – has become literally dependent on broadband internet access.”); Al
Franken, Edward J. Markey, Bernie Sanders, Ben Cardin, Sheldon Whitehouse, Cory Booker, Kirsten Gillibrand,
Charles E. Schumer, Richard Blumenthal, Elizabeth Warren, and Ron Wyden (US Senators) Comments at 1 (“An
open Internet has become the world’s most successful platform for innovation, job-creation and entrepreneurialism.
An open Internet enables freedom of expression and the sharing of ideas around the world. An open Internet is
driving economic growth throughout the United States.”); Comcast Comments at 2 (explaining that substantial
benefits such as economic growth, innovation, competition, free expression, and broadband investment and
deployment are “closely tied to the Internet’s openness, which enables a ‘virtuous circle’ of innovation”); Electronic
Frontier Foundation (EFF) Comments at 1 (“An open, neutral, and fast Internet has helped spark an explosion of
free expression, innovation, and political change.”).
122

See, e.g., COMPTEL Comments at 2-3 (explaining that broadband providers serve as gatekeepers to transit
providers and CDNs that deliver content to the broadband providers’ end users); Open Technology Institute at the
New America Foundation and Benton Foundation (OTI) Comments at 11 (“[V]ertical integration, which provides
greater incentive to block competitors, and . . . increasing horizontal consolidation, . . . increases the power of large
ISPs and their resulting leverage as gatekeepers.”); Smithwick & Belendiuk Comments at 2 (“A handful of
gatekeepers, the Internet Service Providers (‘ISPs’), control access to broadband customers.”); Vonage Comments at
16 (stating that “concentration in the broadband market exacerbates broadband providers’ ability to act as
gatekeepers and their natural incentive to favor their own services over competitive edge services”).
123

See 2010 Open Internet Order, 25 FCC Rcd at 17915-26, paras. 20-37. As the Commission explained in the
Open Internet Order, examples such as the Madison River case, the Comcast-Bit Torrent case, and various mobile
wireless Internet providers restricting customers’ use of competitive payment applications, competitive voice
applications, and remote video applications, indicate that broadband providers have the technical ability to act on
incentives to harm the open Internet. Id. at 17925, para. 35 & n.107. The D.C. Circuit also found that these
examples buttressed the Commission’s conclusion that broadband providers’ incentives and ability to restrict
Internet traffic could interfere with the Internet’s openness. Verizon, 740 F.3d at 648-49. See also, e.g., EFF
Comments at 23 (noting that AT&T blocked Apple’s FaceTime iPhone and iPad applications over AT&T’s mobile
data network in 2012); WGAW Comments at 14 (describing the situation where Comcast exempted its own online
video service from data caps when streamed to an Xbox). It is not surprising that, during a decade in which the
Commission vowed to keep the Internet open, that Commission policy served as a deterrent to additional bad acts.
124

Verizon, 740 F.3d at 645.

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80.
Broadband providers’ networks serve as platforms for Internet ecosystem participants to
communicate, enabling broadband providers to impose barriers to end-user access to the Internet on one
hand, and to edge provider access to broadband subscribers on the other. This applies to both fixed and
mobile broadband providers. Although there is some disagreement among commenters, the record
provides substantial evidence that broadband providers have significant bargaining power in negotiations
with edge providers and intermediaries that depend on access to their networks because of their ability to
control the flow of traffic into and on their networks.125 Another way to describe this significant
bargaining power is in terms of a broadband provider’s position as gatekeeper—that is, regardless of the
competition in the local market for broadband Internet access, once a consumer chooses a broadband
provider, that provider has a monopoly on access to the subscriber.126 Many parties demonstrated that
both mobile and fixed broadband providers are in a position to function as a gatekeeper with respect to
edge providers.127 Once the broadband provider is the sole provider of access to an end user, this can
influence that network’s interactions with edge providers, end users, and others. As the Commission and
the court have recognized, broadband providers are in a position to act as a “gatekeeper” between end
users’ access to edge providers’ applications, services, and devices and reciprocally for edge providers’
access to end users. Broadband providers can exploit this role by acting in ways that may harm the open
Internet, such as preferring their own or affiliated content, demanding fees from edge providers, or
placing technical barriers to reaching end users.128 Without multiple, substitutable paths to the consumer,
125

See, e.g., Internet Association Comments at 13 (“Broadband Internet access providers have long had the ability to
engineer choke points into their networks in order to slow traffic from certain sources. Advances in network
technologies, however, have provided them with an unprecedented ability to discriminate among sources and types
of Internet traffic in real time and with little cost.”); Roku Comments at 14 (explaining that market power of
broadband providers allows them to favor certain content with faster delivery or higher performance); AARP
Comments at 47 (“The market power possessed by broadband providers in retail markets for broadband Internet
access also translates into market power with regard to edge providers who need to reach their subscribers/users.”);
Consumer Federation of America (CFA) Comments at 3 (“Competition is much weaker in the network segment of
the digital platform than in the edge segments, which means network owners face less pressure to innovate; have the
ability to influence industrial structure to favor their interests at the expense of the public interest; can use vertical
leverage (where they are integrated) to gain competitive advantage over independent edge entrepreneurs; and have
the ability to extract rents, where they possess market power or where switching costs are high.”). We are not
persuaded by arguments to the contrary, as explained infra. But see AT&T Comments at 18 (“[T]he Commission
appears to misunderstand the technical capabilities of broadband Internet access providers. In particular, the
Commission’s assumption that providers have the ability to engage in end-to-end prioritization of Internet traffic is
incorrect in the vast majority of cases.”); CenturyLink Comments at 11 (“[B]roadband providers are not able to
sustain broadband price increases above competitive levels. If they did so, customers would simply choose another
option.”).
126

See, e.g., 2014 Open Internet NPRM, 29 FCC Rcd at 5576, para. 42 (citing the 2010 Open Internet Order, 25
FCC Rcd at 17924-25, para. 34); Ad Hoc Telecommunications Users Committee (Ad Hoc) Comments at 7; Public
Knowledge Comments at 18-19 (arguing that mobile broadband is not a substitute for fixed broadband services, so
its increased adoption does not “change the essential points” about broadband providers’ position as gatekeepers).
127

See, e.g., Mozilla Comments at 25; COMPTEL Comments at 23; Free Press Comments at 44. But see Letter
from Kathleen Grillo, Senior Vice President, Verizon, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28,
Attach. at 18-23 (filed Jan. 15, 2015) (Verizon Jan.15, 2015 Ex Parte Letter) (arguing that the [gatekeeper] theory
does not apply to mobile broadband); Letter from Jonathan Banks, Senior Vice President, Law & Policy,
USTelecom, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 2-3 (filed Feb. 18, 2015) (USTelecom
Feb. 18, 2015 Ex Parte Letter) (arguing that the gatekeeper theory is inapplicable to broadband in general because
the Commission made its original arguments on this theory in the context of voice services subject to a calling party
network pays regime, and reliance on switching costs as a justification was irrelevant to those original findings).
128

See, e.g., Ad Hoc Comments at 8-9 (discussing the incentive of broadband providers to demand paid
prioritization fees); Bauer, Clark & Claffy Reply at 4 (“Access ISPs presumptively have market power as a
[gatekeeper], and can impose both technical and economic harms as part of a business negotiation, or favor their
own higher-level services.”); Microsoft Comments at 10 (explaining that broadband providers can use their power as
(continued….)

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and the ability to select the most cost-effective route, edge providers will be subject to the broadband
provider’s gatekeeper position.129 The D.C. Circuit noted that the Commission “convincingly detailed”
broadband providers’ market position, which gives them “the economic power to restrict edge-provider
traffic and charge for the services they furnish edge providers,” and further stated that the Commission
reasonably explained that “this ability to act as a ‘gatekeeper’ distinguishes broadband providers from
other participants in the Internet marketplace who have no similar ‘control [over] access to the Internet for
their subscribers and for anyone wishing to reach those subscribers.’”130 The ability of broadband
providers to exploit this gatekeeper role could be mitigated if consumers multi-homed (i.e., bought
broadband service from multiple networks). However, multi-homing is not widely practiced and imposes
significant additional costs on consumers.131 The gatekeeper role could also be mitigated if a consumer
(Continued from previous page)
gatekeepers “to pressure edge providers into entering such arrangements and demand increasingly higher rates and
greater concessions from edge providers over time”); Netflix Comments at 12 (stating that its dispute with Comcast
shows how a broadband provider can use its position as gatekeeper “to harm edge providers, its own customers, and
the virtuous circle by discriminating at interconnection and peering points”); Roku Comments at 8 (noting that
preferences for affiliated content pose imminent threats to consumer choice and competition); see also infra Section
III.C.1.c; para. 81 (discussing the relationship between switching costs and broadband providers’ gatekeeper
position).
129

See, e.g., Ad Hoc Comments at 13; Bauer, Clark & Claffy Comments at 4 (arguing that one way to limit
broadband providers’ gatekeeper power is “to require ISPs to provide adequate means for edge providers and off-net
users to reach their customers over interconnection and transit links”).
130

See Verizon,740 F.3d at 646 (quoting 2010 Open Internet Order, 25 FCC Rcd at 17919, 17935, paras. 24, 50).
We find, for example, that even though edge providers may possess bargaining power, they do not have the same
ability as broadband providers to control the flow of traffic or block access to the Internet. See, e.g., 2010 Open
Internet Order, 25 FCC Rcd at 17918, para. 24 & n.66 (explaining that a broadband provider can act as a gatekeeper
even if some edge providers would have bargaining power in negotiations with broadband providers over access or
prioritization fees). See also infra Section III.F.1-2. We note that Judge Silberman expressed concern over relying
on the terminating monopoly and gatekeeper concepts because terminating monopolies are not largely discussed
outside of Commission jurisprudence, and “[t]he gatekeeper effect is a tool that facilitates the exercise of market
power over sellers; it is not market power itself.” Verizon, 740 F.3d at 663 & n.7 (Silberman, J., concurring in part
and dissenting in part). However, our reliance on these terms for our determinations today focuses on how this
unique “gatekeeper” position of broadband providers in combination with other realities about broadband
availability and access affects broadband providers’ incentives and abilities to harm the open nature of the Internet.
As explained further below, the Commission’s discussion of these terms is especially important in combination with
switching costs and limited retail broadband competition for fixed broadband. With respect to mobile, the presence
of some additional retail competition is not enough to alter our conclusion here. See infra Section III.B.3.
131

See, e.g., Ad Hoc Comments at 12 (noting that “[a]t this point in time, there is no evidence to suggest that a
sizable number of consumers actually procure Internet access service from multiple ISPs simultaneously or that they
would be able to switch seamlessly from one ISP to another in order to receive content from a provider imposing
restrictions or burdensome charges on edge providers”); Level 3 Comments at 3 (“[T]he largest mass-market retail
ISPs stand in a uniquely favorable place in the Internet ecosystem: they control access to several million users who
cannot be reached through alternate routing. In Internet terms, these mass-market customers are ‘single-homed,’
meaning they draw service from a single ISP. This contrasts with enterprise users, who are frequently ‘multihomed,’ meaning that they can access the Internet through more than one ISP.”). But see Layton Reply at 20-21
(arguing that pre-paid mobile services may be purchased in exchange for, or in supplement to, a family broadband
plan, which is a form of multi-homing); Verizon Jan. 15, 2015 Ex Parte Letter Attach. at 29 (arguing that customers
multi-home when purchasing both mobile wireless and fixed service, allowing consumers to “substitute across those
providers”). However, many customers view fixed and mobile broadband services as distinct product offerings.
See supra para. 9; 2015 Broadband Progress Report at para. 120 (“We recognize that many households subscribe to
both fixed and mobile services because they use fixed and mobile services in fundamentally different ways and, as
such, view fixed and mobile services as distinct product offerings.”) and Public Knowledge Comments at 18-19
(arguing that mobile broadband is not a substitute for fixed broadband services, so its increased adoption does not
“change the essential points” about broadband providers’ position as gatekeepers).

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could easily switch broadband providers. But, as discussed further below, the evidence suggests
otherwise.
81.
The broadband provider’s position as gatekeeper is strengthened by the high switching
costs consumers face when seeking a new service. Among the costs that consumers may experience are:
high upfront device installation fees; long-term contracts and early termination fees; the activation fee
when changing service providers; and compatibility costs of owned equipment not working with the new
service.132 Bundled pricing can also play a role, as “single-product subscribers are four times more likely
to churn than triple-play subscribers.”133 These costs may limit consumers’ willingness and ability to
switch carriers, if such a choice is indeed available.134 Commenters also point to an information problem,
whereby consumers are unsure about the causes of problems or limitations with their services—for
example, whether a slow speed on an application is caused by the broadband provider or the edge
provider—and as such consumers may not feel that switching providers will resolve their Internet access
issues.135 Additionally, consumers on unlimited data plans may be confused by slowed data speeds
because broadband providers have not adequately communicated contractually-imposed data management
practices and usage thresholds.136 Switching costs are also a critical factor that negatively impacts mobile
broadband consumers, in particular due to the informational uncertainties mentioned below, among other
reasons.137 Ultimately, when consumers face this kind of friction in switching to meaningful competitive
132

See, e.g., Access Comments at 15; Consumers Union Comments at 14; People of the State of Illinois and People
of the State of New York (Illinois and New York) Comments at 11; Public Knowledge Comments at 17.
133

Applications of AT&T Inc. and DIRECTV for Consent to Assign or Transfer Control of Licenses and
Authorizations, MB Docket No. 14-90, Katz Decl. at 28, n.57 (filed June 11, 2014) (quoting AT&T internal report).
134

See, e.g., Consumers Union Comments at 14 (referring to a January 2014 Consumer Reports article that reported
that “high switching costs continue to serve as barriers to customers freely changing carriers”); see also, e.g., ACLU
Comments at 4 (explaining that although they present problems in both the mobile and fixed contexts,
“concentration and consumer lock-in are particularly acute in the fixed broadband market”); EFF Comments at 1
(warning that “switching costs and consumer lock-in further undermine the ability of marketplace forces to prevent
non-neutral practices”). In the 2015 Broadband Progress Report, the Commission noted that approximately 55
million Americans live in areas unserved by terrestrial-fixed broadband meeting the 25 Mbps/3 Mbps benchmark.
In addition, people living in rural and on Tribal lands are disproportionately lacking access to broadband at this
increased benchmark speed. Data show that 25 Mbps/3 Mbps is available to 92 percent of Americans living in
urban areas, 47 percent of Americans in rural areas, and 37 percent of Americans on Tribal lands. 2015 Broadband
Progress Report at 79. This data suggests that meaningful alternative broadband options may be largely unavailable
to many Americans, further limiting the ability to switch providers. Based on the submissions from various
commenters, it appears that between 65% and 70% of households have at most two options for high speed Internet
access. See, e.g., Common Cause Comments at 2; Access Comments at 14. When we look to the new standard
articulated in the 2015 Broadband Progress Report, the data suggest that only 12 percent of households have 3 or
more options for 25 Mbps/3 Mbps broadband service; 27 percent of households have two provider options for this
service; and 45 percent of households have only single provider option for these services. Approximately 16 percent
of households reside in areas without a single provider of fixed broadband services. See 2015 Broadband Progress
Report at 83.
135

See, e.g., Cogent Reply at 24-26 (advocating for enhanced disclosure requirements that would provide customers
with information such as performance data for speeds of popular edge-provider content); Utilities Telecom Council
Reply at 13 (explaining that “the unstructured and open nature of the Internet provides tremendous opportunities for
innovation and growth, yet it also prevents end users from fully understanding the current or potential limitations of
any particular service offering”).
136

See, e.g., COMPTEL Comments at 18 (explaining that some carriers offering unlimited data plans may need to
limit speeds of customers using more than 5GB of data per month); iClick2Media Comments at 2 (describing a
concern that an end user may pay “for one thing and is given something else that is suppose[d] to be comparable but
is not i.e. paying for an unlimited plan but throttling the End user[’s] speed down if they reach a certain point”).
137

See infra paras. 97-99.

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alternatives, it decreases broadband provider’ responsiveness to consumer demands and limits the
provider’s incentives to improve their networks.138 Additionally, 45 percent of households have only a
single provider option for 25 Mbps/3 Mbps broadband service, indicating that 45 percent of households
do not have any choices to switch to at this critical level of service.139
82.
Broadband providers may seek to gain economic advantages by favoring their own or
affiliated content over other third-party sources.140 Technological advances have given broadband
providers the ability to block content in real time, which allows them to act on their financial incentives to
do so in order to cut costs or prefer certain types of content.141 Data caps or allowances, which limit the
amount and type of content users access online, can have a role in providing consumers options and
differentiating services in the marketplace, but they also can negatively influence customer behavior and
the development of new applications.142 Similarly, broadband providers have incentives to charge for
prioritized access to end users or degrade the level of service provided to non-prioritized content. When
bandwidth is limited during peak hours, its scarcity can cause reliability and quality concerns, which
increases broadband providers’ ability to charge for prioritization.143 Such practices could result in socalled “tolls” for edge providers seeking to reach a broadband provider’s subscribers, leading to reduced
innovation at the edge, as well as increased rates for end users, reducing consumer demand, and further
disrupting the virtuous cycle.144 Commenters expressed considerable concern regarding the harmful
138

See, e.g., Consumers Union Comments at 13; see also, e.g., ACLU Comments at 5 (arguing that the “logical
corollary to this incentive and ability is the potential for broadband providers’ to engage in content-based regulation
of edge providers’ applications, services, devices or programming”).
139

2015 Broadband Progress Report at para. 83.

140

See, e.g., Internet Association Comments at 15; Consumers Union Comments at 3 (agreeing that “vertically
integrated providers can restrict access to affiliated content or block, degrade, or otherwise act contrary to open
Internet principles with respect to delivery of unaffiliated online video to their broadband subscribers”); Roku
Comments at 8 (noting that such preference for affiliated content poses imminent threats to consumer choice and
competition); Vermont Public Service Board and Vermont Public Service Department (Vermont) Reply at 5
(warning that paid prioritization arrangements, for example, can allow broadband providers to “to skew the playing
field in favor of their own preferred services, products, information, and partners”); OTI Comments at 28-29
(explaining that mobile carriers have demonstrated that they have the incentives and inclination to block or throttle
to favor their own services).
141

See, e.g., Internet Association Comments at 3.

142

See Public Knowledge Comments at 48; see also Consumers Union Reply at 2 (explaining that “even if providers
do not block content outright, providers can still utilize their market power to harm consumers in more subtle ways,
such as by lowering data caps or exempting their own services from such caps”); Roku Comments at 1-2
(“[T]hrottling is only the most transparent of a long list of discriminatory actions that an ISP with market power can
undertake. To promote and protect an open Internet, the FCC’s rules and policies must guard against a broader list of
discriminatory conduct that has the effect of restricting, degrading, or otherwise interfering with consumer access to
lawfully available content or services.”). For a more comprehensive discussion, see infra Section III.C.2.
143

See Fiber to the Home Council Americas (FTTH) Comments at 4.

144

See, e.g., Microsoft Comments at 10 (“Preferential transmission arrangements are particularly concerning
because broadband access providers can use their [gatekeeper position] to pressure edge providers into entering such
arrangements and demand increasingly higher rates and greater concessions from edge providers over time.”);
Access Comments at 8 (commenting that with regard to prioritization, broadband providers have incentives that
could lead to “invest[ing] in infrastructure to disproportionately improve the priority option, cease investment in
infrastructure that helps the network as a whole, create artificial scarcity, or even degrade the quality of the current
non-priority infrastructure to make prioritized options seem more attractive.”); EFF Comments at 1 (noting that
broadband providers “have economic incentives to leverage their ownership of the transmission infrastructure at the
expense of the open and neutral Internet”); Media Alliance Comments at 2 (agreeing that there are “short-term
incentives for network providers to block or disadvantage particular providers or classes of providers, charge for
prioritized access to end users, or degrade or decline the level of service provided to non-prioritized content”).

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effects of paid prioritization on Internet openness.145 Further, as discussed above, a broadband provider’s
incentive to favor affiliated content or the content of unaffiliated firms that pay for it to do so, to block or
degrade traffic, to charge edge providers for access to end users, and to disadvantage non-prioritized
transmission all increase when end users are less able to respond by switching to rival broadband
providers.
83.
In addition to the harms outlined above, broadband providers’ behavior has the potential
to cause a variety of other negative externalities that hurt the open nature of the Internet. Broadband
providers have incentives to engage in practices that will provide them short term gains but will not
adequately take into account the effects on the virtuous cycle. In the Open Internet Order, the
Commission found that the unaccounted-for harms to innovation are negative externalities, and are likely
to be particularly large because of the rapid pace of Internet innovation, and wide-ranging because of the
role of the Internet as a general purpose technology.146 Further, the Commission noted that a broadband
provider may hesitate to impose costs on its own subscribers, but it will typically not take into account the
effect that reduced edge provider investment and innovation has on the attractiveness of the Internet to
end users that rely on other broadband providers—and will therefore ignore a significant fraction of the
cost of forgone innovation.147 The record supports our view that these negative externality problems have
not disappeared, and in some cases, may be more prevalent.148 In order to mitigate these negative results,
the Commission needs to act to promote Internet openness.
84.
A final point on this question of economic incentives and ability is worth noting.
Broadband providers have the ability to act as gatekeepers even in the absence of “the sort of market
concentration that would enable them to impose substantial price increases on end users.” 149 We
therefore need not consider whether market concentration gives broadband providers the ability to raise
prices. The Commission came to this conclusion in the Open Internet Order, and we conclude the same
here. 150 As the Commission noted in the Open Internet Order, threats to Internet-enabled innovation,
growth, and competition do not depend on broadband providers having market power with respect to their
end users. In Verizon, the court agreed, explaining that “broadband providers’ ability to impose
restrictions on edge providers simply depends on end users not being fully responsive to the imposition of
such restrictions.”151 As we have concluded in this section, this remains true today.152
145

See infra Section III.C.1.c.

146

2010 Open Internet Order 25 FCC Rcd at 17919-20, para. 25.

147

Id. at 17920, para. 25, n.68.

148

See, e.g., Senator Ron Wyden Comments at 6 (“The risks identified by the Commission in 2010 have not gone
away; if anything, the Internet is even more important to social and economic interactions and the market conditions
are even more threatening.”); see also ACLU Comments at 7 (discussing the Commission’s explanation of negative
externalities in the Open Internet Order, and explaining that “[i]deally, competitive pressures would encourage
demand growth at all points in the broadband market. Unfortunately, given the oligopolistic nature of the local
broadband market, many providers can collect the overcharge represented by a paid prioritization or similar
agreement while not taking the hit from lowered demand flowing from poorer or more expensive internet service.”);
Mozilla Comments at 21 (arguing that “[p]aid prioritization has a distinct degrading effect on other access service
traffic, an effect that creates complex incentives for network operators. It also represents a visceral deviation from
the end-to-end, best efforts history of the Internet, meaning that as a practical matter, it’s impossible to understand
ex ante the full effects and potential negative externalities that could arise.”).
149

See Verizon, 740 F.3d at 648 (citing 2010 Open Internet Order, 25 FCC Rcd at 17923, para. 32).

150

See 2010 Open Internet Order, 25 FCC Rcd at 17923, para. 32, n.87.

151

Verizon, 740 F.3d at 648. We note further that, of course, our reclassification of broadband Internet access
service as a “telecommunications service” subject to Title II below likewise does not rely on such a test or any
measure of market power. Indeed, our reclassification decision is based on whether BIAS meets the statutory
definition of a “telecommunications service,” and not any additional economic circumstances.

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b.

FCC 15-24

Technical Ability

85.
As the Commission explained in the Open Internet Order, past instances of abuse
indicate that broadband providers have the technical ability to act on incentives to harm the open
Internet.153 Broadband providers have a variety of tools at their disposal that can be used to monitor and
regulate the flow of traffic over their networks—giving them the ability to discriminate should they
choose to do so. Techniques used by broadband providers to identify and select traffic may include
approaches based on packet payloads (using deep packet inspection), network or transport layer headers
(e.g., port numbers or priority markings), or heuristics (e.g., the size, sequencing, and/or timing of
packets).154 Using these techniques, broadband providers may apply network practices to traffic that has a
particular source or destination, that is generated by a particular application or by an application that
belongs to a particular class of applications, that uses a particular application- or transport-layer protocol,
or that is classified for special treatment by the user, application, or application provider.155 Applicationspecific network practices depend on the broadband provider’s ability to identify the traffic associated
with particular uses of the network. Some of these application-specific practices may be reasonable
network management, e.g., tailored network security practices. However, some of these techniques may
also be abused.156 Deep packet inspection, for example, may be used in a manner that may harm the open
Internet, e.g., to limit access to certain Internet applications, to engage in paid prioritization, and even to
block certain content.157 Similarly, traffic control algorithms can be abused, e.g., to give certain packets
favorable placement in queues or to send packets along less congested routes in a manner contrary to end
user preferences.158 Use of these techniques may ultimately affect the quality of service that users receive,
which could effectively force edge providers to enter into paid prioritization agreements to prevent poor
quality of content to end users.
(Continued from previous page)
152
We note, however, that in areas where there are limited competitive alternatives, this may exacerbate other
problems such as the ability to switch from one provider to another. See 2015 Broadband Progress Report at para.
83 (indicating that data show that only 12 percent of households have 3 or more options for 25 Mbps/3 Mbps
broadband service; 27 percent of households have two provider options for this service; and 45 percent of
households have only a single provider option for these services).
153

See supra Section III.B.2.a.

154

See Broadband Internet Technical Advisory Group, Real-Time Network Management of Internet Congestion at
19 (2013), http://www.bitag.org/documents/BITAG_-_Congestion_Management_Report.pdf (BITAG Congestion
Report) (discussing which traffic is subject to congestion management).
155

Id. at 19 (discussing application-based congestion management).

156

See Jon Peha Comments at 3; NetAccess Futures Comments at 13-14 (noting that these mechanisms are
“indispensable for network function or reasonable network management, [but all] of these mechanisms can also be
abused, to the detriment of Open Internet principles”).
157

See Internet Association Comments at 14; see also Tumblr Reply at 6-7 (warning that “[w]hether broadband
providers engage in blocking, discrimination, or access fees through deep packet inspection, or engage in
functionally equivalent practices through underinvestment at points of interconnection, consumers and edge
providers will still be harmed, and innovation and free expression will still be stifled”). But see NCTA Comments at
15 (claiming that “[e]ven if broadband providers had an incentive to degrade their customers’ online experience in
some circumstances, they have no practical ability to act on such an incentive”).
158

See NetAccess Futures Comments at 16; Jon Peha Comments at 3 (filed July 15, 2014) (explaining that
“[m]ethods to discriminate among traffic classes once traffic has been categorized include separation of traffic into
separate real or virtual channels, and use of traffic control algorithms for functions such as packet scheduling,
packet dropping, or routing that discriminate”) (emphasis in original); OTI Comments at 18 (arguing that “[i]t does
not matter either to consumers or to applications providers if the carriers abuse their power through interference that
takes advantage of deep packet inspection in routers in their network or through interconnection abuse—the
resulting harms are the same”).

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FCC 15-24

Mobile Broadband Services

86.
We have discussed above the incentives and ability of broadband providers to act in ways
that limit Internet openness, regardless of the specific technology platform used by the provider. A
significant subject of discussion in the record, however, concerned mobile broadband providers
specifically, and we therefore believe it is appropriate to address here the incentive and ability that these
providers have to limit Internet openness. As the Commission noted in the Open Internet Order,
“[c]onsumer choice, freedom of expression, end-user control, competition, and the freedom to innovate
without permission are as important when end users are accessing the Internet via mobile broadband as
via fixed.”159 The Commission noted that “there have been instances of mobile providers blocking certain
third-party applications, particularly applications that compete with the provider’s own offerings . . . .”160
However, the Commission also noted the nascency of the mobile broadband industry,161 citing the recent
development of “app” stores,162 and what it characterized at the time as “new business models for mobile
broadband providers, including usage-based pricing.”163 Furthermore, the Commission at that time found
that “[m]obile broadband speeds, capacity, and penetration [were] typically much lower than for fixed
broadband” and noted that carriers had only begun to offer 4G service.164
87.
Citing these factors, as well as greater consumer choice, “meaningful recent moves
toward openness in and on mobile broadband networks,” and the operational constraints faced by mobile
broadband providers,165 the Commission applied its open Internet rules to mobile broadband, but
distinguished between fixed and mobile broadband in some regards: while it applied the same
transparency rule to both fixed and mobile network providers, it adopted a different no-blocking standard
for mobile broadband Internet access service, and excluded mobile broadband from the unreasonable
discrimination rule. In the 2014 Open Internet NPRM, the Commission tentatively concluded that it
should maintain the same approach going forward, but recognized that there have been significant
changes since 2010 in the mobile marketplace.166 The Commission sought comment on whether those
changes should lead it to revisit the treatment of mobile broadband services.167
88.
Today, we find that changes in the mobile broadband marketplace warrant a revised
approach. We find that the mobile broadband marketplace has evolved, and continues to evolve, but is no
longer in a nascent stage. As discussed below, mobile broadband networks are faster, more broadly
deployed, more widely used, and more technologically advanced than they were in 2010. We conclude
that it would benefit the millions of consumers who access the Internet on mobile devices to apply the
same set of Internet openness protections to both fixed and mobile networks.168

159

2010 Open Internet Order, 25 FCC Rcd 17956, para. 93.

160

Id.

161

Id. at 17956-57, para. 94.

162

Id.

163

Id.

164

Id. at 17957, para. 95

165

Id.

166

2014 Open Internet NPRM, 29 FCC Rcd at 5583, para. 62.

167

Id.

168

Although we adopt the same rules for both fixed and mobile services, we recognize that with respect to the
reasonable network management exception, the rule may apply differently to fixed and mobile broadband providers.
See infra Section III.D.4.

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89.
Network connection speed and data consumption have exploded. For 2010, Cisco
reported an average mobile network connection speed of 709 kbps.169 Since that time there has been
massive expansion of mobile broadband networks, providing vastly increased download speeds. For
2013, Cisco reported an average mobile connection speed of 2,058 kbps.170 This increase in speed is
partially due to the deployment of faster network technologies. Currently, mobile broadband networks
provide coverage and services using a variety of 3G and 4G technologies, including, most importantly,
LTE.171 As a consequence of the growing deployment of next generation networks, there has been an
increase of more than 200,000 percent in the number of LTE subscribers, from approximately 70,000 in
2010172 to over 140 million in 2014.173 Concurrent with these substantial changes in mobile broadband
deployment and download speeds, mobile data traffic has exploded, increasing from 388 billion MB in
2010 to 3.23 trillion MB in 2013.174 AT&T reports that its wireless data traffic has grown 100,000
percent between 2007 and 2014 and 20,000 percent over the past five years.175 T-Mobile states that “data
usage continues to expand exponentially, with year-to-year increases of roughly 120 percent.”176
90.
As consumers use smartphones and tablets more, they increasingly rely on mobile
broadband as a pathway to the Internet. The Internet Association argues that mobile Internet access is
essential, since many Americans “are wholly reliant on mobile wireless for Internet access.”177 In
addition, evidence shows that consumers in certain demographic groups, including low income and rural
consumers and communities of color, are more likely to rely on mobile as their only access to the
Internet.178 Citing data from the Pew Research Center’s Internet & American Life Project, OTI states that
“[t]he share of Americans relying exclusively on their smartphone[s] to access the Internet is far higher

169

Cisco, Cisco Visual Networking Index: Global Mobile Data Traffic Forecast Update 2010-2015 at 13 (2011).

170

Cisco, Cisco Visual Networking Index: Forecast Highlights (2014),
http://www.cisco.com/web/solutions/sp/vni/vni_forecast_highlights/index.html. These connection speeds are
inclusive of all types of devices, while speeds for smartphones may be higher. Cisco reported an average connection
speed of 9,942 kbps for smartphones in 2013. Id.
171

Long-Term Evolution (LTE) is a high-speed packet switched mobile broadband network technology. Starting in
2014, some operators introduced LTE-Advanced, mainly by using carrier aggregation and more capable devices.
172

Telegeography, US Remains at Forefront of LTE Service Adoption (Mar. 15, 2012),
https://www.telegeography.com/products/commsupdate/articles/2012/03/15/us-remains-at-forefront-of-lte-serviceadoption/ (last visited Feb. 10, 2015).
173

CTIA Blog, Mobile Broadband: A Story of Dynamism and Transformation (Jan. 9, 2015),
http://blog.ctia.org/2015/01/09/dynamism/ (last visited Feb. 10, 2015).
174

Section 6002(B) of the Omnibus Budget Reconciliation Act of 1993; Annual Report and Analysis of Competitive
Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile Services, WT Docket No. 13135, Seventeenth Report, 29 FCC Rcd 15311 (Wireless Tel. Bur. 2014) (17th Mobile Wireless Report); Robert F.
Roche & Liz Dale, Annual Wireless Survey Results: A Comprehensive Report from CTIA Analyzing the U.S.
Wireless Industry (June 2014).
175

Section 6002(B) of the Omnibus Budget Reconciliation Act of 1993;Annual Report and Analysis of Competitive
Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile Services, WT Docket No. 11186, Sixteenth Report, 28 FCC Rcd 3700, 3910-11, para. 334 (Wireless Tel. Bur. 2013) (16th Mobile Wireless
Report). See AT&T, AT&T Adds High-Quality Spectrum to Support Customers’ Growing Demand for Mobile
Video and High-Speed Internet (Jan. 30, 2015), http://about.att.com/story/att_adds_high_quality_spectrum_to
_support_growing_demand_for_mobile_video_and_high_speed_internet.html.
176

T-Mobile Reply at 5.

177

Letter from Abigail Slater, Vice President Legal and Regulatory Policy, Internet Association to Marlene H.
Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (filed Oct. 13, 2014).
178

OTI Comments at 33-34.

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among Hispanics, Blacks, and adults aged 18-29, and households earning less than $30,000 a year.”179
According to data from the National Health Interview Survey, 44 percent of households were “wirelessonly” during January-June 2014, compared to 31.6 percent during January-June 2011.180 These data also
show that 59.1 percent of adults living in poverty reside in wireless-only households, relative to 40.8
percent of higher income adults.181 Additionally, rural consumers and businesses often have access to
fewer options for Internet service, meaning that these customers may have limited alternatives when faced
with restrictions to Internet openness imposed by their mobile provider.182 Furthermore, just as consumer
reliance on mobile broadband has grown, edge providers increasingly rely on mobile broadband to reach
their customers. Microsoft states, for example, that, “with ‘the pressure . . . only increasing to either go
mobile or go home,’ edge providers frequently introduce new edge services on mobile platforms first, and
the success or failure of these edge providers’ businesses often depends in large part on their mobile
offerings.”183
91.
Furthermore, the technology underlying today’s mobile broadband networks, as
compared to those deployed in 2010, not only provides operators with a greater ability to manage their
networks consistent with the rules we adopt today,184 but also gives those operators a greater ability to
engage in conduct harmful to the virtuous cycle in the absence of open Internet rules.185 As discussed
above, certain behaviors by broadband providers may impose negative externalities on the Internet
ecosystem, resulting in less innovation from edge providers.186 We find that the same is true today for
mobile wireless broadband providers, particularly as mobile broadband technology has become more
widespread and mobile broadband services have become more integrated into the economy.

179

Id. at 33.

180

Stephen J. Blumberg & Julian V. Luke, Wireless Substitution: Early Release of Estimates from the National
Health Interview Survey, January-June 2014 at 5, U.S. Department of Health and Human Services, Centers for
Disease Control and Prevention (Dec. 2014), http://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201412.pdf.
181

Id. at 2. Living in poverty is defined as being below the U.S. Census Bureau’s household income poverty
thresholds. Higher income is defined as having an income of 200 percent of the poverty threshold or greater. Id. at
7.
182

See 17th Mobile Wireless Report, 29 FCC Rcd at 15338, para. 55 (presenting data that, as of January 2014, 92.0
percent of non-rural U.S. POPs lived in a census block covered by 4 or more mobile broadband providers, while the
figure was 39.6 percent for rural U.S. POPs). One should note however, that the number of providers in a census
block represent network coverage, which does not necessarily reflect the number of choices available to a particular
individual or household. Coverage calculations based on Mosaik data, while useful for measuring developments in
mobile wireless coverage, have certain limitations that likely overstate the extent of mobile wireless coverage. See
id. at 15333, para. 45 n.69.
183

Microsoft Comments at 21.

184

See, e.g., OTI Comments at 57-59 (arguing that “[t]here is nothing about the technology of today’s increasingly
prevalent 4G wireless data networks that should preclude compliance with open Internet protections, including the
extension of basic Carterfone protections to mobile broadband Internet access networks. Although mobile 4G/LTE
technologies have advanced considerably since 2010, they have evolved in a manner that make open platforms and a
non-discrimination rule far more feasible to implement than the Commission anticipated four years ago.”).
185

See, e.g., OTI Reply at 23-24; Cisco, Integrated DPI and Cisco In-Line Services: Optimize the Flow of Traffic
and Monetize Your Network, www.cisco.com/c/en/us/solutions/collateral/wireless/network-trafficoptimization/white_paper_c11-607164-00.html (last visited Feb. 10, 2015) (“Industry experts agree that DPI and its
complementary applications are the best way to increase network efficiency and a mobile operator's revenue.”); see
also Sandvine, Deep Packet Inspection (DPI), https://www.sandvine.com/platform/deep-packet-inspection.html (last
visited Feb. 10, 2015).
186

See supra paras. 82-83.

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92.
In view of the evidence showing the evolution of the mobile broadband marketplace, we
conclude that it would best serve the public interest to revise our approach for mobile broadband services
and apply the same openness requirements as those applied to providers of fixed broadband services. The
Commission has long recognized that the Internet should remain open for consumers and innovators
alike, regardless of the different technologies and services through which it may be accessed.187 Although
the Commission found in 2010 that conditions at that time warranted a more limited application of open
Internet rules to mobile broadband services, it nevertheless recognized the importance of freedom and
openness for users of mobile broadband networks, finding that “consumer choice, freedom of expression,
end-user control, competition, and the freedom to innovate without permission are as important when end
users are accessing the Internet via mobile broadband as via fixed.”188 In contrast to the state of the
mobile broadband marketplace when the Commission adopted the 2010 open Internet rules, the evidence
in the record today shows how mobile broadband services have evolved to become essential, critical
means of access to the Internet for millions of consumers every day. Because of this evolution and the
widespread use of mobile broadband services, maintaining a regime under which fewer protections apply
in a mobile environment risks creating a substantively different Internet experience for mobile broadband
users as compared to fixed broadband users. Broadband users should be able to expect that they will be
entitled to the same Internet openness protections no matter what technology they use to access the
Internet. We agree with arguments made by a large number of commenters that applying a consistent set
of requirements will help ensure that all consumers can benefit from full access to an open and robust
Internet.189 We note that evidence in the record indicates that mobile broadband providers themselves
have recognized the importance of open Internet practices for mobile broadband consumers.190
93.
Despite their support of open Internet principles, several of the nationwide mobile
providers oppose broader openness requirements for mobile broadband, arguing that additional rules are
unnecessary in the mobile broadband market. T-Mobile, for example, argues that “robust retail
competition in the mobile broadband market already constrains mobile provider behavior.”191 Verizon
comments that “consumer choice and competition also have ensured a differentiated marketplace in
which providers routinely develop innovative offerings designed to outcompete competitors’
offerings.”192 AT&T contends that additional rules are unnecessary as mobile broadband providers are
already investing in the networks, innovating, reducing prices, and thriving.193 CTIA contends that “the
robust competitive conditions in the mobile broadband marketplace are a defining differentiator” and that
“any new open Internet framework should account for the competitive mobile dynamic.”194
187

2010 Open Internet Order, 25 FCC Rcd at 17956, para. 93.

188

Id.

189

See, e.g., CDT Comments at 28; Consumers Union Comments at 11-14; Cox Comments at 8-11; Frontier
Comments at 8-10; Internet Association Reply at 5-7; Microsoft Comments at 19-27; Mozilla Reply at 20-21;
NCTA Comments at 69-70; OTI Comments at 27-28; Public Knowledge Comments at 23-24; Time Warner Cable
(TWC) Comments at 27-28; Vonage Comments at 30-33.
190

CTIA Comments at 11-13.

191

T-Mobile Reply at 2.

192

Verizon Reply at 27; see also Verizon Jan. 15, 2015 Ex Parte Letter Attach. at 6-8.

193

AT&T Reply at 60-79.

194

Letter from Scott K. Bergmann, Vice Pres. Reg. Affairs, CTIA to Marlene H. Dortch, Secretary, FCC, GN
Docket No. 14-28, at 1 (filed Nov. 6, 2014); see also Letter from Scott K. Bergmann, Vice Pres. Reg. Affairs, CTIA
to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 2 (CTIA Feb. 10, 2015 Ex Parte Letter) (“Today,
the mobile broadband market is even more competitive than it was in 2010: Data from the Commission’s justreleased Seventeenth Report shows that 82% of Americans can choose among four or more mobile broadband
providers.”). However, we note that this data cited from the 17th Mobile Wireless Report represent network
coverage, which does not necessarily reflect the number of choices available for purchase by a particular individual
(continued….)

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94.
Based upon the significant changes in mobile broadband since 2010 discussed above,
including the increased use of mobile broadband and the greater ability of mobile broadband providers to
engage in conduct harmful to the virtuous cycle, we are not persuaded that maintaining fewer open
Internet protections for consumers of mobile broadband services would serve the public interest.
Contrary to provider arguments that applying a broader set of openness requirements will stifle innovation
and chill investment, we find that the rules we adopt today for all providers of services will promote
innovation, investment, and competition. As we discuss above, an open Internet enables a virtuous cycle
where new uses of the network drive consumer demand, which drives network improvements, which
result in further innovative uses. We agree with commenters that “mobile is a key component” of the
virtuous cycle.195 OTI comments that “a variety of economic analyses suggest that the Internet’s
openness is a key driver of its value . . . . Other economic studies have found that non-neutral conditions
in the broadband market might maximize profits for broadband providers but would ultimately minimize
consumer welfare . . . . There is significant evidence that a vibrant and neutral online economy is critical
for a healthy technology industry, which is a significant creator of jobs in the U.S.”196 We find that these
arguments apply to mobile broadband providers as well as to fixed, and apply even though there may be
more competition among mobile broadband providers.
95.
We note that the Commission’s experience with applying open platform rules to Upper
700 MHz C Block licensees,197 including Verizon Wireless, has shown that openness principles can be
applied to mobile services without inhibiting a mobile provider’s ability to compete and be successful in
the marketplace. We find that it is reasonable to conclude that, even with broader application of Internet
openness requirements, mobile broadband providers will similarly continue to compete and develop
innovative products and services. We also expect that the force of consumer demand that led mobile
broadband providers to invest in their networks over the past four years will likely continue to drive
substantial investments in mobile broadband networks under the open Internet regime we adopt today.198
96.
Although mobile providers generally argue that additional rules are not necessary to deter
practices that would limit Internet openness, concerns related to the openness practices of mobile
broadband providers have arisen. As we noted in the 2014 Open Internet NPRM, in 2012, the
Commission reached a $1.25 million settlement with Verizon for restricting tethering apps on Verizon
smartphones, based on openness requirements attached to Verizon’s Upper 700 MHz C Block licenses.199
Also in 2012, consumers complained when they encountered problems accessing Apple’s FaceTime
application on AT&T’s network.200 More recently, significant concern has arisen when mobile providers’
(Continued from previous page)
household. Coverage calculations are based on Mosaik data, which have certain limitations that likely overstate the
extent of mobile wireless coverage. Furthermore, as discussed above, the ability of broadband providers to threaten
the open Internet does not depend on them having market power over their end users. See also infra para. 98 (citing
some recent examples of consolidation in the wireless industry); Policies Regarding Mobile Spectrum Holdings, WT
Docket No. 12-269, Report and Order, 29 FCC Rcd. 6133, 6156-57, para. 46 (2014) (describing past consolidation
of the wireless industry, including in terms of factors beyond only the number of competitors, such as market shares
and spectrum holdings).
195

Mozilla Reply at 22.

196

OTI Comments at 4-5.

197

700 MHz Second Report and Order, 22 FCC Rcd at 15359, para. 60; 47 C.F.R. § 27.16.

198

See Microsoft Comments at 6.

199

See generally Cellco Partnership d/b/a Verizon Wireless, File No. EB-11-IH-1351, Acct. No. 201232080028,
FRN 0003290673, Order and Consent Decree, 27 FCC Rcd 8932 (2012).
200

AT&T initially restricted use of Apple’s FaceTime and iPad application to times when the end user was
connected to Wi-Fi and thus to another broadband provider. The Commission did not conclude whether such a
practice violated open Internet principles. See David Kravets, AT&T Holding FaceTime Hostage is No NetNeutrality Breach, Wired.com (Aug. 22, 2012) http://www.wired.com/threatlevel/2012/08/facetime-net(continued….)

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have attempted to justify certain practices as reasonable network management practices, such as applying
speed reductions to customers using “unlimited data plans” in ways that effectively force them to switch
to price plans with less generous data allowances.201 As Consumers Union observes, many mobile
broadband provider practices are non-transparent, because customers receive “no warning or explanation
of when their speeds will be slowed down.”202 Other commenters such as OTI also cite mobile providers’
blocking of the Google Wallet e-payment application.203 Although providers claimed that the blocking
was justified based on security concerns, OTI notes that “this carrier behavior raised anticompetitive
concerns when AT&T, Verizon and T-Mobile later unveiled their own mobile payment application, a
competitor to Google Wallet . . . .”204 Microsoft also describes further potential for abuse based on its
experience in other countries without open Internet protections, claiming, for example, that “several
broadband access providers around the world have interfered or degraded Skype traffic on their
networks.”205 A recent survey of European Internet users found that respondents reported experiencing
problems with “blocking of internet content.”206 Mobile services notably accounted for a significant
percentage of negative experiences reported in the survey.207 OTI argues that, even with competition,
mobile providers have an interest in seeking rents from edge providers and “in securing a competitive
advantage for their own competing apps, content and services.”208 We agree, and find that the rules we
adopt today for mobile network providers will help guard against future incidents that have the potential
to affect Internet openness and undermine a mobile broadband consumer’s right to access a free and open
Internet.
97.
In addition, we agree with those commenters that argue that mobile broadband providers
have the incentives and ability to engage in practices that would threaten the open nature of the Internet,
in part due to consumer switching costs. Switching costs are a significant factor in enabling the ability of
mobile broadband providers to act as gatekeepers. Microsoft states that “for the large number of
applications that are available only in the mobile context, mobile broadband access providers today can be
an edge provider’s only option for reaching a particular end user,” and argues that, because of high
switching costs, few mobile broadband consumers routinely switch providers.209 Therefore, Microsoft
argues, “even if there is more than one mobile broadband access provider in a specific market, there may
not be effective competitive alternatives (for edge providers or consumers) and these mobile broadband
access providers retain the ability to act in a manner that undermines the competitive neutrality of the
online marketplace.”210
(Continued from previous page)
neutrality0flap/ (last visited Feb. 10, 2015); see also Open Internet Advisory Committee, 2013 Annual Report (Aug.
20, 2013), at 39-46, http://transition.fcc.gov/cgb/oiac/oiac-2013-annual-report.pdf (2013 OIAC Annual Report).
201

See Prepared Remarks of FCC Chairman Tom Wheeler, 2014 CTIA Show, Las Vegas, NV (Sept. 9, 2014).

202

Consumers Union Reply at 9.

203

WGAW Comments at 15. But see CTIA Reply at 17.

204

OTI Comments at 29-30.

205

Microsoft Comments at 25.

206

European Commission, 1 in 4 European Internet Users Still Experience Blocking of Internet Content, Study
Shows (Feb. 27, 2014), http://europa.eu/rapid/press-release_MEMO-14-136_en.htm.
207

Id.

208

OTI Reply at 25; see also Letter from Michael Calabrese, Director, Wireless Future Project, New America Open
Technology Institute and Delara Derakhshani, Policy Counsel, Consumers Union, to Marlene H. Dortch, Secretary,
FCC, GN Docket No. 14-28, at 5 (filed January 28, 2015) (OTI/Consumers Union Ex Parte Letter).
209

Microsoft Comments at 23-24.

210

Id.

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98.
The level of wireless churn, when viewed in conjunction with data on consumer
satisfaction, is consistent with the existence of important switching costs for customers. Based on results
from surveys, OTI and Consumers Union argue that switching costs have depressed mobile wireless
churn rates,211 meaning that customers may remain with their service providers even when they are
dissatisfied.212 Consumers Union cites a February 2015 Consumer Reports survey showing that “27
percent of mobile broadband consumer[s] who are dissatisfied with their mobile broadband service
provider are reluctant to switch carriers” due to several factors.213 That many customers stay with their
mobile wireless providers, despite expressing dissatisfaction with their current provider and despite the
availability of alternate plans from other providers, suggests the presence of significant barriers to
switching.214 Furthermore, this has been a period of market and spectrum consolidation, which has
decreased the choices available to consumers in many parts of the country. For example, Vonage argues
that “recent mergers between AT&T and Leap, and T-Mobile and MetroPCS have reduced the ability of
wireless end users to switch to competing providers in the event of potential discrimination against the
edge services they may want to access.”215 Choices may be particularly limited in rural areas, both

211

See OTI/Consumers Union Ex Parte Letter at 3-4 (“Despite recent increased price competition from T-Mobile
and Sprint, the two dominant carriers (AT&T and Verizon) continue to enjoy industry-low customer churn rates. In
2014 AT&T realized both its lowest churn rate for a quarter (0.86 percent among postpaid subscribers) and for a full
year (1.035 percent).”). Average monthly churn across AT&T, Sprint, T-Mobile, and Verizon Wireless was 1.56
percent in the first three quarters of 2014, compared to 1.83 percent in all of 2007. See 16th Mobile Wireless Report,
28 FCC Rcd at 3865, Chart 18; 17th Mobile Wireless Report, 29 FCC Rcd at 15325, Chart II.B.6.
212

See OTI/Consumers Union Ex Parte Letter at 4 (“The American Customer Satisfaction Index found that wireless
service ‘remains among the lower-scoring categories’ of industries they review. Among the 43 major U.S.
industries rated, the consumer satisfaction ranking of mobile carriers are tied for 38th worst with the U.S. Postal
Service and just one spot above the satisfaction score of airlines (wireline ISPs are dead last). The OTI
representative stated that it would be completely implausible to attribute historically low churn rates to consumer
satisfaction when, in fact, consumer satisfaction is among the lowest five industries among America’s 43 largest
consumer-facing industries.”); see also Consumers Union Comments at 14 (“A January 2014 Consumer Reports
article reported that high switching costs continue to serve as barriers to customers freely changing carriers. Thirtyone percent of survey respondents said that they are seriously considering switching providers, but one in six of that
group said that they cannot switch because long-term contracts and early termination fees handcuff them to
carriers.”). But see CTIA Feb. 10, 2015 Ex Parte Letter at 3-4 (disagreeing with New America and Consumers
Union by arguing that surveys show high levels of customer satisfaction); Verizon Jan. 15, 2015 Ex Parte Letter
Attach. at 10-11 (arguing that recent levels of churn show that many consumers can switch). Although a number of
consumers may well be satisfied with their mobile broadband service, the surveys cited by OTI and Consumers
Union also suggest that there are significant numbers of dissatisfied customers who feel they cannot switch. These
consumers are likely to have difficulty responding to broadband provider polices that disrupt the open Internet.
213

OTI/Consumers Union Ex Parte Letter at 4.

214

Paul de Sa, Ian Chun, and Julia Zhen present an analysis of the price plans available from AT&T, Sprint, TMobile, and Verizon Wireless during the summer of 2014, concluding that “it almost always makes economic sense
for ‘perfectly rational’ subscribers to change carriers, as there are generally cheaper plans available from rival
carriers to attract switchers.” The authors argue that the low observed switching rates, despite the availability of
these plans, “suggest[] that many other factors aside from price are relevant drivers of churn, consistent with [the
authors’] view of substantial demand inertia.” Paul de Sa, Ian Chun, and Julia Zheng, Bernstein Research, A
Different Way to Compare Mobile Pricing (Or Does Discounting Matter?) at 5 (August 21, 2014) (Aug. 2014 de Sa
Pricing Report) (emphasis in original).
215

Vonage Comments at 17-18; see also Policies Regarding Mobile Spectrum Holdings, WT Docket No. 12-269,
Report and Order, 29 FCC Rcd 6133, 6146-47, paras. 24-25 (2014); OTI/Consumers Union Ex Parte Letter at 5-6.

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because fewer service providers tend to operate in these regions and because consumers may encounter
difficulties in porting their numbers from national to local service providers.216
99.
Switching costs may arise due to a number of factors that affect mobile consumers. For
example, consumers may face costs due to informational uncertainty, particularly in the context of
concerns over open Internet restrictions. The provision of wireless service involves the interaction
between the wireless network operator, the various edge providers, the customer’s handset or other
equipment, and the conditions present in the specific location the customer wishes to use the service. In
this environment, it can be very difficult for customers to ascertain the source of a service disruption, and
hence whether switching wireless providers would solve the problem.217 Additionally, product
differentiation can make it difficult for consumers to compare plans, which may also increase switching
costs.218 Finally, customers may face a variety of hassle-related and financial switching costs.219
Disconnecting an existing service and activating a new one may involve early termination fees (ETFs),
coordinating with multiple members of a family plan, billing set-up, transferring personal files, and
porting phone numbers, each of which may create delays or difficulties for customers.220 As part of this
process, some customers may need to replace their equipment, which may not be compatible with their

216

See supra note 182; OTI/Consumers Union Ex Parte Letter at 2 (“Phone number portability is administered so
that it works well only for national carriers, since consumers often don’t have the option to keep their number when
moving from a national to non-national carrier.”).
217

See Public Knowledge Comments at 18 (“Switching providers incurs uncertainty costs because it is very difficult
for consumers to assess the quality of a new service in advance. However, allowing paid prioritization and other
blocking systems can create additional sources of uncertainty that magnify access networks’ market power. In
particular, customers may not be able to ascertain the sources of internet access problems, and therefore may
attribute quality of service issues to edge providers instead of network operators. Regardless of what party might be
responsible for the situation, ‘[t]he fact that the quality of the network services is opaque to consumers under
discrimination, confers additional market power to access networks.’”).
218

New America OTI/Consumers Union Ex Parte Letter at 4. Wireless service providers are differentiated in terms
of their network performance, coverage, device lineups, and plan features, among other things. See 17th Mobile
Wireless Report, para 168. See also CTIA Feb. 10, 2015 Ex Parte Letter Attach. at 19 (“In 2013 alone, the four
major carriers offered nearly 700 combinations of smartphone plans, and a family of five had in excess of 250
choices to select from.”).
219

OTI/Consumers Union Ex Parte Letter at 2 (“Of course, subscribers can switch carriers, but relatively few do
primarily because of the multiple strategies that carriers use to create both the perception and the reality of
substantial financial penalties, loss of time and uncertainties about retaining your data or even, in some cases, your
phone number.”) (emphasis in original).
220

See, e.g., Microsoft Comments at 24 (In the U.S., “[p]art of the reason churn is so low is because customers sign
two-year contracts with high early termination fees. Another is that many customers are on family or enterprise
plans, which are often more ‘sticky’ and make it more difficult for customers to switch carriers.”). But see AT&T
Reply at 60-65 (noting that “many innovative service plans provide the option of eliminating early termination fees”
and that “this recent shift in the industry away from ETFs has significantly reduced the cost of switching providers
and enabled customers to act immediately when a competitor introduces a more attractive service offering”).
However, although there have been recent promotions by some providers regarding ETFs and some developments in
secondary markets for contracts and devices, ETFs continue to affect a large proportion of customers who do not
elect to purchase their phones up front, and switching costs remain due to the other factors discussed above. A
majority of nationwide mobile broadband providers charge ETFs, which currently range from approximately $350 to
$650, based on the type of plan and the number of members in the plan. Typically, the ETFs are pro-rated based on
an average 2-year contract plus the cost of an associated handset (which can amount to as much as $650 for a high
end phone such as an iPhone 6). Furthermore, it is not clear that ETF promotions will continue to always be
available. See 17th Mobile Wireless Report, 29 FCC Rcd at 15382, para. 145; OTI/Consumers Union Ex Parte
Letter at 2 (arguing that T-Mobile’s ETF offer is “a temporary marketing strategy”); see infra note 222.

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new mobile service provider’s network.221 OTI and Consumers Union argue that moving multiple
members of a shared or family plan may be particularly expensive, since “[n]ot only do groups face the
cost of multiple ETFs, but frequently the contract termination dates become nonsynchronous due to the
addition of new lines and individuals upgrading their devices at different points in time.”222 Furthermore,
OTI and Consumers Union argue that these costs affect an increasingly large proportion of consumers,
since the penetration of shared plans has increased such that the majority of AT&T and Verizon Wireless
customers now have shared plans.223
100.
AT&T, T-Mobile, and Verizon argue that the factors that led the Commission to adopt a
more limited set of openness rules for mobile in 2010 remain valid today. They argue that mobile
broadband networks should not be viewed as mature as mobile technologies continue to develop and
evolve.224 They also contend that the extraordinary growth in use of mobile broadband services requires
that providers have more flexibility to be able to handle the increased traffic and ensure quality of service
for subscribers. T-Mobile, for example, asserts that “while mobile networks are more robust and offer
greater speeds and capacity than they did when the 2010 rules were enacted, they also face greater
demands; their need for agile and dynamic network management tools has actually increased.”225
101.
We recognize that mobile service providers must take into account factors such as
mobility and reliance on spectrum. As discussed more fully below in the context of each of the rules,
however, we find that the requirements we adopt today are sufficiently tailored to provide carriers with
the flexibility they need to accommodate these conditions. Moreover, as described further below, we
conclude that retaining an exception to the no-blocking rule, the no-throttling rule, and the nounreasonable interference/disadvantage standard we adopt today for reasonable network management will
allow sufficient flexibility for mobile service providers.
4.

The Commission Must Act to Preserve Internet Openness

102.
Given that broadband providers—both fixed and mobile—have both the incentives and
ability to harm the open Internet, we again conclude that the relatively small incremental burdens imposed
by our rules are outweighed by the benefits of preserving the open nature of the Internet, including the
221

See, e.g., Free Press Comments at 31-32, n.47 (arguing that differences in network technologies and frequency
bands can lead to handset incompatibilities, meaning customers must purchase new equipment); Aug. 2014 de Sa
Pricing Report at 2 (“In general, other carriers’ phones (at least for iPhones) cannot easily be ported to Verizon or
Sprint, and Sprint phones cannot be brought to other carriers.”). Should customers require that their devices be
unlocked, they may be subject to ETFs, per CTIA’s Consumer Code. CTIA, Consumer Code for Wireless Service,
http://www.ctia.org/policy-initiatives/voluntary-guidelines/consumer-code-for-wireless-service (last visited Feb. 12,
2015).
222

OTI/Consumers Union Ex Parte Letter at 3. But see CTIA Feb.10, 2015 Ex Parte Letter at 3 (disagreeing with
New America and Consumers Union’s assertions about high switching costs and the effects of family plans, citing to
ETF buyout offers). We discuss some caveats to ETF buyout promotions above. Furthermore, because ETF rebates
can take months to process, they may not be adequate switching incentives for credit- and liquidity-constrained
customers. This may be particularly true when dealing with multiple ETFs at once, as in a family or shared plan. TMobile, ETF Reimbursement FAQs, https://www.switch2t-mobile.com/ (last visited Feb. 12, 2015); Sprint, It’s a TMobile Triple Threat, http://www.sprint.com/landings/tmobile-buyback/index.html (last visited Feb. 12, 2015);
Verizon, Switch and Save. http://www.verizonwireless.com/landingpages/switch-and-save/ (last visited Feb. 12,
2015). See also Simon Flannery and Jon Mark Warren, AT&T and Verizon, US Wireless: The Trouble with Churn
at 3 (Aug. 7, 2013) (“Family/Shared plans promote lower churn because of the lower per-line cost, the networking
effect (friends and family on the same network), and the difficulty of coordinating a carrier change.”).
223

Id at 3. OTI and Consumers Union report that nearly 70 percent of AT&T’s and 61 percent of Verizon
Wireless’s postpaid subscribers had shared plans as of the fourth quarter of 2014, compared to 33 percent and 46
percent, respectively, in the fourth quarter of 2013. Id.
224

Verizon Reply at 28; CTIA Comments at 7, 25; Mobile Future Comments at 11-12; AT&T Reply at 84-86.

225

T-Mobile Reply at 2.

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continued growth of the virtuous cycle of innovation, consumer demand, and investment.226 We note, for
example, that the disclosure requirements adopted in this order are widely understood, have industrybased definitions, and are commonly used in commercial Service Level Agreements by many broadband
providers.227 Open Internet rules benefit investors, innovators, and end users by providing more certainty
to each regarding broadband providers’ behavior, and helping to ensure the market is conducive to
optimal use of the Internet. Open Internet rules are also critical for ensuring that people living and
working in rural areas can take advantage of the substantial benefits that the open Internet has to offer.228
In minority communities where many individuals’ only Internet connection may be through a mobile
device, robust open Internet rules help make sure these communities are not negatively impacted by
harmful broadband provider conduct.229 Such rules additionally provide essential safeguards to ensure
that the Internet flourishes as a platform for education and research.230
226

2010 Open Internet Order, 25 FCC Rcd at 17928, para. 39 (noting that there are some costs to implementing
open Internet rules, such as additional disclosures about broadband provider practices, but these costs are not overly
burdensome, and they are outweighed by the substantial benefits provided by the rules). Below, we further discuss
the costs associated with enhanced transparency. See infra Section III.C.3.b(i). See also, e.g., AOL Comments at 2
(explaining that “[t]he Internet’s openness has fostered innovation and investment—both in advancements in
network deployment and the services that ride upon them—creating . . . a virtuous circle, where richer and more
diverse content on the ‘edge’ jump-starts demand, which brings about infrastructure investment, which brings about
even richer and more diverse content”); Open MIC Comments at 3 (noting that “[o]pen Internet principles also
promote free speech, civic participation, democratic engagement and marketplace competition, as well as robust
broadband adoption and participation in the Internet community by minorities and other socially and economically
disadvantaged groups”).
227

See infra Section III.C.3.b.i.; see also infra para. 112 (supporting the idea that the burdens should not be
overwhelming because many broadband providers still voluntarily continue to abide by the 2010 no-blocking rule,
even though they are no longer legally required to do so).
228

See, e.g., Center for Rural Strategies Reply at 1 (arguing that “entrepreneurs, artists, educators, activists,
healthcare providers, and devoted community members . . . deserve a fair playing field. The Open Internet has
given us the opportunity to revitalize Rural America’s local economies, share our culture with global audiences, and
amplify rural voices in debates shaping our society. But we are at risk of losing this valuable tool, even when 14.5
million of us cannot yet access it.”); Letter from Edyael Casaperalta, Rural Broadband Policy Group Coordinator,
National Rural Assembly to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 1 (filed Oct. 20,
2014) (explaining that “[i]t is the neutrality of the Open Internet that has given rural people an opportunity to launch
businesses from our hometowns, revitalize our regional economies, share rural culture with global audiences, and
amplify rural voices in debates shaping our society. Simply put, rural communities depend on Network Neutrality to
get a fair shake online”).
229

See, e.g., Public Knowledge Comments at 27 (“Many traditionally disadvantaged communities rely on wireless
as their only internet connection and thus have the most to lose from discrimination over wireless.”); see also, e.g.,
Independent Filmmaker Organizations Reply at 11 (explaining that they “are especially concerned that limiting the
extent to which Open Internet rules apply to mobile broadband providers allows providers to maintain too much
control over the quality and kind of content consumers can access. This presents the real danger of creating a
second class of Internet access service for those who can only access the Internet through mobile broadband. These
individuals are often underrepresented individuals in low income or minority groups who are already on the wrong
side of the digital divide and are most in need of the Commission’s attention and support.”); National Minority
Organizations (MMTC) Comments at 6 (noting that “nearly 75 percent of African American and 68 percent of
Hispanic cell phone owners use their devices to access the Internet, and these numbers are increasing”).
230

See, e.g., Letter from Emily Sheketoff, Executive Director, Washington Office, American Library Association
(ALA), to Marlene H. Dortch, Secretary, FCC, WC Docket No. 14-28, at 1-2 (filed Nov. 6, 2014) (“The Internet has
become a vitally important platform for libraries and higher education in a wide variety of ways, such as for multimedia instruction and distance learning, educational collaboration through document-sharing websites and
applications, storage and retrieval of digital archives, tele-health information, public access to Internet information,
and many other educational services. Ensuring the Internet remain an open platform is absolutely essential for
libraries to serve their communities.”); see also, e.g., AAJC Comments at 2-3 (“A free and open Internet ecosystem
(continued….)

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103.
The Commission’s historical open Internet policies and rules have blunted the incentives,
discussed above, to engage in behavior harmful to the open Internet.231 Commenters who argue that rules
are not necessary overlook the role that the Commission’s rules and policies have played in fostering that
result.232 Without rules in place to protect the open Internet, the overwhelming incentives broadband
providers have to act in ways that are harmful to investment and innovation threaten both broadband
networks and edge content.233 Paid prioritization agreements, for example, have the potential to distort
the market by causing prices not to reflect efficient cost recovery and by altering consumer choices for
content and edge providers.234 The record reflects the view that paid arrangements for priority treatment,
such as broadband providers discriminating among content providers or prioritizing one provider’s or its
own content over others, likely damage the open Internet, harming competition and consumer choice.235
Additionally, blocking and throttling harm a consumer’s right to access lawful content, applications, and
services, and to use non-harmful devices.236
C.

Strong Rules That Protect Consumers from Practices That Can Threaten the Open
Internet

104.
We are keenly aware that in the wake of the Verizon decision, there are no rules in place
to prevent broadband providers from engaging in conduct harmful to Internet openness, such as blocking
a consumer from accessing a requested website or degrading the performance of an innovative Internet
application.237 While many providers have indicated that, at this time, they do not intend to depart from
(Continued from previous page)
is critically important to the Asian American community for a number reasons including . . . creat[ing] opportunities
for online education, especially for English language learners.”); American Association of State Colleges and
Universities et al. Comments 2 (“Our nation’s libraries and institutions of higher education are leaders in creating,
fostering, using, extending and maximizing the potential of the Internet for research, education and the public good.
Libraries and institutions of higher education depend upon an open Internet to fulfill their missions and serve their
communities.”).
231

See, e.g., CWA & NAACP Comments at 4 (noting that CWA and NAACP agree with the Commission’s
assertion that one of the primary reasons there have been limited violations of Internet openness is because the
Commission has had policies in place to address misconduct).
232

See supra Section III.A.; see also, e.g., Layton Comments at 19.

233

See, e.g., Greenlining Institute et al. Comments at 3 (“By rejecting the Commission’s anti-blocking and antidiscrimination rules, the Verizon court has opened up the possibility that without the Commission’s intervention,
carriers will determine the winners and losers of the digital world.”); see also Verizon, 740 F.3d at 645 (finding that
the Commission “adequately supported and explained” that absent open Internet rules, “broadband providers
represent a threat to Internet openness and could act in ways that would ultimately inhibit the speed and extent of
future broadband deployment”).
234

See, e.g., Ad Hoc Comments at 19-20 (discussing potential market distortions caused by paid prioritization
agreements).
235

See, e.g., Access Comments at 8 (commenting that broadband providers have incentives that could lead to
“invest[ing] in infrastructure to disproportionately improve the priority option, cease investment in infrastructure
that helps the network as a whole, create artificial scarcity, or even degrade the quality of the current non-priority
infrastructure to make prioritized options seem more attractive”); MDTC Comments at 3-4; see also AARP
Comments at 17 (stating that individualized bargaining “will institutionalize pay-for priority schemes and undermine
innovation and investment”); Illinois and New York Comments at 11-12 (arguing that individualized prioritization
agreements could complicate meaningful disclosures by making them overly difficult for consumers to understand).
236

See infra Sections III.C.1.a-b.

237

See supra Section IV.B. We acknowledge other laws address behavior similar to that which our rules are
designed to prevent; however, as discussed below, we do not find existing laws sufficient to adequately protect
consumers’ access to the open Internet. For example, some parties have suggested that existing antitrust laws would
address discriminatory conduct of an anticompetitive nature. See ICLE Comments at 39; Citizens Against
Government Waste Comments at 2; Hurwitz Comments at 7-8; see also infra Section III.G. We also note that
(continued….)

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the previous rules, an open Internet is too important to consumers and innovators to leave unprotected.
Therefore, we today reinstate strong, enforceable open Internet rules.238 As in 2010, we believe that
conduct-based rules targeting specific practices are necessary.
105.
No-Blocking. First, we adopt a bright-line rule prohibiting broadband providers from
blocking lawful content, applications, services, or non-harmful devices. This “no-blocking” principle has
long been a cornerstone of the Commission’s policies.239 While first applied in the Internet context as part
of the Commission’s Internet Policy Statement, the no-blocking concept dates back to the Commission’s
protection of end users’ rights to attach lawful, non-harmful devices to communications networks.240
106.
No-Throttling. Second, we adopt a separate bright-line rule prohibiting broadband
providers from impairing or degrading lawful Internet traffic on the basis of content, application, service,
or use of non-harmful device. This conduct was prohibited under the commentary to the no-blocking rule
adopted in the 2010 Open Internet Order.241 However, to emphasize the importance of this concept we
delineate under a separate rule a ban on impairment or degradation, to prevent broadband providers from
engaging in behavior other than blocking that negatively impacts consumers’ use of content, applications,
services, and devices.

(Continued from previous page)
certain “no blocking” obligations continue to apply to the use of Upper 700 MHz C Block licenses. See 47 C.F.R. §
27.16.
238

See, e.g., Comcast Comments at 15 (“As reflected in the existing disclosures of all major broadband providers,
including Comcast, there is widespread support and a public commitment from broadband providers to maintain
open Internet policies and practices.”); Letter from Forty-Three Municipal Broadband Internet Providers to Marlene
H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127 at 1 (filed Feb. 10, 2015) (“Accordingly, we follow the
Commission’s 2005 Open Internet principles and do not block, throttle, or discriminate among types of Internet
traffic; nor do we charge Internet edge providers for priority delivery on our networks. We also comply with the
requirement in the Commission’s 2010 transparency rule for a unitary set of disclosures covering our service
characteristics and network management practices.”); see also AT&T Statement on the U.S. Court of Appeals D.C.
Circuit Open Internet Decision, AT&T Public Policy Blog (Jan. 14, 2014) http://www.attpublicpolicy.com/fcc/attstatement-on-the-u-s-court-of-appeals-d-c-circuit-open-internet-decision/(“As the FCC assesses the impact of
today’s court decision, AT&T can assure all of our customers and stakeholders that our commitment to protect and
maintain an open Internet will not change.”); Time Warner Cable Issues Statement on Today’s Decision by the U.S.
Court of Appeals for the D.C. Circuit, Business Wire (Jan. 14, 2014),
http://www.businesswire.com/news/home/20140114006474/en/Time-Warner-Cable-Issues-StatementToday%E2%80%99s-Decision#.VOZuW4vF98H (“Time Warner Cable has been committed to providing its
customers the best service possible, including unfettered access to the web content and services of their choice. This
commitment, which long precedes the FCC rules, will not be affected by today’s court decision.”).
239

Internet Policy Statement, 20 FCC Rcd at 14987-88, para. 4. See also, e.g., Connect America Fund et al., WC
Docket No. 10-90 et al., Report and Order and Further Notice of Proposed Rulemaking, 26 FCC Rcd 17663, 17903,
para. 734 (2011) (USF/ICC Transformation Order), aff’d sub nom. In re FCC 11-161, 753F.3d 1015 (10th Cir.
2014) (reiterating that call blocking is impermissible in intercarrier compensation disputes); Establishing Just and
Reasonable Rates for Local Exchange Carriers; Call Blocking by Carriers, WC Docket No. 07-135, Declaratory
Ruling and Order, 22 FCC Rcd 11629, 11629, 31, paras. 1, 6 (Wireline Comp. Bur. 2007) (2007 Declaratory
Ruling) (reiterating that call blocking is impermissible as a self-help measure to address intercarrier compensation
dispute); Blocking Interstate Traffic in Iowa, Memorandum Opinion and Order, 2 FCC Rcd 2692 (1987) (denying
application for review of Bureau order, which required petitioners to interconnect their facilities with those of an
interexchange carrier in order to permit the completion of interstate calls over certain facilities).
240

See, e.g., Carterfone, 13 FCC 2d at 424; Computer II, 77 FCC 2d at 388.

241

2010 Open Internet Order, 25 FCC Rcd at 17943, para. 66 (“We make clear that the no-blocking rule bars
broadband providers from impairing or degrading particular content, applications, services, or non-harmful
devices.”).

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107.
No Paid Prioritization. Third, we respond to the deluge of public comment expressing
deep concern about paid prioritization. 242 Under the rule we adopt today, the Commission will ban all
paid prioritization subject to a narrow waiver process.
108.
No-Unreasonable Interference/Disadvantage Standard. In addition to these three brightline rules, we also set forth a no-unreasonable interference/disadvantage standard, under which the
Commission can prohibit practices that unreasonably interfere with the ability of consumers or edge
providers to select, access, and use broadband Internet access service to reach one another, thus causing
harm to the open Internet. This no-unreasonable interference/disadvantage standard will operate on a
case-by-case basis and is designed to evaluate other current or future broadband Internet access provider
policies or practices—not covered by the bright-line rules— and prohibit those that harm the open
Internet.
109.
Transparency Requirements. We also adopt enhancements to the existing transparency
rule to more effectively serve end-user consumers, edge providers of broadband products and services,
and the Internet community. These enhanced transparency requirements are modest in nature, and we
decline to adopt requirements proposed in the NPRM that raised concern for smaller broadband providers
in particular, such as disclosures as to the source of congestion.
1.

Clear, Bright Line Rules

110.
The record in this proceeding reveals that three practices in particular demonstrably harm
the open Internet: blocking, throttling, and paid prioritization. For the reasons described below, we find
each of these practices is inherently unjust and unreasonable, in violation of section 201(b) of the Act, and
that these practices threaten the virtuous cycle of innovation and investment that the Commission intends
to protect under its obligation and authority to take steps to promote broadband deployment under section
706 of the 1996 Act. We accordingly adopt bright-line rules banning blocking, throttling, and paid
prioritization by providers of both fixed and mobile broadband Internet access service.243
a.

Preventing Blocking of Lawful Content, Applications, Services, and
Non-harmful Devices

111.
We continue to find, for the same reasons the Commission found in the 2010 Open
Internet Order and reiterated in the 2014 Open Internet NPRM, that “the freedom to send and receive
lawful content and to use and provide applications and services without fear of blocking is essential to the
Internet’s openness.”244 Because of broadband providers’ incentives to block competitors’ content, the
need to protect a consumer’s right to access lawful content, applications, services, and to use non-harmful

242

Consumers and small entities generally expressed concern that these arrangements are harmful and should be
prevented by the Commission. See, e.g., Anita Barfield Comments at 1 (“Net neutrality is important to me because I
do not want my ISP to be able to prioritize the content I see, [and] I am concerned about having my access to
information blocked and other content prioritized.”); David Galzerano Comments at 1 (“In ending net neutrality and
allowing companies to purchase priority rights when it comes to data transmission, you would not only be
eliminating choice and freedom of information for all - which was the pioneering spirit behind the founding of the
Internet - you would be relegating ALL data from Independent and rural operators to a second-class state, as these
operators would NEVER be able to purchase priority status for any of their data.”); Derek Bass Comments at 1
(“Our long-term economy depends on the free, open access to the internet that we currently have. Allowing
privileged corporations fast-track priority will impede innovation and stifle the free exchange of ideas needed to
sustain our economy”); Doug Cottrill Comments at 1 (“Companies that are willing and able to pay more should
NOT be able to get higher priority for their content, nor should information be slowed down or blocked because of
different pricing structures controlled by telecommunications companies.”).
243

See infra Section III.C.1.

244

2014 Open Internet NPRM, 29 FCC Rcd at 5593, para. 89; 2010 Open Internet Order, 25 FCC Rcd at 17941-42,
para. 62.

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devices is as important today as it was when the Commission adopted the first no-blocking rule in
2010.245
112.
In the 2014 Open Internet NPRM, the Commission tentatively concluded that it should
re-adopt the text of the vacated no-blocking rule.246 The record overwhelmingly supports the notion of a
no-blocking principle and re-adopting the text of the original rule.247 Further, we note that many
broadband providers still voluntarily continue to abide by the 2010 no-blocking rule, even though they
have not been legally required to do so by a rule of general applicability since the Verizon decision.248
After consideration of the record and guidance from the D.C. Circuit, we adopt the following no-blocking
rule applicable to both fixed and mobile broadband providers of broadband Internet access service:
A person engaged in the provision of broadband Internet access service, insofar as such
person is so engaged, shall not block lawful content, applications, services, or nonharmful devices, subject to reasonable network management.
113.
Similar to the 2010 no-blocking rule, the phrase “content, applications, and services”
again refers to all traffic transmitted to or from end users of a broadband Internet access service, including
245

See supra Section III.B. See also Broadband Internet Technical Advisory Group, Port Blocking at 2 (2013)
http://www.bitag.org/documents/Port-Blocking.pdf, (“Because Port blocking can affect how particular Internet
applications function, its use has the potential to be anti-competitive, discriminatory, otherwise motivated by nontechnical factors, or construed as such.”); Body of European Regulators for Electronic Communications, A View of
Traffic Management and Other Practices Resulting in Restrictions to the Open Internet in Europe at 8-9 (May 29,
2012), http://ec.europa.eu/digital-agenda/sites/digitalagenda/files/Traffic%20Management%20Investigation%20BEREC_2.pdf (“Among the restrictions related to
specific types of traffic, the most frequently reported restrictions are the blocking and/or throttling of peer-to-peer
(P2P) traffic, on both fixed and mobile networks, and the blocking of Voice over IP (VoIP) traffic, mostly on mobile
networks.”). But see WISPA Comments at 22 (“[T]here is no evidence that small businesses are blocking lawful
content, applications, services or non-harmful devices, or that their existing network management practices are
unreasonable. Small businesses have no business incentive to block content; their main objective is to provide rural
Americans with full access to all lawful broadband content and at reasonable and very competitive costs.”).
246

2014 Open Internet NPRM, 29 FCC Rcd at 5593, para. 89.

247

A broad cross-section of broadband providers, edge providers, public interest organizations, and individuals
support this approach. See, e.g., COMPTEL Reply at 4 (stating that “the record reflects broad agreement that the
Commission should adopt a no-blocking rule”); IFTA Comments at 10 (supporting the re-adoption of a stand-alone
no-blocking rule); Engine Advocacy Comments at 2 (supporting efforts to adopt “strict no-blocking and nondiscrimination rules”); OTI Comments at 11 (noting that as the broadband market becomes more consolidated,
“[t]here is therefore an even greater need for explicit protections against the blocking of lawful content online”);
Cogent Comments at 13 (“an ISP blocking access to lawful Internet content is the antithesis of an open Internet”);
Cox Comments at 5; MMTC Comments at 11; Letter from Barbara van Schewick to Marlene H. Dortch, Secretary,
FCC, GN Docket Nos. 09-191, 14-28, Attach. at 7 (filed Sept. 19, 2014) (van Schewick Sept. 19, 2014 Ex Parte
Letter) (stating a rule to protect against blocking “is part of all network neutrality proposals; this is the one rule on
which all network neutrality proponents agree”). But see TechFreedom Comments at 15-16 (“If [broadband
providers] are truly nefarious . . . then public outcry by the affected subscribers should likely be sufficient to
convince the ISP to change its practices.”).
248

See, e.g., CenturyLink, High Speed Internet Service Management,
http://www.centurylink.com/Pages/AboutUs/Legal/InternetServiceManagement/ (last visited Jan. 29, 2015)
(“CenturyLink does not block, prioritize, or degrade any Internet sourced or destined traffic based on application,
source, destination, protocol, or port unless it does so in connection with a security practice described in the security
policy section below”); RCN, FCC Network Management Disclosure, http://www.rcn.com/images/pdfs/rcn-netmanagement-disclosure.pdf (last visited Jan. 29, 2015) (“We do not block any lawful content, applications, services,
or your use of non-harmful devices.”); Verizon, Terms and Conditions Network Management Guide,
https://www.verizon.com/about/terms/networkmanagementguide/ (last visited Jan. 29, 2015) (“Verizon Online does
not affirmatively manage congestion on the network through mechanisms such as real-time throttling, blocking, or
dropping of specific end user traffic.”).

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traffic that may not fit clearly into any of these categories.249 Further, the no-blocking rule adopted today
again applies to transmissions of lawful content and does not prevent or restrict a broadband provider
from refusing to transmit unlawful material, such as child pornography or copyright-infringing
materials.250 Today’s no-blocking rule also entitles end users to connect, access, and use any lawful
device of their choice, provided that the device does not harm the network.251 The no-blocking rule
prohibits network practices that block a specific application or service, or any particular class of
applications or services, unless it is found to be reasonable network management. Finally, as with the
2010 no-blocking rule, today’s no-blocking rule prohibits broadband providers from charging edge
providers a fee to avoid having the edge providers’ content, service, or application blocked from reaching
the broadband provider’s end-user customer.252
114.
Rejection of the Minimum Level of Access Standard. The 2014 Open Internet NPRM
proposed that the no-blocking rule would prohibit broadband providers from depriving edge providers of
a minimum level of access to the broadband provider’s subscribers and sought comment on how to define
that minimum level of service.253 After consideration of the record, we reject the minimum level of
access standard. Broadband providers, edge providers, public interest organizations, and other parties
note the practical and technical difficulties associated with setting any such minimum level of access.254
For example, some parties note the uncertainty created by an indefinite standard.255 Other parties observe
that in creating any such standard of service for no-blocking, the Commission risks jeopardizing
innovation.256 We agree with these arguments and many others in the record expressing concern with the
proposed minimum level of access standard.
249

2010 Open Internet Order, 25 FCC Rcd at 17942, para. 64.

250

See id. Similar to the 2010 no-blocking rule, this obligation does not impose any independent legal obligation on
broadband providers to be the arbiter of what is lawful. Id. at n.201.
251

Id. at 17942-43, para. 65 & n.202 (noting that a “broadband provider may require that devices conform to widely
accepted and publicly-available standards applicable to its services” and that this rule is not intended to alter existing
rules giving end users the right to attach devices to an MVPD system).
252

Id. at 17943-44, para. 67; see also id. at 17919-20, paras. 25, 26. We note that during oral argument in the
Verizon case, Verizon told the court that “in paragraph 64 of the Order the Agency also sets forth the no charging of
edge providers rule as a corollary to the no blocking rule, and that’s a large part of what is causing us our harm
here.” In response, Judge Silberman stated, “if you were allowed to charge, which are you assuming you're allowed
to charge because of the anti-common carrier point of view, if somebody refused to pay then just like in the dispute
between C[B]S and Warner, Time Warner . . . you could refuse to carry.” Verizon’s counsel responded: “[r]ight.”
Verizon Oral Arg. Tr. at 28.
253

2014 Open Internet NPRM, 29 FCC Rcd at 5596-98, paras. 97-104.

254

See, e.g., Mozilla Comments at 15 (warning that defining a no-blocking rule in terms of establishing a minimum
level of service is not likely “to prove effective and workable in practice”); USTelecom Comments at 50 (“the
Commission should not impose a minimum level of service for free obligation”); Letter from Catherine J.K.
Sandoval, Commissioner, California Public Utilities Commission, to Marlene H. Dortch, Secretary, FCC, GN
Docket No. 14-28, 10-127, Attach. at 14 (filed Oct. 14, 2014) (Sandoval Ex Parte Letter) (“[A]ny of the minimum
level of access standards the FCC proposes would be insufficient to support the needs of a diversity of Internet users
including Critical Infrastructure.”).
255

See, e.g., Microsoft Comments at 19 (“[A] clear no blocking rule—rather than some vague, loosely defined
standard for measuring a prescribed ‘minimum level of service’—is critical to maintaining a vibrant and open
Internet.”); National Public Radio, Inc. (NPR) Comments at 9 (“Given the rapid evolution of technology, defining a
‘minimum level of service’ by regulatory fiat would likely become an ongoing undertaking rife with disputes,
invariably resulting in repeated judicial intervention.”).
256

Information Technology & Innovation Foundation (ITIF) Comments at 22 (stating that the Commission “does
not need to define and enforce a ‘minimum level of service’” because it “would be a difficult exercise and may well
stifle beneficial practices” such as the use of “latency-insensitive ‘scavenger class’ of traffic”); IL and NY
(continued….)

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115.
The no-blocking rule we adopt today prohibits broadband providers from blocking access
to lawful Internet content, applications, services, and non-harmful devices.257 We believe that this
approach will allow broadband providers to honor their service commitments to their subscribers without
relying upon the concept of a specified level of service to those subscribers or edge providers under the
no-blocking rule. We further believe that the separate no-throttling rule discussed below provides
appropriate protections against harmful conduct that degrades traffic but does not constitute outright
blocking.258
116.
Application of the No-Blocking Rule to Mobile. In 2010, the Commission limited the noblocking rule for mobile to lawful websites and applications that competed with a provider’s voice or
video telephony services, subject to reasonable network management.259 The 2014 Open Internet NPRM,
citing “the operational constraints that affect mobile broadband services, the rapidly evolving nature of
the mobile broadband technologies, and the generally greater amount of consumer choice for mobile
broadband services than for fixed,”260 proposed to retain the 2010 no-blocking rule. The Commission
sought comment on this proposal.261
117.
For the reasons set forth above,262 including consumer expectations, the Commission’s
experience with open Internet regulations in the 700 MHz C Block, and the advances in the mobile
broadband industry since 2010, we conclude instead that the same no-blocking rule should apply to both
fixed and mobile broadband Internet access services.263 Accordingly, as with fixed service, a consumer’s
mobile broadband provider cannot block a consumer from accessing lawful content, applications,
services, or non-harmful devices, regardless of whether the content, applications, services, or devices264
compete with a provider’s own offerings, subject to reasonable network management.
118.
All national mobile broadband providers, among others, opposed the application of the
broader no-blocking rule to mobile broadband, arguing, for example, that mobile broadband providers
(Continued from previous page)
Comments at 9 (“A ‘minimum level of access’ necessarily implies that a higher or preferential level of service will
become available, creating the very two-tiers of service that the Proposed Rules are intended to prevent.”).
257

2014 Open Internet NPRM, 29 FCC Rcd at 5597, para. 101 (asking if the Commission should “define the
minimum level of access from the perspective of end users, edge providers, or both”).
258

See infra Section III.C.1.b; Access Comments at 6 (drawing a distinction between outright blocking and slowing
or throttling end-user access to certain content, services, or applications).
259

2010 Open Internet Order, 25 FCC Rcd at 17956-57, 17959-60, paras. 94-95, 99.

260

2014 Open Internet NPRM, 29 FCC Rcd at 5594, para. 91.

261

Id. at 5598, para. 105.

262

See supra Section III.B.3.

263

See American Association of Law Libraries (AALL) Comments at 3; ADT Comments at 9; NMR Comments at
30; Voices for Internet Freedom Comments at 6; EFF Comments at 24 (“Mobile device owners should enjoy the
same levels of control and choice for networked applications on their mobile devices as they do on their laptops and
desktops.”); Higher Education and Libraries Comments at 18-19; OTI Comments at 62; Sandvine Comments at 9
(arguing that reasonable network management permits mobile operators to treat traffic differently than fixed
networks do); i2Coalition Comments at 41; TIA Comments at 20-21; but see AT&T Comments at 19; Cisco
Comments at 22; CTIA Comments at 17 (citing capacity constraints); Mobile Future Reply at 2-3; Verizon
Comments at 43-44; Sprint Reply at 23; T-Mobile Comments at 11.
264

In evaluating the reasonable network management exception to the no-blocking rule, the Commission will
drawing upon its experience with the no-blocking rule in the 700 MHz C Block. See 700 MHz Second Report and
Order, 22 FCC Rcd at 15370-72, paras. 222-26; see also Verizon Wireless to Pay $1.25 Million to Settle
Investigation into Blocking of Consumers’ Access to Certain Mobile Broadband Applications, News Release, July
31, 2012, http://www.fcc.gov/document/verizon-wireless-pay-125-million-settle-investigation (regarding tethering
applications for C Block network customers).

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need the ability to block unwanted traffic265 and spam.266 They also argue that the particular challenges
of managing a mobile broadband network, for example the unknown effects of apps,267 require additional
flexibility to block traffic.268 As discussed below,269 we recognize that additional flexibility may be
required in mobile network management practices, but find that the reasonable network management
exception we adopt today allows sufficient flexibility: the blocking of harmful or unwanted traffic
remains a legitimate network management purpose, and is permissible when pursued through reasonable
network management practices.
b.

Preventing Throttling of Lawful Content, Applications, Services, and
Non-harmful Devices

119.
In the 2014 Open Internet NPRM, the Commission proposed that degradation of lawful
content or services below a specified level of service would violate a no-blocking rule.270 While certain
broadband Internet access provider conduct may result in degradation of an end user’s Internet experience
that is tantamount to blocking, we believe that this conduct requires delineation in an explicit rule rather
than through commentary as part of the no-blocking rule.271 Thus, we adopt a separate no-throttling rule
applicable to both fixed and mobile providers of broadband Internet access service:
A person engaged in the provision of broadband Internet access service, insofar as such
person is so engaged, shall not impair or degrade lawful Internet traffic on the basis of
Internet content, application, or service, or use of a non-harmful device, subject to
reasonable network management.
120.
With the no-throttling rule, we ban conduct that is not outright blocking, but inhibits the
delivery of particular content, applications, or services, or particular classes of content, applications, or
services.272 Likewise, we prohibit conduct that impairs or degrades lawful traffic to a non-harmful device
or class of devices. We interpret this prohibition to include, for example, any conduct by a broadband
Internet access service provider that impairs, degrades, slows down, or renders effectively unusable

265

AT&T Reply at 34-35; Sprint Reply at 22-23; T-Mobile Comments at 11, 13 (arguing that “[w]ireless broadband
providers need flexibility to address network security and reliability risks, as well as other threats to public safety
and the consumer experience”); Verizon Comments at 43-44;CTIA Comments at 17-18.
266

See, e.g., Verizon Comments at 4; Interisle Consulting Group Comments 27 (“[I]f blocking were banned, then
spammers would be able to dramatically increase the volume of traffic they send. Other security problems could
also be worsened.”).
267

See, e.g., Verizon Comments at 44 (“The Open Internet Order appropriately recognized that the download and
use of a mobile application presents unique network management issues.”).
268

See CTIA Comments at 27-28.

269

See infra Section III.D.4.

270

2014 Open Internet NPRM, 29 FCC Rcd at 5593, para. 89 (“So long as broadband providers do not degrade
lawful content or service to below a minimum level of access, they would not run afoul of the proposed rule.”).
271

See, e.g., Letter from the Honorable Henry A. Waxman to Tom Wheeler, Chairman, FCC, GN Docket No. 14-28,
(filed Oct. 3, 2014) (Waxman Oct. 3, 2014 Ex Parte Letter) (proposing separate no blocking and no-throttling rules);
WGAW Comments at 22 (noting that throttling may in some cases constitute a “more subtle practice[] that
achieve[s] the goal of blocking”); Mozilla Reply at 3 (“There is general agreement that these rules should include a
rule that prevents access network operators from blocking ordinary, lawful traffic, and some form of a
nondiscrimination rule on limiting, throttling, or prioritizing traffic.”).
272

See, e.g., Letter from Barbara van Schewick, Professor of Law and (by courtesy) Electrical Engineering, Stanford
Law School, et al., to Marlene Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127 Attach. at 4 (filed Feb. 18,
2015) (van Schewick Feb. 18, 2015 Ex Parte Letter) (“[T]he no-throttling rule should explicitly ban discrimination
against applications AND classes of applications (so-called ‘application-specific’ discrimination).”).

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particular content, services, applications, or devices, that is not reasonable network management.273 For
purposes of this rule, the meaning of “content, applications, and services” has the same as the meaning
given to this phrase in the no-blocking rule.274 Like the no-blocking rule, broadband providers may not
impose a fee on edge providers to avoid having the edge providers’ content, service, or application
throttled.275 Further, transfers of unlawful content or unlawful transfers of content are not protected by the
no-throttling rule. 276 We will consider potential violations of the no-throttling rule under the enforcement
provisions outlined below.
121.
We find that a prohibition on throttling is as necessary as a rule prohibiting blocking.
Without an equally strong no-throttling rule, parties note that the no-blocking rule will not be as effective
because broadband providers might otherwise engage in conduct that harms the open Internet but falls
short of outright blocking. For example, the record notes the existence of numerous practices that
broadband providers can engage in to degrade an end user’s experience.277
122.
Because our no-throttling rule addresses instances in which a broadband provider targets
particular content, applications, services, or non-harmful devices, it does not address a practice of slowing
down an end user’s connection to the Internet based on a choice made by the end user. For instance, a
broadband provider may offer a data plan in which a subscriber receives a set amount of data at one speed
tier and any remaining data at a lower tier.278 If the Commission were concerned about the particulars of a
data plan, it could review it under the no-unreasonable interference/disadvantage standard.279 In contrast,
if a broadband provider degraded the delivery of a particular application (e.g., a disfavored VoIP service)
or class of application (e.g., all VoIP applications), it would violate the bright-line no-throttling rule. We
note that user-selected data plans with reduced speeds must comply with our transparency rule, such that
the limitations of the plan are clearly and accurately communicated to the subscriber.
123.
The no-throttling rule also addresses conduct that impairs or degrades content,
applications, or services that might compete with a broadband provider’s affiliated content. For example,
if a broadband provider and an unaffiliated entity both offered over-the-top applications, the no-throttling
rule would prohibit broadband providers from constraining bandwidth for the competing over-the-top
offering to prevent it from reaching the broadband provider’s end user in the same manner as the
affiliated application.280
273

See infra Section III.D.3; see also Waxman Oct. 3, 2014 Ex Parte Letter at 10, n.32 (“The term ‘throttling’ is not
limited to the technique of slowing down or delaying Internet packets, but more broadly refers to methods that can
be used to differentiate, or ‘shape’ Internet traffic.”).
274

See supra Section III.C.1.a.

275

See supra para. 113.

276

Id.; see also 2010 Open Internet Order, 25 FCC Rcd at 17943-44, para. 67; see also id. at 17919-20, paras. 25,
26.
277

See, e.g., Cogent Comments at 17 (“There are numerous practices a last-mile broadband ISP can undertake short
of outright blocking an edge provider that can degrade an end user’s experience with—and thus likelihood to seek
out in the future—services offered by a particular edge provider.”); NARUC Comments at 6 (“[L]imiting, or
otherwise degrading broadband access for users . . . is an unfair practice that ‘may reduce the Internet’s value to
consumers.’”); see also supra Section III.B.
278

See, e.g., T-Mobile, Simple Choice Plan, http://www.t-mobile.com/cell-phone-plans/individual.html (last visited
Feb. 5, 2015) (offering 1GB, 3GB, and 5GB plans with lower data speeds after the threshold is reached).
279

See infra Sections III.C.2; III.D.4.

280

Vimeo Comments at 11 (citing a 2011 study noting that “A rebuffering rate of 1% (i.e., a video pauses for 1 out
of every 100 seconds) results in 5% less video watched overall. There is a ‘2-second rule’ for video watching:
People are willing to wait 2 seconds for a video to load, but the rate of abandonment increases significantly
thereafter if the video doesn’t load. Viewer patience is influenced by the expectation of speed from the viewing
(continued….)

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124.
As in the 2010 Open Internet Order, we continue to recognize that in order to optimize
the end-user experience, broadband providers must be permitted to engage in reasonable network
management practices. We emphasize, however, that to be eligible for consideration under the reasonable
network management exception, a network management practice that would otherwise violate the nothrottling rule must be used reasonably and primarily for network management purposes, and not for
business purposes.281
c.

No Paid Prioritization

125.
In the 2014 Open Internet NPRM, the Commission sought comment on suggestions to
impose a flat ban on paid prioritization services, including whether all paid prioritization practices, or
some of them, could be treated as per se violations of the commercially-reasonable standard or any other
standard based on any source of legal authority.282 For reasons explained below, we conclude that paid
prioritization network practices harm consumers, competition, and innovation, as well as create
disincentives to promote broadband deployment and, as such, adopt a bright-line rule against such
practices. Accordingly, today we ban arrangements in which the broadband service provider accepts
consideration (monetary or otherwise) from a third party to manage the network in a manner that benefits
particular content, applications, services, or devices. We also ban arrangements where a provider
manages its network in a manner that favors the content, applications, services or devices of an affiliated
entity.283 Any broadband provider that engages in such practices will be subject to enforcement action,
including forfeitures and other penalties.284 We adopt the following rule banning paid prioritization
arrangements:
A person engaged in the provision of broadband Internet access service, insofar as such
person is so engaged, shall not engage in paid prioritization.
“Paid prioritization” refers to the management of a broadband provider’s network to
directly or indirectly favor some traffic over other traffic, including through use of
techniques such as traffic shaping, prioritization, resource reservation, or other forms of
preferential traffic management, either (a) in exchange for consideration (monetary or
otherwise) from a third party, or (b) to benefit an affiliated entity.
126.
The paid prioritization ban we adopt today is based on the record that has developed in
this proceeding. The record is rife with commenter concerns regarding preferential treatment
arrangements, with many advocating a flat ban on paid prioritization.285 Commenters assert that
permitting paid prioritization will result in the bifurcating of the Internet into a “fast” lane for those
(Continued from previous page)
platform and the perceived value of the content. Bad viewing experiences lead not just to abandonment of a
particular video, but also to a lower rate of watching other videos.”); Golden Frog Comments at 5-6 (discussing
allegations of anti-competitive behavior by broadband service providers, including those involving blocking and
throttling).
281

See infra Section III.D.3. While not within the definition of “throttling” for purposes of our no-throttling rule,
the slowing of subscribers’ content on an application agnostic basis, including as an element of subscribers’
purchased service plans, will be evaluated under the transparency rule and the no-unreasonable
interference/disadvantage standard.
282

See 2014 Open Internet NPRM, 29 FCC Rcd at 5609, para. 138.

283

We consider arrangements of this kind to be paid prioritization, even when there is no exchange of payment or
other consideration between the broadband Internet access service provider and the affiliated entity.
284

Other forms of traffic prioritization, including practices that serve a public safety purpose, may be acceptable
under our rules as reasonable network management. See infra Section III.D.3.
285

See, e.g., Internet Association Comments at 16; Y Combinator Comments at 3; Reddit Comments at 11; Ben Holt
Comments at 1; Consumers Union Comments at 5; AALL Comments at 3; AAPD Comments at 4.

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willing and able to pay and a “slow” lane for everyone else.286 As several commenters observe, allowing
for the purchase of priority treatment can lead to degraded performance—in the form of higher latency,
increased risk of packet loss, or, in aggregate, lower bandwidth—for traffic that is not covered by such an
arrangement.287 Commenters further argue that paid prioritization will introduce artificial barriers to
entry, distort the market, harm competition,288 harm consumers,289 discourage innovation,290 undermine
286

See, e.g., Higher Education and Libraries Comments at 12 (“Many institutions that serve the public interest, such
as libraries, colleges and universities, may not be able to afford to pay extra fees simply for the transmission of their
content and could find their Internet traffic relegated to chokepoints.”); Rural Broadband Policy Group Comments at
9 (“Allowing Internet service providers to sell fast lanes to those who can afford them would permit the redlining of
rural towns and customers who cannot pay for the fast lanes.”); Vimeo Comments at 9-10 (stating that “[i]f
broadband providers can make marginal revenue from priority access fees, they will have little incentive to maintain
a high-quality ‘standard lane’ experience for edge providers unwilling or unable to pay”); Public Knowledge
Comments at 37 (“Because the fast lane will produce premium revenue for ISPs, ISPs have every incentive to
construct a slow lane that performs poorly enough to justify extra payments from those edge services who can afford
to do so.”); Engine Advocacy Reply at 5 (“[P]aid prioritization schemes, once implemented, will result in Internet
fast lanes for well-heeled incumbents, relegating startups and the economic growth they create to the slow lane.”).
287

See Mozilla Comments at 20 (“Prioritization is inherently a zero-sum practice, and inherently creates fast and
slow lanes and prevents a level playing field.”); Mozilla Reply at 15; Sandvine Comments at 9 (“At a moment in
time, there is a fixed amount of bandwidth available to all applications, content, etc. on a given network. If one
application has paid for more of that bandwidth (and this is how the priority is achieved) then there is less ‘best
efforts’ bandwidth remaining for all other applications and content.”). But see ADTRAN Reply at ii, 6, 16 (arguing
that the zero-sum game theory is incorrect because it ignores the fact that broadband providers’ capacity is not
static); Letter from Justin (Gus) Hurwitz, Assistant Professor, University of Nebraska College of Law, to Marlene H.
Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (filed Nov. 3, 2014) (asserting that prioritization is not “zero
sum”).
288

See, e.g., Ad Hoc Comments at 19-20; Mozilla Reply at 16 (arguing that paid prioritization creates perverse
incentives because “underinvestment in infrastructure is more appealing if the result is increased sales of a
prioritized offering balancing out any loss in direct subscribers”); CDT Comments at 6 (“By degrading some traffic
or prioritizing other traffic, broadband providers could effectively play favorites in the online marketplace, distorting
competition among online content and applications.”); Letter from Edyael Casaperalta, Rural Broadband Policy
Group Coordinator, National Rural Assembly, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28 and
10-127, at 3 (filed Oct. 20, 2014) (expressing concern that permitting paid prioritization and a “fast lane” will place
rural companies at a competitive disadvantage); Letter from Austin C. Schlick, Director, Communications Law,
Google, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127 (filed Nov. 5, 2014) (asserting that
paid prioritization “could create incentives for providers to maintain scarcity and congestion on their networks, in
order to sell services that avoid these artificial conditions”); Vonage Reply at 5-6.
289

See, e.g., CCIA Reply at 17-18 (asserting that paid prioritization will harm consumers because these fees will be
passed through to consumers); COMPTEL Comments at 10; Higher Education and Libraries Comments at 12
(asserting that “it is likely that those who are able to pay for preferential treatment will pass along their costs to their
consumers and/or subscribers. In some cases, libraries and other public institutions may be among these subscribers
who would then be forced to pay more for services they may broker on behalf of their patrons”); Internet
Association Comments at 17; AOL Comments at 6-7; Free Press Comments at 25; Vermont Reply at 8; Letter from
Erin P. Fitzgerald, Rural Wireless Association to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1
(filed Nov. 14, 2014) (noting that “widespread paid prioritization arrangements could further adversely impact
competition and harm consumers”). But see Hance Haney Comments at 9 (“Scholars have observed that as states
have reduced in-state long-distance access fees, ‘the market induces carriers to pass-through most of the reduction in
access rates.’ There appears to be no reason to believe that a similar dynamic wouldn’t occur in the context of a twosided broadband market.”).
290

See, e.g., Internet Association Comments at 17; Engine Advocacy Comments at 5 (explaining that if a startup’s
site does not load as quickly or its application is not as reliable, it will be harmed because “[u]sers will switch to
competitors whose services receive better treatment, [u]sers will spend less money on e-commerce sites or view
fewer pages on sites that garner advertising revenue through the number of page-views, and chill initial capital
investment”); Linear Air Reply at 3-4; National Venture Capital Association Comments at 2.

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public safety and universal service,291 and harm free expression.292 Vimeo, for instance, argues that paid
prioritization “would disadvantage user-generated video and independent filmmakers” that lack the
resources of major film studios to pay priority rates for dissemination of content.293 Engine Advocacy
meanwhile asserts that “[s]ome unfunded early startups may not be able to afford [to pay for priority
treatment] (particularly if the product would be data-intensive) and will not start a company,” resulting in
“reduce[d] entrepreneurship.”294 Commenters assert that if paid prioritization became widespread, it
would make reliance on consumers’ ordinary, non-prioritized access to the Internet an increasingly
unattractive and competitively nonviable option.295 The Commission’s conclusion is supported by a wellestablished body of economic literature,296 including Commission staff working papers.297
127.
It is well-established that broadband providers have both the incentive and ability to
engage in paid prioritization.298 In its Verizon opinion, the D.C. Circuit noted that providers “have
powerful incentives to accept fees from edge providers, either in return for excluding their competitors or
for granting them prioritized access to end users.”299 Indeed, at oral argument Verizon’s counsel
291

See, e.g., Sandoval Ex Parte Letter at 2 (asserting that paid prioritization undermines public safety and universal
service, and increases barriers to adopting Internet-based applications such as Internet-enabled demand response
communications electric and gas utilities use to prevent power blackouts, forestall the need to build fossil-fueled
power plants, promote environmental sustainability, and manage energy resources).
292

See, e.g., Illinois and NY Comments at 6 (asserting that “[i]f broadband providers can discriminate among
content, they can effectively pick winners and losers, interfering with the public’s ability to freely educate itself
about political, cultural, and social issues – education that is critical to our democracy”); Ad Hoc Comments at 20
(asserting that paid prioritization would distort consumers’ choices among content and edge providers); Church
World Service et al. Reply at 1; Independent Filmmaker Organizations Reply at 3-6; City of Los Angeles Comments
at 5.
293

Vimeo Comments at 12 (capitalization omitted).

294

Engine Advocacy Comments at 7.

295

See, e.g., CDT Comments at 18; Reddit Comments at 7; Y Combinator Comments at 2-3; Tumblr Reply at 8
(“[E]ven if a ‘slow’ lane remains reasonably fast, marginal differences in upload and streaming speeds moving
forward would deter people from using slower services, and severely punish companies that cannot pay for prime
access.”); Vimeo Comments at 11 (“[M]erely having a ‘fast-lane’ for paid traffic will alter consumers’ perception of
the standard for speed, [because w]hen consumers become accustomed to receiving video at a certain delivery rate,
that rate will become the de facto standard and everything else will be perceived as substandard. Consumers are
unlikely to know (or care) about why a particular video takes two seconds to load or is constantly rebuffering, and
will abandon those edge providers that they perceive as providing a slower and thus less enjoyable experience.”);
Kickstarter Comments at 3-4 (“Users will not accept slow load times and choppy videos.”).
296

The access provided by the core network is an intermediate input into the myriad of final products produced by
edge providers. While it is granted that for a firm selling final goods, price discrimination can be both profitable and
enhance welfare, it has been argued that the reverse is also true when intermediate goods are considered. See
Michael L. Katz, Price Discrimination and Monopolistic Competition , 52 Econometrica 1453, 1453-71 (1984);
Michael L. Katz, Non-Uniform Pricing, Output and Welfare under Monopoly, 50 Rev. of Economic Studies 37, 3756 (1983); Michael L. Katz, The Welfare Effects of Third-Degree Price Discrimination in Intermediate Good
Markets, 77 American Economic Rev. 154, 154-167 (1987); and Yoshihiro Yoshida, Third Degree Price
Discrimination in Input Markets: Output and Welfare, 90 American Economic Rev. 240, 240-246 (2000).
297

Gerald W. Brock, Telephone Pricing to Promote Universal Service and Economic Freedom, OPP Working Paper
Series No. 18 (1986); Jay M. Atkinson and Christopher C. Barnekov, A Competitively Neutral Approach to Network
Interconnection, OPP Working Paper Series, No. 34 (2000).
298

See supra Section III.B.2.a.

299

Verizon, 740 F.3d at 645-46 (holding that the Commission has adequately supported and explained its
conclusions that absent open Internet protections, broadband providers “represent a threat to Internet openness and
could act in ways that would ultimately inhibit the speed and extent of future broadband deployment”).

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announced that “but for [the 2010 Open Internet Order] rules we would be exploring [such] commercial
arrangements.”300 While we appreciate that several broadband providers have claimed that they do not
engage in paid prioritization301 or that they have no plans to do so,302 such statements do not have the force
of a legal rule that prevents them from doing so in the future. The future openness of the Internet should
not turn on the decision of a particular company. We are concerned that if paid prioritization practices
were to become widespread, the damage to Internet openness could be difficult to reverse. We agree that
“[u]nraveling a web of discriminatory deals after significant investments have been made, business plans
have been built, and technologies have been deployed would be a complicated undertaking both
logistically and politically.”303 Further, documenting the harms could prove challenging, as it is
impossible to identify small businesses and new applications that are stifled before they become
commercially viable.304 Prioritizing some traffic over others based on payment or other consideration
from an edge provider could fundamentally alter the Internet as a whole by creating artificial motivations
and constraints on its use, damaging the web of relationships and interactions that define the value of the
Internet for both end users and edge providers, and posing a risk of harm to consumers, competition, and
innovation.305 Thus, because of the very real concerns about the chilling effects that preferential treatment
arrangements could have on the virtuous cycle of innovation, consumer demand, and investment, we
adopt a bright-line rule banning paid prioritization arrangements.306

300

Verizon Oral Arg. Tr. at 31 (“I’m authorized to state by my client [Verizon] today that but for these rules we
would be exploring those commercial arrangements, but this order prohibits those, and in fact would shrink the types
of services that will be available on the Internet.”).
301

See, e.g., AT&T Comments at 30-31; Verizon Comments at 37; Sandvine Comments at 3 (“[T]o the best of our
knowledge, none of the innovative service plans that Sandvine has helped implement across our customer base have
involved payments between operators and edge providers for traffic priority—so-called Pay for Priority.”); Letter
from Randal S. Milch, Executive Vice President, Public Policy and General Counsel, Verizon, to Chairman Patrick
J. Leahy, Committee on the Judiciary, U.S. Senate (Oct. 29, 2014) (Verizon Letter to Leahy). Further, these
broadband providers argue that they have no incentive to engage in paid prioritization arrangements, as their own
business plans depend upon an open Internet. See, e.g., Verizon Comments at 5-10; Comcast Comments at 5-6;
AT&T Comments at 21; Cox Comments at i; TWC Comments at 2; Charter Comments at 9; Cequel Reply at 3
(explaining that it “could not block an edge-based content provider without diminishing the value of its Internet
service and losing customers to the formidable competitors it faces”).
302

For example, we note that in Verizon’s letter to Chairman Leahy, the company states “[a]s we have said before,
and affirm again here, Verizon has no plans to engage in paid prioritization of Internet traffic.” Verizon Letter to
Leahy at 1. However, in contrast to this statement, at oral argument in the Verizon case, counsel for Verizon
explained that the company would pursue such arrangements if not for the 2010 Open Internet rules which prevented
them. See supra note 300.
303

CDT Comments at 5.

304

See, e.g., CDT Comments at 5; Etsy Comments at 8 (“[Under the proposed rules] many new startups that would
have been founded will die in their infancy or never be created. How do you account for all the innovations that
would never come to market because of these new rules?”); Reddit Comments at 9-10 (“If the Chairman’s proposal
had been law in 2005, reddit might not have gotten off the ground.”); CodeCombat Comments at 5-7; Heyzap
Comments at 2-3.
305

See, e.g., ACLU Comments at 7 (“Were paid prioritization or other differential treatment permitted, edge
providers with a first mover advantage would be able to entrench their market position on the edge, and then to pass
along any overcharge imposed by broadband providers to consumers in their fees. The big content, application or
device providers would be able to afford greater, faster or better access to broadband consumers while newer
competitors would be put at an ever-growing disadvantage.”).
306

Some commenters argue that consumer disclosures about such practices are sufficient. See, e.g., Bright House
Comments at 29. However, the average consumer does not have the time or specialized knowledge to sort through
the implications, and regardless, in many areas of the country, consumers simply do not have multiple, equivalent
(continued….)

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128.
In arguing against such a ban, ADTRAN asserts that it would “cement the advantages
enjoyed by the largest edge providers that presently obtain the functional equivalent of priority access by
constructing their own extensive networks that interconnect directly with the ISPs.”307 We reject this
argument. CDT correctly observes that “[e]stablished entities with substantial resources will always have
a variety of advantages” over less established ones,308 notwithstanding any rules we adopt. We do not
seek to disrupt the legitimate benefits that may accrue to edge providers that have invested in enhancing
the delivery of their services to end users. On the contrary, such investments may contribute to the
virtuous cycle by stimulating further competition and innovation among edge providers, to the ultimate
benefit of consumers. We also clarify that the ban on paid prioritization does not restrict the ability of a
broadband provider and CDN to interconnect.309
129.
We find that a flat ban on paid prioritization has advantages over alternative approaches
identified in the record.310 Prohibiting this practice outright will help to foster broadband network
investment by setting clear boundaries of acceptable and unacceptable behavior. It will also protect
consumers against a harmful practice that may be difficult to understand, even if disclosed. In addition,
this approach relieves small edge providers, innovators, and consumers of the burden of detecting and
challenging instances of harmful paid prioritization.311 Given the potential harms to the virtuous cycle,
(Continued from previous page)
choices. See Illinois and NY Comments at 11-12. Further, as discussed above, switching costs can be a substantial
deterrent. See supra Section III.B.2.
307

ADTRAN Reply at 18.

308

CDT Comments at 5; see also Intel Reply at 10 (“Absent persuasive evidence of anti-competitive conduct,
companies that are disadvantaged by such innovation deserve no special assistance or protection. To do otherwise
would frustrate competition and innovation, harming American consumers and business.”).
309

Letter from Scott Blake Harris, Counsel to Akamai, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 1428 (filed Feb. 9, 2015) (requesting that “the final Open Internet Order should expressly state that CDN services do
not constitute ‘prioritization’ as that term has been used in this proceeding”).
310

For example, AOL proposes to permit individual negotiations for priority services, but would prohibit them
where the broadband provider is affiliated with an upstream edge provider; has market power; and also charges end
users (i.e., no double-charging). AOL Comments at 5-8. AT&T proposes, as one option for addressing paid
prioritization, the imposition of “additional transparency, no-blocking, and nondiscrimination rules on fixed
broadband Internet access providers that do not agree voluntarily to refrain from entering into paid prioritization
arrangements.” AT&T Comments at 37-38; see also American Cable Association (ACA) Reply at 18 (stating that
AT&T’s proposal “appears to offer both adequate protections to edge providers and end users, while giving
broadband ISPs the needed flexibility to manage their networks and create innovative service offerings”). Comcast
proposes a rebuttable presumption against “paid prioritization” arrangements that would entirely preclude “exclusive
arrangements and arrangements that prioritize a broadband provider’s own affiliated Internet content vis-à-vis
unaffiliated content” and place a heavy burden on the broadband provider to justify any other “paid prioritization”
arrangement. Comcast Comments at 24.
311

See, e.g., eBay Comments at 4-5; CCIA Comments 31-32; CCIA Reply at 15-16 (expressing concern that the
commercially reasonable standard will necessarily increase the costs of seeking relief from unlawful conduct, and
will thus contravene the Commission’s stated goal of providing meaningful enforcement measures to small
businesses); Kickstarter Comments at 3 (“We would have no real recourse if we were offered an unfair price. Using
our small legal team or hiring outside counsel to prove that an offered deal was ‘commercially unreasonable’ . . .
would take far too long and cost far too much to be a feasible option.”); CCIA Reply at 13-14 (“Putting the onus on
edge providers, most of whom lack regulatory and legal experience anywhere comparable to that of [broadband
providers], to show anticompetitive conduct through individual administrative proceedings will almost certainly lead
to a situation where edge providers (particularly startups and smaller companies) cannot avail themselves of the
protections provided in this rulemaking.”); Netflix Comments at 10 (“Weighing the cost of an administrative
proceeding and the uncertainty of success, many edge providers likely will choose to forego engagement with the
Commission.”); Y Combinator Comments at 3 (“No startup has the funds and lawyers and economists to take on
billion-dollar ISPs in an FCC action based on the vague legal standards in the proposal. Indeed, the startup
ecosystem needs a bright-line, per se rule against discrimination.”); Free Press Comments at 136 (“This regime
(continued….)

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we believe it is more appropriate to impose an ex ante ban on such practices, while entertaining waiver
requests under exceptional circumstances.
130.
Under our longstanding waiver rule, the Commission may waive any rule “in whole or in
part, for good cause shown.”312 General waiver of the Commission’s rules is appropriate only if special
circumstances warrant a deviation from the general rule, and such a deviation will serve the public
interest.313 In some cases, however, the Commission adopts specific rules concerning the factors that will
be used to examine a waiver or exemption request.314 We believe that such guidance is appropriate here
to make clear the very limited circumstances in which the Commission would be willing to allow paid
prioritization. Accordingly, we adopt a rule concerning waiver of the paid prioritization ban that
establishes a balancing test, as follows:
The Commission may waive the ban on paid prioritization only if the petitioner
demonstrates that the practice would provide some significant public interest benefit and
would not harm the open nature of the Internet.
131.
In support of any waiver request, the applicant therefore must make two related
showings. First, the applicant must demonstrate that the practice will have some significant public
interest benefit, such as providing evidence that the practice furthers competition, innovation, consumer
demand, or investment. Second, the applicant must demonstrate that the practice does not harm the
nature of the open Internet, including, but not limited to, providing evidence that the practice:


does not materially degrade or threaten to materially degrade the broadband Internet access
service of the general public;



does not hinder consumer choice;



does not impair competition, innovation, consumer demand, or investment; and



does not impede any forms of expressions, types of service, or points of view.

132.
An applicant seeking waiver relief under this rule faces a high bar. We anticipate
granting such relief only in exceptional cases.315

(Continued from previous page)
would shift the burden to prove such practices commercially unreasonable onto Internet users and edge providers
who can least afford to bear that burden.”); MobileWorks Reply at 6.
312

47 C.F.R. § 1.3.

313

See WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. 1969); Northeast Cellular Telephone Co. v. FCC, 897
F.2d 1164, 1166 (D.C. Cir. 1990).
314

See, e.g., 47 C.F.R. § 79.1(f) (“Procedures for exemptions [from closed captioning requirements] based on
economically burdensome standard.”).
315

For instance, several commenters argue that paid prioritization arrangements could improve the provision of
telemedicine services. See, e.g., California Telehealth Network (CTN) Reply at 7, 9 (explaining that as full motion
synchronous video conferencing becomes more necessary for digital diagnosis and treatment, as required by many
telehealth services, the total bandwidth consumption in the Internet ecosystem for telehealth will grow, encouraging
investment and deployment); AALL Comments at 2 (“Health sciences libraries also provide Internet access to
images that support telemedicine, particularly in remote areas where Internet service can be disproportional or
uneven and to reach the underserved.”); MMTC Comments at 11 (arguing that the Commission should employ a
“rebuttable presumption against paid prioritization . . . while ensuring that such presumption can be overcome by
business models that sufficiently protect consumers and have the potential to benefit consumer welfare,” such as
telemedicine applications). We note that telemedicine services might alternatively be structured as “non-BIAS data
services,” which are beyond the reach of the open Internet rules. See infra Section III.D.3.

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2.

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No Unreasonable Interference or Unreasonable Disadvantage Standard for
Internet Conduct

133.
In the 2014 Open Internet NPRM, the Commission tentatively concluded that it should
adopt a rule requiring broadband providers to use “commercially reasonable” practices in the provision of
broadband Internet access service, and sought comment on this approach.316 The Commission also sought
comment on whether there were alternative legal standards that the Commission should consider,317 or
whether it should adopt a rule that prohibits unreasonable discrimination and, if so, what legal authority
and theories it should rely upon to do so.318 In addition, the Commission sought comment on how it can
ensure that the rule it adopts sufficiently protects against harms to the open Internet, including broadband
providers’ incentives to disadvantage edge providers or classes of edge providers in ways that would
harm Internet openness.319
134.
The Commission sought comment on what factors it should adopt to ensure commercially
reasonable practices that will protect and promote Internet openness, and tentatively concluded that a
review of the totality of the circumstances should be preserved to ensure that rules can be applied evenly
and fairly in response to changing circumstances.320 The Commission also recognized that there have
been significant changes in the mobile marketplace since 2010, and sought comment on whether and, if
so, how these changes should affect the Commission’s treatment of mobile services under the rules.321
135.
Preventing Unreasonable Interference or Unreasonable Disadvantage that Harms
Consumers and Edge Providers. The three bright-line rules that we adopt today prohibit specific conduct
that harms the open Internet. The open nature of the Internet has allowed new products and services to
flourish and has broken down geographic barriers to communication, allowing information to flow freely.
We believe the rules we adopt today will alleviate many of the concerns identified in the record regarding
broadband provider practices that could upset these positive outcomes. However, while these three
bright-line rules comprise a critical cornerstone in protecting and promoting the open Internet, we believe
that there may exist other current or future practices that cause the type of harms our rules are intended to
address. For that reason, we adopt a rule setting forth a no-unreasonable interference/disadvantage
standard, under which the Commission can prohibit, on a case-by-case basis, practices that unreasonably
interfere with or unreasonably disadvantage the ability of consumers to reach the Internet content,
services, and applications of their choosing or of edge providers to access consumers using the Internet.
136.
It is critical that access to a robust, open Internet remains a core feature of the
communications landscape, but also that there remains leeway for experimentation with innovative
offerings. Based on our findings that broadband providers have the incentive and ability to discriminate
in their handling of network traffic in ways that can harm the virtuous cycle of innovation, increased enduser demand for broadband access, and increased investment in broadband network infrastructure and

316

2014 Open Internet NPRM, 29 FCC Rcd at 5602, para. 116. The Commission also tentatively concluded that it
should operate separately from the proposed no-blocking rule, i.e., conduct acceptable under the no-blocking rule
would still be subject to independent examination under the “commercially reasonable” standard, and sought
comment on this approach. Id. at 5602, para. 117.
317

Id. at 5603, para. 119.

318

Id. at 5604, para. 121.

319

Id.

320

Id. at 5604-05, paras. 122-23.

321

Id. at 5583-84, para. 62. Specifically, the Commission sought comment on whether, under the commercially
reasonable rule, mobile networks should be subject to the same totality-of-the circumstances test as fixed broadband,
and whether the Commission should apply the commercially reasonable legal standard to mobile broadband. Id. at
5609, para. 140.

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technologies,322 we conclude that a no-unreasonable interference/disadvantage standard to protect the
open nature of the Internet is necessary. We adopt this standard to prohibit practices in the broadband
Internet access provider’s network that harm Internet openness, similar to the approach proposed by the
Higher Education coalition and the Center for Democracy and Technology.323 Specifically, we require
that
Any person engaged in the provision of broadband Internet access service, insofar as
such person is so engaged, shall not unreasonably interfere with or unreasonably
disadvantage (i) end users’ ability to select, access, and use broadband Internet access
service or the lawful Internet content, applications, services, or devices of their choice, or
(ii) edge providers’ ability to make lawful content, applications, services, or devices
available to end users. Reasonable network management shall not be considered a
violation of this rule.324
137.
This “no-unreasonable interference/disadvantage” standard will be applied to carefully
balance the benefits of innovation against harm to end users and edge providers. It also protects free
expression, thus fulfilling the congressional policy that the Internet “offer[s] a forum for true diversity of
political discourse, unique opportunities for cultural development, and myriad avenues for intellectual
activity.”325 As the Commission found in 2010, and the Verizon court upheld, “[r]estricting edge
providers’ ability to reach end users, and limiting end users’ ability to choose which edge providers to
patronize, would reduce the rate of innovation at the edge and, in turn, the likely rate of improvements to
network infrastructure. Similarly, restricting the ability of broadband providers to put the network to
innovative uses may reduce the rate of improvements to network infrastructure.”326 Under the standard
that we adopt today, the Commission can protect against harm to end users’ or edge providers’ ability to
use broadband Internet access service to reach one another.327 Compared to the no unreasonable
discrimination standard adopted by the Commission in 2010, the standard we adopt today is specifically
designed to protect against harms to the open nature of the Internet. We note that the standard we adopt
today represents our interpretation of sections 201 and 202 in the broadband Internet access context and,
independently, our interpretation—upheld by the Verizon court—that rules to protect Internet openness
promote broadband deployment via the virtuous cycle under section 706 of the 1996 Act.328

322

See supra Section III.B.2.

323

See, e.g., Higher Education and Libraries Comments at 23-24 (proposing a standard more directly related to the
“unique and open character of the Internet,” what they termed “Internet reasonable”); CDT Comments at 19; CDT
Reply at 3.
324

As in the no throttling rule, we include classes of content, applications, services, or devices.

325

47 U.S.C. § 230(a)(3).

326

2010 Open Internet Order, 25 FCC Rcd at 17911, para. 14; see also Higher Education and Libraries Comments
at 23 (stating that “the Internet itself is fundamentally an ecosystem that supports a myriad of personal, institutional,
community, and commercial relationships and interests,” and, as with any other ecosystem, “if the conditions that
foster those relationships and interests are negatively impacted, the system as a whole is subject to collapse”).
327

See, e.g., Akamai Comments at 11 (“[T]he Commission should take only those actions that are necessary and
narrowly tailored to promote competition, innovation, and the growth of broadband networks that inure to benefit
the public.”).
328

See 47 U.S.C. §§ 201, 202, 208; see also Section IV; AT&T Corp. v. Business Telecom, Inc.; Sprint Comms.
Company, L.P. v. Business Telecom, Inc., EB-01-MD-001, EB-01-MD-002, Memorandum Opinion and Order, 16
FCC Rcd 12312 (2001) (granting in part a complaint filed under section 208 that a telecommunications service
provider’s access rates were and are unjust and unreasonable under section 201(b) of the Act).

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a.

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Factors to Guide Application of the Rule

138.
We adopt our tentative conclusion to follow a case-by-case approach, considering the
totality of the circumstances, when analyzing whether conduct satisfies the no-unreasonable
interference/disadvantage standard to protect the open Internet.329 Below we discuss a non-exhaustive list
of factors we will use to assess such practices. In adopting this standard, we enable flexibility in business
arrangements and ensure that innovation in broadband and edge provider business models is not unduly
curtailed.330 We are mindful that vague or unclear regulatory requirements could stymie rather than
encourage innovation,331 and find that this approach combined with the factors set out below will provide
sufficient certainty and guidance to consumers, broadband providers, and edge providers—particularly
smaller entities that might lack experience dealing with broadband providers—while also allowing parties
flexibility in developing new services.332 We note that in addition to the following list, there may be
other considerations relevant to determining whether a particular practice violates the no-unreasonable
interference/disadvantage standard. This approach of adopting a rule of general conduct, followed by
guidance as to how to apply it on a case-by-case basis, is not novel. The Commission took a similar
approach in 2010 when it adopted the “no unreasonable discrimination” rule, which was followed by a
discussion of four factors (end-user control, use-agnostic discrimination, standard practices, and
transparency).333 Indeed, for this new rule, we are providing at least as much guidance, if not more, as we
did in 2010 for the application of the no unreasonable discrimination rule.
139.
End-User Control. A practice that allows end-user control and is consistent with
promoting consumer choice is less likely to unreasonably interfere with or cause an unreasonable
disadvantage affecting the end user’s ability to use the Internet as he or she sees fit.334 The Commission
has long recognized that enabling consumer choice is the best path toward ensuring competitive markets,
economic growth, and technical innovation.335 It is therefore critical that consumers’ decisions, rather
329

2014 Open Internet NPRM, 29 FCC Rcd at 5608, para. 136; CDT and ALA Reply at 2.

330

This is in contrast to the inflexibility that the Verizon court found was a flaw in the 2010 unreasonable
discrimination standard. See supra note 96. We also note that this approach addresses concerns in the record that
“[a] ‘general conduct rule,’ applied on a case-by-case basis with the only touchstone being whether a given practice
‘harms’ consumers or edge providers, may lead to years of expensive litigation to determine the meaning of ‘harm’
(for those who can afford to engage in it).” Letter from Corynne McSherry, Intellectual Property Director, EFF, to
Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (filed Feb. 19, 2015) (EFF Feb. 19, 2015 Ex Parte
Letter). Understanding that such an unfocused approach could harm the results of our rule, we “spell out, in
advance, the contours and limits of [the] rule,” as was suggested in the record. See, e.g., id.
331

See, e.g., Akamai Comments at 10; CALinnovates Reply at 19 (stating that “regulatory clarity may significantly
affect the calculus of current and potential investors”); Higher Education and Libraries Reply at 11-14 (asserting that
a clearly articulated standard focused on preserving the existing Internet would set expectations and provide
guidance to the market, but would avoid hard and fast rules that might be too rigid for a rapidly changing broadband
ecosystem); CDT and ALA Reply at 2.
332

CDT and ALA Reply at 2. We also note that this Order permits parties to seek advisory opinions regarding
application of the Commission’s open Internet rules. We view these processes as complementary methods by which
parties can seek guidance as to how the open Internet rules apply to particular conduct. See infra Section III.E.
333

2010 Open Internet Order, 25 FCC Rcd at 17944-46, paras. 68-74.

334

Id. at 17944, para. 71; see also EFF Feb. 19, 2015 Ex Parte Letter at 2 (suggesting that the Commission should
take into consideration “whether the practice preserves user choice”).
335

See supra Section III.A; see also, e.g., Verizon Comments at 16-17; Syntonic Reply at 5-6; van Schewick Feb.
18, 2015 Ex Parte Letter, Attach. at 14 (“Letting users, not network providers, choose which applications will be
successful is an important part of the mechanism that produces innovation under uncertainty. At the same time,
letting users choose how they want to use the network enables them to use the Internet in a way that creates more
value for them (and for society) than if network providers made this choice for them.”).

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than those of service providers, remain the driving force behind the development of the Internet.336 To
this end, practices that favor end-user control and empower meaningful consumer choice are more likely
to satisfy the no-unreasonable interference/disadvantage standard than those that do not. However, as was
true in 2010, we are cognizant that user control and network control are not mutually exclusive, and that
many practices will fall somewhere on a spectrum from more end-user-controlled to more broadband
provider-controlled.337 Further, there may be practices controlled entirely by broadband providers that
nonetheless satisfy the no-unreasonable interference/disadvantage standard. In all events, however, we
emphasize that such practices should be fully transparent to the end user and effectively reflect end users’
choices.
140.
Competitive Effects. As the Commission has found previously, broadband providers have
incentives to interfere with and disadvantage the operation of third-party Internet-based services that
compete with the providers’ own services.338 Practices that have anti-competitive effects in the market for
applications, services, content, or devices would likely unreasonably interfere with or unreasonably
disadvantage edge providers’ ability to reach consumers in ways that would have a dampening effect on
innovation, interrupting the virtuous cycle. As such, these anticompetitive practices are likely to harm
consumers’ and edge providers’ ability to use broadband Internet access service to reach one another.
Conversely, enhanced competition leads to greater options for consumers in services, applications,
content, and devices, and as such, practices that would enhance competition would weigh in favor of
promoting consumers’ and edge providers’ ability to use broadband Internet access service to reach one
another.339 In examining the effect on competition of a given practice, we will also review the extent of
an entity’s vertical integration as well as its relationships with affiliated entities.
141.
Consumer Protection. The no-unreasonable interference/disadvantage standard is
intended to serve as a strong consumer protection standard. It prohibits broadband providers from
employing any deceptive or unfair practice that will unreasonably interfere with or disadvantage end-user
consumers’ ability to select, access, or use broadband services, applications, or content, so long as the
services are lawful, subject to the exception for reasonable network management. For example, unfair or
deceptive billing practices, as well as practices that fail to protect the confidentiality of end users’
proprietary information, will be unlawful if they unreasonably interfere with or disadvantage end-user
consumers’ ability to select, access, or use broadband services, applications, or content, so long as the
services are lawful, subject to the exception for reasonable network management. While each individual
case will be evaluated on its own merits, this rule is intended to include protection against fraudulent
practices such as “cramming” and “slamming” that have long been viewed as unfair and disadvantageous
to consumers.
336

See Netflix Comments at 5 (“Through an open Internet, the consumer, not the ISP or the edge provider, picks the
winners and the losers.”); Vonage Comments at 13 (“Allowing ISPs to select winners and losers will certainly chill
investment and innovation in startups because they will lack the ability to develop a following among users without
getting past the ISP gatekeeper.”); AT&T Comments at 27-30 (distinguishing beneficial user-directed prioritization
agreements from harmful paid-prioritization agreements initiated by service providers); Ad Hoc Comments at 22-23.
Notably, under section 230(b) of the Communications Act, increased user control is an express objective of modern
telecommunications policy. 47 U.S.C. § 230(b)(3) (directing policymakers “to encourage the development of
technologies which maximize user control over what information is received by individuals . . . who use the Internet
and other interactive computer services”).
337

2010 Open Internet Order, 25 FCC Rcd at 17944-45, para 71.

338

See supra Section III.B.2.a; 2010 Open Internet Order, 25 FCC Rcd at 17916, para. 22. The Commission
adopted a similar restriction to address harms raised by the Comcast-NBCU transaction. See Comcast/NBCU
Merger Order, 26 FCC Rcd at 4275, para. 94 (“[N]either Comcast nor Comcast-NBCU shall prioritize affiliated
Internet content over unaffiliated Internet content.”).
339

See, e.g., Verizon Comments at 35; Free State Reply at 3 (“The welfare of consumers should be the focus and
deciding criterion for Commission broadband policy.”); Free State Reply at 12.

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142.
Effect on Innovation, Investment, or Broadband Deployment. As the Verizon court
recognized, Internet openness drives a “virtuous cycle” in which innovations at the edges of the network
enhance consumer demand, leading to expanded investments in broadband infrastructure that, in turn,
spark new innovations at the edge.340 As such, practices that stifle innovation, investment, or broadband
deployment would likely unreasonably interfere with or unreasonably disadvantage end users’ or edge
providers’ use of the Internet under the legal standard we set forth today.341
143.
Free Expression. As Congress has recognized, the Internet “offer[s] a forum for a true
diversity of political discourse, unique opportunities for cultural development, and myriad avenues for
intellectual activity.”342 Practices that threaten the use of the Internet as a platform for free expression
would likely unreasonably interfere with or unreasonably disadvantage consumers’ and edge providers’
ability to use BIAS to communicate with each other, thereby causing harm to that ability. Further, such
practices would dampen consumer demand for broadband services, disrupting the virtuous cycle, and
harming end user and edge provider use of the Internet under the legal standard we set forth today.343
144.
Application Agnostic. Application-agnostic (sometimes referred to as use-agnostic)
practices likely do not cause an unreasonable interference or an unreasonable disadvantage to end users’
or edge providers’ ability to use BIAS to communicate with each other.344 Application-agnostic practices
do not interfere with end users’ choices about which content, applications, services, or devices to use, nor
340

Verizon, 740 F.3d at 659.

341

See, e.g., EFF Feb. 19, 2015 Ex Parte Letter at 2 (suggesting that the Commission should take into consideration
“whether and how the practice impacts the cost of …innovation”); Letter from Vimeo, LLC, et al. to Marlene H.
Dortch, Secretary, FCC, GN Docket No. 14-28 (filed Feb. 19, 2014) (asking that the general conduct rule take into
consideration whether a challenged practice “keeps application development and innovation costs low”); see also
Akamai Reply at 2 (“Innovative traffic platforms and networks have thus been key in facilitating the virtuous circle
through which increased broadband Internet usage drives increased investment by service and content providers,
which in turn drives further usage.”); Nokia Reply at 5 (“It is important that the Commission recognize that
operators and infrastructure providers are a critical element of this virtuous cycle of innovation.”); Nokia Reply at 8
(“Value creation in all segments of the broadband marketplace is a critical component of maintaining the level of
innovation seen in the last decade.”).
342

47 U.S.C.§ 230(a)(3); see also Reno v. ACLU, 521 U.S. 844, 853 (1997) (“No single organization controls any
membership in the Web, nor is there any single centralized point from which individual Web sites or services can be
blocked from the Web.”) (internal citation omitted).
343

See, e.g., AAJC Comments at 2; ACLU Comments at 2 (“As information technology advances apace, the
meaningful exercise of our constitutional rights—including the freedoms of speech, assembly, press and the right to
petition government—has become literally dependent on broadband Internet access.”); American Public Media
Group Comments at 3; CDT Comments at 5; OTI Comments at 3; see also EFF Feb. 19, 2015 Ex Parte Letter at 2
(suggesting that the Commission should take into consideration “whether and how the practice impacts the cost of
free speech”). We also note that the no-unreasonable interference/disadvantage standard does not unconstitutionally
burden any of the First Amendment rights held by broadband providers because broadband providers are conduits,
not speakers, with respect to broadband Internet access services. See infra Section VI.A.
344

A network practice is application-agnostic if it does not differentiate in treatment of traffic, or if it differentiates
in treatment of traffic without reference to the content, application, or device. A practice is application-specific if it
is not application-agnostic. Application-specific network practices include, for example, those applied to traffic that
has a particular source or destination, that is generated by a particular application or by an application that belongs
to a particular class of applications, that uses a particular application- or transport- layer protocol, or that has
particular characteristics (e.g., the size, sequencing, and/or timing of packets). See 2010 Open Internet Order, 25
FCC Rcd at 17938, para. 56 (application-specific); id. at 17945, para. 73 (application-agnostic); BITAG Congestion
Report at 19 (discussing which traffic is subject to congestion management); see also, e.g., van Schewick Sept. 19,
2014 Ex Parte Letter, Attach. at 24; Mozilla Reply at 22; i2 Coalition Comments at 43; OTI Comments at iv. We
note, however, that there do exist circumstances where application-agnostic practices raise competitive concerns,
and as such may violate our standard to protect the open Internet. See infra para. 153.

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do they distort competition and unreasonably disadvantage certain edge providers.345 As such, they likely
would not cause harm by unreasonably interfering with or disadvantaging end users or edge providers’
ability to communicate using BIAS.
145.
Standard Practices. In evaluating whether a practice violates our no-unreasonable
interference/disadvantage standard to protect Internet openness, we will consider whether a practice
conforms to best practices and technical standards adopted by open, broadly representative, and
independent Internet engineering, governance initiatives, or standards-setting organization.346
Consideration of input from technical advisory groups accounts for the important role these organizations
have to play in developing communications policy.347 We make clear, however, that we are not
delegating authority to interpret or implement our rules to outside bodies.
b.

Application to Mobile

146.
As discussed earlier, because of changes that have occurred in the mobile marketplace
since 2010, including the widespread deployment of 4G LTE networks and the significant increase in use
of mobile broadband Internet access services, we find that it is appropriate to revise our approach for
mobile broadband and apply the same openness protections to both fixed and mobile broadband Internet
access services, including prohibiting mobile broadband providers from engaging in practices that harm
Internet openness.348 We find that applying the no-unreasonable interference/disadvantage standard to
mobile broadband services will help ensure that consumers using mobile broadband services are protected
against provider practices that would unreasonably restrict their ability to access a free and open Internet.
147.
AT&T, T-Mobile, and Verizon oppose application of a “commercially reasonable
practices” rule to mobile broadband networks. They argue that competition in the mobile broadband
market already ensures that service providers have no incentive to discriminate.349 CTIA argues that
applying a commercial reasonableness standard would deter innovation and limit the ability of providers
to differentiate themselves in the marketplace because providers would have to factor in the risk of
complaints and investigations.350 Nokia argues that the Commission should ensure that its rules allow a
range of service options.351 Free State recommends that if the Commission adopts a legally enforceable
standard, it should establish a presumption that mobile network management practices benefit consumer
welfare and that presumption could only be overcome “by actual evidence of anticompetitive conduct.”352

345

See 2010 Open Internet Order, 25 FCC Rcd at 17945-46, para. 73; van Schewick Sept. 19, 2014 Ex Parte Letter;
Van Schewick April 17 Ex Parte Letter, Attach. at 3-4; OTI Comments at iv (asserting that the Commission should
allow application-agnostic discrimination); see also CDT Comments at 7; Common Cause Comments at 8-9; EFF
Feb. 19, 2015 Ex Parte Letter at 2 (suggesting that the Commission should take into consideration “whether the
practice is application agnostic”); but see ITIF Comments at 17, n.36 (“While Comcast’s current transparent,
application agnostic network management practices are likely preferable over application specific congestion
management, in some cases application specific management may be necessary.”).
346

See 2010 Open Internet Order, 25 FCC Rcd at 17946, para. 74.

347

See Comcast Comments at 70 (noting the benefits of government-industry collaboration in telecommunications
policymaking); ITIF Comments at 20; Verizon Comments at 17; WISPA Comments at 35; Mozilla Reply at 22;
MDTC Comments at 5-6; see also 2010 Open Internet Order, 25 FCC Rcd at 17946, para. 74.
348

See infra Section III.D.

349

AT&T Reply at 74-75; T-Mobile Reply at 7; Verizon Reply at 32-33.

350

CTIA Reply at 27-30; Letter from Scott Bergmann, Vice President – Regulatory Affairs, CTIA to Marlene H.
Dortch, Secretary, FCC, GN Docket Nos. 10-127, 14-28, at 3 (filed Oct. 3, 2014).
351

Nokia Reply at 8.

352

Free State Reply at 3.

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148.
We find that even if the mobile market were sufficiently competitive, competition alone
is not sufficient to deter mobile providers from taking actions that would limit Internet openness. As
noted above, there have been incidents where mobile providers have acted in a manner inconsistent with
open Internet principles and we find that there is a risk that providers will continue to have the incentive
to take actions that would favor their own content or services.353 We also agree with commenters that
mobile providers’ need for flexibility to manage their network can be accommodated through the
reasonable network management exception.354
149.
In addition, we find that applying the no-unreasonable interference/disadvantage standard
to mobile broadband will not affect providers’ ability to differentiate themselves in the marketplace. We
have crafted the standard we adopt today to prohibit these practices that harm Internet openness while still
permitting innovation and experimentation. Nothing in the standard restricts carriers from developing
new services or implementing new business models.
c.

Rejection of the “Commercially Reasonable” Standard

150.
Based on the record before us, we are persuaded that adopting a legal standard
prohibiting commercially unreasonable practices is not the most effective or appropriate approach for
protecting and promoting an open Internet.355 Internet openness involves many relationships that are not
business-to-business and serves many purposes that are noncommercial.356 Commenters also expressed
concerns that the commercially reasonable standard would involve a multifactor framework that was not
focused on the goals of this open Internet proceeding.357 In addition, some commenters expressed
concern that the legal standard would require permission before innovation, thus creating higher barriers
to entry and attendant transaction costs.358 Smaller edge providers expressed concern that they do not
have the resources to fight against commercially unreasonable practices, which could result in an unfair
playing field before the Commission.359 Still others argued that the standard would permit paid
353

See supra Section III.B.2.

354

CDT Comments at 28.

355

See, e.g., CDT Comments at 19; Free Press Comments at 8-9; Public Knowledge Comments at 31; MLB
Advanced Media Comments at 2-3; Microsoft Comments at 13-14; Internet Association Comments at 16; Sandoval
Ex Parte Letter at 2 (asserting that the commercial reasonableness rule would deter investment and Internet
applications, such as Internet-enabled “Smart beds,” which read a patient’s vital signs and send aggregated data on
available beds to mass casualty and disaster planners who use this information to determine which hospital has an
available bed in a burn unit).
356

CDT Comments at 18-19; see also Higher Education and Libraries Reply at 9-10; CDT and ALA Comments at 1.
In the data roaming context, two commercial entities deal directly with one another to negotiate a fee-for-service
agreement, and there is a direct business relationship with contractual privity and a purely commercial purpose on
both sides of the transaction. Open Internet protections, by contrast, apply to a context where there may be no direct
negotiation and no direct agreement between key parties. Moreover, while broadband providers are commercial
entities with commercial purposes, many of the parties seeking to route traffic to broadband subscribers are not.
CDT Comments at 18-19; see also AARP Comments at 37 (noting the difficulty of analyzing broadband providers’
relationships with millions of different edge providers under a data roaming-style “commercially reasonable”
rubric).
357

See, e.g., AARP Comments at 35-38; ADTRAN Comments at 26-28; Internet Association Comments at 16.

358

See, e.g., Ad Hoc Comments at 21-22 (a commercially reasonable standard “will necessarily be complex, inexact,
and massively fact-driven”); Consumers Union Reply at 2-3 (commercially reasonable standard is vague and
unenforceable, and allows individualized negotiations to be left to private parties with motivations that may not
necessarily be in the interest of consumers); eBay Comments at 4-5.
359

See, e.g., Tumblr Reply at 10 (“Tumblr cannot afford to engage in what would likely be multi-year challenges
against the biggest broadband providers, with large legal teams experienced in telecommunications law, simply to
secure access for its users equal to that of its current, and future, competitors with deeper resources.”); Etsy
Comments at 7 (arguing that a prohibition on commercially unreasonable transactions “creates an unacceptable level
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prioritization, which could disadvantage smaller entities and individuals.360 Given these concerns, we
decline to adopt our proposed rule to prohibit practices that are not commercially reasonable. Instead, as
discussed above, we adopt a governing standard that looks to whether consumers or edge providers face
unreasonable interference or unreasonable disadvantages, and makes clear that the standard is not limited
to whether a practice is agreeable to commercial parties.
d.

Sponsored Data and Usage Allowances

151.
While our bright-line rule to treat paid prioritization arrangements as unlawful addresses
technical prioritization, the record reflects mixed views about other practices, including usage allowances
and sponsored data plans. Sponsored data plans (sometimes called zero-rating) enable broadband
providers to exclude edge provider content from end users’ usage allowances. On the one hand, evidence
in the record suggests that these business models may in some instances provide benefits to consumers,
with particular reference to their use in the provision of mobile services. Service providers contend that
these business models increase choice and lower costs for consumers.361 Commenters also assert that
sophisticated approaches to pricing also benefit edge providers by helping them distinguish themselves in
the marketplace and tailor their services to consumer demands.362 Commenters assert that such sponsored
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of uncertainty for small companies and will be too costly to enforce”); Reddit Comments at 8; Engine Advocacy
Comments at 15; CodeCombat Comments at 7.
360

See, e.g., Illinois and NY Comments at 5-84; CCIA Reply at 17; i2Coaltion Comments at 10 (“Start-ups that
require priority service may not be able to bring their product to market without significant outside investment and
investors will be affected by the increased equity needs of entrepreneurs.”); AAJC Comments at 5 (“A commercially
reasonable standard where certain forms of prioritization are allowed benefits those with financial resources. Such
prioritization would negatively impact many minority entrepreneurs who come from historically disadvantaged
communities with lower incomes and educational opportunities . . . .”).
361

See, e.g., T-Mobile Reply at 17 (asserting that its Music Freedom program, which allows consumers to stream
music without it counting against their data plan, is “innovative” and “pro-consumer” and that “Music Freedom does
not discriminate among streaming music services”); Verizon Reply at 27-28 (contending that T-Mobile’s Music
Freedom, along with other similar initiatives, are evidence that consumer choice and competition “have ensured a
differentiated marketplace”); CTIA Reply at 36; Sandvine Comments at 3-4, 7 (arguing that zero-rated applications
have helped some people who otherwise could not afford access to some of their favorite services); Telefonica
Reply at 7; Cequel Reply at 2, 6-7 (“Usage-based billing is not only a fair method of pricing, it is necessary for
Suddenlink to bring broadband services to the often-remote communities that it serves. . . . If the FCC were to
restrict usage-based billing, it would be restricting the future of broadband services in the very rural areas where it is
trying to extend service.”); Verizon Reply at 22 (asserting that usage-based pricing provides a way for consumers
who are not heavy users to keep their costs down); ITIF Reply at 16 (arguing that zero rating arrangements “are
likely welfare-enhancing, offering a service that meets consumer demand at a lower price point” and noting that they
may be structured in an “application neutral” manner that “allow[s] consumers to continue to access new
innovations at the edge”); Verizon Comments at 30-31, 34 (asserting that arrangements that address only pricing
could make service cheaper for end users, enabling them to access more content when and where they want it, and
could provide a way for interested content providers to promote and encourage use of their services”); Free State
Reply at 3-4, 13; Syntonic Wireless Reply at 9; GAO Report at 26 (explaining that participants in all eight groups
agreed that they would be more likely to access content that does not count toward their data limits than content that
does).
362

See, e.g., USTelecom Reply at 46-47; Verizon Comments at 29-36; Ericsson Comments at 6-8, 14; ICLE &
TechFreedom Comments at 16-41; ITIF Comments at 13-15; ARRIS Comments at 7-10; ADTRAN Reply at 5-13;
Qualcomm Comments at 8-9; Sandvine Comments at 6-8; Free State Reply at 14-15 (“[T]he reality is that in order
for the ‘next Google’ or the ‘next Facebook’ to compete against those well-entrenched giants, the putative new
entrant might well be looking to negotiate some arrangement with a service provider that will give it a fighting
chance of competing with the entrenched giants by differentiating itself.”); Syntonic Wireless Reply at 9-10
(explaining that sponsored content is a way to differentiate one’s product from the competition, and thus adds an
additional plane of competition within edge provider markets); AT&T Reply at 77-78; CTIA Reply at 34-35 (“As
the CEO of music streaming site Grooveshark remarked when T-Mobile added the company to the list of supported
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data arrangements also support continued investment in broadband infrastructure and promote the
virtuous cycle,363 and that there exist spillover benefits from sponsored data practices that should be
considered.364 On the other hand, some commenters strongly oppose sponsored data plans, arguing that
“the power to exempt selective services from data caps seriously distorts competition, favors companies
with the deepest pockets, and prevents consumers from exercising control over what they are able to
access on the Internet,” again with specific reference to mobile services.365 In addition, some commenters
argue that sponsored data plans are a harmful form of discrimination.366 The record also reflects concerns
that such arrangements may hamper innovation and monetize artificial scarcity.367
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services, Music Freedom helps make little-known offerings available to a wider customer base[.]”); Telefonica
Reply at 7; Letter from Susie Kim Riley, CEO, Aquto, Harjot Saluja, CEO, DataMi, Scott Schill, Producer, BBA
Studios, Sam Gadodia, CEO LotusFlare, Gary Greenbaum, CEO, Syntonic, and Mike Nasco, CEO, Wazco, to
Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 et al., at 1 (filed Jan. 22, 2015) (“Sponsored data and
zero-rating arrangements hold great promise for content and edge providers, whether they are new entrants or
incumbents, who can use them to promote innovative offerings, attract new customers, and grow a robust subscriber
base.”).
363

See, e.g., Verizon Comments at 31; Alcatel-Lucent Comments at 23-24 (asserting that sponsored data plans give
consumers the opportunity to experience better service at no personal cost, which could facilitate a consumer
experiencing the value of higher-tier service and adopting that higher-tier going forward” and that “[t]his increased
consumer adoption would benefit the entire broadband ecosystem”); AT&T Reply at 77-79 (sponsored data plans
can promote Internet openness by encouraging consumers to explore mobile online applications and content that
they might otherwise not use); Verizon Reply at 22 (explaining that usage-based pricing promotes broadband
adoption by “enabling customers to pay only for the services they wish to use, without having to subsidize higherend users”); CWA/NAACP Comments at 16-18; National Minority Organization Comments at 9; Free State Reply
at 4, 13; CenturyLink Comments at 5-7 (“A two-sided market approach ensures that the costs of content and
applications causing greater bandwidth consumption are ultimately passed on to the subscribers who use those
services, ensures that adequate pricing signals are communicated to edge providers and, overall, produces the
optimal economic outcome.”).
364

See Sandvine Comments at 6-7; Roslyn Layton Reply at 4 (“[A] content provider may want to subsidize the
delivery of its content so that it can maximize viewing and viewers. We see this in the case of a health provider
which wants to ensure that low-income pregnant women watch a series of pre-natal videos, a preventative form of
health care that improves infant and mother outcomes. Similarly a health care provider would be willing to
subsidize a mobile subscription of its members to encourage adoption of preventative health care and monitoring
tools. The cost of avoiding an adverse health event is well worth the price of a broadband subscription. The health
care member benefits with better health outcome and the health care provider reduces costs.”).
365

Consumers Union Reply at 5; NPR Comments at 11 (arguing that such sponsored services and data caps
discourage “consumers from using their mobile devices to access the vital content provided by public radio via
websites and apps”); Letter from John Bergmayer, Public Knowledge to Marlene H. Dortch, Secretary, FCC, MB
Docket Nos. 14-57, 14-90, GN Docket Nos. 14-28, 10-127, 09-191, 13-5, 12-353, 09-51, WC Docket Nos. 07-52,
10-90, 96-45, 06-122, at 3 (filed Nov. 13, 2014) (“Mobile users’ behavior is shaped in part by billing practices and
pricing structures. As Horrigan finds, ‘among the 55% of smartphone users with a data cap, more than half – 52% –
have altered their online behavior because of the cap – either by not doing some online activities out of concern for
hitting the limit or by waiting until they were in Wi-Fi range.’”).
366

See, e.g., CFA Comments at 39 (describing AT&T’s sponsored data plan on its mobile network as a form of
discrimination); Consumers Union Comments at 13 (explaining that “[e]xempting certain affiliated services from
data caps does not provide consumers with a meaningful choice. Instead, it pushes them to watch affiliated content
out of fear that doing otherwise will count against their monthly caps and result in either overage charges or slower
speeds”).
367

See, e.g., Public Knowledge Comments at 21 (recounting concerns about harming innovation in relation to
AT&T’s “sponsored data” plan and T-Mobile’s recently announced “Music Freedom” service); id. at 53 (arguing
that “AT&T’s Sponsored Data program allows it to monetize artificial scarcity and creates a disincentive to increase
caps over time”); WGAW Reply at 36-37 (explaining that sponsored data services require “content providers and
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152.
We are mindful of the concerns raised in the record that sponsored data plans have the
potential to distort competition by allowing service providers to pick and choose among content and
application providers to feature on different service plans.368 At the same time, new service offerings,
depending on how they are structured, could benefit consumers and competition. Accordingly, we will
look at and assess such practices under the no-unreasonable interference/disadvantage standard, based on
the facts of each individual case, and take action as necessary.
153.
The record also reflects differing views over some broadband providers’ practices with
respect to usage allowances (also called “data caps”).369 Usage allowances place limits on the volume of
data downloaded by the end user during a fixed period. Once a cap has been reached, the speed at which
the end user can access the Internet may be reduced to a slower speed, or the end user may be charged for
excess data.370 Usage allowances may benefit consumers by offering them more choices over a greater
range of service options, and, for mobile broadband networks, such plans are the industry norm today, in
part reflecting the different capacity issues on mobile networks.371 Conversely, some commenters have
expressed concern that such practices can potentially be used by broadband providers to disadvantage
competing over-the-top providers.372 Given the unresolved debate concerning the benefits and drawbacks
of data allowances and usage-based pricing plans,373 we decline to make blanket findings about these
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applications to pay for the data usage, but does nothing to address the capacity constraints so widely touted as
problematic by wireless carriers”); Letter from Ademir Antonio Pereira, Jr. to Marlene H. Dortch, Secretary, FCC,
GN Docket Nos. 14-28, 09-191, Attach. at 7-8 (filed Feb. 19, 2015).
368

See supra para. 151; see also Public Knowledge Comments at 21, 53-54.

369

See, e.g., CWA/NAACP Comments at 18-19; CFA Comments at 39 (expressing concern regarding Comcast’s
exemption of Xfinity online video app on Xbox and TiVo from data caps in 2012); Consumers Union Comments at
8; NPR Comments at 11; Nokia Comments at 8-10 (stating that “[t]he existence of data caps impacts content and
OTT companies because these entities see a decline in traffic to their websites, applications, and other service
platforms as the month progresses due to rationing by the consumer”); Public Knowledge Comments at 48-60
(asserting that usage-based billing could enable broadband providers to create metered and unmetered lanes,
supposedly no different than the fast and slow lanes feared with paid prioritization); Roku Comments at 8;
Telecommunications for the Deaf and Hard of Hearing et al Comments at iii, 15 (urging the Commission “to
consider the disproportionate impact of data caps on people who are deaf or hard of hearing, who depend on dataintensive applications for basic communications”); T-Mobile Reply at 14-16 (describing consumer benefits of its
“Simple Choice” plan); Writers Guild of America East and AFL-CIO Comments at 25; Tumblr Reply at 2.
370

See, e.g., U.S. Government Accountability Office, Report, Broadband Internet: FCC Should Track the
Application of Fixed Internet Usage-Based Pricing and Help Improve Consumer Education, GAO-15-108, at 8
(Nov. 2014) (GAO Report).
371

See, e.g., T-Mobile Reply at 14-16 (noting that customers on T-Mobile’s Simple Choice plan “can choose plans
with unlimited high-speed data, or an allotment of high-speed data with unlimited data at 2G speeds after their
allotment is used” and arguing that such plans are designed to “allow subscribers to decide what price they want to
pay for what service, and still use as much mobile data as they want without incurring overage charges . . .”).
372

See, e.g., Public Knowledge Comments at 51-52; Consumer’s Union Reply at 5 (“If the largest mobile carriers
exempt certain uses from their data caps, the effect is to push consumers to watch affiliated content out of fear that
doing otherwise will count against their monthly caps.”).
373

Regarding usage-based pricing plans, there is similar disagreement over whether these practices are beneficial or
harmful for promoting an open Internet. Compare Bright House Comments at 20 (“Variable pricing can serve as a
useful technique for reducing prices for low usage (as Time Warner Cable has done) as well as for fairly
apportioning greater costs to the highest users.”) with Public Knowledge Comments at 58 (“Pricing connectivity
according to data consumption is like a return to the use of time. Once again, it requires consumers keep meticulous
track of what they are doing online. With every new web page, new video, or new app a consumer must consider
how close they are to their monthly cap. . . . Inevitably, this type of meter-watching freezes innovation.”), and ICLE
& TechFreedom Policy Comments at 32 (“The fact of the matter is that, depending on background conditions, either
usage-based pricing or flat-rate pricing could be discriminatory.”).

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practices and will address concerns under the no-unreasonable interference/disadvantage on a case-bycase basis.
3.

Transparency Requirements to Protect and Promote Internet Openness

154.
In this section, we adopt enhancements to the existing transparency rule, which covers
both content and format of disclosures by providers of broadband Internet access service. As the
Commission has previously noted, disclosure requirements are among the least intrusive and most
effective regulatory measures at its disposal.374 We find that the enhanced transparency requirements
adopted in the present Order serve the same purposes as those required under the 2010 Open Internet
Order: providing critical information to serve end-user consumers, edge providers of broadband products
and services, and the Internet community. The transparency rule, including the enhancements adopted
today, also will aid the Commission in enforcing the other open Internet rules and in ensuring that no
service provider can evade them through exploitation of narrowly-drawn exceptions for reasonable
network management or through evasion of the scope of our rules.
155.
In the 2014 Open Internet NPRM, we tentatively concluded that we should enhance the
existing transparency rule for end users, edge providers, the Internet community, and the Commission to
have the information they need to understand the services they receive and to monitor practices that could
undermine the open Internet. 375 The NPRM sought comment on a variety of possible enhancements,
including whether to require tailored disclosures for specific constituencies (end users, edge providers, the
Internet community); ways to make the content and format of disclosures more accessible and
understandable to end users; specific changes to disclosures for network practices that would benefit edge
providers; whether there are more effective or more comprehensive ways to measure network
performance; whether to require providers to disclose meaningful information regarding source, location,
speed, packet loss, and duration of congestion; and whether and how any enhancements should apply to
mobile broadband providers in a manner different from their application to fixed broadband providers.376
156.
Based on the record compiled in response to those proposals, below we set forth targeted,
incremental enhancements to the existing transparency rule. We first recap the existing transparency rule,
which forms the baseline off of which we build today. Having established that baseline, we describe
specific enhancements—including refinements and expansions in the required disclosures of commercial
terms, performance characteristics, and network practices; adoption of a requirement that broadband
providers notify end users directly if their individual use of a network will trigger a network practice,
based on their demand prior to a period of congestion, that is likely to have a significant impact on the use
of the service. We then address a request to exempt small providers from enhancements to the
transparency rule, discuss the relationship of the enhancements to the existing transparency rule, and note
the role that we anticipate further guidance from Commission staff will continue to play in applying the
transparency rule in practice. Lastly, we adopt a voluntary safe harbor (but not a requirement) for a
374

See 2014 Open Internet NPRM, 29 FCC Rcd at 5585, para. 66; see also, e.g., Howard Beales, Richard Craswell
& Steven C. Salop, The Efficient Regulation of Consumer Information, 24 J. L. & Econ. 491 at 513 (1981); Howard
Beales, Richard Craswell & Steven C. Salop, Information Remedies for Consumer Protection, 71 Am. Econ. Rev.
410 at 411 (Papers & Proceedings, May 1981); Alissa Cooper, How Regulation and Competition Influence
Discrimination in Broadband Traffic Management: A Comparative Study of Net Neutrality in the United States and
United Kingdom, at Section 2.4.3 (Sept. 2013), http://www.alissacooper.com/phd-thesis/ (“A policy of requiring
ISPs to publicly disclose the details of their traffic management practices, whether combined with additional
regulation or not, has enjoyed widespread support.”) (Cooper Thesis); see also Letter from Kathleen Grillo, Senior
Vice President, Federal Regulatory Affairs, Verizon, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 12269, 14-28, at 1 (filed Mar. 24, 2014) (arguing that “the Commission should rely primarily on consumer choice,
competition, and transparency to guide Commission policy”) (emphasis added).
375

2014 Open Internet NPRM, 29 FCC Rcd at 5586, para. 67.

376

Id. at 5586-92, paras. 68, 72, 76, 80, 83, 84-85.

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standalone disclosure format that broadband providers may use in meeting the existing requirement to
disclose information that meets the needs of end users.
a.

The Existing Transparency Rule

157.
The D.C. Circuit in Verizon upheld the transparency rule, which remains in full force,
applicable to both fixed and mobile providers.377 In enhancing this rule, we build off of the solid
foundation established by the Open Internet Order. In that Order, the Commission concluded that
effective disclosure of broadband providers’ network management practices, performance, and
commercial terms of service promotes competition, innovation, investment, end-user choice, and
broadband adoption.378 As a result, the Commission adopted a transparency rule requiring both fixed and
mobile providers to “publicly disclose accurate information regarding the network management practices,
performance, and commercial terms” of their broadband Internet access service.379 The rule specifies that
such disclosures be “sufficient for consumers to make informed choices regarding the use of such services
and for content, application, service, and device providers to develop, market, and maintain Internet
offerings.”380
158.
The 2010 Open Internet Order went on to provide guidance on both the information to be
disclosed and the method of disclosure.381 Within each category of required disclosure (network
management practices, performance characteristics, and commercial terms), the Open Internet Order
described the type of information to be disclosed. For example, under performance characteristics, the
Commission specified, among other things, disclosure of “expected and actual access speed and latency”
as well as the “impact of specialized services.”382 All disclosures were required to be made “timely and
prominently[,] in plain language accessible to current and prospective end users and edge providers, the
Commission, and third parties who wish to monitor network management practices for potential
violations of open Internet principles.”383
159.
In 2011 and 2014, Commission staff provided guidance on interpreting the transparency
rule. For example, in addition to other points, the 2011 guidance issued by the Enforcement Bureau and
Office of General Counsel (2011 Advisory Guidance) described the means by which fixed and mobile
broadband providers should meet the requirement to disclose actual performance of the broadband
Internet access services they offer and to disclose network management practices, performance,
characteristics, and commercial terms “at the point of sale.”384 The 2011 Advisory Guidance also clarified
the statement in the Open Internet Order that effective disclosures “will likely include some or all of the”
377

See Verizon, 740 F.3d at 659. In the 2014 Open Internet NPRM, we concluded that “we have ample authority not
only for our existing transparency rules, but also for the enhanced transparency rules we propose today, whether the
Commission ultimately relies on section 706, Title II, or another source of legal authority.” See 2014 Open Internet
NPRM, 29 FCC Rcd at 5585, para. 65.
378

See 2010 Open Internet Order, 25 FCC Rcd at 17938-39, para. 56 (concluding that effective disclosures will
include information concerning: (1) network practices, including, for example, congestion management and security
measures; (2) performance characteristics, including a general description of system performance (such as speed and
latency); and (3) commercial terms, including pricing, privacy policies, and redress options).
379

Id. at 17937, para. 54; see also 47 C.F.R. § 8.3.

380

47 C.F.R. § 8.3.

381

See 2010 Open Internet Order, 25 FCC Rcd at 17938-40, 17959, paras. 56-57, 98.

382

Id. at 17939, para. 56.

383

Id.

384

FCC Enforcement Bureau and Office of General Counsel Issue Advisory Guidance for Compliance with Open
Internet Transparency Rule, GN Docket No. 09-191, WC Docket No. 07-52, Public Notice, 26 FCC Rcd 9411
(2011) (2011 Advisory Guidance).

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information listed in paragraphs 56 and 98, but also that the list was “not necessarily exhaustive, nor is it
a safe harbor,” and that “there may be additional information, not included [in paragraphs 56 and 98], that
should be disclosed for a particular broadband service to comply with the rule in light of relevant
circumstances.”385 Acknowledging the concern of some providers that “they could be liable for failing to
disclose additional types of information that they may not be aware are subject to disclosure,” the 2011
Advisory Guidance stated that disclosure of the information described in those paragraphs “will suffice
for compliance with the transparency rule at this time.”386
160.
In an advisory issued in July 2014 (2014 Advisory Guidance), the Enforcement Bureau
explained that the transparency rule “prevents a broadband Internet access provider from making
assertions about its service that contain errors, are inconsistent with the provider’s disclosure statement, or
are misleading or deceptive.”387 Accurate disclosures “ensure that consumers—as well as the
Commission and the public as a whole—are informed about a broadband Internet access provider’s
network management practices, performance, and commercial terms.”388 As the 2014 Advisory Guidance
recognized, the transparency rule “can achieve its purpose of sufficiently informing consumers only if
advertisements and other public statements that broadband Internet access providers make about their
services are accurate and consistent with any official disclosures that providers post on their websites or
make available in stores or over the phone.”389 Thus, “a provider making an inaccurate assertion about its
service performance in an advertisement, where the description is most likely to be seen by consumers,
could not defend itself against a Transparency Rule violation by pointing to an ‘accurate’ official
disclosure in some other public place.”390 Allowing such defenses would undermine the core purpose of
the transparency rule.
161.
Today, we build off of this baseline: the transparency rule requirements established in
2010, and interpreted by the 2011 and 2014 Advisory Guidance. We also take this opportunity to make
two clarifications to the existing rule. First, all of the pieces of information described in paragraphs 56
and 98 of the Open Internet Order have been required as part of the current transparency rule, and we will
continue to require the information as part of our enhanced rule. The only exception is the requirement to
disclose “typical frequency of congestion,” which we no longer require since it is superseded by more
precise disclosures already required by the rule, such as actual performance.391 Second, the requirement
that all disclosures made by a broadband provider be accurate includes the need to maintain the accuracy
of these disclosures. Thus, whenever there is a material change in a provider’s disclosure of commercial
terms, network practices, or performance characteristics, the provider has a duty to update the disclosure
in a manner that is “timely and prominently disclosed in plain language accessible to current and
prospective end users and edge providers, the Commission, and third parties who wish to monitor
network management practices for potential violations of open Internet principles.”392 For these purposes,

385

Id.; see also 2010 Open Internet Order, 25 FCC Rcd at 17939, para. 56.

386

2011 Enforcement Advisory Guidance, 26 FCC Rcd at 9416.

387

FCC Enforcement Advisory, Open Internet Transparency Rule: Broadband Providers Must Disclose Accurate
Information to Protect Consumers, Public Notice, 29 FCC Rcd 8606, 8607 (2014) (2014 Advisory Guidance).
388

Id.

389

Id.

390

Id.

391

2010 Open Internet Order, 25 FCC Rcd at 17938-39, para. 56.

392

Id. We decline, however, to adopt a specific timeframe concerning the updating of disclosures following a
material change (e.g., 24 hours). See 2014 Open Internet NPRM, 29 FCC Rcd at 5593, para. 88 (“In what timeframe
should the Commission require providers to report . . . changes in their traffic management policies to the
Commission?”).

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a “material” change is any change that a reasonable consumer or edge provider would consider important
to their decisions on their choice of provider, service, or application.
b.

Enhancing the Transparency Rule

162.
We adopt the tentative conclusion in the 2014 Open Internet NPRM to enhance the
existing transparency rule in certain respects. We conclude that enhancing the existing transparency rule
as described below will better enable end-user consumers to make informed choices about broadband
services by providing them with timely information tailored more specifically to their needs, and will
similarly provide edge providers with the information necessary to develop new content, applications,
services, and devices that promote the virtuous cycle of investment and innovation.393
(i)

Enhancements to Content of Required Disclosures

163.
As noted above, the existing transparency rule requires specific disclosures with respect
to network practices, performance characteristics, and commercial terms.394 As we noted in the 2014
Open Internet NPRM, the Commission has continued to receive numerous complaints from consumers
suggesting that broadband providers are not providing information that end users and edge providers need
to receive.395 We noted that consumers continue to express concern that the speed of their service falls
short of advertised speeds, that billed amounts are greater than advertised rates, and that consumers are
unable to determine the source of slow or congested service.396 In addition, we noted that end users are
often surprised that broadband providers slow or terminate service based on “excessive use” or based on
other practices, and that consumers report confusion regarding data thresholds or caps.397 Further, the
need for enhanced transparency is bolstered by the needs of certain user groups who rely on broadband as
their primary avenue for communications, such as people with disabilities.398 These enhancements will
also serve edge providers. The record supports our conclusions that more specific and detailed
disclosures are necessary to ensure that edge providers can “develop, market, and maintain Internet
offerings.”399 Such disclosures will also help the wider Internet community monitor provider practices to
ensure compliance with our Open Internet rules and providers’ own policies.
164.
Commercial Terms. The existing transparency rule defines the required disclosure of
“commercial terms” to include pricing, privacy policies, and redress options. While we do not take
additional action concerning the requirement to disclose privacy policies and redress options, the record
demonstrates need for specific required disclosures about price and related terms. In particular, we
393

See, e.g., Organization for Economic Co-operation and Development, Enhancing Competition in
Telecommunications: Protecting and Empowering Consumers, Directorate for Science, Technology and Industry,
Committee for Information, Computer and Communications Policy at 4 (2008),
http://www.oecd.org/dataoecd/25/2/40679279.pdf (stating that informed consumers “are necessary to stimulate
firms to innovate, improve quality and compete in terms of price. In making well-informed choices between
suppliers, consumers not only benefit from competition, but they initiate and sustain it.”); Comcast Comments at 1516 (noting that some of the transparency enhancements suggested in the NPRM could support the “virtuous circle”);
EFF Comments at 26 (discussing the importance of information from broadband providers in order to develop new
applications and protocols); iClick2Media Comments at 19 (noting that greater communication with end users
would allow end users to become active in the virtuous circle); Koning Comments at 18 (noting that without
transparency, forms of Internet encryption widely used today “would not be possible”).
394

2010 Open Internet Order, 25 FCC Rcd at 17938-39, para. 56.

395

2014 Open Internet NPRM, 29 FCC Rcd at 5586-87, para. 69.

396

Id.

397

Id.

398

See, e.g., TDI Comments at 2-4.

399

See, e.g., EFF Comments at 26; Microsoft Comments at 31; Telecommunications for the Deaf and Hard of
Hearing Comments at 3; Vonage Comments at 28.

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specify the disclosures of commercial terms for prices, other fees, and data caps and allowances as
follows:


Price – the full monthly service charge. Any promotional rates should be clearly noted
as such, specify the duration of the promotional period, and note the full monthly service
charge the consumer will incur after the expiration of the promotional period.400



Other Fees – all additional one time and/or recurring fees and/or surcharges the
consumer may incur either to initiate, maintain, or discontinue service, including the
name, definition, and cost of each additional fee.401 These may include modem rental
fees, installation fees, service charges, and early termination fees, among others.



Data Caps and Allowances – any data caps or allowances that are a part of the plan the
consumer is purchasing, as well as the consequences of exceeding the cap or allowance
(e.g., additional charges, loss of service for the remainder of the billing cycle).

To be clear, these disclosures may have been required in certain circumstances under the existing
transparency rule in order to provide information “sufficient for consumers to make informed choices.”
Here, we now require that this information always be disclosed. In addition, per the current rule,
disclosures of commercial terms shall also include the provider’s privacy policies (“[f]or example,
whether network management practices entail inspection of network traffic, and whether traffic
information is stored, provided to third parties, or used by the carrier for non-network management
purposes”) and redress options (“practices for resolving end-user and edge provider complaints and
questions”).402
165.
Performance Characteristics. The existing transparency rule requires broadband
providers to disclose accurate information regarding network performance for each broadband service
they offer.403 This category includes a service description (“[a] general description of the service,
including the service technology, expected and actual access speed and latency, and the suitability of the
service for real-time applications”) and the impact of specialized services (“[i]f applicable, what
specialized services, if any, are offered to end users, and whether and how any specialized services may
affect the last-mile capacity available for, and the performance, or broadband Internet access service”).404
166.


With respect to network performance, we adopt the following enhancements:
The existing transparency rule requires disclosure of actual network performance.405 In
adopting that requirement, the Commission mentioned speed and latency as two key

400

See Charter Comments at 23 (noting that Charter’s website “explains when promotional rates will revert to
standard rates”).
401

See IL and NY Comments at 11-12 (“[T]he transaction costs [to the consumer] of changing service in order to
avoid pay-for-priority or individualized agreements can be substantial. They include early-termination fees,
installation fees, finding an alternative broadband Internet service provider and comparing speeds . . . .”). The
Commission agrees that the magnitude of these fees bears on consumer decision-making when choosing or
switching providers. As a result, the provision of explicit information regarding these fees by providers both
promotes competition and assists in consumer decision making.
402

2010 Open Internet Order, 25 FCC Rcd at 17939, para. 56.

403

Id.; 2011 Advisory Guidance, 26 FCC Rcd 9411.

404

2010 Open Internet Order, 25 FCC Rcd at 17939, para. 56.

405

See Id. at 17939, para. 56; 2011 Advisory Guidance, 26 FCC Rcd at 9414.

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measures.406 Today we include packet loss as a necessary part of the network
performance disclosure.407

406



We expect that disclosures to consumers of actual network performance data should be
reasonably related to the performance the consumer would likely experience in the
geographic area in which the consumer is purchasing service.408



We also expect that network performance will be measured in terms of average
performance over a reasonable period of time and during times of peak usage.409



We clarify that, for mobile broadband providers, the obligation in the existing
transparency rule to disclose network performance information for “each broadband
service” refers to separate disclosures for services with each technology (e.g., 3G and
4G). Furthermore, with the exception of small providers, mobile broadband providers
today can be expected to have access to reliable actual data on performance of their
networks representative of the geographic area in which the consumer is purchasing
service—through their own or third-party testing—that would be the source of the
disclosure.410 Commission staff also continue to refine the mobile MBA program, which
could at the appropriate time be declared a safe harbor for mobile broadband providers. 411

2010 Open Internet Order, 25 FCC Rcd at 17939, para. 56.

407

See, e.g., AARP Comments at 49 (stating that information regarding packet loss could be useful to consumers if
accessible); EFF Comments at 29 (calling for inclusion of packet loss in disclosures); Online Publishers Association
Comments at 8-9 (supporting the inclusion of packet loss in disclosures); TechAmerica Comments at 5-6
(supporting the inclusion of packet loss); see also BITAG Congestion Report at 12 (discussing delay intolerant
applications).
408

See, e.g., Cogent Remand PN Comments at 13 (“Without more localized data, consumers will not have
meaningful information on which to base choices concerning local broadband service, and broadband providers will
not be incentivized to offer higher quality serves in all areas.”); See Letter from Dr. Jeremy Gillula, Electronic
Frontier Foundation, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (filed Oct. 30, 2014) (“We
also suggested that if a national ISP has significantly different performance in different metropolitan or other
geographical areas, then the ISP should be required to report its metrics separately for each of those areas.”); id. at 3
(“[I]t would be useful if mobile broadband ISPs provided additional disclosures (particularly metrics like throughput
and packet loss) broken down by geographical area . . . .”).
409

We recognize that parties have expressed concern about providing disclosures about network performance on a
real-time basis. See Letter from Scott K. Bergmann, Vice Pres. Reg. Affairs, CTIA to Marlene H. Dortch, Secretary,
FCC, GN Docket No. 14-28, at 2 (filed Jan. 15, 2015). The enhancements to the transparency rule we adopt today
do not include such a requirement. See, e.g., WGAW Comments at 18 (calling for disclosure of actual speeds at
peak times); see also FCC’s Office of Engineering and Technology and Consumer & Governmental Affairs Bureau,
2014 Measuring Broadband America Fixed Broadband Report: A Report on Consumer Fixed Broadband
Performance in the US at 5 (2014), http://data.fcc.gov/download/measuring-broadband-america/2014/2014-FixedMeasuring-Broadband-America-Report.pdf (stating that download and upload speeds are measured by average
throughput over a 5 second time window, and defining the peak usage period for fixed broadband as between 7:00
p.m. and 11:00 p.m. local time). Given that the performance of mobile broadband networks is subject to a greater
array of factors than fixed networks, we note that disclosure of a range of speeds may be more appropriate for
mobile broadband consumers.
410

Per the 2011 Advisory Guidance, those mobile broadband providers that “lack reasonable access” to reliable
information on their network performance metrics may disclose a “Typical Speed Range (TSR)” to meet the
requirement to disclose actual performance. See 2011 Advisory Guidance, 26 FCC Rcd at 9415-16. In any event,
we expect that mobile broadband providers’ disclosure of actual performance data will be based on accepted
industry practices and principles of statistical validity.
411

Participation in the Measuring Broadband America (MBA) program continues to be a safe harbor for fixed
broadband providers in meeting the requirement to disclose actual network performance. The 2011 Advisory
(continued….)

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We decline to otherwise codify specific methodologies for measuring the “actual performance” required
by the existing transparency rule. We find that, as in 2010, there is benefit in permitting measurement
methodologies to evolve and improve over time, with further guidance from Bureaus and Offices—like in
2011—as to acceptable methodologies.412 We delegate authority to our Chief Technologist to lead this
effort.
167.
In addition, the existing rule concerning performance characteristics requires disclosure
of the “impact” of specialized services, including “what specialized services, if any, are offered to end
users, and “whether and how any specialized services may affect the last-mile capacity available for, and
the performance of, broadband Internet access service.”413 As discussed below, today we more properly
refer to these services as “non-BIAS data services.” Given that the Commission will closely scrutinize
offerings of non-BIAS data services and their impact on competition, we clarify that in addition to the
requirements of the existing rule concerning what was formerly referred to as “specialized services,”
disclosure of the impact of non-BIAS data services includes a description of whether the service relies on
particular network practices and whether similar functionality is available to applications and services
offered over broadband Internet access service.414
168.
The 2014 Open Internet NPRM tentatively concluded that we should require that
broadband providers disclose meaningful information regarding the source, location, timing, speed,
packet loss, and duration of network congestion. 415 As discussed above, we continue to require disclosure
of actual network speed and latency (as in 2010), and also require disclosure of packet loss. We decline
at this time to require disclosure of the source, location, timing, or duration of network congestion, noting
that congestion may originate beyond the broadband provider’s network and the limitations of a
broadband provider’s knowledge of some of these performance characteristics.416 We also asked whether
(Continued from previous page)
Guidance further stated that fixed providers that choose not to participate in MBA may measure and disclose
performance of their broadband offerings using the MBA’s methodology, internal testing, consumer speed data, or
other data, including reliable, relevant data from third-party sources. See 2011 Advisory Guidance, 26 FCC Rcd at
9415. Various software-based broadband performance tests are available as potential tools for end users and
companies to estimate actual broadband performance. See, e.g., FCC, Speed Test App,
http://www.fcc.gov/measuring-broadband-america/mobile (last visited Feb. 24, 2015); Ookla, Speedtest.net
http://www.speedtest.net (last visited Feb. 24, 2015); MLab, Internet Measurement Tools,
http://www.measurementlab.net/tests (last visited Feb. 24, 2015); Assia, CloudCheck, http://forum.cloudcheck.net
(last visited Feb. 24, 2015). See also Letter from Gerard J. Waldron, counsel to Adaptive Spectrum and Signal
Alignment, Inc. (ASSIA), to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 (filed Jan. 28, 2015)
(discussing a particular application, CloudCheck, which ASSIA reports “measures and monitors broadband speeds
and throughout, and . . . can report to consumers and other interested parties information about the performance of
consumers’ internet connectivity”). As noted above, we anticipate that the measurement methodology used for the
MBA project will continue to be refined, which in turn will enhance the effectiveness of network performance
disclosures generally. See, e.g., ACA Comments at 36 (stating that the MBA program is achieving its aims);
CenturyLink Comments at 25-27 (noting the significant transparency through MBA participation); Frontier
Comments at 7 (suggesting making greater use of the MBA program).
412

We expect that acceptable methodologies will be grounded in commonly accepted principles of scientific
research, good engineering practices, and transparency. See FCC’s Office of Engineering and Technology and
Consumer & Governmental Affairs Bureau, Measuring Broadband America Policy on Openness and Transparency,
http://www.fcc.gov/measuring-broadband-america/openness-transparency-policy (last visited Feb. 21, 2015).
413

2010 Open Internet Order, 25 FCC Rcd at 17939, para. 56.

414

See infra Section III.D.3.; see also BITAG Congestion Report at 43 (discussing transparency).

415

See 2014 Open Internet NPRM, 29 FCC Rcd at 5591, para. 83.

416

Short-term congestion occurs whenever instantaneous demand exceeds capacity. See BITAG Congestion Report
at 4-5. Since demand often consists of the aggregation of a large number of users’ traffic, it is technologically
difficult to determine the sources of each component of the aggregate traffic. See, e.g., ACA Comments at 40;
AT&T Comments at 88; Charter Comments at 27 (noting that ISPs can monitor only a portion of the transmission
(continued….)

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the Commission should expand its transparency efforts to include measurement of other aspects of
service. 417 We decline at this time to require disclosure of packet corruption or jitter, noting that
commenters expressed concerns regarding the difficulty of defining metrics for such performance
characteristics.418
169.
Network Practices. The existing transparency rule requires disclosure of network
practices, including specific disclosures related to congestion management, application-specific behavior,
device attachment rules, and security.419 Today, in recognition of significant consumer concerns
presented in the record, we further clarify that disclosure of network practices shall include practices that
are applied to traffic associated with a particular user or user group, including any application-agnostic
degradation of service to a particular end user.420 We also clarify that disclosures of user-based or
application-based practices should include the purpose of the practice , which users or data plans may be
(Continued from previous page)
path); Letter from Steven F. Morris, Vice Pres. and Gen. Counsel, NCTA, to Marlene H. Dortch, Secretary, FCC,
GN Docket No. 14-28, at 2 (filed Jan. 21 2015) (“As the Commission has acknowledged, the performance
experienced by a consumer is affected by many factors beyond the control of an ISP.”); Cox Comments at 20-21;
WISPA Comments at 16 (“In addition, the source of congestion at a given time may not be clear to the broadband
provider, especially if the congestion results from events occurring outside the local broadband network. As a result,
broadband providers will simply default to general language listing all of the possible sources of congestion, which
solves no purpose other than to make disclosure requirements confusing and meaningless.”).
417

See 2014 Open Internet NPRM, 29 FCC Rcd at 5588, para. 73.

418

See, e.g., AT&T Comments at 89 (“[R]equiring more technical disclosures would not yield meaningful benefits
to edge providers or device manufacturers, because there is no single industry-accepted meaning or method of
measurement for broadband metrics like corruption and jitter.”). Furthermore, corrupted packets may be included in
the packet loss performance characteristic.
419

2010 Open Internet Order, 25 FCC Rcd at 17938-39, para. 56 (elaborating upon each of these subcategories as
follows: (1) congestion management (“If applicable, descriptions of congestion management practices; types of
traffic subject to practices; purposes served by practices; practices’ effects on end users’ experience; criteria used in
practices, such as indicators of congestion that trigger a practice, and the typical frequency of congestion; usage
limits and the consequences of exceeding them; and references to engineering standards, where appropriate”); (2)
application-specific behavior (“If applicable, whether and why the provider blocks or rate-controls specific protocols
or protocol ports, modifies protocol fields in ways not prescribed by the protocol standard, or otherwise inhibits or
favors certain applications or classes of applications”); (3) device attachment rules (“If applicable, any restrictions
on the types of devices and any approval procedures for devices to connect to the network”); and (4) security (“If
applicable, practices used to ensure end-user security or security of the network, including types of triggering
conditions that cause a mechanism to be invoked (but excluding information that could reasonably be used to
circumvent network security)”); see id. at 17959, para. 98 (specifying certain application-approval and deviceattachment disclosures by mobile broadband providers, explaining that the transparency rule requires them: “to
disclose their third-party device and application certification procedures, if any; to clearly explain their criteria for
any restrictions on use of their network; and to expeditiously inform device and application providers of any
decisions to deny access to the network or of a failure to approve their particular devices or applications”).
Additionally, “mobile broadband providers should follow the guidance the Commission provided to licensees of the
upper 700 MHz C Block spectrum regarding compliance with their disclosure obligations, particularly regarding
disclosure to third-party application developers and device manufacturers of criteria and approval procedures (to the
extent applicable). For example, these disclosures include, to the extent applicable, establishing a transparent and
efficient approval process for third parties, as set forth in Rule 27.16(d).” Id. As discussed above, this information
remains part of the transparency rule, with the exception of the requirement to disclose the “typical frequency of
congestion.”
420

For example, a broadband Internet access service provider may define user groups based on the service plan to
which users are subscribed, the volume of data that users send or receive over a specified time period of time or
under specific network conditions, or the location of users. See infra Sections III.C.1.b; III.D.4. See also BITAG
Congestion Report at 18 (discussing user-based congestion management); Microsoft Comments at 31 (discussing the
need to disclose congestion thresholds that trigger traffic shaping and the consequences of traffic shaping).

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affected, the triggers that activate the use of the practice, the types of traffic that are subject to the
practice, and the practice’s likely effects on end users’ experiences.421 While some of these disclosures
may have been required in certain circumstances under the existing transparency rule, here we clarify that
this information should always be disclosed. These disclosures with respect to network practices are
necessary: for the public and the Commission to know about the existence of network practices that may
be evaluated under the rules, for users to understand when and how practices may affect them, and for
edge providers to develop Internet offerings.
170.
The 2014 Open Internet NPRM asked whether we should require disclosures that permit
end users to identify application-specific usage or to distinguish which user or device contributed to
which part of the total data usage.422 We decline at this time to require such disclosures, noting that
collection of application-specific usage by a broadband provider may require use of deep packet
inspection practices that may pose privacy concerns for consumers.423
(ii)

Enhancements to the Means of Disclosure

171.
The existing transparency rule requires, at a minimum, the prominent display of
disclosures on a publicly available website and disclosure of relevant information at the point of sale.424
We enhance the rule to require a mechanism for directly notifying end users if their individual use of a
network will trigger a network practice, based on their demand prior to a period of congestion, that is
likely to have a significant impact on the end user’s use of the service. The purpose of such notification is
to provide the affected end users with sufficient information and time to consider adjusting their usage to
avoid application of the practice.
(iii)

Small Businesses

172.
The record reflects the concerns of some commenters that enhanced transparency
requirements will be particularly burdensome for smaller providers.425 ACA, for example, suggests that
421

See infra Section III.D.4. See also BITAG Congestion Report at 43 (discussing what should be required in
disclosures of congestion management policies); Broadband Internet Technical Advisory Group, Port Blocking at
22-23 (2013) http://www.bitag.org/documents/Port-Blocking.pdf (discussing recommendations for disclosure of ISP
port blocking policies); Microsoft Comments at 31 (recommending disclosure of “types of edge services or
protocols (if any) the broadband access provider filters, prioritizes, or otherwise treats in a non-neutral manner,
relative to other types of traffic”); EFF Comments at 29 (requesting “clear warnings about any fast lanes, premium
services, blocking or filtering that the user will not have a simple and practical way to avoid”); Kentucky Public
Library Association Comments at 1 (“Consumers should be aware of the ISP’s guidelines on what kind of content
qualifies as spam and what level of congestion would necessitate limiting certain customer’s bandwidth.”); Online
Publishers Association Comments at 9 (noting importance of information “about any network management practices
that may impede [consumers’] ability to access to content or services); Roku Comments at iii (noting that any
practices or policies that exempt traffic from data caps should be specifically disclosed); TechAmerica Comments at
5 (supporting the disclosure of any blocking); Vonage Comments at 27-28 (requesting disclosure of all network
management practice that degrade service capacity); WGAW Comments at 18 (asking for details on congestion
management policies).
422

See 2014 Open Internet NPRM, 29 FCC Rcd at 5588, para. 73.

423

See, e.g., NCTA Comments at 50 (“Such a requirement likely would necessitate significant use of deep packet
inspection in an attempt to determine the user or device responsible for originating or receiving particular Internet
traffic.”); EFF Comments at 32 (expressing privacy concerns about disclosure of application-specific information).
424

2010 Open Internet Order, 25 FCC Rcd at 17939-40, para. 57. Broadband providers must actually disclose
information required for consumers to make an “informed choice” regarding the purchase or use of broadband
services at the point of sale. It is not sufficient for broadband providers simply to provide a link to their disclosures.
See supra Section III.C.3.a.
425

See, e.g., ACA Comments at 32-39; Competitive Carrier Association (CCA) Comments at 8-9 (“Expanding the
current disclosure requirements would also be particularly burdensome on smaller carriers); WISPA Comments at
15-16; WTA Comments at 8 (“WTA is very concerned about the increased costs and uncertain benefits of the
(continued….)

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smaller providers be exempted from the provision of such disclosures.426 ACA states that its member
companies are complying with the current transparency requirements, which “strike the right balance
between edge provider and consumer needs for pertinent information and the need to provide ISPs with
some flexibility in how they disclose pertinent information.”427 We believe that the transparency
enhancements adopted today are modest in nature. For example, we have declined to require certain
disclosures proposed in the 2014 Open Internet NPRM such as the source of congestion, packet
corruption, and jitter in recognition of commenter concerns with the benefits and difficulty of making
these particular disclosures. We also do not require “real-time” disclosures. These proposed disclosures
appear to form the bulk of ACA’s concerns.428 Nevertheless, we take seriously the concerns that ACA
raises and those of smaller broadband providers generally.
173.
Out of an abundance of caution, we grant a temporary exemption for these providers,
with the potential for that exemption to become permanent. It is unclear, however, how best to delineate
the boundaries of this exception. Clearly, it should include those providers likely to be most
disproportionately affected by new disclosure requirements. ACA “acknowledge[s] that Congress and the
Commission have defined ‘small’ in various ways.”429 One metric to which ACA points is the approach
that the Commission used in its 2013 Rural Call Completion Order, which excepted providers with
100,000 or fewer subscriber lines, aggregated across all affiliates, from certain recordkeeping, retention,
and reporting rules.430 We adopt this definition for purposes of the temporary exemption that we adopt
today. Accordingly, we hereby adopt a temporary exemption from the enhancements to the transparency
rule for those providers of broadband Internet access service (whether fixed or mobile) with 100,000 or
fewer broadband subscribers as per their most recent Form 477, aggregated over all the providers’
affiliates.431

(Continued from previous page)
proposed enhanced transparency requirements for smaller carriers and their customers.”); Letter from Erin P.
Fitzgerald, Assistant Regulatory Counsel, Rural Wireless Association, Inc., to Marlene H. Dortch, Secretary, FCC,
GN Docket Nos. 14-28 at 1 (filed Nov. 14, 2014) (RWA Nov. 14, 2014 Ex Parte Letter) (“While RWA members
have developed procedures to comply with the Commission’s 2010 transparency and disclosure rules,[footnote
omitted] engaging in a similar endeavor to comply with new and/or more stringent rules would be costly and further
strain rural carriers’ limited resources.”); Letter from Stephen E. Coran, Counsel to the Wireless Internet Service
Providers Association, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28 at 8 (filed Feb. 3, 2015) (“To
avoid the significant effects that would result from the Commission’s proposed rules, the Commission should
exempt small businesses from any new transparency and reporting obligations.”).
426

See ACA Comments at 39-40 (“any enhanced disclosure rule regarding network congestion . . . should exclude
‘small providers’”).
427

Letter from Barbara Esbin, Counsel for ACA, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10127, at 6 (filed Feb. 2, 2015) (ACA Feb. 2, 2015 Ex Parte Letter).
428

Id. at 5-6 (“ACA also discussed the lack of record support for the imposition of any enhanced transparency
requirements for small ISPs, particularly proposals to maintain a separate set of Open Internet disclosures tailored to
the needs of edge providers and to disclose, on a real-time basis, information about network congestion and the lack
of demonstrable benefits that would accrue from such reporting”). See also id. at 6 (reporting on an ex parte
meeting in which a representative of an ACA member “confirmed that realtime network congestion disclosures
would be highly burdensome for a small ISP”).
429

Id. at 5.

430

See Rural Call Completion, WC Docket No. 13-39, Report and Order and Further Notice of Proposed
Rulemaking, 28 FCC Rcd 16154 (2013) (Rural Call Completion Order). We also note that one of the entities
requesting relief from enhanced transparency rules – RWA – is comprised of member companies serving fewer than
100,000 mobile subscribers. RWA Nov. 14, 2014 Ex Parte Letter at 1.
431

Cf. Rural Call Completion Order, 28 FCC Rcd at 16164, para. 19.

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174.
Yet we believe that both the appropriateness of the exemption and the threshold require
further deliberation. Accordingly, the exemption we adopt is only temporary. We delegate to the
Consumer & Governmental Affairs Bureau (CGB) the authority to determine whether to maintain the
exemption and, if so, the appropriate threshold for it. We direct CGB to seek comment on the question
and to adopt an Order announcing whether it is maintaining an exemption and at what level by no later
than December 15, 2015. Until such time, notwithstanding any approval received by the Office of
Management & Budget for the enhancements adopted today, such enhancements will not apply to
providers of broadband Internet access service with 100,000 or fewer subscribers.
175.
To be clear, all providers of broadband Internet access service, including small providers,
remain subject to the existing transparency rule adopted in 2010. The temporary exemption adopted
today, and any permanent exemption adopted by CGB, applies only to the enhanced disclosures described
above. As ACA states in its request for an exemption for small providers, “[i]rrespective of which
definition of small that is chosen by the Commission, exempt ISPs would still be required to comply with
the transparency requirements contained in Section 8.3 of the Commission’s rules today.”432
(iv)

Safe Harbor for Form of Disclosure to Consumers

176.
The existing transparency rule requires disclosures sufficient both to enable “consumers
to make informed choices regarding use of [broadband] services” and “content, application, service, and
device providers to develop, market, and maintain Internet offerings.”433 As in 2010, a central purpose of
the transparency rule remains to provide information useful to both constituencies. As we noted in the
2014 Open Internet NPRM, we are concerned that disclosures are not consistently provided in a manner
that adequately satisfies the divergent informational needs of all affected parties. For example,
disclosures at times are ill-defined; do not consistently measure service offerings, making comparisons
difficult; or are not easily found on provider websites.434 In the 2014 Open Internet NPRM, we therefore
proposed requiring separate disclosure statements to meet both the basic informational needs of
consumers and the more technical needs of edge providers.435
177.
The record reflects concerns, however, as to a requirement to offer tailored disclosures.
For example, ACA states that disclosures tailored to edge providers “would require small ISPs, who
manage their own networks and may only have a handful of network operators, engineers, and head end
staff to make onerous expenditures of both personnel hours and financial resources.”436 Bright House
“question[s] the feasibility of creating disclosures tailored to the varied and potentially unique needs of
the hundreds of such providers, particularly with no reciprocal obligation.”437 Similarly, Tech Freedom
and the International Center for Law and Economics assert that “requiring ISPs to tailor their disclosures
to the various parties the ISPs deal with (i.e., consumers, edge providers, the Internet community, and the
FCC) greatly increases the burden of complying with these disclosures, especially as such disclosures
must be periodically updated to reflect changes to ISPs’ network management practices.”438 In light of
these concerns, we decline to require separate disclosures at this time.

432

RWA Nov. 14, 2014 Ex Parte Letter at 6.

433

2010 Open Internet Order, 25 FCC Rcd at 17937, para. 54.

434

See, e.g., Mayor de Blasio et al. Comments at 1 (“Currently, the lack of clear, accurate information results in
confusion with respect to key service features like download and upload speeds, pricing and usage restrictions.”).
435

2014 Open Internet NPRM, 29 FCC Rcd at 5586, para. 68.

436

Letter from Barbara S. Esbin, Counsel for American Cable Association to Marlene H. Dortch, Secretary, FCC,
GN Docket Nos. 14-28, 10-127, at 4 (filed Jan. 28, 2015).
437

Bright House Comments at 14.

438

Tech Freedom Comments at 12.

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178.
In declining to mandate separate disclosures, however, we do not intend to diminish the
existing requirement for disclosure of information sufficient for both end users and edge providers. The
Commission has not established that a single disclosure would always satisfy the rule; rather, it merely
stated broadband providers “may be able” to satisfy the transparency rule through a single disclosure. We
are especially concerned that in some cases a single disclosure statement may be too detailed and
technical to meet the needs of consumers, rather than a separate consumer-focused disclosure. As noted
in the 2014 Open Internet NPRM, both academic research and the Commission’s experience with
consumer issues have demonstrated that the manner in which providers display information to consumers
can have as much impact on consumer decisions as the information itself.439 A stand-alone format has
proven effective in conveying useful information in other contexts.440 We also note that the OIAC and
OTI have proposed the use of a label to disclose the most important information to users of broadband
service.441 In addition, the United Kingdom’s largest Internet service providers agreed to produce a
comparable table of traffic management information called a Key Facts Indicator.442
179.
Therefore, we are establishing a voluntary safe harbor for the format and nature of the
required disclosure to consumers. To take advantage of the safe harbor, a broadband provider must
provide a consumer-focused, standalone disclosure. We decline, however, to mandate the exact format
for such disclosures at this time.443 Rather, we seek the advice of our Consumer Advisory Committee,
which is composed of both industry and consumer interests, including those representing people with
disabilities.444 We find that the Committee’s experience with consumer disclosure issues445 makes it an
ideal body to recommend a disclosure format that should be clear and easy to read—similar to a nutrition
label—to allow consumers to easily compare the services of different providers. We believe the CAC is
uniquely able to recommend a disclosure format that both anticipates and addresses provider compliance
burdens while ensuring the utility of the disclosures for consumers.446
180.
We direct the CAC to formulate and submit to the Commission a proposed disclosure
format, based on input from a broad range of stakeholders, within six months of the time that its new
membership is reconstituted, but, in any event, no later than October 31, 2015. The disclosure format
must be accessible to persons with disabilities. We expect that the CAC will consider whether to propose
the same or different formats for fixed and mobile broadband providers. In addition, we expect that the
439
440

See 2014 Open Internet NPRM, 29 FCC Rcd at 5587-88, para. 72.
See id. at 5588 n.171.

441

See Open Internet Advisory Committee, Open Internet Label Study (Aug. 20, 2013), at
http://transition.fcc.gov/cgb/oiac/Transparency-Label-Study.pdf (OIAC Label Study); see also New America
Foundation Broadband Truth-in-Labeling proposal:
http://newamerica.net/sites/newamerica.net/files/policydocs/NAF_OTI_Broadband_Truth_in_Labeling-092009.pdf.
442

See Ofcom, Improving traffic management transparency: Ofcom sets out steps for ISPs to take (Nov. 2011),
http://media.ofcom.org.uk/news/2011/improving-traffic-management-transparency/.
443

We note that although we have sought comment on what format would be most effective, the record is lacking on
specific details as to how such a disclosure should be formatted.
444

The Committee’s purpose is to make recommendations to the Commission regarding consumer issues within
Commission’s jurisdiction and to facilitate the participation of consumers (including people with disabilities and
underserved populations, such as Native Americans and persons living in rural areas) in proceedings before the
Commission.
445

For example, the Committee has studied the value of standardized disclosures and their contents. See, e.g., FCC
Consumer Advisory Committee, Recommendations Regarding Pre-Sale Consumer Disclosures (Aug. 4, 2010), at
https://apps.fcc.gov/edocs_public/attachmatch/DOC-300826A1.pdf.
446

See, e.g., NCTA Comments at 51 (“If the Commission decides to pursue standardized disclosures, NCTA would
welcome the opportunity to participate in the development of a voluntary program.”).

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CAC will consider whether and how a standard format for mobile broadband providers will allow
providers to continue to differentiate their services competitively, as well as how mobile broadband
providers can effectively disclose commercial terms to consumers regarding myriad plans in a manner
that is not administratively burdensome. The Commission delegates authority to the Wireline
Competition Bureau, Wireless Telecommunications Bureau, and Consumer & Governmental Affairs
Bureau to issue a Public Notice announcing whether the proposed format or formats meet its expectations
for the safe harbor for making consumer-facing disclosures. If the format or formats do not meet such
expectations, the Bureaus may ask the CAC to consider changes and submit a revised proposal for the
Bureaus’ review within 90 days of the Bureaus’ request.
181.
Broadband providers that voluntarily adopt this format will be presumed to be in
compliance with the requirement to make transparency disclosures in a format that meets the needs of
consumers. Providers that choose instead to maintain their own format—for example, a unitary
disclosure intended both for consumers and edge providers—will bear the burden, if challenged, of
explaining how a single disclosure statement meets the needs of both consumers and edge providers. To
be clear, use of the consumer disclosure format is a safe harbor with respect to the format of the required
disclosure to consumers. A broadband provider meeting the safe harbor could still be found to be in
violation of the rule, for example, if the content of that disclosure (e.g., prices) is misleading or
inaccurate, or the provider makes misleading or inaccurate statements in another context, such as
advertisements or other statements to consumers. Moreover, broadband providers using the safe harbor
should continue to provide the more detailed disclosure statement for the benefit of edge providers.
c.

Enforcement and Relationship to the Existing Transparency Rule

182.
Despite these enhancements to the existing transparency rule, we clarify that we are being
specific in order to provide additional guidance. The transparency rule has always required broadband
providers to disclose information “sufficient for consumers to make informed choices”447 and that test
could, in particular circumstances, include the enhancements that we expressly adopt today. We also
reiterate that under both the existing transparency rule and the enhancements adopted in this Order, all
disclosures that broadband providers make about their network practices, performance, and commercial
terms of broadband services must be accurate and not misleading.448
183.
In the 2014 Open Internet NPRM we also requested comment on how the Commission
could best enforce the transparency rule.449 In particular, we noted that a key objective of the
transparency rule is to enable the Commission to collect information necessary to access, report, and
enforce the open Internet rules.450 For example, we sought comment on whether to require broadband
providers to certify that they are in compliance with the required disclosures and/or submit reports
containing descriptions of current disclosure practices, particularly if the existing flexible approach is
amended to require more specific disclosures.451 Some commenters caution against measures that are
unnecessary, susceptible to abuse, or burdensome.452 Others express support for stronger or more
447

See 47 C.F.R. § 8.3. Even where a particular category of information discussed above was not specified in the
2010 Open Internet Order that does not mean that disclosure of that information has not consistently been required
under the transparency rule. If such information is necessary for a consumer to make an “informed choice”
regarding the purchase or use of broadband service, disclosure of that information is a fundamental requirement of
the transparency rule.
448

See 2014 Advisory Guidance, 29 FCC Rcd at 8607.

449

See 2014 Open Internet NPRM, 29 FCC Rcd at 5592-93, para. 87.

450

Id.

451

Id.

452

See, e.g., ACA Comments at v (“The Commission should, rather than adopt enhancements, continue to rely upon
its complaints and enforcement procedures to address any material concerns about individual providers’ disclosures
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efficient enforcement mechanisms.453 At this time we decline to require certification by broadband
providers. Should evidence be provided, however, that certification is necessary, we will revisit this issue
at a later date.
184.
We also remind providers that if their disclosure statements fail to meet the requirements
established in 2010 and enhanced today, they may be subject to investigation and forfeiture. The
Enforcement Bureau will closely scrutinize failure by providers to meet their obligations in fulfilling the
transparency rule.
d.

Role of Further Advisory Guidance

185.
The 2011 and 2014 Advisory Guidance documents illustrate the role of further guidance
from Commission staff in interpreting and applying the general requirements of the transparency rule.
We anticipate that as technology, the marketplace, and the needs of consumers, edge providers, and other
stakeholders evolve, further such guidance may be appropriate concerning the transparency rule,
including with respect to the enhancements adopted today. The most immediate example concerns
ongoing improvements and evolutions in the methodologies for measuring broadband providers’ actual
performance, as discussed in further detail above. We also point out that broadband providers are able to
seek advisory opinions from the Enforcement Bureau concerning any of the open Internet regulations,
including the transparency rule.454
D.

Scope of the Rules

186.
The open Internet rules we adopt today apply to fixed and mobile broadband Internet
access service. We make clear, however, that while the definition of broadband Internet access service
encompasses arrangements for the exchange of Internet traffic, the open Internet rules we adopt today do
not apply to that portion of the broadband Internet access service.455
1.
187.

Broadband Internet Access Service

As discussed below, we continue to define “broadband Internet access service” (BIAS)

as:
A mass-market retail service by wire or radio that provides the capability to transmit
data to and receive data from all or substantially all Internet endpoints, including any
capabilities that are incidental to and enable the operation of the communications
service, but excluding dial-up Internet access service. This term also encompasses any
service that the Commission finds to be providing a functional equivalent of the service
described in the previous sentence, or that is used to evade the protections set forth in
this Part.456
188.
“Broadband Internet access service” continues to include services provided over any
technology platform, including but not limited to wire, terrestrial wireless (including fixed and mobile
(Continued from previous page)
that may arise.”); Charter Comments at 34-35 (arguing that the proposed enhanced enforcement mechanisms are
unnecessary and susceptible to abuse).
453

See, e.g., EFF Comments at 26-27; Microsoft Comments at 32-33.

454

See infra Section III.E.2.a(i).

455

See infra Section III.D.4.

456

47 C.F.R. § 8.11(a); 2010 Open Internet Order, 25 FCC Rcd at 17932, para. 44; id. at 17935, para. 51 (finding
that the market and regulatory landscape for dial-up Internet access service differed from broadband Internet access
service); 2014 Open Internet NPRM, 29 FCC Rcd at 5581, para. 54. The Verizon decision upheld the Commission’s
regulation of broadband Internet access service pursuant to section 706 and the definition of “broadband Internet
access service” has remained part of the Commission’s regulations since adopted in 2010.

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wireless services using licensed or unlicensed spectrum), and satellite.457 “Broadband Internet access
service” encompasses all providers of broadband Internet access service, as we delineate them here,
regardless of whether they lease or own the facilities used to provide the service.458 “Fixed” broadband
Internet access service refers to a broadband Internet access service that serves end users primarily at
fixed endpoints using stationary equipment, such as the modem that connects an end user’s home router,
computer, or other Internet access device to the network.459 The term encompasses the delivery of fixed
broadband over any medium, including various forms of wired broadband services (e.g., cable, DSL,
fiber), fixed wireless broadband services (including fixed services using unlicensed spectrum), and fixed
satellite broadband services. “Mobile” broadband Internet access service refers to a broadband Internet
access service that serves end users primarily using mobile stations.460 It also includes services that use
smartphones or mobile-network-enabled tablets as the primary endpoints for connection to the Internet,461
as well as mobile satellite broadband services.462
189.
We continue to define “mass market” as “a service marketed and sold on a standardized
basis to residential customers, small businesses, and other end-user customers such as schools and
libraries.”463 To be clear, “mass market” includes broadband Internet access services purchased with
support of the E-rate and Rural Healthcare programs, as well as any broadband Internet access service
offered using networks supported by the Connect America Fund (CAF).464 To the extent that institutions
457

2010 Open Internet Order, 25 FCC Rcd at 17932, para. 44.

458

The Commission has consistently determined that resellers of telecommunications services are
telecommunications carriers, even if they do not own any facilities. See, e.g., Regulation of Prepaid Calling Card
Services, WC Docket No. 05-68, Declaratory Ruling and Report and Order, 21 FCC Rcd 7290, 7293-94, 7312,
paras. 10, 65 (2006), vacated in part on other grounds sub nom. Qwest Servs. Corp. v. FCC, 509 F.3d 531 (D.C. Cir.
2007); NOS Communications, Inc., Affinity Network Inc. and NOSVA Limited Partnership, EB Docket No. 03-96,
Order to Show Cause and Notice of Opportunity for Hearing, 18 FCC Rcd 6952, 6953-54, para. 3 (2003);
Regulatory Policies Concerning Resale and Shared Use of Common Carrier Services and Facilities, Docket No.
20097, Report and Order, 60 FCC 2d 261, 265 para. 8 (1976) (“[A]n entity engaged in the resale of communications
service is a common carrier, and is fully subject to the provisions of Title II.”), aff’d sub nom. AT&T v. FCC, 572
F.2d 17 (2d Cir. 1978). Further, as the Supreme Court observed in Brand X, “the relevant definitions do not
distinguish facilities-based and non-facilities-based carriers.” Brand X, 545 U.S. at 997. We note that the rules
apply not only to facilities-based providers of broadband service but also to resellers of that service. In applying
these obligations to resellers, we recognize, as the Commission has in other contexts, that consumers will expect the
protections and benefits afforded by providers’ compliance with the rules, regardless of whether the consumer
purchase service from a facilities-based provider or a reseller. See, e.g., Revision of the Commission’s Rules to
Ensure Compatibility with Enhanced 911 Emergency Calling Systems et al., CC Docket No. 94-102, IB Docket No.
99-67, Report and Order and Second Further Notice of Proposed Rulemaking, 18 FCC Rcd 25340, 25380, para. 96
(2003). We note that a reseller’s obligation under the rules is independent from the obligation of the facilities-based
provider that supplies the underlying service to the reseller, though the extent of compliance by the underlying
facilities-based provider will be a factor in assessing compliance by the reseller.
459

2010 Open Internet Order, 25 FCC Rcd at 17934, para. 49 & n.153.

460

See 47 U.S.C. § 153(34) (“The term ‘mobile station’ means a radio-communication station capable of being
moved and which ordinarily does move.”); Open Internet Order, 25 FCC Rcd at 17934, para. 49.
461

We note that “public safety services,” as defined in section 337 of the Act, are excluded from the definition of
mobile broadband Internet access service. See 47 U.S.C. § 337(f)(1).
462

We provide these definitions of “fixed” and “mobile” for illustrative purposes. In contrast to the Commission’s
2010 Open Internet Order, here we are applying the same regulations to both fixed and mobile broadband Internet
access services.
463

2010 Open Internet Order, 25 FCC Rcd at 17932, para. 45.

464

In the 2010 Open Internet Order, the Commission found that “mass market” included broadband Internet access
services purchased with support of the E-rate program. See 2010 Open Internet Order, 25 FCC Rcd at 17932, para.
45. Since that time, the Commission has extended universal service support for broadband services through the
(continued….)

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of higher learning purchase mass market services, those institutions would be included within the scope of
the schools and libraries portion of our definition.465 The term “mass market” does not include enterprise
service offerings, which are typically offered to larger organizations through customized or individuallynegotiated arrangements,466 or special access services.467
190.
We adopt our tentative conclusion in the 2014 Open Internet NPRM that broadband
Internet access service does not include virtual private network (VPN) services, content delivery networks
(CDNs), hosting or data storage services, or Internet backbone services (to the extent those services are
separate from broadband Internet access service).468 The Commission has historically distinguished these
services from “mass market” services and, as explained in the 2014 Open Internet NPRM, they “do not

(Continued from previous page)
Lifeline and Rural Health Care programs. See Lifeline and Link Up Reform and Modernization; Lifeline and Link
Up; Federal-State Joint Board on Universal Service; Advancing Broadband Availability Through Digital Literacy
Training, WC Docket Nos. 11-42, 03-109, 12-23, CC Docket No. 96-45, Report and Order and Further Notice of
Proposed Rulemaking, 27 FCC Rcd 6656, 6795, para. 323 (2012) (adopting “a Low-Income Broadband Pilot
Program . . . that will focus on testing the necessary amount of subsidies for broadband and the length of support”);
Rural Health Care Support Mechanism, WC Docket No. 02-60, Report and Order, 27 FCC Rcd 16678 (2012).
Thus, for the same reasons the Commission defined mass market services to include BIAS purchased with the
support of the E-rate program in 2010, we now find that mass market also includes BIAS purchased with the support
of Lifeline and Rural Health Care programs.
465

See Higher Education and Libraries Comments at 11 (noting that institutions of higher education are not
“residential customers” or “small businesses” and uncertainty about whether institutions of higher education (and
their libraries) are included in the term “schools” because the term is sometimes interpreted as applying only to K-12
schools).
466

See 2010 Open Internet Order, 25 FCC Rcd at 17932, para. 45; AT&T/BellSouth Merger Order, 22 FCC Rcd at
5709-10, para. 85 (“[E]nterprise customers tend to be sophisticated and knowledgeable (often with the assistance of
consultants), . . . contracts are typically the result of RFPs and are individually-negotiated (and frequently subject to
non-disclosure clauses), . . . contracts are generally for customized service packages, and . . . the contracts usually
remain in effect for a number of years.”).
467

The Commission has a separate, ongoing proceeding examining special access. See Special Access for Price Cap
Local Exchange Carriers; AT&T Corporation Petition for Rulemaking to Reform Regulation of Incumbent Local
Exchange Carrier Rates for Interstate Special Access Services, WC Docket No. 05-25, RM-10593, Report and
Order and Further Notice of Proposed Rulemaking, 27 FCC Rcd 16318 (2012) (Special Access Data Collection
Order or Special Access Data Collection NPRM) (initiating special access data collection and seeking comment on a
proposal to use the data to evaluate competition in the special access services market); Special Access for Price Cap
Local Exchange Carriers; AT&T Corporation Petition for Rulemaking to Reform Regulation of Incumbent Local
Exchange Carrier Rates for Interstate Special Access Services, WC Docket No. 05-25, RM-10593, Report and
Order, 27 FCC Rcd 10557 (2012) (Pricing Flexibility Suspension Order) (suspending, on an interim basis, the
Commission’s rules allowing the grant of pricing flexibility for special access services in areas subject to price cap
regulation and, to identify a replacement framework, detailing a plan to collect data and information for a robust
market analysis to gauge actual and potential competition for special access services); Special Access Rates for
Price Cap Local Exchange Carriers; AT&T Corp. Petition for Rulemaking to Reform Regulation of Incumbent
Local Exchange Carrier Rates for Interstate Special Access Services, WC Docket No. 05-25, RM-10593, Order and
Notice of Proposed Rulemaking, 20 FCC Rcd 1994 (2005) (Special Access NPRM) (initiating a broad examination
of the regulatory framework to apply to price cap local exchange carrier’s interstate special access services); see also
Special Access for Price Cap Local Exchange Carriers; AT&T Corporation Petition for Rulemaking to Reform
Regulation of Incumbent Local Exchange Carrier Rates for Interstate Special Access Services, WC Docket No. 0525, RM-10593, Order on Reconsideration, 29 FCC Rcd 10899 (Wireline Comp. Bur. 2014) (finalizing the special
access data collection pursuant to delegated authority).
468

2010 Open Internet Order, 25 FCC Rcd at 17933, para. 47; 2014 Open Internet NPRM, 29 FCC Rcd at 5581,
para. 58; see also, e.g., Cox Comments at 8, 14; Nokia Comments at 11.

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provide the capability to receive data from all or substantially all Internet endpoints.”469 We do not
disturb that finding here. Likewise, when a user employs, for example, a wireless router or a Wi-Fi
hotspot to create a personal Wi-Fi network that is not intentionally offered for the benefit of others, he or
she is not providing a broadband Internet access service under our definition.470
191.
We again decline to apply the open Internet rules to premises operators —such as coffee
shops, bookstores, airlines, private end-user networks (e.g. libraries and universities), and other
businesses that acquire broadband Internet access service from a broadband provider to enable patrons to
access the Internet from their respective establishments—to the extent they may be offering broadband
Internet access service as we define it today.471 We find, as we did in 2010, that a premises operator that
purchases BIAS is an end user and that these services “are typically offered by the premise operator as an
ancillary benefit to patrons.” 472 Further, applying the open Internet rules to the provision of broadband
service by premises operators would have a dampening effect on these entities’ ability and incentive to
offer these services. As such, we do not apply the open Internet rules adopted today to premises
operators.473 The record evinces no significant disagreement with this analysis.474
192.
Our definition of broadband Internet access service includes services “by wire or radio,”
which encompasses mobile broadband service. Thus, our definition of broadband Internet access service
also extends to the same services provided by mobile providers. As discussed above, the record
demonstrates the pressing need to apply open Internet rules to fixed and mobile broadband services alike,
and changes in the mobile marketplace no longer counsel in favor of treating mobile differently under the
rules.475 Thus, we apply the open Internet rules adopted today to both fixed and mobile networks.476
193.
As we discuss more fully below, broadband Internet access service encompasses the
exchange of Internet traffic by an edge provider or an intermediary with the broadband provider’s
network.477 Below, we find that broadband Internet access service is a telecommunications service,

469

2014 Open Internet NPRM, 29 FCC Rcd 5581-82, para. 58; 2010 Open Internet Order, 25 FCC Rcd at 17933,
para. 47 (“These services typically are not mass market services and/or do not provide the capability to transmit data
to and receive data from all or substantially all Internet endpoints.”); see also Verizon Comments at 77-78.
470

2010 Open Internet Order, 25 FCC Rcd at 17936, para. 52, n.164 (“We also do not include within the rules free
access to individuals’ wireless networks, even if those networks are intentionally made available to others.”).
471

See id. at 17935, para. 52. While we decline to apply open Internet rules to premises operators to the extent they
may offer broadband Internet access service, that decision does not affect other obligations that may apply to
premises operators under the Act. See, e .g., 47 U.S.C. § 333; Warning: Wi-Fi Blocking is Prohibited, Public
Notice, DA 15-113 (Enforcement Bur. Jan. 27, 2015); Marriott Int’l, Inc.; Marriott Hotel Servs, Inc., EB-IHD-1300011303, Order and Consent Decree, 29 FCC Rcd 11760 (Enforcement Bur. 2014).
472

2010 Open Internet Order, 25 FCC Rcd at 17935-36, para. 52, n.163.

473

We reiterate the guidance in the 2010 Open Internet Order that although not bound by our rules, we encourage
premises operators to disclose relevant restrictions on broadband service they make available to their patrons. See
id.
474

CDT Comments at 26 n.61; Higher Education and Libraries Reply at 14-15. We note, however, that this
exception does not affect other obligations that a premise operator may have independent of our open Internet rules.
See TDI Comments at 14-15 (arguing that the enterprise or premise operator exception should not apply to blocking
or prioritization undertaken in violation of disability law).
475

See supra Section III.B.3.

476

Although we adopt the same rules for both fixed and mobile services, we recognize that with respect to the
reasonable network management exception, the rule may apply differently to fixed and mobile broadband providers.
See infra Section III.D.4.
477

See infra Section III.D.2.

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subject to sections 201, 202, and 208 (along with key enforcement provisions).478 As a result, the
Commission will be available to hear disputes regarding arrangements for the exchange of traffic with a
broadband Internet access provider raised under sections 201 and 202 on a case-by-case basis: an
appropriate vehicle for enforcement where disputes are primarily over commercial terms and that involve
some very large corporations, including companies like transit providers and CDNs, that act on behalf of
smaller edge providers. However, for reasons discussed more fully below,479 we exclude this portion of
broadband Internet access service—interconnection with a broadband Internet access service provider’s
network—from application of our open Internet rules. We note that this exclusion also extends to
interconnection with CDNs.480
2.

Internet Traffic Exchange

194.
In the 2010 Open Internet Order, the Commission applied its open Internet rules “only as
far as the limits of a broadband provider’s control over the transmission of data to or from its broadband
customers,” and excluded the exchange of traffic between networks from the scope of the rules.481 In the
2014 Open Internet NPRM, the Commission tentatively concluded that it should maintain this approach,
but explicitly sought comment on suggestions that the Commission should expand the scope of the open
Internet rules to cover issues related to Internet traffic exchange.482
195.
As discussed below, we classify fixed and mobile broadband Internet access service as
telecommunications services.483 The definition for broadband Internet access service includes the
exchange of Internet traffic by an edge provider or an intermediary with the broadband provider’s
network. We note that anticompetitive and discriminatory practices in this portion of broadband Internet
access service can have a deleterious effect on the open Internet,484 and therefore retain targeted authority
to protect against such practices through sections 201, 202, and 208 of the Act (and related enforcement
478

See infra Sections IV-V. We note that broadband Internet access services are also subject to sections 222, 224,
225, 254, and 255.
479

See infra paras. 202-206.

480

Letter from Scott Blake Harris, Counsel to Akamai Technologies, Inc. to Marlene H. Dortch, Secretary, FCC, GN
Docket No. 14-28, at 1 (filed Feb. 9, 2015) (“Akamai agrees with [the tentative conclusion not to apply the open
Internet rules to CDNs] and submits that it should be adopted in the final order.”).
481

2010 Open Internet Order, 25 FCC Rcd at 17993, para. 47 n.150, 17944, para. 67 n.209; see also id. at para. 47
(excluding content delivery network services and Internet backbone services (if those services are separate from
broadband Internet access) from the definition of “broadband Internet access service”).
482

2014 Open Internet NPRM, 29 FCC Rcd at 5582, 5614-15, paras. 59, 151-52. As a general matter, Internet
traffic exchange involves the exchange of IP traffic between networks. An Internet traffic exchange arrangement
determines which networks exchange traffic and the destinations to which those networks will deliver that traffic. In
aggregate, Internet traffic exchange arrangements allow an end user of the Internet to interact with other end users
on other Internet networks, including content or services that make themselves available by having a public IP
address, similar to how the global public switched telephone network consists of networks that route calls based on
telephone numbers. When we adopted the 2014 Open Internet NPRM, the Chairman issued a separate, written
statement suggesting that “the question of interconnection (‘peering’) between the consumer’s network provider and
the various networks that deliver to that ISP . . . is a different matter that is better addressed separately.” 2014 Open
Internet NPRM, 29 FCC Rcd at 5647. While this statement reflected the Notice’s tentative conclusion concerning
Internet traffic exchange, it in no way detracts from the fact that the Notice also sought comment on “whether we
should change our conclusion,” whether to adopt proposals to “expand the scope of the open Internet rules to cover
issues related to traffic exchange,” and how to “ensure that a broadband provider would not be able to evade our
open Internet rules by engaging in traffic exchange practices that would be outside the scope of the rules as
proposed.” Id. at 5582, para. 59.
483

See infra Section IV.

484

See infra para. 205.

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provisions), but will forbear from a majority of the other provisions of the Act.485 Thus, we conclude that,
at this time, application of the no-unreasonable interference/disadvantage standard and the prohibitions on
blocking, throttling, and paid prioritization to the Internet traffic exchange arrangements is not warranted.
196.
Trends in Internet Traffic Exchange. Internet traffic exchange is typically based on
commercial negotiations.486 Changes in consumer behavior, traffic volume, and traffic composition have
resulted in new business models for interconnection. Since broadband Internet access service providers
cannot, on their own, connect to every end point on the Internet in order to provide full Internet access to
their customers, they historically paid third-party backbone service providers for transit. Backbone
service providers interconnected upstream until traffic reached Tier 1 backbone service providers, which
peered with each other and thereby provided their customer networks with access to the full Internet.487 In
this hierarchical arrangement of networks, broadband Internet access providers negotiated with backbone
service providers; broadband Internet access providers generally did not negotiate with edge providers to
gain access to content.488 However, in recent years, new business models of Internet traffic exchange
have emerged, premised on changes in traffic flows and in broadband Internet access provider
networks.489 A number of factors drive these trends in Internet traffic exchange.
197.
Critically, the growth of online streaming video services has sparked further evolution of
490
the Internet. Content providers have come to rely on the services of commercial and private CDNs,
which cache content close to end users, providing increased quality of service and avoiding transit
485

See infra Section V.

486

See, e.g., Verizon Reply at 57; CenturyLink Reply at 11.

487

William Norton, The Evolution of the U.S. Internet Peering Ecosystem, Dr. Peering, http://drpeering.net/whitepapers/Ecosystems/Evolution-of-the-U.S.-Peering-Ecosystem.html (last visited Feb. 5, 2015).
488

Id.

489

See, e.g., Verizon Reply at 58 (explaining that “new arrangements [are] emerging on a regular basis to provide
for efficient network planning and traffic delivery, as well as improved service for customers as their demands for
Internet services continues to grow”); AT&T Reply at 96 (“For more than two decades, such interconnection has
taken the form of ‘transit’ and ‘peering’ agreements, and in recent years, ‘on-net-only’ agreements have arisen in
response to growing demands for video and other forms of media-rich content.”); see also Werbach, Kevin D., The
Centripetal Network: How the Internet Holds Itself Together, and the Forces Tearing it Apart (2009), 42 U.C. Davis
L. Rev. , 343, 371 (2009), http://ssrn.com/abstract=1118435 (anticipating the evolving interconnection ecosystem).
490

See 2015 Broadband Progress Report at para. 32 (“Consumers increasingly are choosing higher quality video
services that demand increased bandwidth, and projections show new video service options and substantial growth
in this area.”). Currently, video is the dominant form of traffic on the Internet, with estimates that traffic from
Netflix and YouTube constitutes approximately 50 percent of peak Internet download traffic. Sandvine Report:
Netflix and Youtube Account for 50% of All North American Fixed Network Data, Sandvine (Nov. 11, 2013),
https://www.sandvine.com/pr/2013/11/11/sandvine-report-netflix-and-youtube-account-for-50-of-all-northamerican-fixed-network-data.html (stating also that video is very asymmetric and requires significant bandwidth).
For instance, Netflix recommends a connection speed of at least 5 Mbps to watch its content in HD, while Google
has reported that at least 2.5 Mbps is needed to sustain an average YouTube HD video playback at 720p resolution.
Netflix, Internet Connection Speed Recommendations, https://support.netflix.com/en/node/306 (last visited Mar. 3,
2015); see also Google Apps Administrator, Bandwidth Limits, https://support.google.com/a/answer/1071518?hl=en
(last visited Jan. 5, 2015). Many project continued growth of online streaming video services on both fixed and
mobile platforms. See, e.g., Letter from Jared Carlson, Director, Government Affairs and Public Policy, Ericsson,
to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28 and 12-354 (filed Oct. 16, 2014), Attach. Ericsson
Mobility Report (June 2014) at 13 (stating that in 2013, video accounted for approximately 40% of mobile data
traffic, and is projected to account for more than 50% of mobile data traffic by 2019); Cisco Visual Networking
Index (June 2014), http://www.cisco.com/c/en/us/solutions/collateral/service-provider/ip-ngn-ip-next-generationnetwork/white_paper_c11-481360.html (finding that globally, IP video traffic will be 79 percent of all consumer
Internet traffic in 2018, up from 66 percent in 2013).

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costs.491 While CDNs rely on transit to feed the array of CDN cache servers, they deliver traffic to
broadband Internet access service providers via transit service or by entering into peering arrangements,
directly interconnecting with broadband Internet access service providers.492
198.
In addition, several large broadband Internet access service providers, such as AT&T,
Comcast, Time Warner Cable, and Verizon, have built or purchased their own backbones, giving them the
ability to directly interconnect with other networks and edge providers and thereby lowering and
eliminating payments to third-party transit providers. These interconnection arrangements are “peering,”
involving the exchange of traffic only between the two networks and their customers, rather than paid
transit, which provides access to the full Internet over a single interconnection.493 Peering gives the
participants greater control over their traffic 494 and any issues arising with the traffic exchange are limited
to those parties, and not other parties over other interconnection links. Historically, broadband Internet
access service providers paid for transit and therefore had an incentive to agree to settlement-free peering
with a CDN to reduce transit costs;495 however, where large broadband Internet access service providers
have their own national backbones and have settlement-free peering with other backbones, they may no
longer have an incentive to agree to settlement-free peering with CDNs in order to avoid transit costs. As
shown below in Chart 1, the evolution from reliance on transit to peering arrangements also means an
evolution from a traffic exchange arrangement that provides access to the full Internet to a traffic
exchange arrangement that only provides for the exchange of traffic from a specific network provider and
its customers.496

491

See, e.g., Akamai Comments at 4 (“At any given time Akamai delivers between 15-30% of all web traffic,
resulting in over two trillion interactions delivered daily.”).
492

See, e.g., Netflix, Netflix Open Connect, https://openconnect.itp.netflix.com/index.html (last visited Jan. 5,
2015); Google Peering & Content Delivery, Google Caching Overview, https://peering.google.com/about/ggc.html
(last visited Jan. 5, 2015).
493

Joint Application of Time Warner Cable and Comcast Corp., MB Docket 14-57, at 36 (filed April 8, 2014)
(“Comcast and TWC have independently developed their own national core backbone infrastructure.”);
Verizon/MCI Merger Order, 20 FCC Rcd at 18495, para. 116 (“Based on the record evidence, we find that there
likely are between six and eight Tier 1 Internet backbone providers based on the definition of Tier 1 backbones that
has been used in the past: AT&T, MCI, Sprint, Level 3, Qwest, Global Crossing, and likely SAVVIS and Cogent.”).
494

See William Norton, The Evolution of the U.S. Internet Peering Ecosystem, Dr. Peering,
http://drpeering.net/white-papers/Ecosystems/Evolution-of-the-U.S.-Peering-Ecosystem.html (“Peering has the
benefit of lower latency, better control over routing, and may therefore lead to lower packet loss.”).
495

See, e.g., Verizon Reply at 58 (“In fact, today the majority of traffic destined for our end-user subscribers is
delivered to Verizon over paid, direct connections with CDNs and large content providers, not over connections
with our traditional, settlement-free peering partners.”); Body of European Regulators for Electronic
Communications, An Assessment of IP Interconnection in the Context of Net Neutrality at 47 (Dec. 6, 2012),
http://berec.europa.eu/eng/document_register/subject_matter/berec/download/0/1130-an-assessment-of-ipinterconnection-in-t_0.pdf (BEREC Report); Netflix Petition to Deny, MB Docket No.14-57, Attach. A at 3 (Ken
Florance states, “CDNs also can reduce the transit costs paid by terminating access networks (where such networks
pay for transit), because more content is stored within or near the terminating access network and so does not need
to be retrieved remotely.”).
496

J. Scott Marcus, The Economic Impact of Internet Traffic Growth on Network Operators at 4, WIK-Consult (Oct.
24, 2014), http://dx.doi.org/10.2139/ssrn.2531782 (“Very few ISPs are able, however, to use peering to reach all
Internet destinations. Even well-connected ISPs typically purchase transit from one or two other ISPs in order to
reach destinations that are not covered by their own peering arrangements.”) (emphasis in original).

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Chart 1: Evolution in Transit Market
Transit in the 1990s

Paid Peering and CDNs Today

199.
Recent Disputes. Recently, Internet traffic exchange disputes have reportedly involved
not de-peering, as was more frequently the case in the last decade, but rather degraded experiences caused
by congested ports between providers. In addition, these disputes have evolved from conflicts that may
last a few days,497 to disputes that have been sustained for well over a year, 498 and have gone from
disputes between backbone service networks, to disputes between providers of broadband Internet access
service and transit service providers, CDNs, or edge providers. The typical dispute has involved, on one
side, a large broadband provider, and on the other side, a commercial transit provider (such as Cogent or
Level 3) and/or a large CDN.499 Multiple parties point out, however, that interconnection problems can
497

See, e.g., Level 3 Issues Statement Concerning Internet Peering and Cogent Communications, PR Newswire,
(Oct. 7, 2005), http://www.prnewswire.com/news-releases/level-3-issues-statement-concerning-internet-peeringand-cogent-communications-55014572.html (indicating the dispute lasted several days); Martin A Brown, Clint
Hepner, Alin Popescu, Internet Captivity and the De-Peering Menace: Peering Wars: Episode 1239.174, at 15 (Jan.
2009), http://research.dyn.com/wp-content/uploads/2014/07/nanog-45-Internet-Peering.pdf (stating that the outage
lasted 3 days); Press Release, Sprint and Cogent Reach Agreement on Exchange of Internet Traffic, (Dec. 22, 2008),
http://www.cogentco.com/news/press-releases/149-sprint-and-cogent-reach-agreement-on-exchange-of-internettraffic (indicating the dispute lasted several days).
498

See MLab ISP Interconnection Report at 4 (observing sustained performance degradation experienced by
customers of AT&T, Comcast, CenturyLink, Time Warner Cable, and Verizon when their traffic passed over
interconnections with transit providers Cogent, Level 3, and XO Communications); Measuring Internet Congestion:
A Preliminary Report, MIT Information Policy Project (June 2014); Matthew Luckie, Amogh Dhamdhere, Bradley
Huffaker, Young Hyun, Steve Bauer, Internet Interdomain Congestion at 10 (Feb. 2014),
http://www.caida.org/publications/presentations/2014/bitag-congestion/bitag-congestion.pdf.
499

See, e.g., Netflix, The Case Against ISP Tolls (Apr. 24, 2014), http://blog.netflix.com/2014/04/the-case-againstisp-tolls.html; Comcast, Comcast Response to Netflix (Apr. 24, 2014), http://corporate.comcast.com/comcastvoices/comcast-response-to-netflix; Paresh Dave, Netflix, Time Warner Cable reach deal on streaming quality, L.A.
Times (Aug. 20, 2014), http://www.latimes.com/business/technology/la-fi-tn-netflix-time-warner-cable-20140820story.html; AT&T Public Policy Blog, Who Should Pay for Netflix? (Mar. 21, 2014),
http://www.attpublicpolicy.com/consumers-2/who-should-pay-for-netflix/; Verizon Policy Blog, Level 3’s Selective
Amnesia on Peering (July 21, 2014), http://publicpolicy.verizon.com/blog/entry/level-3s-selective-amnesia-onpeering; Level 3 Communications Blog, Verizon’s Accidental Mea Culpa (July 17, 2014),
http://blog.level3.com/open-internet/verizons-accidental-mea-culpa/.

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harm more than just the parties in a dispute.500 When links are congested and capacity is not augmented,
the networks—and applications, large and small, running over the congested links into and out of those
networks—experience degraded quality of service due to reduced throughput, increased packet loss,
increased delay, and increased jitter.501 At the end of the day, consumers bear the harm when they
experience degraded access to the applications and services of their choosing due to a dispute between a
large broadband provider and an interconnecting party.502 Parties also assert that these disputes raise
concerns about public safety and network reliability.503 To address these growing concerns, a number of
parties have called for extending the rules proposed in the 2014 Open Internet NPRM to Internet traffic
exchange practices.
200.
The record reflects competing narratives. Some edge and transit providers assert that
large broadband Internet access service providers are creating artificial congestion by refusing to upgrade
interconnection capacity at their network entrance points for settlement-free peers or CDNs, thus forcing
edge providers and CDNs to agree to paid peering arrangements.504 These parties suggest that paid
arrangements resulting from artificially congested interconnection ports at the broadband Internet access
service provider network edge could create the same consumer harms as paid arrangements in the lastmile, and lead to paid prioritization, fast lanes, degradation of consumer connections, and ultimately,
stifling of innovation by edge providers.505 Further, edge providers argue that they are covering the costs
500

Letter from Sarah J. Morris, Senior Policy Counsel, Open Technology Institute, to Marlene H. Dortch, Secretary,
FCC, GN Docket Nos. 10-127, 14-28, MB Docket No. 14-57 (filed Nov. 18, 2014), Attach. Open Technology
Institute, “Beyond Frustrated”: The Sweeping Consumer Harms As a Result of ISP Disputes, at 2 (Nov. 2014) (OTI
Consumer Harms Policy Paper).
501

Id. ; Letter from Michael J. Mooney, Senior Vice President and General Counsel, Regulatory Policy, Level 3, to
Marlene H. Dortch, Secretary, FCC, WC Docket No. 05-25, GN Docket Nos. 14-28, 09-191, at 2 (filed Nov. 19,
2014) (Level 3 Nov. 19, 2014 Ex Parte Letter) (explaining that congested interconnection points result in “dropped
packets and a degraded consumer experience”); Sandoval Ex Parte Letter, Attach. at 22-24 (reporting slow
connection speeds during the Comcast-Cogent traffic exchange dispute, and explaining that other applications that
were affected included gaming, VPN, and VoIP (including compliance with 911 standards)).
502

OTI Consumer Harms Policy Paper at 1-5.

503

See, e.g., Sandoval Ex Parte Letter, Attach. at 24 (asserting, for example, that difficulties in using interconnected
VoIP service amidst a broadband provider dispute with a server host or content provider raise grave concerns about
public safety and network reliability).
504

See, e.g., Letter from Markham C. Erickson, Counsel to Netflix, Inc. to Marlene H. Dortch, Secretary, FCC, GN
Docket No. 14-28, Attach. at 2 (filed Aug. 1, 2014) (Netflix Aug. 1, 2014 Ex Parte Letter) (asserting that “[i]n the
case of Comcast, Netflix purchased all available transit to reach Comcast’s network. Every single one of those
transit links to Comcast was congested (even though the transit providers requested extra capacity). The only other
available routes into Comcast’s network were those where Comcast required an access fee.”); Letter from Robert M.
Cooper, Counsel to Cogent, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (filed Mar. 19, 2014)
(Cogent Mar. 19, 2014 Ex Parte Letter); Letter from Joseph C. Cavender, Level 3, to Marlene H. Dortch, Secretary,
FCC, GN Docket No. 14-28, at 1 (filed May 13, 2014) (Level 3 May 13, 2014 Ex Parte Letter) (asserting that “some
of the biggest consumer broadband ISPs have allowed the interconnections between their networks and backbone
providers like Level 3 to congest, causing packets to be dropped and harming their own users’ Internet
experiences”); Netflix Comments at 14-15. But see Letter from Kathryn A. Zachem, Senior Vice President,
Regulatory and State Legislative Affairs, Comcast, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28,
10-127, at 2 (filed Nov. 10, 2014) (Comcast Nov. 10, 2014 Ex Parte Letter) (“Certainly Netflix would not have
entered into direct agreements with Comcast, Verizon, Time Warner Cable, and AT&T unless doing so provided
economic advantages over paying middlemen to reach these same companies—and of course, these arrangements
have in turn reduced Netflix’s need for Cogent’s and other transit providers’ services, not only reducing Netflix’s
costs but freeing up transit capacity for other entities.”).
505

See Internet Association Comments at 22; COMPTEL Comments at 25; Netflix Comments at 12 (arguing that its
dispute with Comcast shows how a broadband provider “can use its terminating access monopoly to harm edge
providers, its own customers, and the virtuous circle by discriminating at interconnection and peering points”);
(continued….)

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of carrying this traffic through the network, bringing it to the gateway of the Internet access service,
unlike in the past where both parties covered their own costs to reach the Tier 1 backbones where traffic
would then be exchanged on a settlement-free basis.506 Edge and transit providers argue that the costs of
adding interconnection capacity or directly connecting with edge providers are de minimis.507 Further,
they assert that traffic ratios “are arbitrarily set and enforced and are not reflective of how [broadband
providers] sell broadband connections and how consumers use them.”508 Thus, these edge and transit
providers assert that a focus on only the last-mile portion of the Internet traffic path will fail to adequately
constrain the potential for anticompetitive behavior on the part of broadband Internet access service
providers that serve as gatekeepers to the edge providers, transit providers, and CDNs seeking to deliver
Internet traffic to the broadband providers’ end users.509
201.
In contrast, large broadband Internet access service providers assert that edge providers
such as Netflix are imposing a cost on broadband Internet access service providers who must constantly
upgrade infrastructure to keep up with the demand.510 Large broadband Internet access service providers
explain that when an edge provider sends extremely large volumes of traffic to a broadband Internet
access service provider— e.g., through a CDN or a third-party transit service provider—the broadband
provider must invest in additional interconnection capacity (e.g., new routers or ports on existing routers)
(Continued from previous page)
Netflix Reply at 6 (“From a consumer’s perspective, whether degradation occurs on the last mile or at the
interconnection point to the last mile is a distinction without a difference. Both impede a consumer’s access to the
online content she has requested.”); OTI Reply at 11-12; Cogent Mar. 19, 2014 Ex Parte Letter at 1 (“While some
large edge providers may be able to pay a toll to create a way around such congestions, smaller firms will not,
thereby driving consumers to use better performing, vertically integrated content and stifling the investment and
innovation that has been the hallmark of the Internet since its inception.”); Netflix Aug. 1, 2014 Ex Parte Letter,
Attach. at 1.
506

See, e.g., OTI Consumer Harms Policy Paper at 3 (“Cogent and Netflix argued that they paid their fair share by
bringing the data to Comcast’s front door.”).
507

See, e.g., Cogent Mar. 19, 2014 Ex Parte Letter at 1 (stating that “capital expenditures required to remedy
congestion at interconnection points are extremely modest”); Level 3 Comments at 12 (“Adding and maintaining
cross-connects in these locations is not a significant cost. Moreover, the cost of adding additional ports, if ones are
needed, is quite modest. The costs of physical interconnection facilities do not come near to accounting for the
amount of tolls sought by the large mass-market retail ISPs.”).
508

Netflix Aug. 1, 2014 Ex Parte Letter, Attach. at 2.

509

See, e.g., ARC Comments at 15; AARP Comments at 18; Access Comments at 19; eBay Comments at 5; Letter
from Michael A. Forscey, Counsel for WGAW, Inc. to Marlene H. Dortch, WC Docket No. 14-28, at 2 (filed July
31, 2014) (WGAW July 31, 2014 Ex Parte Letter); Jon Peha Comments at 11-12 (urging the Commission to
consider greater transparency in interconnection); Level 3 Comments at 2 (stating that “establishing rules addressing
‘direct’ charges imposed by [broadband providers] on edge providers but not for ‘indirect’ charges levied on the
edge providers’ [broadband providers] through interconnection is a roadmap for evasion of new Open Internet
rules”); Cogent Comments at 7 (“Without addressing traffic exchanges between last-mile broadband [providers] and
other networks, the Commission would perpetuate a loophole that would swallow the rule.”); Netflix Comments at
2-3 (asserting that “[f]ailing to address interconnection abuse by terminating [broadband providers] will undermine
the efficacy of any open Internet or consumer protection rule that the Commission adopts”); id. at 11, 17-18; Netflix
Reply at 9; Writers Guild of America, East Comments at 5 (stating that “as long as there are only one or two viable
ISPs in any given market, and as long as those ISPs are free to make anti-competitive arrangements with edge
providers and others that are positioned farther up the road and not on the ‘last mile,’ the bedrock principles of
openness and nondiscrimination will be unenforceable”); COMPTEL Comments at 26 (“The same economic forces
that threaten the openness of [a] consumer’s last-mile broadband connection are present at the point of
interconnection.”); id. at 26-30; WISPA Comments at 26; Level 3 Nov. 19, 2014 Ex Parte Letter at 1-2.
510

See, e.g., Verizon Reply at 63; Letter from Robert C. Barber, AT&T to Marlene H. Dortch, Secretary, FCC, WC
Docket No. 10-90, CC Docket No. 01-92, GN Docket No. 14-28, Attach. at 15-19 (filed July 30, 2014) (AT&T July
30, 2014 Ex Parte Letter).

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and middle-mile transport capacity in order to accommodate that traffic, exclusive of “last-mile” costs
from the broadband Internet access provider’s central offices, head ends, or cell sites to end-user
locations.511 Commenters assert that if the broadband Internet access service provider absorbs these
interconnection and transport costs, all of the broadband provider’s subscribers will see their bills rise.512
They argue that this is unfair to subscribers who do not use the services, like Netflix, that are driving the
need for additional capacity. Broadband Internet access service providers explain that settlement-free
peering fundamentally is a barter arrangement in which each side receives something of value.513 These
parties contend that if the other party is only sending traffic, it is not contributing something of value to
the broadband Internet access service provider.
202.
Mechanism to Resolve Traffic Exchange Disputes. As discussed, Internet traffic
exchange agreements have historically been and will continue to be commercially negotiated. We do not
believe that it is appropriate or necessary to subject arrangements for Internet traffic exchange (which are
subsumed within broadband Internet access service) to the rules we adopt today. We conclude that it
would be premature to adopt prescriptive rules to address any problems that have arisen or may arise.514
It is also premature to draw policy conclusions concerning new paid Internet traffic exchange
arrangements between broadband Internet access service providers and edge providers, CDNs, or
backbone services.515 While the substantial experience the Commission has had over the last decade with
511

See, e.g., Letter from Craig A. Gilley, Counsel for Mediacom Communications Corporation, to Marlene H.
Dortch, Secretary, FCC, MB Docket No. 10-71, GN Docket No. 14-28, at 2 (filed Jun. 12, 2014) (Mediacom Jun.
12, 2014 Ex Parte Letter) (stating that “if the large edge providers that benefit the most from the investment that
Mediacom and other ISPs make in their broadband networks, then there should be nothing wrong with requiring
them to bear their fair share of the burden of such upgrades”). But see Netflix Aug. 1 Ex Parte Letter, Attach. at 2
(stating that Netflix “incurs the cost of moving Netflix content long distances, closer to the consumer, not the
broadband Internet access provider”).
512

See, e.g., AT&T Reply at 105-106; Comcast Reply at 37; Mediacom Jun. 12, 2014 Ex Parte Letter at 2 (“ISPs
and consumers should not be the sole parties bearing the costs for network improvements required for consumers to
access large edge provider services.”); Verizon Reply at 63 (“Instead of Netflix—and ultimately its users—bearing
the costs of the capacity needed to accommodate the increased traffic caused by Netflix’s streaming video service,
all of an ISP’s customers would have to pay more, even if they never use Netflix or stream movies at all.”).
513

See AT&T July 30, 2014 Ex Parte Letter, Attach. at 3 (explaining that peering is a “commercially negotiated
barter transaction” where “parties’ perceived value of arrangement is equal”); AT&T Reply at 95, n.343.
514

See, e.g., Verizon Reply at 59-60 (“The breadth and variety of the voluntary Internet interconnection agreements .
. . reflect that the market for Internet interconnection has been and continues to be a resounding success. Although
there are occasionally bumps in the road as content providers and networks grapple with the effects of newer
business models, new services, shifting traffic flows, or growing volume—such as the introduction of Netflix’s
streaming video service in 2007 and the rapid growth of that traffic in subsequent years—the players in the Internet
ecosystem have been able to resolve issues through negotiations for new types of interconnection arrangements
rather than in contentious, drawn-out proceedings before the Commission.”); AT&T Reply at 98-99; TWC
Comments at 23, 30; Verizon Comments at 70-73; CEA Comments at 11. But see, e.g., Level 3 Comments at 15
(stating the Commission should adopt an interconnection rule where “large mass-market retail ISPs must
interconnect with content companies and backbone providers without charging them a toll, but those content and
backboned companies must also do their fair share of the work to deliver content to the ISP”); Netflix Comments at
17 (stating the Commission should adopt a rule that “terminating ISPs cannot charge data sources for
interconnection and must provide adequate no-fee interconnection to wholesalers and Internet services so consumers
experience the broadband speeds for which they have paid”); Letter from Joshua Stager, Counsel for Open
Technology Institute to Marlene H. Dortch, WC Docket No. 14-28, at 2 (filed Dec. 22, 2014) (OTI Dec. 22, 2014 Ex
Parte Letter) (stating that the Commission should “create a measurement regime to analyze congestion along critical
interconnection points. . . . [and] ban fees for access to last-mile networks”). We decline to adopt these and similar
types of proposals for the same reasons we decline to apply the open Internet rules to traffic exchange.
515

For instance, Akamai expresses concern that adoption of rules governing interconnection could be used as a
justification by some broadband providers to refuse direct interconnection to CDNs and other content providers
generally, on the theory that connecting with any CDN necessitates connecting with all CDNs, regardless of
(continued….)

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“last-mile” conduct gives us the understanding necessary to craft specific rules based on assessments of
potential harms, we lack that background in practices addressing Internet traffic exchange.516 For this
reason, we adopt a case-by-case approach, which will provide the Commission with greater experience.
Thus, we will continue to monitor traffic exchange and developments in this market.517
203.
At this time, we believe that a case-by-case approach is appropriate regarding Internet
traffic exchange arrangements between broadband Internet access service providers and edge providers or
intermediaries—an area that historically has functioned without significant Commission oversight.518
Given the constantly evolving market for Internet traffic exchange, we conclude that at this time it would
be difficult to predict what new arrangements will arise to serve consumers’ and edge providers’ needs
going forward, as usage patterns, content offerings, and capacity requirements continue to evolve.519
Thus, we will rely on the regulatory backstop prohibiting common carriers from engaging in unjust and
unreasonable practices. Our “light touch” approach does not directly regulate interconnection practices.
Of course, this regulatory backstop is not a substitute for robust competition. The Commission’s
regulatory and enforcement oversight, including over common carriers, is complementary to vigorous
antitrust enforcement.520 Indeed, mobile voice services have long been subject to Title II’s just and
reasonable standard and both the Commission and the Antitrust Division of the Department of Justice
have repeatedly reviewed mergers in the wireless industry. Thus, it will remain essential for the
Commission, as well as the Department of Justice, to continue to carefully monitor, review, and where
appropriate, take action against any anti-competitive mergers, acquisitions, agreements or conduct,
including where broadband Internet access services are concerned.
204.
Broadband Internet access service involves the exchange of traffic between a last-mile
broadband provider and connecting networks.521 The representation to retail customers that they will be
(Continued from previous page)
technical feasibility. We do not intend such a result by our decision today to assert authority over interconnection.
See Letter from Scott Blake Harris, Counsel to Akamai, to Marlene H. Dortch, Secretary, FCC, GN Docket No.1428, at 1 (filed Feb. 20, 2015) (“If the Order is unclear, ISPs may believe they must provide access to all. This is not
technically feasible and the result could be access for none, which would decrease the performance, scalability,
reliability and security of the Internet.”).
516

See, e.g., Cox Comments at 16 (“Internet traffic-exchange arrangements . . . present a distinct and significantly
more complex set of issues than the delivery of Internet content and services over a single network operator’s lastmile facilities.”).
517

See, e.g., Letter from New America Foundation, Media Access Project, Free Press, to Dep’t of Justice and FCC,
GN Docket Nos. 10-127, 09-191, MB Docket No. 10-56, WC Docket No. 07-52, at 2 (filed Dec. 8, 2010) (“The
Recent Dispute Between Comcast and Level 3 Illustrates Emerging Concerns Regarding Interconnection Practices
and Highlights the Need for Federal Oversight of Interconnection.”); ARCEP, French Regulator for
Telecommunications, Public Administrations’ Approach to IP-Interconnection, (June 20, 2012) (seeking to “better
understand the market and monitor its evolutions”).
518

We note, however, that the Commission has looked at traffic exchange in the context of mergers and, sometimes
imposed conditions on traffic exchange. See, e.g., Comcast/NBCU Merger Order, 26 FCC Rcd 4238; Verizon/MCI
Merger Order, 20 FCC Rcd 18433.
519

See, e.g., Akamai Comments at 7 (stating that “the projected exponential growth of Internet traffic” will make the
ability of market participants to develop innovative traffic exchange solutions “increasingly important to the robust
functioning of the Internet”); Cox Reply at 21-22; NCTA Comments at 81 (“[T]he constantly evolving and
technically complicated nature of these agreements is all the more reason for the Commission to allow market forces
to determine their terms.”).
520

See generally 47 U.S.C § 152(b) (“nothing in this Act . . . shall be construed to modify, impair, or supersede the
applicability of any of the antitrust laws”).
521

We disagree with commenters who argue that arrangements for Internet traffic exchange are private carriage
arrangements, and thus not subject to Title II. See, e.g., Letter from William H. Johnson, Verizon, to Marlene H.
Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 7-8 (filed Dec. 17, 2014) (Verizon Dec. 17, 2014 Ex
(continued….)

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able to reach “all or substantially all Internet endpoints” necessarily includes the promise to make the
interconnection arrangements necessary to allow that access. As a telecommunications service,
broadband Internet access service implicitly includes an assertion that the broadband provider will make
just and reasonable efforts to transmit and deliver its customers’ traffic to and from “all or substantially
all Internet endpoints” under sections 201 and 202 of the Act. In any event, BIAS provider practices with
respect to such arrangements are plainly “for and in connection with” the BIAS service.522 Thus, disputes
involving a provider of broadband Internet access service regarding Internet traffic exchange
arrangements that interfere with the delivery of a broadband Internet access service end user’s traffic are
subject to our authority under Title II of the Act.523
205.
We conclude that our actions regarding Internet traffic exchange arrangements are
reasonable based on the record before us, which demonstrates that broadband Internet access providers
have the ability to use terms of interconnection to disadvantage edge providers and that consumers’
ability to respond to unjust or unreasonable broadband provider practices are limited by switching
costs.524 These findings are limited to the broadband Internet access services we address today.525 When
Internet traffic exchange breaks down—regardless of the cause—it risks preventing consumers from
reaching the services and applications of their choosing, disrupting the virtuous cycle. We recognize the
importance of timely review in the midst of commercial disputes. The Commission will be available to
hear disputes raised under sections 201 and 202 on a case-by-case basis. We believe this is an appropriate
vehicle for enforcement where disputes are primarily between sophisticated entities over commercial
terms and that include companies, like transit providers and CDNs, that act on behalf of smaller edge
providers. We also observe that section 706 provides the Commission with an additional, complementary
source of authority to ensure that Internet traffic exchange practices do not harm the open Internet. As
(Continued from previous page)
Parte Letter); Letter from Matt Wood, Free Press, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28,
10-127, at 2 (filed Feb. 11, 2015). As we explain below in today’s Declaratory Ruling, Internet traffic exchange is a
component of broadband Internet access service, which meets the definition of “telecommunications service.” See
infra para. 338.
522

See 47 U.S.C. §§ 201(b), 202(a). See Letter from Austin C. Schlick, Director, Communications Law, Google, to
Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 10-127, 14-28 at 3 (filed Feb. 20, 2015) (Google Feb. 20,
2015 Ex Parte Letter).
523

We note that the Commission has forborne from application of many of the requirements of Title II to broadband
Internet access service. See infra Section V.
524

See supra Sections III.B.2.a, III.C.

525

We observe that should a complaint arise regarding BIAS provider Internet traffic exchange practices, practices
by edge providers (and their intermediaries) would be considered as part of the Commission’s evaluation as to
whether BIAS provider practices were “just and reasonable” under the Act. See Letter from Robert M. Cooper,
Counsel for Cogent, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 2 (filed Feb. 11,
2015) (“Cogent takes no issue with having its interconnection practices subject to the same standards as mass market
broadband Internet access providers.”); Verizon Dec. 17, 2014 Ex Parte Letter at 3 (asserting that “Netflix, Cogent,
and numerous other Internet players make decisions on their own networks that affect the speeds or performance
that end users experience”); Letter from Kathryn A. Zachem, Senior Vice President, Comcast to Marlene H. Dortch,
Secretary, FCC, GN Docket Nos. 14-28, 10-127 at 5 (filed Jan. 23, 2015) (Comcast Jan. 23, 2015 Ex Parte Letter)
(“[W]here the Commission has sought to regulate only one party to an interconnection arrangement, the result has
been ineffective and an invitation to arbitrage. Indeed, recent efforts to regulate interconnection in the voice arena—
including both the Commission’s adoption of rules governing non-access traffic exchanged between LECs and
CMRS carriers and pending proposals regarding IP-to-IP interconnection—recognize that the public interest
typically is best served by the imposition of at least certain reciprocal obligations on both parties to an
interconnection arrangement.”); Letter from Samuel L. Feder, on behalf of Charter, GN Docket Nos. 14-28, 10-127,
07-245, at 1-2 (filed Feb. 4, 2015) (“[T]he Commission [should] not regulate Internet interconnection, but if it does
so (whether via rules or on a case-by-case basis), it should make clear that it will police the actions of edge providers
and others in the Internet ecosystem equally to those of ISPs.”).

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explained above, we have decided not to adopt specific regulations that would detail the practices that
would constitute circumvention of the open Internet regulations we adopt today. Instead, and in a manner
similar to our treatment of non-BIAS services,526 we will continue to monitor Internet traffic exchange
arrangements and have the authority to intervene to ensure that they are not harming or threatening to
harm the open nature of the Internet.
206.
The record also reflects a concern that our decision to adopt this regulatory backstop
violates the Administrative Procedure Act.527 We disagree. To be clear, consistent with the NPRM’s
proposal, we are not applying the open Internet rules we adopt today to Internet traffic exchange. Rather,
certain regulatory consequences flow from the Commission’s classification of BIAS, including the traffic
exchange component, as falling within the “telecommunications services” definition in the Act.528 In all
events, the 2014 Open Internet NPRM provided clear notice about the possibility of expanding the scope
of the open Internet rules to cover issues related to traffic exchange.529 It also made clear that the
Commission was considering whether to reclassify retail broadband services.530 In addition, the 2014
Open Internet NPRM asked: “how can we ensure that a broadband provider would not be able to evade
our open Internet rules by engaging in traffic exchange practices that would be outside the scope of the
rules as proposed?”531 As discussed above, our assertion of authority over Internet traffic exchange
practices addresses that question by providing us with the necessary case-by-case enforcement tools to
identify practices that may constitute such evasion and address them. Further, to the extent that any
doubts remain about whether the 2014 Open Internet NPRM provided sufficient notice, the approach
adopted today is also a logical outgrowth of the original proposal included in the 2014 Open Internet

526

See infra paras. 210-212.

527

Verizon claims that “in light of the Commission’s past statements on interconnection, to suddenly regulate
[interconnection] agreements for the first time in a final rule in this proceeding would violate the notice and
comment requirements of the Administrative Procedure Act” and that even issuing a Further Notice of Proposed
Rulemaking would not allow the Commission to impose Title II regulations on interconnection services. Verizon
Dec. 17, 2014 Ex Parte Letter at 3; Letter from Matthew A. Brill, Counsel for NCTA, to Marlene H. Dortch,
Secretary, FCC, GN Docket No. 14-28, at 8 (filed Jan. 14, 2015) (NCTA Jan. 14, 2015 Ex Parte Letter) (“[T]he
NPRM does not provide notice of any proposal to adopt any new Internet traffic-exchange regulations pursuant to
Title II . . . . Nowhere did the Commission remotely indicate that it was considering classifying the distinct
wholesale Internet traffic-exchange services that ISPs provide to other network owners as Title II
telecommunications services. The Administrative Procedure Act therefore bars the Commission from subjecting
such arrangements to regulation under Title II.”). The dissenting statements likewise assert that the 2014 Open
Internet NPRM did not provide notice of the possibility that the Commission would assert authority over
interconnection. See, e.g., O’Rielly Dissent at 10.
528

See Syncor Int’l v. Shalala, 27 F.3d 90, 94 (D.C. Cir. 1997) (distinguishing that a change in interpretative rule
depends on whether interpretation is of a rule or a statute, since in the latter case agency does not claim to be
exercising authority to make positive law).
529

See 2014 Open Internet NPRM, 29 FCC Rcd at 5582, para. 59; id. at 5615, paras. 151-152. Section 553 provides
that “[g]eneral notice of proposed rulemaking shall be published in the Federal Register,” and that “[a]fter notice
required by this section, the agency shall give interested persons an opportunity to participate in the rule making”
through submission of comments. 5 U.S.C. § 553(b), (c). The Commission published the NPRM in the Federal
Register on July 1, 2014. 79 Fed. Reg. 37448 (July 1, 2014).
530

2014 Open Internet NPRM, 29 FCC Rcd at 5615, para. 151 (“We seek comment on whether and, if so how, the
Commission should separately identify and classify a broadband service that is furnished by broadband providers’ to
edge providers in order to protect and promote Internet openness.”) id. at para. 149 (“We now seek further and
updated comment on whether the Commission should revisit its prior classification decisions and apply Title II to
broadband Internet access service (or components thereof.”).
531

2014 Open Internet NPRM, 29 FCC Rcd at 5582, para. 59.

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NPRM.532 The numerous submissions in the record at every stage of the proceeding seeking to influence
the Commission in its decision to adopt policies regulating Internet traffic exchange533 illustrate that the
Commission not only gave interested parties adequate notice of the possibility of a rule, but that parties
considered Commission action on that proposal a real possibility.534
3.

Non-BIAS Data Services

207.
In the 2014 Open Internet NPRM, the Commission tentatively concluded that it should
not apply its conduct-based rules to services offered by broadband providers that share capacity with
broadband Internet access service over providers’ last-mile facilities, while closely monitoring the
development of these services to ensure that broadband providers are not circumventing the open Internet
rules.535 After reviewing the record, we believe the best approach is to adopt this tentative conclusion to
permit broadband providers to offer these types of services while continuing to closely monitor their
development and use.536 While the 2010 Open Internet Order and the 2014 Open Internet NPRM used the
term “specialized services” to refer to these types of services, the term “non-BIAS data services” is a
more accurate description for this class of services. While the services discussed below are not
broadband Internet access service, and thus the rules we adopt do not apply to these services, we
emphasize that we will act decisively in the event that a broadband provider attempts to evade open
Internet protections (e.g., by claiming that a service that is the equivalent of Internet access is a non-BIAS
data service not subject to the rules we adopt today).
208.
We provide the following examples of services and characteristics of those services that,
at this time, likely fit within the category of services that are not subject to our conduct-based rules. As
indicated in the 2010 Open Internet Order, some broadband providers’ existing facilities-based VoIP and
532

Public Service Comm'n of D.C. v. FCC, 906 F.2d 713, 718 (D.C. Cir. 1990). Contra NCTA Jan. 14, 2015 Ex
Parte Letter at 8, n.28 (“[T]he NPRM explained that the Commission understood the latter proposals to ‘include the
flow of Internet traffic on the broadband providers’ own network, and not how it gets to the broadband providers’
networks.’ . . . The Commission cannot now assert that regulating the exchange of Internet traffic between two
networks is a logical outgrowth of the NPRM, given that it expressly disclaimed any such intent.”) (emphasis
included in original).
533

See, e.g., COMPTEL Comments at 9-10; eBay Comments 5; Level 3 Comments at 12-14; Netflix Comments at
11-12; Writers Guild of America, West Comments at 17; AT&T Reply at 93; CenturyLink Reply at 10; Comcast
Reply at 38; Cox Reply at 20; Verizon Reply at 57; NCTA Dec. 23, 2014 Ex Parte Letter at 22-25; Cox Feb. 4 Ex
Parte Letter at 1-2.
534

See, e.g., N.E. Md. Waste Disposal Auth. v. EPA, 358 F.3d 936, 952 (D.C. Cir. 2004) (per curiam) (rejecting a
notice challenge when the record revealed that multiple parties had in fact anticipated the possibility of the agency’s
action); Alto Dairy v. Veneman, 336 F.3d 560, 570 (7th Cir. 2003) (notice adequate where industry insiders would
have understood proposals under consideration even though they were “gobbledygook to an outsider”); Small
Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547-48 (D.C. Cir. 1983); BASF Wyandotte Corp. v.
Costle, 598 F.2d 637, 644 (1st Cir. 1979), cert. denied, 444 U.S. 1096 (1980); Rybachek v. EPA, 904 F.2d 1276,
1287-88 (9th Cir. 1990) (imposing mandatory requirement based on strong recommendations in public comments
was “logical outgrowth” of case-by-case requirement originally proposed); see also Letter from Markham C.
Erickson, Counsel for COMPTEL, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 8-10 (filed Feb.
19, 2015).
535

See 2014 Open Internet NPRM, 29 FCC Rcd at 5582, para. 60; see also 2010 Open Internet Order, 25 FCC Rcd
at 17966, para. 114. (“We would also be concerned by any marketing, advertising, or other messaging by broadband
providers suggesting that one or more specialized services, taken alone or together, and not provided in accordance
with our open Internet rules, is ‘Internet’ service or a substitute for broadband Internet access service.”).
536

See, e.g., Bright House Comments at 19 (“The Commission should certainly be free to continue monitoring
specialized services, but there is no basis for expanding the scope of the rule to cover specialized services.”);
Utilities Telecom Council Reply at 3 (“UTC encourages the Commission to clarify that specialized services are
outside of the scope of the Commission’s Open Internet rules and that broadband Internet service providers may
provide priority access via specialized services and during emergencies.”).

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Internet Protocol-video offerings would be considered non-BIAS data services under our rules.537
Further, the 2010 Open Internet Order also noted that connectivity bundled with e-readers, heart
monitors, or energy consumption sensors would also be considered other data services to the extent these
services are provided by broadband providers over last-mile capacity shared with broadband Internet
access service.538 Additional examples of non-BIAS data services may include limited-purpose devices
such as automobile telematics, and services that provide schools with curriculum-approved applications
and content.539
209.
These services may generally share the following characteristics identified by the Open
Internet Advisory Committee.540 First, these services are not used to reach large parts of the Internet.
Second, these services are not a generic platform—but rather a specific “application level” service. And
third, these services use some form of network management to isolate the capacity used by these services
from that used by broadband Internet access services.
210.
We note, however, that non-BIAS data services may still be subject to enforcement
action. Similar to the Commission’s approach in 2010, if the Commission determines that a particular
service is “providing a functional equivalent of broadband Internet access service, or . . . is [being] used to
evade the protections set forth in these rules,” we will take appropriate enforcement action.541 Further, if
the Commission determines that these types of service offerings are undermining investment, innovation,
competition, and end-user benefits, we will similarly take appropriate action. We are especially
concerned that over-the-top services offered over the Internet are not impeded in their ability to compete
with other data services.542

537

2010 Open Internet Order, 25 FCC Rcd at 17965, para. 112 (“These ‘specialized services,’ such as some
broadband providers’ existing facilities-based VoIP and Internet Protocol-video offerings, differ from broadband
Internet access service and may drive additional private investment in broadband networks and provide end users
valued services, supplementing the benefits of the open Internet.”); see also, e.g., CenturyLink Comments at 22-23
(“[S]pecialized services such as IPTV and facilities-based VoIP rightly fall outside the scope of the Commission’s
Open Internet rules. These services should continue to be excluded from the rules.”); Letter from Christopher S.
Yoo to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 09-191, 10-127, at 1 (Sept. 22, 2014)
(“[S]pecialized services are essential to many commonplace services such as IP video and voice over LTE.”).
538

2010 Open Internet Order, 25 FCC Rcd at 17933, para. 47 n.149.

539

See, e.g., Sandvine Comments at 8; Syntonic Reply at 11; Letter from Brian Hendricks, Head of Technology
Policy and Government Relations, Nokia to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28 et al, at 1
(filed Dec. 12, 2014) (“[T]he ability to create specialized classes of services is critical to the development of
technologies requiring very low latency, large throughput, and minimal packet loss including autonomous driving
and streaming of live broadcast events.”); Letter from William Johnson, Verizon, to Marlene H. Dortch, Secretary,
FCC, GN Docket No. 14-28, at 3 (filed Oct. 17, 2014) (“As technology evolves, future specialized services could
include things like telehealth, connected car, Smart Grid, and a wide range of machine-to-machine services that are
distinct from mass market Internet access.”). See also General Motors, OnStar: Safe & Connected, Innovation:
Design & Technology, http://www.gm.com/vision/design_technology/onstar_safe_connected.html (last visited Feb.
1, 2015); Amazon, Kindle, https://www.amazon.com/gp/digital/fiona/kcp-landing-page?ie=UTF8&ref_=klp_f_win
(last visited Feb. 1, 2015); WikimediaFoundation, Wikipedia Zero,
http://wikimediafoundation.org/wiki/Wikipedia_Zero (last visited Feb. 1, 2015).
540

Open Internet Advisory Committee, 2013 Annual Report (Aug. 20, 2013), at 69,
http://transition.fcc.gov/cgb/oiac/oiac-2013-annual-report.pdf (2013 OIAC Annual Report).
541

2010 Open Internet Order, 25 FCC Rcd at 17966, para. 113.

542

Further, we anticipate that consumers of competing over-the-top services will not be disadvantaged in their
ability to access 911 service.

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211.
The record overwhelmingly supports our decision to continue treating non-BIAS data
services differently than broadband Internet access service under the open Internet rules.543 This approach
will continue to drive additional investment in broadband networks and provide end users with valued
services without otherwise constraining innovation.544 Further, as noted by numerous commenters, since
other data services were permitted in the 2010 Open Internet Order, we have seen little resulting evidence
of broadband providers using these services to undermine the 2010 rules.545
212.
Nevertheless, non-BIAS data services still could be used to evade the open Internet
rules. Due to these concerns, we will continue to monitor the market for non-BIAS data services to
ensure that these services are not causing or threatening to cause harm to the open nature of the
Internet.547 Since the 2010 Open Internet Order, broadband Internet access providers have been required
to disclose the impact of non-BIAS data services on the performance of and the capacity available for
546

543

See, e.g., Verizon Comments at 76 (“Specialized services are by definition distinct from the customer’s
broadband Internet access service – they merely supplement such service, increasing the range of options available
to the consumer and expanding consumer welfare . . . As technology advances and turns concepts such as remote
surgery, distance-learning, and the Internet of Things into realities, the ability to offer specialized services could be
critical to promoting consumer interests and national policy priorities.”); ITIC Comments at 7 (“Specialized services
should also be permitted so long as they do not adversely affect the provision of a robust and evolving basic Internet
access tier to consumers or harm competition.”); TIA Reply at 12 (“[W]ith new cloud storage and services hosting
capabilities and increased security and privacy features, the processing and transmission components of these
services are increasingly intertwined, which would make the application of such rules [to specialized services]
complex.”).
544

2010 Open Internet Order, 25 FCC Rcd at 17965, para. 112; Letter from Maggie McCready, Vice President
Federal Regulatory Affairs, Verizon to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 2 (filed Dec.
5, 2014) (Verizon Dec. 5, 2014 Ex Parte Letter) (“These services are rapidly evolving and offer the promise of more
choice for consumers.”); Letter from Henry Hultquist, AT&T, to Marlene H. Dortch, Secretary, FCC, GN Docket
Nos. 14-28, 10-127, at 1 (filed Jan. 29, 2014) (“Without the opportunity to offer services like IP video, broadband
providers would invest less and consumer would pay more for broadband Internet access.”); TIA Comments at 3
(“[T]here is no need for the FCC to change course away from simply monitoring the development of specialized
services. These offerings, which may share the same last-mile connections as broadband Internet access service, can
help spur investment in broadband facilities.”); MIT Media Lab Comments at 2-3 (“As long as non-discriminatory
Internet access is available, we see no reason to prevent the addition of other specialized, for-fee services. Nor do
we see the need to restrict a vibrant market in developing and implementing them.”); Comcast Reply at 8, n.17
(“[E]xtending open Internet rules to any services that do not meet the definition of mass market broadband Internet
access could produce harmful results.”).
545

See, e.g., CEA Comments at 11-12 (“There has been no evidence that the specialized services exemption was
used to circumvent the open Internet rules when they were in effect, and there is no basis to diverge from the
approach the Commission took in 2010.”); CenturyLink Comments at 22-23 (“[T]here is no evidence of problems in
implementing this exclusion.”); AT&T Reply at 110-11.
546

See, e.g., Jon Peha Comments at 9-10 (stating that without defining “specialized services,” the non-BIAS data
service exemption can create a loophole that can threaten the open Internet); European Digital Rights Comments at 4
(“Any definition of ‘specialised services’ must be robust enough to prevent a ‘back-door’ undermining of net
neutrality.”); Letter from Harold Feld, Public Knowledge, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos.
14-28, 10-127 at 24 (filed Dec. 19, 2014) (Public Knowledge Dec. 19, 2014 Ex Parte Letter) (“As new services
evolve, the Commission must prevent ISPs from using specialized services as an excuse to delay upgrades and
extract rents from new innovations.”); see also Open Internet Advisory Committee, Specialized Services Working
Group, Video Set Top Box Case Study Summary, at 6 (2013), http://transition.fcc.gov/cgb/events/SpecializedServices-Set-Top-Box-5-7-13.pdf (noting how particular attributes of a service might characterize it as a non-BIAS
data service or a Title VI IP-based cable service depending on the circumstances).
547

See, e.g., Microsoft Comments at 28 (“[M]onitoring will allow the Commission to respond to any concerns that
arise in connection with specific practices without unduly hampering providers’ ability to innovate in the provision
of specialized services generally.”).

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broadband Internet access services.548 As discussed in detail above, we will continue to monitor the
existence and effects of non-BIAS data services under the broadband providers’ transparency
obligations.549
213.
We disagree with commenters who argue that the Commission should adopt a moredetailed definition for non-BIAS data services to safeguard against any such circumvention of the rules.550
Several commenters provided definitions of what they believe should constitute non-BIAS data
services.551 Others, however, expressed concerns that a formal definition of non-BIAS data services risks
potentially limiting future innovation and investment, ultimately negatively impacting consumer
welfare.552 We share these concerns and thus decline to further define what constitutes “non-BIAS data
services” or adopt additional policies specific to such services at this time. Again, however, we will
closely monitor the development and use of non-BIAS data services and have authority to intervene if
these services are utilized in a manner that harms the open Internet.
4.

Reasonable Network Management

214.
The 2014 Open Internet NPRM proposed to retain a reasonable network management
exception to the conduct-based open Internet rules,553 following the approach adopted in the 2010 Open
Internet Order that permitted exceptions for “reasonable network management” practices to the noblocking and no unreasonable discrimination rules.554 The 2014 Open Internet NPRM also tentatively
concluded that the Commission should retain the definition of reasonable network management adopted
as part of the 2010 rules that “[a] network management practice is reasonable if it is appropriate and
tailored to achieving a legitimate network management purpose, taking into account the particular
network architecture and technology of the broadband Internet access service.”555

548

2010 Open Internet Order, 25 FCC Rcd at 17938-39, para. 56.

549

See supra Section III.C.3.

550

See, e.g., Access Comments at 10 (“[A] strict definition of specialized services can mitigate the risks.”); Future of
Music Coalition Reply at 5 (“Without narrow and clear definitions of ‘specialized services,’ development would
slow and artists and the public would be deprived of potentially rewarding technologies.”). But see CCIA Reply at
18 (“[T]he so-called ‘Specialized Services’ exemption is cause for concern. CCIA has stated that no reasonable
definition of ‘Specialized Services’ is possible, and that the Commission’s resources would be better devoted to
locking down the ‘reasonable network management’ standard as the means by which BIAPs can justify any
challenged conduct.”).
551

See, e.g., CDT Comments at 23 (“First, there should be a requirement that the service be truly specialized, in the
sense of serving a specific and limited purpose. Second, there should be a technical requirement of logical
separation – that is, wholly or significantly separate capacity – between the specialized traffic and the Internet
traffic.”); Nokia Comments at 12 (“‘Specialised services’ are designed for specific content, applications, or services,
or a combination thereof. Such services rely on traffic management or other networking techniques to ensure the
desired or necessary level of network resources that determine subscriber experience (such as capacity, quality) with
the aim to securing enhanced quality characteristics. They are delivered from end-to-end and are not marketed as or
widely used as a substitute for Internet access service.”).
552

See, e.g., ETNO Comments at 4 (“We believe that the FCC chooses a future-proof path by not formally defining
‘specialized services.’”); MIT Media Lab Comments at 2-3 (“As long as non-discriminatory Internet access is
available, we see no reason to prevent the addition of other specialized, for-fee services. Nor do we see the need to
restrict a vibrant market in developing and implementing them.”); TIA Comments at 30 (“[S]pecialized services can
help to spur investment in broadband facilities,” and “[r]egulatory intervention in this nascent area would suppress
these innovative enhancements to consumer welfare.”).
553

2014 Open Internet NPRM, 29 FCC Rcd at 5583, para. 61.

554

47 C.F.R. § 8.5.

555

47 C.F.R. § 8.11(d); 2010 Open Internet Order, 25 FCC Rcd at 17952, para. 82.

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215.
The record broadly supports maintaining an exception for reasonable network
management.556 We agree that a network management exception to the no-blocking rule, the no-throttling
rule, and the no-unreasonable interference/disadvantage standard is necessary for broadband providers to
optimize overall network performance and maintain a consistent quality experience for consumers while
carrying a variety of traffic over their networks.557 Therefore, the no-blocking rule, the no-throttling rule,
and the no-unreasonable interference/disadvantage standard will be subject to reasonable network
management for both fixed and mobile providers of broadband Internet access service. In addition to
retaining the exception, we retain the definition of reasonable network management with slight
modifications:
A network management practice is a practice that has a primarily technical network
management justification, but does not include other business practices. A network
management practice is reasonable if it is primarily used for and tailored to achieving a
legitimate network management purpose, taking into account the particular network
architecture and technology of the broadband Internet access service.
216.
For a practice to even be considered under this exception, a broadband Internet access
service provider must first show that the practice is primarily motivated by a technical network
management justification rather than other business justifications. If a practice is primarily motivated by
such an other justification, such as a practice that permits different levels of network access for similarly
situated users based solely on the particular plan to which the user has subscribed,558 then that practice
will not be considered under this exception. The term “particular network architecture and technology”
refers to the differences across broadband access platforms of any kind, including cable, fiber, DSL,
satellite, unlicensed Wi-Fi, fixed wireless, and mobile wireless.559
217.
As noted above, reasonable network management is an exception to the no-blocking rule,
no-throttling rule, and no-unreasonable interference/disadvantage standard, but not to the rule against paid
prioritization.560 This is because unlike conduct implicating the no-blocking, no-throttling, or nounreasonable interference/disadvantage standard, paid prioritization is not a network management
practice because it does not primarily have a technical network management purpose.561 When
considering whether a practice violates the no-blocking rule, no-throttling rule, or no-unreasonable
interference/disadvantage standard, the Commission may first evaluate whether a practice falls within the
exception for reasonable network management.

556

See, e.g., OTI Comments at 57 (“[R]egardless of its source of statutory authority, the Commission should apply
its open Internet protections ‘subject to reasonable network management.’”); CenturyLink Comments at 23 (“There
is also no evidence of a problem with implementing this exception following the Commission’s 2010 Open Internet
Order.”); CDT Comments at 7.
557

As discussed above, the transparency rule does not include an exception for reasonable network management.
We clarify, however, that the transparency rule “does not require public disclosure of competitively sensitive
information or information that would compromise network security or undermine the efficacy of reasonable
network management practices.” See 2014 Open Internet NPRM, 29 FCC Rcd 5583, para. 61; 2010 Open Internet
Order, 25 FCC Rcd at 17937-38, para. 55.
558

See Prepared remarks of FCC Chairman Tom Wheeler, 2014 CTIA Show, Las Vegas, NV (Sept. 9, 2014).

559

See 2010 Open Internet Order, 25 FCC Rcd at 17952, para. 82 (defining “particular network architecture and
technology” as referring to “the differences across access platforms such as cable, DSL, satellite, and fixed
wireless”).
560

Paid prioritization would be evaluated under the standards set forth in Section II.C.1.c supra.

561

For purposes of the open Internet rules, prioritization of affiliated content, applications, or services is also
considered a form of paid prioritization. See supra Section III.C.1.c.

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218.
Evaluating Network Management Practices. The 2014 Open Internet NPRM proposed
that the Commission adopt the same approach for determining the scope of network management
practices considered to be reasonable as adopted in the 2010 Open Internet Order.562 We recognize the
need to ensure that the reasonable network management exception will not be used to circumvent the
open Internet rules while still allowing broadband providers flexibility to experiment and innovate as they
reasonably manage their networks.563 We therefore elect to maintain a case-by-case approach. The caseby-case review also allows sufficient flexibility to address mobile-specific management practices because,
by the terms of our rule, a determination of whether a network management practice is reasonable takes
into account the particular network architecture and technology. We also note that our transparency rule
requires disclosures that provide an important mechanism for monitoring whether providers are
inappropriately exploiting the exception for reasonable network management.564
219.
To provide greater clarity and further inform the Commission’s case-by-case analysis, we
offer the following guidance regarding legitimate network management purposes. We also note that,
similar to the 2010 reasonable network management exception, broadband providers may request a
declaratory ruling or an advisory opinion from the Commission before deploying a network management
practice, but are not required to do so.565
220.
As with the network management exception in the 2010 Open Internet Order, broadband
providers may implement network management practices that are primarily used for, and tailored to,
ensuring network security and integrity, including by addressing traffic that is harmful to the network,
such as traffic that constitutes a denial-of-service attack on specific network infrastructure elements.566
Likewise, broadband providers may also implement network management practices that are primarily

562

See 2014 Open Internet NPRM, 29 FCC Rcd at 5583, para. 61. The Commission decided to determine the scope
of reasonable network management on a case-by-case basis in the Open Internet Order and we maintain those same
factors today. See 2010 Open Internet Order, 25 FCC Rcd at 17952-56, paras. 84-92.
563

See, e.g., CDT Comments at 9 (“[R]ules in this area should not be rigid. They should not attempt to specify in
advance which particular technical practices should be prohibited or allowed. Detailed technical choices are best
left to network operators, since they are in the best position to understand the technical consequences and tradeoffs
associated with different choices. Network operators also need appropriate flexibility to devise new tactics and
respond to new threats.”); CenturyLink Comments at 23 (“The NPRM also correctly concludes that the Commission
should retain the existing reasonable network management practices exception to its Open Internet rules and
continue to develop the scope of that exception on a case-by-case basis. This exception is critical to ensuring that
broadband providers have the flexibility to manage their networks in a way that maintains network security and
integrity, addresses harmful traffic, and mitigates against the effects of congestion.”); ITIF Reply at 14 (“Applying
strict neutrality rules, dictating traffic management in the lower layers of a wireless network, is largely
unworkable.”); TIA Comments at 3 (advocating for “an expansive definition of ‘reasonable network management’
that reflects the nature and needs of contemporary broadband Networks”); Alcatel-Lucent Comments at 17 (“[T]he
Commission should continue to allow reasonable network management practices coupled with disclosure policies
that provide consumers with the appropriate level of transparency into these practices.”). But see CTIA Reply at 26
(noting that it would not be “sufficient to rely on a ‘reasonable network management’ exception to warrant
application of [the no-blocking rule] – as described below, that approach would necessarily chill innovation and
harm, not help, consumers”).
564

See supra Section III.C.3.

565

See 2010 Open Internet Order, 25 FCC Rcd at 17952-53, para. 84, n.262 (citing 47 C.F.R. §1.2 which provides
for “a declaratory ruling terminating a controversy or removing uncertainty”); see also infra Section III.E.2.a.ii.
566

See 2010 Open Internet Order, 25 FCC Rcd at 17954, para. 88; see also, e.g., Financial Service Roundtable
Reply at 3 (stating that the open Internet rules should “allow ISPs to block cyber attacks or similar threats to
information systems or networks that are transiting their systems, regardless of the traffic stream’s ultimate
destination”); EFF Reply at 12 (stating that broadband providers’ “blocking content that would actually harm their
network (e.g. DDOS attacks) . . . would obviously fall into the category of reasonable network management”).

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used for, and tailored to, addressing traffic that is unwanted by end users.567 Further, we reiterate the
guidance of the 2010 Open Internet Order that network management practices that alleviate congestion
without regard to the source, destination, content, application, or service are also more likely to be
considered reasonable network management practices in the context of this exception.568 In evaluating
congestion management practices, a subset of network management practices, we will also consider
whether the practice is triggered only during times of congestion and whether it is based on a user’s
demand during the period of congestion.569
221.
We also recognize that some network management practices may have a legitimate
network management purpose, but also may be exploited by a broadband provider. We maintain the
guidance underlying the 2010 Open Internet Order’s case-by-case analysis that a network management
practice is more likely to be found reasonable if it is transparent, and either allows the end user to control
it or is application-agnostic.570
222.
As in 2010, we decline to adopt a more detailed definition of reasonable network
management.571 For example, one proposal suggests that the Commission limit the circumstances in
which network management techniques can be used so they would only be reasonable if they were used
temporarily, for exceptional circumstances, and have a proportionate impact to solve a targeted
problem.572 We acknowledge the advantages a more detailed definition of network management can have
on long-term network investment and transparency, but at this point, there is not a need to place such
proscriptive limits on broadband providers.573 Furthermore, a more detailed definition of reasonable
567

See 2010 Open Internet Order, 25 FCC Rcd at 17954-55, paras. 88-90.

568

See id. at 17954, para. 87 (stating that the principles guiding case-by-case evaluations of network management
practices include “transparency, end user control, and use- (or application-) agnostic treatment”); id. at 17945, para.
73 (elaborating upon the concept of “use-agnostic” discrimination); see also Mozilla Reply at 22 (stating that the
Commission’s conception of reasonable network management could “separate application-specific from applicationagnostic discrimination”). As in the no throttling rule and the no unreasonable interference or unreasonable
disadvantage standard, we include classes of content, applications, services, or devices.
569

See BITAG Congestion Report at 2, 14.

570

2010 Open Internet Order, 25 FCC Rcd at 17954, para. 87. See BITAG Congestion Report at 45 (“User- and
application- agnostic congestion management practices are useful in a wide variety of situations, and may be
sufficient to accommodate the congestion management needs of network operators in the majority of situations. . . .
[and i]f application-based congestion management practices are used, those based on a user’s expressed preferences
are preferred over those that are not.”); David D. Clark, John Wroclawski, Karen R. Sollins, and Robert Braden,
Tussle in Cyberspace: Defining Tomorrow’s Internet, IEEE/ACM Transactions on Networking, vol. 13 no. 3 (2005)
(“One of the most respected and cited of the Internet design principles is the end-to-end arguments, which state that
mechanism should not be placed in the network if it can be placed at the end node, and that the core of the network
should provide a general service, not one that is tailored to a specific application.”).
571

2010 Open Internet Order, 25 FCC Rcd at 17953, para. 85.

572

Access Comments at 18 (“Traffic management techniques are ‘reasonable’ when deployed for the purpose of
technical maintenance of the network, namely to block spam, viruses, or denial of service attacks, or to minimize the
effects of congestion, whereby equal types of traffic should be treated equally . . . [and] should only be used on a
temporary basis, during exceptional moments, and their impact must be necessary, proportionate and targeted to
solve the particular problem [and] . . . have transparent and comprehensible disclosure for users . . . .”).
573

MIT Media Lab Comments at 13 (“[A] more stringent view of the limitation of network management . . .
insure[s] that there are no artificial or industrially created synthetic control points placed between an application and
the flow of bits associated with it.”). While some commenters note that there have not been any major technological
changes in how broadband providers manage traffic since 2010, others indicate that broadband providers have
acquired additional techniques that allow them to manage traffic in real-time. Compare Sandvine Comments at 12
(stating that there have not been any big technological changes in how service providers can manage traffic since
2010) with Internet Association Comments at 3 (“New technologies have granted broadband Internet access
providers an unprecedented ability to discriminate and block content in real time.”).

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network management risks quickly becoming outdated as technology evolves.574 Case-by-case analysis
will allow the Commission to use the conduct-based rules adopted today to take action against practices
that are known to harm consumers without interfering with broadband providers’ beneficial network
management practices.575
223.
We believe that the reasonable network management exception provides both fixed and
mobile broadband providers sufficient flexibility to manage their networks. We recognize, consistent
with the consensus in the record, that the additional challenges involved in mobile broadband network
management mean that mobile broadband providers may have a greater need to apply network
management practices, including mobile-specific network management practices, and to do so more often
to balance supply and demand while accommodating mobility.576 As the Commission observed in 2010,
mobile network management practices must address dynamic conditions that fixed, wired networks
typically do not,577 such as the changing location of users578 as well as other factors affecting signal
quality.579 The ability to address these dynamic conditions in mobile network management is especially
important given capacity constraints many mobile broadband providers face.580 Moreover,
574

Verizon Dec. 5, 2014 Ex Parte Letter at 2.

575

Beneficial practices include protecting their Internet access services against malicious content or offering a
service limited to offering “family friendly” materials to end users who desire only such content. 2010 Open
Internet Order, 25 FCC Rcd at 17954-55, paras. 88-89.
576

See, e.g., AT&T Reply at 82 (“The unique challenges presented by mobile users and the unpredictable demands
placed on mobile networks due to the inherent mobility of their users require a robust set of tools that can be used to
mitigate the impact of potential congestion on consumers’ experience with a network.”); id. at 80-83; OTI
Comments at 57 (“A flexible approach to defining reasonable network management can accommodate exceptions
appropriate to different technologies and platforms …without creating an arbitrary distinction and preference for
mobile networks.”) (internal quotation marks omitted); T-Mobile Reply at 11 (“These important distinctions
between fixed and mobile networks show that it would be inadvisable to impose new net neutrality rules, especially
those designed for fixed networks, on mobile broadband networks.”); CDT Comments at 20 (“The allowance for
reasonable network management provides ample flexibility for carriers to address any network management
challenges that are specific to mobile wireless networks, so no broad exemption is warranted.”); Microsoft
Comments at 27 (“[A]ny technical or operational differences between mobile and fixed networks can be
accommodated by recognizing the meaning of ‘reasonable network management’ might vary depending on the
particular type of network.”); Public Knowledge Comments at 24 (“[T]o the extent that a technical difference
between wireless and wireline exist, reasonable network management policies can accommodate it.”); Mozilla
Comments at 21 (“There remain technical distinctions between mobile and fixed networks, some of which—such as
management of upload congestion—are inherent in the nature of the technologies.”); Vonage Comments at 32
(“Rather than adopt less protection, the Commission can instead distinguish between wireline and wireless under the
principle of reasonable network management.”) TIA Comments at 11-15 (stating that the Commission must consider
“the engineering realities of the distinctly different types of broadband platforms [wireline, cable, mobile]” when
considering regulations, especially on network management”).
577

2010 Open Internet Order, 25 FCC Rcd at 17956, para. 94.

578

Letter from Scott Bergmann, Vice President—Regulatory Affairs, CTIA, to Marlene H. Dortch, Secretary, FCC,
(filed Oct. 6, 2014), Attach., Dr. Jeffrey H. Reed and Dr. Nishith D. Tripathi, Net Neutrality and Technical
Challenges of Mobile Broadband Networks at 14 (CTIA Oct. 6, 2014 Ex Parte Letter) (arguing that as channel
conditions degrade (such as when a mobile user moves toward the periphery of a cell site) “[e]ven to preserve a
given data rate, the user may need 36 times more radio resources”).
579

See, e.g., TIA Reply at 8 (“The allocation [of radio resources] must factor in the number of active user devices,
capabilities of these devices, capabilities of the base station in the area, prevailing channel conditions of different
devices on the network, distance from the serving cell, and target QoS of different services to determine the amount
of radio resources for individual users.”); Nokia Reply at 5 (“Mobile networks can be affected by physical
obstructions, solar activity, electromagnetic disturbances, and distance to a much greater degree than wireline
broadband networks.”); T-Mobile Comments at 5-7.
580

T-Mobile Comments at 6.

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notwithstanding any limitations on mobile network management practices necessary to protect the open
Internet, we anticipate that mobile broadband providers will continue to be able to use a multitude of tools
to manage their networks,581 including an increased number of network management tools available in
4G LTE networks.
224.
We note in a similar vein that providers relying on unlicensed Wi-Fi networks have
specific network management needs. For example, these providers can “face spectrum constraints and
congestion issues that can pose particular network-management challenges” and also “must accept and
manage interference from other users in the unlicensed bands.”582 Again, the Commission will take into
account when and how network management measures are applied as well as the particular network
architecture and technology of the broadband Internet access service in question, in determining if a
network management practice is reasonable. For these reasons, we reject the argument that rules with
exceptions only for reasonable network management practices would “tie the hands of operators and
make it more challenging to meet consumers’ needs”583 or that “the mere threat of post hoc regulatory
review . . . would disrupt and could chill optimal network management practices.”584 In recognizing the
unique challenges, network architecture, and network management of mobile broadband networks (and
others, such as unlicensed Wi-Fi networks), we conclude that the reasonable network management
exception addresses this concern and strikes an appropriate balance between the need for flexibility and
ensuring the Commission has the tools necessary to maintain Internet openness.
E.

Enforcement of the Open Internet Rules
1.

Background

225.
Timely and effective enforcement of the rules we adopt in this Order is crucial to
preserving an open Internet, enhancing competition and innovation, and providing clear guidance to
consumers and other stakeholders. As has been the case since we adopted our original open Internet rules
in 2010, we anticipate that many disputes that will arise can and should be resolved by the parties without
Commission involvement. We encourage parties to resolve disputes through informal discussions and
private negotiations whenever possible.585 To the extent disputes are not resolved, the Commission will
continue to provide backstop mechanisms to address them. We also will proactively monitor compliance
and take strong enforcement action against parties who violate the open Internet rules.
226.
In the 2010 Open Internet Order, the Commission established a two-tiered framework for
enforcing open Internet rules. The Commission allowed parties to file informal complaints pursuant to
section 1.41 of our rules586 and promulgated new procedures to govern formal complaints alleging
581

Such tools have been referenced in various ex parte filings. See, e.g., Letter from Jonathan Spalter, Chair,
Mobile Future, to Marlene H. Dortch, Secretary, FCC, (filed Sept. 12, 2014), Attach., Rysavy Research, How Is
Mobile Different: Considerations for the Open Internet Rulemaking at 11-12 (citing the need for adjustments to
transmitted power and sustainable data rates); Letter from Scott Bergmann, CTIA to Marlene H. Dortch, Secretary,
FCC, GN Docket Nos. 14-28, 10-127, Attach., Dr. Jeffrey H. Reed and Dr. Nishith D. Tripathi, Net Neutrality and
Technical Challenges of Mobile Broadband Networks at 16, 20-21 (filed Sept. 4, 2014) (citing the need for
scheduling user access to the network based upon dynamic measurements of signal quality).
582

NCTA Dec. 23, 2014 Ex Parte Letter at 25; see also Letter from Samuel L. Feder, counsel to Cablevision, to
Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (filed Jan. 12, 2015) (urging that the Commission
recognize Wi-Fi networks’ “specific capacity and congestion constraints” in applying any reasonable network
management standard).
583

Verizon Reply at 33.

584

AT&T Reply at 89 (emphasis in original).

585

2014 Open Internet NPRM, 29 FCC Rcd at 5618, para. 161; 2010 Open Internet Order, 25 FCC Rcd at 17986,
para. 151.
586

47 C.F.R. § 1.41.

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violations of the open Internet rules.587 This framework was not affected by the D.C. Circuit’s decision in
Verizon. It therefore remains in effect and will apply to complaints regarding the rules we adopt in this
Order. Informal complaints provide end users, edge providers, and others with a simple and efficient
vehicle for bringing potential open Internet violations to the attention of the Commission.588 The formal
complaint rules permit any person to file a complaint with the Commission alleging an open Internet rule
violation and to participate in an adjudicatory proceeding to resolve the complaint.589 In addition to these
mechanisms for resolving open Internet complaints, the Commission continuously monitors press reports
and other public information, which may lead the Enforcement Bureau to initiate an investigation of
potential open Internet rule violations.
227.
In the 2014 Open Internet NPRM, the Commission sought comment on the efficiency and
functionality of the complaint processes adopted in the 2010 Open Internet Order and on mechanisms we
should consider to improve enforcement and dispute resolution.590 We tentatively concluded that our
open Internet rules should include at least three fundamental elements: (1) legal certainty, so that
broadband providers, edge providers, and end users can plan their activities based on clear Commission
guidance; (2) flexibility to consider the totality of the facts in an environment of dynamic innovation; and
(3) effective access to dispute resolution.591 We affirm the importance of these principles below and
discuss several enhancements to our existing open Internet complaint rules to advance them. In addition,
we adopt changes to our complaint processes to ensure that they are accessible and user-friendly to
consumers, small businesses, and other interested parties, as well as changes to ensure that that our review
of complaints is inclusive and informed by groups with relevant technical or other expertise.
2.

Designing an Effective Enforcement Process
a.

Legal Certainty

228.
We sought comment in the 2014 Open Internet NPRM on ways to design an effective
enforcement process that provides legal certainty and predictability to the marketplace.592 In addition to
our current complaint resolution framework, we requested input on what other forms of guidance would
be helpful.593 We solicited feedback on whether the Commission should: (1) establish an advisory
opinion process, akin to “business review letters” issued by the Department of Justice (DOJ), and/or nonbinding staff opinions, through which parties could ask the Commission for a statement of its current
enforcement intentions with respect to certain practices under the new rules;594 and (2) publish
587

47 C.F.R. §§ 8.12-8.17.

588

2010 Open Internet Order, 25 FCC Rcd at 17986, para. 153. In the 2010 Open Internet Order, the Commission
established that parties could submit informal complaints pursuant to section 1.41 of the Commission’s rules\ and
recommended that consumers, end users, and edge providers submit such complaints through the Commission’s
website: http://esupport.fcc.gov/complaints.html. Id.
589

See 2010 Open Internet Order, 25 FCC Rcd at 17987-89, paras. 154-59; 47 C.F.R. §§ 8.12-8.17.

590

2014 Open Internet NPRM, 29 FCC Rcd at 5618-23, paras. 161-76.

591

Id. at 5619, para. 163. In addition, the Commission asked whether other elements should be considered and what
forms of dispute resolution would be the best strategy to implement “data-driven decision-making.” Id.
592

Id. at 5619, paras. 163, 165.

593

Id. at 5619, para. 165.

594

Id. at 5619-20, paras. 165-66. The Antitrust Division of the Department of Justice has procedures under which
entities concerned about the legality under the antitrust laws of proposed business conduct may seek a statement
from the Division regarding its current enforcement intentions with respect to that conduct. See 28 C.F.R. § 50.6;
Dep’t of Justice, Pilot Program Announced to Expedite Business Review Process (1992),
http://justice.gov/atr/public/busreview/201659a.pdf (Dep’t of Justice Business Reviews). Other federal agencies
have similar advisory opinion processes. For example, the Rules of Practice of the Federal Trade Commission
provide that the Commission or its staff, in appropriate circumstances, may offer industry guidance in the form of an
(continued….)

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enforcement advisories that provide additional insight into the application of the rules.595 Many
commenters recognized the benefits of clear rules and greater predictability regarding open Internet
protections.596
(i)

Advisory Opinions

229.
We conclude that use of advisory opinions similar to those issued by DOJ’s Antitrust
Division is in the public interest and would advance the Commission’s goal of providing legal certainty.597
Although the Commission historically has not used advisory opinions to promote compliance with our
rules, we conclude that they have the potential to serve as useful tools to provide clarity, guidance, and
predictability concerning the open Internet rules.598 Advisory opinions will enable companies to seek
guidance on the propriety of certain open Internet practices before implementing them, enabling them to
be proactive about compliance and avoid enforcement actions later.599 The Commission may use advisory
opinions to explain how it will evaluate certain types of behavior and the factors that will be considered in
determining whether open Internet violations have occurred. Because these opinions will be publicly
available, we believe that they will reduce the number of disputes by providing guidance to the industry.
230.
In this Order, we adopt rules promulgating basic requirements for obtaining advisory
opinions, as well as limitations on their issuance. Any entity that is subject to the Commission’s
jurisdiction may request an advisory opinion regarding its own proposed conduct that may implicate the
rules we adopt in this Order, the rules that remain in effect from the 2010 Open Internet Order, or any
other rules or policies related to the open Internet that may be adopted in the future.600
231.
Requests for advisory opinions may be filed via the Commission’s website or with the
Office of the Secretary and must be copied to the Commission staff specified in the rules.601 We delegate
(Continued from previous page)
advisory opinion. See 16 C.F.R. §§ 1.1-1.4; Fed. Trade Comm’n, Guidance From Staff of the Bureau of
Competition’s Health Care Division on Requesting and Obtaining an Advisory Opinion (2010),
http://www.ftc.gov/sites/default/files/attachments/competition-advisory-opinions/advop-health.pdf.
595

2014 Open Internet NPRM, 29 FCC Rcd at 5620, para. 167.

596

See, e.g., Comcast Comments at 67 (“Comcast agrees with the Commission that any new enforcement procedures
must ‘provide legal certainty . . . .’”); NCTA Comments at 67 (“The Commission . . . should continue to explore
other ways of streamlining its enforcement procedures in a manner that provides ‘legal certainty’ to regulated
entities.”); EFF Comments at 2 (The Commission “should enact clear and simple prescriptive rules . . . .”);
Independent Film & Television Alliance Comments at 12 (“[T]he Commission must take the most effective actions
available to it to ensure that the regulations it adopts . . . provide certainty to the public.”); Cox Comments at ii-iii
(“In relying on traditional complaint-driven and agency-initiated enforcement mechanisms, the Commission’s rules
also should maximize certainty and ensure options for streamlined dispute resolution.”).
597

We decline to adopt non-binding staff opinions in light of our decision to establish an advisory opinion process
similar to the DOJ Antitrust Division’s business review letter approach, as well as existing voluntary mediation
processes to resolve open Internet disputes that are available through the Enforcement Bureau’s Market Disputes
and Resolutions Division. See infra Section III.E.2.a.i.
598

Parties also have the option to file a petition for declaratory ruling under section 1.2 of the Commission’s rules,
47 C.F.R. § 1.2. In contrast to declaratory rulings, advisory opinions may only relate to prospective conduct, and the
Enforcement Bureau will not seek comment on advisory opinions via public notice. See id.
599

See, e.g., Dep’t of Justice, Introduction to Antitrust Division Business Reviews at 1 (last visited Oct. 29, 2014),
http://www.justice.gov/atr/public/busreview/276833.pdf (“The business review procedure benefits both the Division
and the business community because the Division can analyze and comment on the possible competitive impact of
proposed business conduct, possibly avoiding lawsuits or other actions.”).
600

See, e.g., 28 C.F.R. § 50.6(2) (“The [DOJ’s Antitrust] Division will consider only requests with respect to
proposed business conduct, which may involve either domestic or foreign commerce.”).
601

See infra Appx. A (§ 8.18).

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authority to issue advisory opinions to the Enforcement Bureau, which will coordinate with other Bureaus
and Offices on the issuance of opinions. The Enforcement Bureau will have discretion to choose whether
it will respond to the request. If the Bureau declines to respond to a request, it will inform the requesting
party in writing. As a general matter, the Bureau will be more likely to respond to requests where the
proposed conduct involves a substantial question of fact or law and there is no clear Commission or court
precedent, or the subject matter of the request and consequent publication of Commission advice is of
significant public interest.602 In addition, the Bureau will decline to respond to requests if the same
conduct is the subject of a current government investigation or proceeding, including any ongoing
litigation or open rulemaking.603
232.
Requests for advisory opinions must relate to prospective or proposed conduct that the
requesting party intends to pursue.604 The Enforcement Bureau will not respond to hypothetical questions
or inquiries about proposals that are mere possibilities. The Bureau also will not respond to requests for
opinions that relate to ongoing or prior conduct, and the Bureau may initiate an enforcement investigation
to determine whether such conduct violates the open Internet rules.
233.
Requests for advisory opinions should include all material information sufficient for
Commission staff to make a determination on the proposed conduct;605 however, staff will have discretion
to ask parties requesting opinions, as well as other parties that may have information relevant to the
request or that may be impacted by the proposed conduct, for additional information that the staff deems
necessary to respond to the request.606 Because advisory opinions will rely on full and truthful disclosures
by the requesting entities, requesters must certify that factual representations made to the Enforcement
Bureau are truthful and accurate, and that they have not intentionally omitted any material information
from the request.607 Advisory opinions will expressly state that they rely on the representations made by
the requesting party, and that they are premised on the specific facts and representations in the request and
any supplemental submissions.
234.
Although the Enforcement Bureau will attempt to respond to requests for advisory
opinions expeditiously, we decline to establish any firm deadlines to rule on them or issue response

602

As noted above, in addition to DOJ, other federal agencies also have an advisory opinion process. See supra note
594. The FTC specifies that it will consider requests for advisory opinions, where practicable, under the following
circumstances: “(1) The matter involves a substantial or novel question of fact or law and there is no clear
Commission or court precedent; or (2) The subject matter of the request and consequent publication of Commission
advice is of significant public interest.” 16 C.F.R. § 1.1(a).
603

See, e.g., 16 C.F.R. § 1.1(b)(1) (the FTC will ordinarily consider requests for advisory opinions inappropriate
where “[t]he same or substantially the same course of action is under investigation or is or has been the subject of a
current proceeding involving the Commission or another governmental agency . . . .”).
604

See, e.g., 28 C.F.R. § 50.6(2) (“The [DOJ’s Antitrust] Division will consider only requests with respect to
proposed business conduct . . . .”) (emphasis added); 16 C.F.R. § 1.1(a) (“Any person, partnership, or corporation
may request advice from the [Federal Trade] Commission with respect to a course of action which the requesting
party proposes to pursue.”).
605

See, e.g., 28 C.F.R. § 50.6(5) (under the DOJ’s business review procedures, “[e]ach request must be accompanied
by all relevant data including background information, complete copies of all operative documents and detailed
statements of all collateral oral understandings, if any”).
606

See, e.g., id. (“All parties requesting the review letter must provide the [DOJ Antitrust] Division with whatever
additional information or documents the Division may thereafter request in order to review the matter. . . . In
connection with any request for review, the Division will also conduct whatever independent investigation it
believes is appropriate.”).
607

See 18 U.S.C. § 1001; see also 47 C.F.R. § 1.17.

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letters.608 The Commission appreciates that if the advisory opinion process is not timely, it will be less
valuable to interested parties. However, response times will likely vary based on numerous factors,
including the nature and complexity of the issues, the magnitude and sufficiency of the request and the
supporting information, and the time it takes for the requester to respond to staff requests for additional
information. An advisory opinion will provide the Enforcement Bureau’s conclusion regarding whether
or not the proposed conduct will comply with the open Internet rules. The Bureau will have discretion to
indicate in an advisory opinion that it does not intend to take enforcement action based on the facts,
representations, and warranties made by the requesting party. The requesting party may rely on the
opinion only to the extent that the request fully and accurately contains all the material facts and
representations necessary for the opinion and the situation conforms to the situation described in the
request for opinion. The Enforcement Bureau will not bring an enforcement action against a requesting
party with respect to any action taken in good faith reliance upon an advisory opinion if all of the relevant
facts were fully, completely, and accurately presented to the Bureau, and where such action was promptly
discontinued upon notification of rescission or revocation of the Commission’s or the Bureau’s
approval.609
235.
Advisory opinions will be issued without prejudice to the Enforcement Bureau’s ability
to reconsider the questions involved, or to rescind or revoke the opinion.610 Similarly, because advisory
opinions issued at the staff level are not formally approved by the full Commission, they will be issued
without prejudice to the Commission’s right to later rescind the findings in the opinion. Because advisory
opinions will address proposed future conduct, they necessarily will not concern any case or controversy
that is ripe for appeal.611
236.
The Enforcement Bureau will make advisory opinions available to the public. In order to
provide meaningful guidance to other stakeholders, the Bureau will also publish the initial request for
guidance and any associated materials. Thus, the rules that we adopt establish procedures for entities
soliciting advisory opinions to request confidential treatment of certain information.612
237.
Many commenters support the use of advisory opinions as a means for the Commission
to provide authoritative guidance to parties about the application of open Internet rules and the

608

For example, the Department of Justice’s Antitrust Division states that it will “make its best effort” to resolve
business review requests within 60 to 90 days after receiving all relevant information and documents sought by the
Division. See Dep’t of Justice Business Reviews at 1-2.
609

See 16 C.F.R. § 1.3(b); see also 28 C.F.R. § 50.6(9) (“A business review letter states only the enforcement
intention of the [DOJ Antitrust] Division as of the date of the letter, and the Division remains completely free to
bring whatever action or proceeding it subsequently comes to believe is required by the public interest. As to a
stated present intention not to bring an action, however, the Division has never exercised its right to bring a criminal
action where there has been full and true disclosure at the time of presenting the request.”).
610

See, e.g., 28 C.F.R. § 50.6(9) (“A business review letter states only the enforcement intention of the [DOJ’s
Antitrust] Division as of the date of the letter, and the Division remains completely free to bring whatever action or
proceeding it subsequently comes to believe is required by the public interest.”); 16 C.F.R. § 1.3(b) (“Any advice
given by the [Federal Trade] Commission is without prejudice to the right of the Commission to reconsider the
questions involved and, where the public interest requires, to rescind or revoke the action.”).
611

See, e.g., American Exp. Co. v. U.S. Dep’t of Justice, 453 F. Supp. 47, 50 (S.D.N.Y. 1978) (“[28 C.F.R. § 50.6],
by committing the Justice Department to state a position with respect to future enforcement plans, necessarily
implies that the matter under review is not the subject of any currently pending enforcement proceedings. Rather,
the opinion of the Justice Department is an ‘advisory opinion,’ a familiar term used in the legal lexicon to denote an
opinion concerning a matter not yet ripe for judicial action and thus not yet before any court.”).
612

For example, trade secrets or commercial and financial information may merit confidential treatment. See 47
C.F.R. §§ 0.457, 0.459.

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Commission’s enforcement intentions.613 In addition, some commenters suggest that review letters and
staff opinions should be voluntary.614 We agree that solicitation of advisory opinions should be purely
voluntary, and that failure to seek such an opinion will not be used as evidence that an entity’s practices
are inconsistent with our rules.
238.
The Wireless Internet Service Providers Association (WISPA) opposes the adoption of an
advisory opinion process “because it assumes an inherent uncertainty in the rules and creates a ‘mother
may I’ regime —essentially creating a system where a broadband provider must ask the Commission for
permission when making business decisions.”615 According to WISPA, “[t]his system would increase
regulatory uncertainty and stifle broadband providers from innovating new technologies or business
methods. It also would be expensive for a small provider to implement, requiring legal and professional
expertise.”616
239.
We find that WISPA’s concerns are misguided. Because requests for advisory opinions
will be entirely voluntary, we disagree with the contention that their use would force broadband providers
to seek permission before implementing new policies or technologies and thereby stifle innovation.617 In
addition, we agree with other commenters that advisory opinions would provide more, not less, certainty
regarding the legality of proposed business practices.618
(ii)

Enforcement Advisories

240.
We conclude that the periodic publication of enforcement advisories will advance the
Commission’s goal of promoting legal certainty regarding the open Internet rules.619 In the 2014 Open
613

See, e.g., Comcast Comments at 69 (“Comcast . . . remains open to other potential mechanisms for providing
guidance—such as a business-review-letter process, nonbinding staff opinions, or enforcement advisories.”); NCTA
Comments at 67 (Less formal mechanisms of providing clarity on the Commission’s view of the law, including
business review letters, non-binding staff opinions, or enforcement advisories “may well prove useful to regulated
entities as they endeavor to comply with any new rules . . . .”); CDT Comments at 34 (“To facilitate the
development of helpful guidance in the interpretation of the rules, the Commission should proceed with its
suggestion in the NPRM to establish a business-review-letter approach similar to that of the Antitrust Division of the
Department of Justice. Such a process would provide a way for individual companies to resolve uncertainty they
may face under the rules, while accelerating the growth of a body of precedent to which other industry participants
might look. It could also foster useful discussions between broadband providers and Commission staff and a more
regular and informed consideration of open-Internet policy issues.”) (internal citations omitted); Cox Comments at
29 (“Cox . . . supports the NPRM’s proposal to adopt additional dispute resolution mechanisms, such as expedited,
non-binding staff review informed by input from the Broadband Internet Technical Advisory Group (‘BITAG’)
and/or resolution by technical advisory groups like OIAC and BITAG.”).
614

See, e.g., CDT Comments at 33-34 (“[U]se of the business-review-letter process should be purely voluntary.
There should be no expectation that broadband providers must seek permission from the Commission before
changing or instituting new network management practices, and the decision by a broadband provider not to seek a
business review letter should not result in any negative inference regarding the provider or its practices.”).
615

WISPA Comments at 33; see also ADTRAN Comments at ii (“[T]he proposed enforcement processes will
exacerbate the uncertainty, delay deployment of new services and further deter investment. The use of case-by-case
formal complaint procedures to develop a ‘common law’ of Internet regulation under the vague rules proposed in the
NPRM will not timely provide any measure of certainty or guidance. And the alternative proposals present concerns
about timeliness, protection of proprietary information, no real measure of certainty and inconsistency with the
current limits on delegated authority.”); id. at 33-41.
616

WISPA Comments at 33.

617

Id. at 33-34.

618

See supra note 613.

619

Since January 2010, the Enforcement Bureau has periodically published enforcement advisories “designed to
educate businesses about and alert consumers to what’s required by FCC rules, the purpose of those rules and why
they’re important to consumers, as well as the consequences of failures to comply.” Statement of P. Michele
(continued….)

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Internet NPRM, we inquired whether the Commission should issue guidance in the form of enforcement
advisories that provide insight into the application of Commission rules.620 Enforcement advisories are a
tool that the Commission has used in numerous contexts, including the current open Internet rules.621 We
asked whether continued use of such advisories would be helpful where issues of potential general
application come to the Commission’s attention, and whether these advisories should be considered
binding policy of the Commission or merely a recitation of staff views.622
241.
Numerous commenters maintain that the Commission should continue to use
enforcement advisories to offer clarity, guidance, and predictability concerning the open Internet rules.623
We agree. Enforcement advisories do not create new policies, but rather are recitations and reminders of
existing legal standards and the Commission’s current enforcement intentions.624 We see no need to
deviate from our current practice of issuing such advisories to periodically remind parties about legal
standards regarding the open Internet rules.
b.

Flexibility
(i)

Means of enforcement and general enforcement mechanisms

242.
We will preserve the Commission’s existing avenues for enforcement of open Internet
rules―self-initiated investigation by the Enforcement Bureau, informal complaints, and formal
complaints. Commenters agree with the value of retaining these three main mechanisms for commencing
enforcement of potential open Internet violations, as this combination ensures multiple entry points to the
Commission’s processes and gives both complainants and the Commission enforcement flexibility.625
243.
In addition, the Commission will continue to honor requests for informal complaints to
remain anonymous, and will also continue to maintain flexible channels for reporting suspected
violations, like confidential calls to the Enforcement Bureau. Although some commenters raise concerns
about anonymous complaint filings,626 others stress the importance of having the option to request
anonymity when filing an informal complaint.627 We note, however, that complainants who are not
anonymous frequently have better success getting their concerns addressed because the service provider
can then troubleshoot their specific concerns.628
(Continued from previous page)
Ellison, Chief, Enforcement Bureau on Issuance of the Bureau's First Enforcement Advisories, News Release
(January 15, 2010), https://apps.fcc.gov/edocs_public/attachmatch/DOC-295749A1.pdf.
620

2014 Open Internet NPRM, 29 FCC Rcd at 5620, para. 167.

621

See 2014 Advisory Guidance, 29 FCC Rcd 8606; 2011 Advisory Guidance, 26 FCC Rcd 9411.

622

2014 Open Internet NPRM, 29 FCC Rcd at 5620, para. 167.

623

See, e.g., Comcast Comments at 69; NCTA Comments at 67.

624

WISPA maintains that “any enforcement advisories should not be created in a vacuum and must be based on a
public record following an opportunity for interested consumers and industry parties to submit comments.” WISPA
Comments at 34. We disagree with the contention that public notice and comment should be a prerequisite for the
Commission to issue an enforcement advisory. The Commission uses its rulemaking procedures when we are
adopting rule changes that require notice and comment. Conversely, enforcement advisories are used to remind
parties of existing legal standards.
625

See, e.g., ADT Comments at 10-11; CenturyLink Comments at 36; Comcast Comments at 67; Hochhalter
Comments at 34 (“Informal and formal complaint processes alike should be utilized. Both end users and edge
providers can further enforcement efforts th[r]ough this process, and substantially lighten the FCC’s enforcement
burden.”).
626

See, e.g., Charter Comments at 34–35; NCTA Comments at 68.

627

See, e.g., Hochhalter Comments at 34–35.

628

See, e.g., Comcast Comments at 68.

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244.
We also adopt our tentative conclusion in the 2014 Open Internet NPRM that
enforcement of the transparency rule should proceed under the same dispute mechanisms that apply to
other rules contained in this Order.629 We believe that providing both complainants and the Commission
with flexibility to address violations of the transparency rule will continue to be important and that the
best means to ensure compliance with both the transparency rule and the other rules we adopt today is to
apply a uniform and consistent enforcement approach.
245.
Finally, we conclude that violations of the open Internet rules will be subject to any and
all penalties authorized under the Communications Act and rules,630 including but not limited to
admonishments, citations,631 notices of violation,632 notices of apparent liability,633 monetary forfeitures
and refunds,634 cease and desist orders,635 revocations,636 and referrals for criminal prosecution.637
Moreover, negotiated Consent Decrees can contain damages, restitution, compliance requirements,
attorneys’ fees, declaratory relief, and equitable remedies like injunctions, equitable rescissions,
reformations, and specific performance.638
(ii)

Case-by-Case Analysis

246.
The 2014 Open Internet NPRM emphasized that the process for providing and promoting
an open Internet must be flexible enough to accommodate the ongoing evolution of Internet technology.
We therefore tentatively concluded that the Commission should continue to use a case-by-case approach,
taking into account the totality of the circumstances, in considering alleged violations of the open Internet
rules.
639

basis.

247.
We affirm our proposal to continue to analyze open Internet complaints on a case-by-case
We agree with commenters that flexible rules, administered through case-by-case analysis, will

629

Commenters generally agree with this approach and have not offered any basis for the Commission to pursue a
different enforcement regime with respect to the transparency rule. See, e.g., ADT Comments at 11.
630

Section 706 was enacted as part of the 1996 Telecommunications Act, and it is therefore subject to any and all
penalties under the Act and our rules. See Verizon, 740 F.3d at 650 (“Congress expressly directed that the 1996 Act
. . . be inserted into the Communications Act of 1934.”) (quoting AT&T Corp. v. Iowa Utilities Board, 525 U.S. 366,
377 (1999)).
631

47 U.S.C. § 503(b)(5).

632

47 C.F.R. § 1.89.

633

47 U.S.C. § 503(b)(4).

634

47 U.S.C. § 503(b).

635

47 U.S.C. § 312(b).

636

47 C.F.R. § 1.91.

637

47 U.S.C. § 501.

638

We are aware of concerns expressed by some commenters that penalties need to be predictable and fair. See,
e.g., WISPA Comments at 37 (“The existing rules lack any recitation of the range of sanctions or financial penalties
that the Commission is authorized to impose upon a finding of a rule violation.”). The Commission views its
processes as ensuring predictable and fair enforcement. All forfeiture orders over $25,000 are reviewed by the full
Commission for disposition, and all past enforcement actions are publicly available for guidance.
639

A number of commenters support this approach. See, e.g., TIA Comments at 3, 21; CenturyLink Comments at
35-36; CWA & NAACP Comments at 19-20; Verizon Comments, Attach. Katz Declaration at 24 (“Because no one
has the ability to predict what will be the best network management practices and pricing and service models in the
future, it is important that the Commission’s rule be flexible” and a “case-by-case (or rule-of-reason) approach can
offer that flexibility.”); Comcast Comments at 67. One commenter argues that the Commission should promulgate
general rules of conduct rather than relying on case-by-case adjudications. PA PUC Comments at Appx. B, 11.
Other commenters expressed concerns about the cost of case-by-case adjudication. See, e.g., Future of Music
(continued….)

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enable us to pursue meaningful enforcement, consider consumers’ individual concerns, and account for
rapidly changing technology.640
(iii)

Fact-finding processes

248.
In the 2014 Open Internet NPRM, we sought comment about how to most effectively
structure a flexible fact finding process in analyzing open Internet complaints. We asked what level of
evidence should be required in order to bring a claim. With regard to formal complaint proceedings, we
also asked what showing should be required for the burden of production to shift from the party bringing
the claim to the defendant, as well as whether parties could seek expedited treatment.641
249.
Informal Complaints. Our current rules permitting the filing of informal complaints
include a simple and straightforward evidentiary standard. Under section 1.41 of our rules, “[r]equests
should set forth clearly and concisely the facts relied upon, the relief sought, the statutory and/or
regulatory provisions (if any) pursuant to which the request is filed and under which relief is sought, and
the interest of the person submitting the request.”642 Although our rules do not establish any specific
pleading requirements for informal complaints, parties filing them should attempt to provide the
Commission with sufficient information and specific facts that, if proven true, would constitute a
violation of the open Internet rules.
250.
We find that our existing informal complaint rule offers an accessible and effective
mechanism for parties―including consumers and small businesses with limited resources―to report
possible noncompliance with our open Internet rules without being subject to burdensome evidentiary or
pleading requirements. We conclude that there is no basis in the record for modifying the existing
standard and decline to do so.
251.
Formal Complaints. Our current open Internet formal complaint rules provide broad
flexibility to adapt to the myriad potential factual situations that might arise. For example, as noted in the
2010 Open Internet Order, some cases can be resolved based on the pleadings if the complaint and
answer contain sufficient factual material to decide the case. A simple case could thus be adjudicated in
an efficient, streamlined manner. For more complex matters, the existing rules give the Commission
discretion to require other procedures, including discovery, briefing, a status conference, oral argument,
an evidentiary hearing, or referral to an administrative law judge (ALJ).643 Similarly, the rules provide the
Commission discretion to grant temporary relief where appropriate.644

(Continued from previous page)
Coalition Comments at 3; Meetup Comments at 7. We reject the suggestion that the Commission promulgate
additional rules of conduct because it is unrealistic to expect that in this varied and rapidly evolving technological
environment the agency will be able to anticipate the specific conduct that will give rise to future disputes. As for
concerns about the cost of adjudications, as discussed below, we stress that our procedures will allow the
Commission to simplify and streamline the complaint process, and to shift the burden of production, where
appropriate, in order to minimize the time and expense of complaint proceedings.
640

TIA Comments at 3, 21. See also CenturyLink Comments at 36 (“[T]he ‘commercially reasonable’
nondiscrimination framework proposed in the NPRM ultimately relies heavily on the backstop of a rigorous ex post
process for reviewing and evaluating challenges to given practices on a case-by-case basis. A strong reliance on
such a backstop, as opposed to overly prescriptive rules, is the better policy approach.”) (internal citations omitted).
641

2014 Open Internet NPRM, 29 FCC Rcd at 5621, para. 169.

642

47 C.F.R. § 1.41.

643

47 C.F.R. § 8.14(e)-(g); see also 2010 Open Internet Order, 25 FCC Rcd at 17987–88, para. 156 & n.490.

644

See 47 C.F.R. § 8.14(e)(1).

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252.
In addition, our open Internet formal complaint process already contemplates burden
shifting.645 Generally, complainants bear the burden of proof and must demonstrate by a preponderance
of the evidence that an alleged violation has occurred. A complainant must plead with specificity the
basis of its claim and provide facts and documentation, when possible, to establish a prima facie rule
violation.646 Defendants must answer each claim with particularity and furnish facts, supported by
documentation or affidavit, demonstrating that the challenged practice complies with our rules.
Defendants do not have the option of merely pointing out that the complainant has failed to meet his or
her burden; they must show that they are in compliance with the rules. The complainant then has an
opportunity to respond to the defendant’s submission.647 We retain our authority to shift the burden of
production when, for example, the evidence necessary to assess the alleged unlawful practice is
predominately in the possession of the broadband provider.648 If a complaining party believes the burden
of production should shift, it should explain why in the complaint. Complainants also must clearly state
the relief requested.649 We conclude that we should retain our existing open Internet procedural rules and
that all formal complaints that relate to open Internet disputes, including Internet traffic exchange
disputes, will be subject to those rules.650 Although comparable to the section 208 formal complaint
rules,651 the open Internet rules are less burdensome on complainants, who in this context are likely to be
consumers or small edge providers with limited resources.652 Moreover, as described above, the open
Internet procedural rules allow the Commission broader flexibility in tailoring proceedings to fit
particular cases.653
253.
Several commenters stress the need for speedy resolution of complaints, given the rapid
pace of Internet commerce and the potential consumer harms and market chilling effects deriving from
slow resolution.654 While we share these concerns, we decline to adopt fixed, short deadlines for
resolving formal complaints but pledge to move expeditiously. As noted in the 2010 Open Internet
Order, the Commission may shorten deadlines or otherwise revise procedures to expedite the adjudication
645

As we noted in the 2010 Open Internet Order, our current processes permit the Commission to shift the burden of
production where appropriate. See 2010 Open Internet Order, 25 FCC Rcd at 17988, para. 157.
646

Id. at 17988, para. 157 & n.491.

647

Id. at 17988, para. 157.

648

See id.; see also Consumers Union Comments at 8 (arguing that users and edge providers “may not always be
aware of all of the circumstances surrounding a particular practice or negotiation”).
649

47 C.F.R. § 8.14(a)(2)(i).

650

See 47 C.F.R. §§ 8.12-17.

651

See 47 C.F.R. §§ 1.720-1.736.

652

The section 208 rules, for example, require complainants to submit information designations, proposed findings
of fact and conclusions of law, and affidavits demonstrating the basis for complainant’s belief for unsupported
allegations and why complainant could not ascertain facts from any source. See, e.g., 47 C.F.R. §§ 1.721(a) (5), (6),
(10). The open Internet formal complaint rules do not contain similar requirements.
653

See supra Section III.E.2.b. For example, under the open Internet rules, the Commission may order an
evidentiary hearing before an administrative law judge (ALJ) or Commission staff. See 47 C.F.R. §§ 8.14(e)(1), (g).
The section 208 rules contain no such provision. In addition, unlike the section 208 rules, the open Internet rules do
not contain numerical limits on discovery requests. Compare id. § 8.14(f) with id. § 1.729(a).
654

See, e.g., CFA Comments at 5; Cox Comments at 29; MMTC Comments at 12; WISPA comments at 37
(“[U]nless further information is required, the Commission should render a decision on any complaint within 60
days of the filing of the answer or any required supplemental information”); cf. COMPTEL Comments at 33-34
(proposing an expedited review process for informal complaints alleging violations of the Commission’s open
Internet rules requiring complaints to be resolved in 90 days to “provide the necessary legal certainty for broadband
providers, end users and edge providers to better plan their activities in light of clear Commission guidance”).

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of complaints.655 Additionally, the Commission will determine, on the basis of the evidence before it,
whether temporary relief should be afforded any party pending final resolution of a complaint and, if so,
the nature of any such temporary relief.656 As noted above, some open Internet cases may be
straightforward and suitable for decision in a 60 to 90-day timeframe. Other cases may be more factually
and technologically complex, requiring more time for the parties to pursue discovery and build an
adequate record, and sufficient time for the Commission to make a reasoned decision. Therefore, we find
that the existing process―allowing parties to request expedited treatment―best fits the needs of potential
open Internet formal complaints.
c.

Effective Access to Dispute Resolution

254.
In this section, we adopt the proposal from the 2014 Open Internet NPRM to establish an
ombudsperson to assist consumers, businesses, and organizations with open Internet complaints and
questions by ensuring these parties have effective access to the Commission’s processes that protect their
interests.657 The record filed supports our conclusion that these parties would benefit from having an
ombudsperson as a point of contact within the Commission for questions and complaints.658
255.
Comments in support of the establishment of an ombudsperson clearly demonstrate the
range of groups a dedicated ombudsperson can serve. For example, the American Association of People
with Disabilities expressed particular interest in the potential of the ombudsperson to monitor concerns
regarding accessibility and the open Internet.659 In addition, the comments of Higher Education Libraries
asked that libraries be amongst the groups served by the ombudsperson660 and those of the Alaska Rural
Coalition expressed interest in the ombudsperson also being accessible to small carriers with concerns.661
In contrast, some commenters expressed concerns about the creation of a dedicated ombudsperson.662
However, as described below, the ombudsperson will work as a point of contact and a source of

655

2010 Open Internet Order, 25 FCC Rcd at 17988, para. 158, n.494. Further, the rules permit parties to formal
complaint proceedings to request expedited treatment under the Enforcement Bureau’s Accelerated Docket
procedures. See 47 C.F.R. § 8.13(a)(7).
656

See 47 C.F.R. § 8.14(e)(1). The Supreme Court has affirmed the Commission's authority to impose interim
injunctive relief pursuant to section 4(i) of the Act. See United States v. Southwestern Cable Co., 392 U.S. 157,
180–181 (1968); see also 47 U.S.C. § 154(i) (“The Commission may perform any and all acts, make such rules and
regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its
functions.”); Implementation of the Telecommunications Act of 1996; Amendment of Rules Governing Procedures to
Be Followed When Formal Complaints Are Filed Against Common Carriers, CC Docket No. 96-238, Report and
Order, 12 FCC Rcd 22497, 22566, para. 159 & n.464 (1997) (stating that the Commission has authority
under section 4(i) of the Act to award injunctive relief).
657

See 2014 Open Internet NPRM, 29 FCC Rcd at 5621, at para. 171.

658

See, e.g., American Association of People with Disabilities Comments at 5 (noting that an ombudsperson would
allow the commission to better serve the needs of people with disabilities); COMPTEL Comments at 34 (stating
support for the creation of an ombudsperson); Higher Education Libraries Comments at 20 (advocating for the
inclusion of libraries in the list of groups the ombudsperson would serve); Hurwitz Comments at 4 (“The NPRM
considers the creation of an ombudsperson; this proposal should be firmly embraced.”); MMTC Comments at 12
(asking that the ombudsperson serve consumers, including individuals from vulnerable populations).
659

American Association of People with Disabilities Comments at 5.

660

Higher Education Libraries Comments at 20.

661

Alaska Rural Coalition Comments at 17; see also WISPA Comments at 34 (supporting the creation of an
ombudsman only if they are authorized to act on behalf of small carriers as well as consumers and edge providers).
662

See, e.g., Common Cause Comments at 11 (expressing concerns about the necessity of receiving pre-clearance by
an ombudsperson); Kickstarter Comments at 2 (stating that working with an ombudsperson would be onerous); TMobile Comments at 26 (stating that there has been no showing of need to create an ombudsperson).

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assistance as needed, not as an advocate or as an officer who must be approached for approval, addressing
many of these concerns.
256.
The Open Internet Ombudsperson will serve as a point of contact to provide assistance to
individuals and organizations with questions or complaints regarding the open Internet to ensure that
small and often unrepresented groups reach the appropriate bureaus and offices to address specific issues
of concern. For example, the ombudsperson will be able to provide initial assistance with the
Commission’s dispute resolution procedures by directing such parties to the appropriate templates for
formal and informal complaints. We expect the ombudsperson will assist interested parties in less direct
but equally important ways. These could include conducting trend analysis of open Internet complaints
and, more broadly, market conditions, that could be summarized in reports to the Commission regarding
how the market is functioning for various stakeholders. The ombudsperson may investigate and bring
attention to open Internet concerns, and refer matters to the Enforcement Bureau for potential further
investigation. The ombudsperson will be housed in the Consumer & Governmental Affairs Bureau,
which will remain the initial informal complaint intake point, and will coordinate with other bureaus and
offices, as appropriate, to facilitate review of inquiries and complaints regarding broadband services.
3.

Complaint Processes and Forms of Dispute Resolution
a.

Complaint Filing Procedures

257.
In the 2014 Open Internet NPRM, we sought comment on how open Internet complaints
should be received, processed, and enforced. We asked if there were ways to improve access to our
existing informal and formal complaint processes, especially for consumers, small businesses, and other
entities with limited resources and knowledge of how our complaint processes work. We also asked
whether the current enforcement and dispute resolution tools at the Commission’s disposal are sufficient
for resolving violations of open Internet rules.
258.
Informal Complaints. First, we will implement processes to make it easier to lodge
informal open Internet complaints, including a new, more intuitive online complaint interface. 663 The
Commission recently launched a new Consumer Help Center, which provides a user-friendly, streamlined
means to access educational materials on consumer issues and to file complaints. Consumers who seek to
file an open Internet complaint should visit the Consumer Help Center portal and click the Internet icon
for the materials or the online intake system for complaints. The complaint intake system is designed to
guide the consumer efficiently through the questions that need to be answered in order to file a complaint.
The Consumer Help Center will make available aggregate data about complaints received, including those
pertaining to open Internet issues. Some data is currently available, with additional and more granular
data to be provided over time.664 We believe these efforts will improve access to the Commission’s open
Internet complaint processes.665
663

See MMTC Comments at 14 (“As a general matter, the Commission’s primary focus should be to create a userfriendly form that easily can be completed and submitted by a consumer without the need for an attorney.”).
664

The Open Internet Ombudsperson will also be available to assist parties in filing informal complaints. See supra
Section III.E.2.c.
665

The MMTC proposed applying, in the open Internet context, the Equal Employment Opportunity Commission
(EEOC) complaint process set out in Title VII of the Civil Rights Act of 1964, as a way to “provide an excellent
consumer-friendly means of resolving open Internet complaints rapidly, efficiently, and affordably.” Letter from
David Honig, MMTC to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 09-51, 14-28, 09-191, MB Docket
Nos. 14-109, 14-50, 09-182, 07-294, 04-256, Attach. at 6 (filed Dec. 12, 2014) (MMTC Ex Parte Letter); see also
MMTC Comments at 13. Under that process, complainants, prior to seeking formal relief against a party, must
submit their complaint to the EEOC, which reviews and attempts informal resolution, with subsequent formal
complaints only authorized (by a “Right to Sue letter”) if informal resolution is not reached. We agree that the Title
VII complaint process has benefits, including free-to-the-complainant complaint review and mediation and
sequencing that encourages informal dispute resolution prior to formal lawsuits, among others. MMTC Ex Parte
(continued….)

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259.
Formal Complaints. With respect to formal complaints, we amend the Commission’s
Part 8 open Internet rules666 to require electronic filing of all pleadings in open Internet formal complaint
proceedings. Currently, parties to such proceedings must file hard copies of pleadings with the Office of
the Secretary. This process is time-consuming for the parties and makes it difficult for the public to track
case developments. Although members of the public may obtain copies of the pleadings from the
Commission’s Reference Information Center, there is no way to search for or view pleadings
electronically. Today’s actions modernize and reform these existing procedures.667
260.
In 2011, the Commission released a Report and Order revising Part 1 and Part 0 of its
rules.668 One aspect of the Part 1 Order was a requirement that docketing and electronic filing begin to
be utilized in proceedings involving “[n]ewly filed Section 208 formal common carrier complaints and
newly filed Section 224 pole attachment complaints before the Enforcement Bureau.”669 On November
12, 2014, the Commission released an order that amended its procedural rules governing formal
complaints under section 208 and pole attachment complaints under section 224 to require electronic
filing.670 We established within ECFS a “Submit a Non-Docketed Filing” module where all such
complaints must be filed because staff must review a complaint for conformance with the Commission’s
rules before the matter can receive its own unique ECFS proceeding number.671
261.
We now extend those rule changes to open Internet formal complaints.672 When filing
such a complaint, as of the effective date of this Order, the complainant will be required to select “Open
Internet Complaint: Restricted Proceeding” from the “Submit a Non-Docketed Filing” module in ECFS.
The filing must include the complaint, as well as all attachments to the complaint.673 When using ECFS
(Continued from previous page)
Letter Attach. at 2. We believe the Commission’s existing multimodal open Internet complaint processes contain
these benefits as well, as they enable informal resolution of complaints and free mediation by the Enforcement
Bureau’s Market Disputes Resolution Division.
666

47 C.F.R. Part 8.

667

The rule changes described in this section do not apply to open Internet informal complaints. Consumers will
continue to have the ability to file informal complaints electronically with the Consumer & Governmental Affairs
Bureau. The form for filing an informal complaint is available at https://consumercomplaints.fcc.gov/hc/en-us.
668

Amendment of Certain of the Commission’s Part 1 Rules of Practice and Procedure and Part 0 Rules of
Commission Organization, GC Docket No. 10-44, Report and Order, 26 FCC Rcd 1594 (2011) (Part 1 Order).
669

Id. at 1599-1600, para. 15; see also 47 U.S.C. §§ 208, 224.

670

Amendment of Certain of the Commission’s Part 1 Rules of Practice and Procedure Relating to the Filing of
Formal Complaints Under Section 208 of the Communications Act and Pole Attachment Complaints Under Section
224 of the Communications Act, GC Docket No. 10-44, Order, 29 FCC Rcd 14078 (2014).
671

Id. at 14079-80, para. 7. In this order, the Commission also modified the rules for filing requests for confidential
treatment of proprietary information to ensure that the two sets of rules were uniform and consistent with the
Commission’s e-filing practices. Id. at 14080, para. 12 & n.22.
672

We hereby amend the caption for the ECFS docket to “Section 208 and 224 and Open Internet Complaint Inbox,
Restricted Proceedings.” We also amend rule 8.16, which governs confidentiality of proprietary information, to
conform to the changes we made regarding confidentiality in the section 208 and section 224 complaint rules. See
infra Appendix (detailing revisions to 47 C.F.R. § 8.16).
673

All electronic filings must be machine-readable, and files containing text must be formatted to allow electronic
searching and/or copying (e.g., in Microsoft Word or PDF format). Non-text filings (e.g., Microsoft Excel) must be
submitted in native format. Be certain that filings submitted in .pdf or comparable format are not locked or
password-protected. If those restrictions are present (e.g., a document is locked), the ECFS system may reject the
filing, and a party will need to resubmit its document within the filing deadline. The Commission will consider
granting waivers to this electronic filing requirement only in exceptional circumstances. See Part 1 Order, 26 FCC
Rcd at 1602, para. 20 & n.61 (citing Amendment of the Commission’s Ex Parte Rules and Other Procedural Rules,
(continued….)

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to initiate new proceedings, a complainant no longer will have to file its complaint with the Office of the
Secretary unless the complaint includes confidential information.674
262.
Enforcement Bureau staff will review new open Internet formal complaints for
conformance with procedural rules (including fee payment).675 As of the effective date of this Order,
complainants no longer will submit a hard copy of the complaint with the fee payment as described in rule
1.1106.676 Instead, complainants must first transmit the complaint filing fee to the designated payment
center and then file the complaint electronically using ECFS.677
263.
Assuming a complaint satisfies this initial procedural review, Enforcement Bureau staff
then will assign an EB file number to the complaint (EB Identification Number), give the complaint its
own case-specific ECFS proceeding number, and enter both the EB Identification Number and ECFS
proceeding number into ECFS. At that time, Enforcement Bureau staff will post a Notice of Complaint
Letter in the case-specific ECFS proceeding and transmit the letter (and the complaint) via e-mail to the
defendant. On the other hand, if a filed complaint does not comply with the Commission’s procedural
rules, Enforcement Bureau staff will serve a rejection letter on the complainant and post the rejection
letter and related correspondence in ECFS. Importantly, the rejection letter will not preclude the
complainant from curing the procedural infirmities and refiling the complaint.678
264.
As of the effective date of this Order, all pleadings, attachments, exhibits, and other
documents in open Internet formal complaint proceedings must be filed using ECFS, both in cases where
the complaint was initially filed in ECFS and in pending cases filed under the old rules.679 With respect
to complaints filed prior to the effective date of this Order, Enforcement Bureau staff will assign an
individual ECFS proceeding number to each existing proceeding and notify existing parties by email of
this new ECFS number. This ECFS proceeding number will be in addition to the previously-assigned
number. The first step in using ECFS is to input the individual case’s ECFS proceeding number or EB
Identification Number. The new rules allow parties to serve post-complaint submissions on opposing
parties via email without following up by regular U.S. mail.680 Parties must provide hard copies of
submissions to staff in the Market Disputes Resolution Division of the Enforcement Bureau upon
request.681
265.
Consistent with existing Commission electronic filing guidelines,682 any party asserting
that materials filed in an open Internet formal complaint proceeding are proprietary must file with the
(Continued from previous page)
Report and Order and Further Notice of Proposed Rulemaking, 26 FCC Rcd 4517, 4531-32, para. 55 (2011) (Ex
Parte Reform Order)).
674

See infra Appx (detailing revisions to 47 C.F.R. §§ 8.13(b), 8.16).

675

Complainants must remit filing fees for complaints in accordance with 47 C.F.R. § 1.1106.

676

See infra Appx. A (revisions to § 8.13(b)).

677

Complainants may transmit the complaint filing fee via check, wire transfer, or electronically using the
Commission’s Fee Filer System (Fee Filer).
678

Enforcement Bureau staff will not assign an EB file number or a separate ECFS docket number to a rejected
complaint, but interested persons can locate the rejected complaint by searching for party names, dates, rule citation,
or other relevant ECFS search criteria.
679

See infra Appx. A (revisions to §§ 8.13, 8.16).

680

See infra Appx. A (revisions to § 8.13). Parties using email service should be mindful that the Commission’s or
the opposing party’s computer server may reject email attachments that are too large.
681

See infra Appx. A (revisions to § 8.13).

682

See 47 C.F.R. § 0.459(a)(2).

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Commission, using ECFS, a public version of the materials with any proprietary information redacted.683
The party also must file with the Secretary’s Office an unredacted hard copy version that contains the
proprietary information and clearly marks each page, or portion thereof, using bolded brackets,
highlighting, or other distinct markings that identify the sections of the filing for which a proprietary
designation is claimed.684 Each page of the redacted and unredacted versions must be clearly identified as
the “Public Version” or the “Confidential Version,” respectively.685 Both versions must be served on the
same day.686
b.

Alternative Dispute Resolution

266.
The Commission sought comment on various modes of alternative dispute resolution for
resolving open Internet disputes. Currently, parties with disputes before the Commission are free to
voluntarily engage in mediation, which is offered by the Market Disputes Resolution Division (MDRD) at
no charge to the parties. This process has worked well and has led to the effective resolution of numerous
complaints. We will take steps to improve awareness of this approach. In the 2014 Open Internet NPRM,
we asked whether other approaches, such as arbitration, should be considered, in order to ensure access to
dispute resolution by smaller edge providers and other entities without resources to engage in the
Commission’s formal complaint process.
267.
We decline to adopt arbitration procedures or to mandate arbitration for parties to open
Internet complaint proceedings. Under the rules adopted today, parties are still free to engage in
mediation and outside arbitration to settle their open Internet disputes, but alternative dispute resolution
will not be required.687 Commenters generally do not favor arbitration in this context and recommend that
the Commission not adopt it as the default method for resolving complaints.688 Commenters suggest that
mandatory arbitration, in particular, may more frequently benefit the party with more resources and more
understanding of dispute procedure, and therefore should not be adopted.689 We agree with these
concerns and conclude that adoption of arbitration rules is not necessary or appropriate in this context.

683

See infra Appx. A (revisions to § 8.16).

684

Id. Filers must ensure that proprietary information has been properly redacted and thus is not viewable. If a filer
inadvertently discloses proprietary information, the Commission will not be responsible for that disclosure. Part 1
Order, 26 FCC Rcd at 1600-01, para. 17, n.49.
685

See infra Appx. A (revisions to § 8.16).

686

Id.

687

As a general matter, the Commission lacks the ability to subdelegate its authority over these disputes to a private
entity, like a third-party arbitrator, see U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 566 (D.C. Cir. 2004) (“[W]hile
federal agency officials may subdelegate their decision-making authority to subordinates absent evidence of contrary
congressional intent, they may not subdelegate to outside entities–private or sovereign–absent affirmative evidence
of authority to do so”), and “may not require any person to consent to arbitration as a condition of entering into a
contract or obtaining a benefit.” 5 U.S.C. § 575(a)(3). As noted in the 2014 Open Internet NPRM, however,
mandatory third-party arbitration may be allowed so long as it is subject to de novo review by the Commission. See
2014 Open Internet NPRM, 29 FCC Rcd at 5622 n.354 (citing Comcast Corp., Petition for Declaratory Ruling that
The America Channel is not a Regional Sports Network, File No. CSR-7108, Order, 22 FCC Rcd 17938, 17948,
para. 4, n.13 (2007)); see also AAJC Comments at 4.
688

See, e.g., AAJC Comments at 2; Public Citizen and NACA Comments at 1; NASUCA Comments at 17
(“consumers should not be required to submit to arbitration to resolve disputes with broadband providers”).
689

See, e.g., AAJC Comments at 1 (noting that “[i]n most cases, consumers must pay filing fees and the arbitrator’s
costs, which can amount to thousands of dollars,” and the provider can select the arbitration location, making the
process even costlier; further noting that arbitrated decisions are not reviewable and often not public, precluding
consumers from uncovering potential biases in the process); Public Citizen and NACA Comments at 1-2.

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Multistakeholder Processes and Technical Advisory Groups

268.
In the 2014 Open Internet NPRM, the Commission sought comment on whether
enforcement of open Internet rules―including resolution of open Internet disputes―could be supported
by multistakeholder processes that enable the development of independent standards to guide the
Commission in compliance determinations. The Commission also asked whether it should incorporate
the expertise of technical advisory groups into these determinations.690
269.
We conclude that incorporating groups with technical expertise into our consideration of
formal complaints has the potential to inform the Commission’s judgment and improve our understanding
of complex and rapidly evolving technical issues. By requiring electronic filing of all pleadings in open
Internet formal complaint proceedings,691 we will enable interested parties to more easily track
developments in the proceedings and participate as appropriate. Although formal complaint proceedings
are generally restricted for purposes of the Commission’s ex parte rules,692 interested parties may seek
permission to file an amicus brief. The Commission “consider[s] on a case-by-case basis motions by nonparties wishing to submit amicus-type filings addressing the legal issues raised in [a] proceeding,”693 and
grants such requests when warranted.694 Thus, for example, the Commission granted a motion for leave to
file an amicus brief in a section 224 pole attachment complaint proceeding “in light of the broad policy
issues at stake.695
270.
To further advance the values underlying multistakeholder processes―inclusivity,
transparency, and expertise―we also amend our Part 8 formal complaint rules by delegating authority to
the Enforcement Bureau, in its discretion, to request a written opinion from an outside technical
organization. As reviewing courts have established, “[a] federal agency may turn to an outside entity for
advice and policy recommendations, provided the agency makes the final decisions itself.”696
271.
In this instance, given the potential complexity of the issues in open Internet formal
complaint proceedings, it may be particularly useful to obtain objective advice from industry standard-

690

Commenters generally support the idea of having greater input from associations and technical advisory groups
in the Commission’s open Internet regulation. See, e.g., CFA Comments at 5; Layton Comments at 18; Mozilla
Comments at 25-26; TechFreedom Comments at 99-100; WISPA Comments at 35. But see CCIA Comments at 32.
They point out that such input can improve inclusivity and transparency, see, e.g., Layton Comments at 18; Mozilla
Comments at 26; WISPA Comments at 35, and ensures that the Commission’s enforcement is sufficiently informed
by the most up-to-date technical insights regarding network management and other features of Internet engineering.
See, e.g., Comcast Comments at 70; Cox Comments at 29; ITIF Comments at 20; Layton Comments at 19 (“A
multi-stakeholder model is also preferable when evidence is limited and technological change is swift.”); MDTC
Comments at 1; NetAccess Futures Comments at 29.
691

See supra Section III.E.3.a.

692

See 47 C.F.R. §§ 1.1202(d)(2), 1.1208; see also North County Communications Corp., Complainant v. MetroPCS
California, LLC, Defendant, EB-06-MD-007, Memorandum Opinion and Order, 24 FCC Rcd 3807, 3818 n.85
(2009).
693

AT&T Corp. v. Business Telecom, Inc., EB-01-MD-001, Order on Reconsideration, 16 FCC Rcd 21750, 21754,
n.21 (2001) (quoting Pleading Schedule Established for AT&T Corp. v. Ameritech Corp., Public Notice, 13 FCC
Rcd 12057, 12058 (Com. Car. Bur. 1998)).
694

If a party to the proceeding is a member of or is otherwise represented by an entity that requests leave to file an
amicus brief, the entity must disclose that affiliation in its request.
695

In the matter of Heritage Cablevision Assoc. of Dallas, L.P. v. Texas Util. Elec. Co., Memorandum Opinion and
Order, 6 FCC Rcd 7099, 7101, para. 10, n.13 (1991), review denied sub nom. Texas Utilities Elec. Co. v. F.C.C., 997
F.2d 925 (D.C. Cir. 1993).
696

U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 568 (D.C. Cir. 2004).

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setting bodies or other similar organizations.697 Providing Commission staff with this flexibility also will
enable more informed determinations of technical Internet issues that reflect current industry standards
and permit staff to keep pace with rapidly changing technology.698 Expert organizations will not be
required to respond to requests from the Enforcement Bureau for opinions; however, any organization
that elects to do so must provide the opinion within 30 days of the request―unless otherwise specified by
the staff―in order to facilitate timely dispute resolution. We find that this approach will allow for the
inclusivity the multistakeholder process offers, while also providing the predictability and legal certainty
of the Commission’s formal dispute resolution process.699
272.
For informal complaints and investigations, the Enforcement Bureau’s efforts will
continue to be informed by resolutions of formal complaints, and will also continue to be informed by the
standards developed by existing multistakeholder, industry, and consumer groups.700 The Enforcement
Bureau will also work with interested parties on an informal basis to identify ways to promote compliance
with the open Internet rules.
F.

Legal Authority

273.
We ground the open Internet rules we adopt today in multiple sources of legal
authority—section 706, Title II, and Title III of the Communications Act. We marshal all of these
sources of authority toward a common statutorily-supported goal: to protect and promote Internet
openness as platform for competition, free expression and innovation; a driver of economic growth; and
an engine of the virtuous cycle of broadband deployment.
274.
We therefore invoke multiple, complementary sources of legal authority.701 As a number
of parties point out, our authority under section 706 is not mutually exclusive with our authority under

697

See Charter Comments at 35-36 (recommending that the Commission “take full advantage of the multistakeholder forums that have helped to define the Internet and enable it to flourish.”); Cox Comments at 29
(supporting the NPRM’s proposal to adopt additional dispute resolution mechanisms that are informed by input from
technical advisory groups); Mozilla Comments at 25-26 (recommending that technical bodies like the Open Internet
Advisory Committee (OIAC) and the Broadband Internet Technical Advisory Group (BITAG) be consulted on
technical issues like reasonable network management); NetAccess Futures Comments at 29.
698

Whenever possible, the Enforcement Bureau should request advisory opinions from expert organizations whose
members do not include any of the parties to the proceeding. If no such organization exists, the Enforcement Bureau
may refer issues to an expert organization with instructions that representatives of the parties to the complaint
proceeding may not participate in the organization’s consideration of the issues referred or the drafting of its
advisory opinion.
699

Moreover, we note that the Commission cannot as a matter of law delegate its dispute resolution processes to
outside organizations. See supra note 687. Accordingly, while we support the goals of Mozilla’s “three-phase”
dispute resolution model, the Commission cannot go so far as to delegate leadership over open Internet disputes to
outside multistakeholder groups. See Mozilla Comments at 26.
700

See, e.g., Comcast Comments at 70; ITIF Comments at 20; MDTC Comments at 1.

701

CDT Reply at 3 (suggesting the Commission consider an approach that “builds upon the recent D.C. Circuit
decision and some of the strengths of Title II and Section 706.”); CFA Comments at 66 (“[T]he authorities
overlap—a service can fall under more than one authority simultaneously—and are complementary (in the sense that
they trigger different tools for different purposes). Therefore, there is no conflict between asserting the authority
and developing the power under each of the Titles and sections of the Act. In fact . . . it would be imprudent for the
Commission not to pursue all of the authorities it has available.”); iClick2Media Comments at 10 (“By combining
the power of 706, Title II and Title III the FCC is afforded the reasoning and the power granted to it to protect the
Openness of the Internet for years to come.”); AARP Comments at 40 (“Title II and Section 706 are highly
complementary.”).

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Titles II and III of the Act.702 Rather, we read our statute to provide several, alternative sources of
authority that work in concert toward common ends. As described below, under section 706, the
Commission has the authority to adopt these open Internet rules to encourage and accelerate the
deployment of broadband to all Americans. In the Declaratory Ruling and Order below, we find, based
on the current factual record, that BIAS is a telecommunications service subject to Title II and exercise
our forbearance authority to establish a “light-touch” regulatory regime, which includes the application of
sections 201 and 202. This finding both removes the common carrier limitation from the exercise of our
affirmative section 706 authority and also allows us to exercise authority directly under sections 201 and
202 of the Communications Act in adopting today’s rules. Finally, these rules are also supported by our
Title III authority to protect the public interest through spectrum licensing. In this section, we discuss the
basis and scope of each of these sources of authority and then explain their application to the open
Internet rules we adopt today.
1.

Section 706 Provides Affirmative Legal Authority for Our Open Internet
Rules.

275.
Section 706 affords the Commission affirmative legal authority to adopt all of today’s
open Internet rules. Section 706(a) directs the Commission to take actions that “shall encourage the
deployment on a reasonable and timely basis of advanced telecommunications capability to all
Americans.”703 To do so, the Commission may utilize “in a manner consistent with the public interest,
convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote
competition in the local telecommunications market, or other regulating methods that remove barriers to
infrastructure investment.”704 Section 706(b), in turn, directs that the Commission “shall take immediate
action to accelerate deployment of such capability by removing barriers to infrastructure investment and
by promoting competition in the telecommunications market,” if it finds after inquiry that advanced
telecommunications capability is not being deployed to all Americans in a reasonable and timely
fashion.705 “Advanced telecommunications capability” is defined as “high-speed, switched, broadband
telecommunications capability that enables users to originate and receive high-quality voice, data,
graphics, and video telecommunications using any technology.”706 Sections 706(a) and (b) each provide
an express, affirmative grant of authority to the Commission and the rules we adopt today fall well within
their scope.
276.
Section 706(a) and (b) Are Express Grants of Authority. In Verizon, the D.C. Circuit
squarely upheld as reasonable the Commission’s reading of section 706(a) as an affirmative grant of
authority.707 Finding that provision ambiguous, the court upheld the Commission’s interpretation as
702

CFA Comments at 68 (explaining that “recent court cases have made it clear that 706 and other authorities can be
invoked simultaneously (although they need not be)”); AOL Comments at 9 (“Section 706 and Title II need not be
mutually exclusive.”).
703

47 U.S.C. § 1302(a). Section 706(a) provides in full:
The Commission and each State commission with regulatory jurisdiction over telecommunications
services shall encourage the deployment on a reasonable and timely basis of advanced
telecommunications capability to all Americans (including, in particular, elementary and
secondary schools and classrooms) by utilizing, in a manner consistent with the public interest,
convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote
competition in the local telecommunications market, or other regulating methods that remove
barriers to infrastructure investment.

704

Id.

705

47 U.S.C. § 1302(b).

706

Id. § 1302(d)(1).

707

Verizon, 740 F.3d at 637 (“The question, then, is this: Does the Commission's current understanding of section
706(a) as a grant of regulatory authority represent a reasonable interpretation of an ambiguous statute? We believe
(continued….)

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consistent with the statutory text,708 legislative history,709 and the Commission’s lengthy history of
regulating Internet access.710
277.
Separately addressing section 706(b), the D.C. Circuit held, citing similar reasons, that
the “Commission has reasonably interpreted section 706(b) to empower it to take steps to accelerate
broadband deployment if and when it determines that such deployment is not “reasonable and timely.”711
The 10th Circuit, in upholding the Commission’s reform of our universal service and inter-carrier
compensation regulatory regime, likewise concluded that the Commission reasonably construed section
706(b) as an additional source of authority for those regulations.712
278.
In January, the Commission adopted the 2015 Broadband Progress Report, which
determined that advanced telecommunications capability is not being deployed in a reasonable and timely
manner to all Americans.713 That determination triggered our authority under section 706(b) to take
immediate action, including the adoption of today’s open Internet rules, to accelerate broadband
deployment to all Americans.
279.
We interpret sections 706(a) and 706(b) as independent, complementary sources of
affirmative Commission authority for today’s rules. Our interpretation of section 706(a) as a grant of
express authority is in no way dependent upon our findings in the section 706(b) inquiry. Thus, even if
the Commission’s inquiry were to have resulted in a positive conclusion such that our section 706(b)
authority were not triggered this would not eliminate the Commission’s authority to take actions to
encourage broadband deployment under section 706(a).714
(Continued from previous page)
it does.”) A few commenters argue that the court incorrectly concluded that section 706(a) and (b) are express
grants of authority. See, e.g., TechFreedom Comments at 62-70 (arguing that section 706 is not an independent
grant of authority and that the court erred in its Chevron analysis); CenturyLink Comments at 53 (“Section 706(a)
contains no grant of independent regulatory authority of any kind . . . .”). For the reasons discussed in the text, by
the Commission in the 2010 Open Internet Order, and the court in Verizon and In re FCC, we disagree.
708

Verizon, 740 F.3d at 637-38. As the Verizon court explained, for example, “Section 706(a)’s reference to state
commissions does not foreclose such a reading” of section 706(a) as an express grant of authority. Id. at 638. Nor,
as one of the dissents suggests, (see Pai Dissent at 55), is the statute’s reference to “[s]tate commission” rendered
meaningless by the Commission’s reaffirmation that BIAS is an interstate service for regulatory purposes. See infra
para 431. The Commission’s interpretation does not preclude all state commission action in this area, just that
which is inconsistent with the federal regulatory regime we adopt today. See NARUC Broadband Data Order, 25
FCC Rcd at 5054-55.
709

Id. at 638-39.

710

Id. (distinguishing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000)) (“[W]hen Congress passed
section 706(a) in 1996, it did so against the backdrop of the Commission’s long history of subjecting to common
carrier regulation the entities that controlled the last-mile facilities over which end users accessed the Internet.”).
711

Verizon, 740 F.3d at 640-43.

712

In re FCC 11-161, 753 F.3d 1015, 1053 (10th Cir. 2014).

713

See 2015 Broadband Progress Report at para. 4.

714

See, e.g., Letter from Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal & Economic Public
Policy Studies, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, Attach. A, Phoenix Center Policy
Bulletin No. 35, What are the Bounds of the FCC’s Authority over Broadband Service Providers? A Review of the
Recent Case Law at 23 (filed Oct. 31, 2014) (Phoenix Center Oct. 31, 2014 Ex Parte Letter) (concluding that the
Verizon court took the view that “706(a) is independent from 706(b), because the court seemed to say that the
defined trigger of 706(b) is irrelevant to the Commission’s on-going (and independent) effort to promote broadband
deployment under 706(a) under foreseeable market conditions”). Contrary to one of the dissenting statements, (see
Pai Dissent at 56), Commission actions adopted pursuant to a negative section 706(b) determination would not
simply be swept away by a future positive section 706(b) finding. The Commission takes such measures precisely
to achieve section 706(b)’s goal of accelerating deployment. That they may succeed in achieving that goal so as to
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280.
We reject arguments that we lack rulemaking authority to implement section 706 of the
1996 Act.715 In Verizon, the D.C. Circuit suggested that section 706 was part of the Communications Act
of 1934.716 Under such a reading, the Commission would have all its standard rulemaking authority under
sections 4(i), 201(b) and 303(r) to adopt rules implementing that provision.717 Even if this were not the
case, by its terms our section 4(i) rulemaking authority is not limited just to the adoption of rules pursuant
to substantive jurisdiction under the Communications Act,718 and the Verizon court cited as reasonable the
Commission’s view that Congress, in placing upon the Commission the obligation to carry out the
purposes of section 706, “necessarily invested the Commission with the statutory authority to carry out
those acts.”719
281.
The Open Internet Rules Fall Well Within the Scope of Our Section 706 Authority. In
Verizon, the D.C. Circuit agreed with the Commission that while authority under section 706 may be
broad, it is not unbounded.720 Both the Commission and the court have articulated its limits. First,
section 706 regulations must be within the scope of the Commission’s subject matter jurisdiction over
“interstate and foreign communications by wire and radio.”721 And second, any such regulations must be
(Continued from previous page)
contribute to a positive section 706(b) finding does not subsequently render them unnecessary or unauthorized
without any further Commission process. Throwing away such measures because they are working would be like
“throwing away your umbrella in a rainstorm because you are not getting wet.” Shelby v. Holder, 133 S. Ct. 2612,
2650 (2013) (Ginsburg, J., dissenting). Even if that were not the case, independent section 706(a) authority would
remain. We mention, however, two legal requirements that appear relevant. First, section 408 of the Act mandates
that “all” FCC orders (other than orders for the payment of money) “shall continue in force for the period of time
specified in the order or until the Commission or a court of competent jurisdiction issues a superseding order.” 47
U.S.C. § 408. Second, the Commission has a “continuing obligation to practice reasoned decisionmaking” that
includes revisiting prior decisions to the extent warranted. Aeronautical Radio v. FCC, 928 F.2d 428 (D.C. Cir.
1991). We are aware of no reason why these requirements would not apply in this context.
715

See, e.g., Earl Comstock Reply at 18-33 (arguing that section 706 contained no affirmative authority for
rulemaking).
716

See Verizon, 740 F.3d at 650 (stating that “Congress expressly directed that the 1996 Act . . . be inserted into the
Communications Act of 1934”) (citation omitted).
717

47 U.S.C. § 154(i) (“The Commission may . . . make such rules and regulations . . . not inconsistent with this
chapter, as may be necessary in the execution of its functions.”); 47 U.S.C. § 201(b) (“The Commission may
prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this
chapter.”); 47 U.S.C. § 303(r) (“Except as otherwise provided in this chapter, the Commission from time to time, as
public convenience, interest, or necessity requires, shall . . . [m]ake such rules and regulations and prescribe such
restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this
chapter”).
718

See 47 U.S.C. § 154(i).

719

Verizon, 740 F.3d at 638 (quoting 2010 Open Internet Order, 25 FCC Rcd at 17969, para. 120).

720

Verizon, 740 F.3d at 639-40.

721

Id. at 640 (citing 47 U.S.C. §152(a)). Some have read this to require that regulations under section 706 must be
ancillary to existing Commission authority in Title II, III or VI of the Act. See Phoenix Center Oct. 31, 2014 Ex
Parte Letter, Attach. A at 25 (“Section 706 is really another form of the Commission’s ancillary authority—that is,
like any use of its traditional ancillary authority . . . Verizon requires the Commission to tie its use of Section 706 to
a specific delegation of authority in Title II, Title III, or Title VI.”). We disagree. To be sure, with the
Commission’s exercise of both section 706 and ancillary authority, regulations must be within the Commission’s
subject matter jurisdiction. Indeed, this is the first prong of the test for ancillary jurisdiction. American Library
Ass'n v. FCC, 406 F.3d 689, 703–04 (D.C. Cir. 2005). But we do not read the Verizon decision as applying the
second prong—which requires that the regulation be sufficiently linked to another provision of the Act—to our
exercise of section 706 authority. Section 706 “does not limit the Commission to using other regulatory authority
already at its disposal, but instead grants it the power necessary to fulfill the statute’s mandate.” See Verizon, 740
F.3d at 641 (citing 2010 Open Internet Order, 25 FCC Rcd at 17972, para. 123).

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designed to achieve the purpose of section 706(a)—to “encourage the deployment on a reasonable and
timely basis of advanced telecommunications capability to all Americans.”722
282.
In Verizon, the court firmly concluded that the Commission’s 2010 Open Internet Order
regulations fell within the scope of section 706. It explained that the rules “not only apply directly to
broadband providers, the precise entities to which section 706 authority to encourage broadband
deployment presumably extends, but also seek to promote the very goal that Congress explicitly sought to
promote.”723 Further, the court credited “the Commission’s prediction that the Open Internet Order
regulations will encourage broadband deployment.”724 The same is true of the open Internet rules we
adopt today. Our regulations again only apply to last-mile providers of broadband services—services that
are not only within our subject matter jurisdiction, but also expressly within the terms of section 706. 725
And, again, each of our rules is designed to remove barriers in order to achieve the express purposes of
section 706. We also find that our rules will provide additional benefits by promoting competition in
telecommunications markets, for example, by fostering competitive provision of VoIP and video services
and informing consumers’ choices.
2.

Authority for the Open Internet Rules Under Title II with Forbearance

283.
In light of our Declaratory Ruling below, the rules we adopt today are also supported by
our legal authority under Title II to regulate telecommunications services. For the reasons set forth
below, we have found that BIAS is a telecommunications service and, for mobile broadband, commercial
mobile services or its functional equivalent. While we forbear from applying many of the Title II
regulations to this service,726 we have applied sections 201, 202, and 208 (along with related enforcement
authorities). These provisions provide an alternative source of legal authority for today’s rules.
284.
Section 201(a) places a duty on common carriers to furnish communications services
subject to Title II “upon reasonable request” and “establish physical connections with other carriers”
where the Commission finds it to be in the public interest.727 Section 201(b) provides that “[a]ll charges,
practices, classifications, and regulations for and in connection with such communication service, shall be
just and reasonable, and any such charge, practice, classification, or regulation that is unjust or
unreasonable is declared to be unlawful.”728 It also gives the Commission the authority to “prescribe such
rules and regulations as may be necessary in the public interest to carry out the provisions of this
chapter.”729 Section 202(a) makes it “unlawful for any common carrier to make any unjust or
unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or
722

Verizon, 740 F.3d at 640 (citing 47 U.S.C. § 1302(a)).

723

Id. at 643.

724

Id. at 644.

725

In response to parties expressing concerns that section 706 could be read to impose regulations on edge providers
or others in the Internet ecosystem, see, e.g., Disney et al. Reply at 2; ITIF Comments at 9-10, we emphasize that
today’s rules apply only to last-mile broadband providers. We reject calls from other commenters to exercise our
section 706 authority to adopt open Internet regulations for edge providers. See, e.g., ACA Comments at 47-48; Cox
Comments at 13 (“[F]rom the Commission’s perspective, it should not make any difference whether the entity
engaging in blocking or other discrimination is a broadband provider or an edge provider that hosts its content
online.”). Today’s rules are specifically designed to address broadband providers’ incentives and ability to erect
barriers that harm the virtuous cycle. We see no basis for applying these rules to any other providers. See supra
Section III.D.
726

See infra Section V.

727

47 U.S.C. § 201(a).

728

47 U.S.C. § 201(b).

729

Id.

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in connection with like communication service, directly or indirectly, by any means or device, or to make
or give any undue or unreasonable preference or advantage to any particular person, class of persons, or
locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable
prejudice or disadvantage.”730 As described below, these provisions provide additional independent
authority for the rules we adopt today.
3.

Title III Provides Additional Authority for Mobile Broadband Services

285.
With respect to mobile broadband Internet access services, today’s open Internet rules are
further supported by our authority under Title III of the Act to protect the public interest through spectrum
licensing.731 While this authority is not unbounded, we exercise it here in reliance upon particular Title III
delegations of authority.
286.
Section 303(b) directs the Commission, consistent with the public interest, to “[p]rescribe
the nature of the service to be rendered by each class of licensed stations and each station within any
class.”732 Today’s conduct regulations do precisely this. They lay down rules about “the nature of the
service to be rendered” by licensed entities providing mobile broadband Internet access service, making
clear that this service may not be offered in ways that harm the virtuous cycle. Today’s rules specify the
form this service must take for those who seek licenses to offer it. In providing such licensed service,
broadband providers must adhere to the rules we adopt today.
287.
This authority is bolstered by at least two additional provisions. First, as the D.C. Circuit
has explained, section 303(r) supplements the Commission’s ability to carry out its mandates via
rulemaking.733 Second, section 316 authorizes the Commission to adopt new conditions on existing
licenses if it determines that such action “will promote the public interest, convenience, and necessity.”734
Nor do today’s rules work any fundamental change to those licenses.735 Rather we understand our rules to
be largely consistent with the current operation of the Internet and the current practices of mobile
broadband service providers.736
4.

Applying these Legal Authorities to Our Open Internet Rules

288.
Bright line rules. Applying these statutory sources of authority, we have ample legal
bases on which to adopt the three bright-line rules against blocking, throttling, and paid prioritization. To
begin, we have found that broadband providers have the incentive and ability to engage in such
practices—which disrupt the unity of interests between end users and edge providers and thus threaten the
virtuous cycle of broadband deployment. As the D.C. Circuit found with respect to the 2010 conduct
730

47 U.S.C. § 202(a).

731

See Cellco, 700 F.3d at 541-42 (citing Reexamination of Roaming Obligations of Commercial Mobile Radio
Service Providers and Other Providers of Mobile Data Services, WT Docket No. 05-265, Second Report and Order,
26 FCC Rcd 5411, 5440, para. 62 (2011)); 47 U.S.C. §§ 301, 304, 307, 309.
732

47 U.S.C. § 303(b).

733

Cellco, 700 F.3d at 543 (citing Motion Picture Ass’n of America v. FCC, 309 F.3d 796, 806 (D.C. Cir. 2002)).

734

47 U.S.C. § 316. The Commission also has ample authority to impose conditions to serve the public interest in
awarding licenses in the first instance. See 47 U.S.C. §§ 309(a); 307(a). Indeed, the Commission has required 700
MHz C Block spectrum licensees to comply with open Internet conditions to advance the public interest in
innovation and consumer choice. See 700 MHz Second Report and Order, 22 FCC Rcd at 15363, para. 201.
735

See Cellco, 700 F.3d at 543-44.

736

See, e.g., Verizon Comments at 3 (“Verizon has been clear with our customers that we will not block their access
to any content, applications, services, or devices based on their source.”); Charter Comments at 1 (“Like other
Internet Service Providers (ISPs), Charter does not block lawful content or engage in pay-for-prioritization.”);
AT&T Comments at 3 (“AT&T has no intention of creating fast lanes and slow lanes or of using prioritization
arrangements for discriminatory or anti-competitive ends, as some net neutrality proponents fear.”).

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rules, such broadband provider practices fall squarely within our section 706 authority. The court struck
down the 2010 conduct rules after finding that the Commission failed to provide a legal justification that
would take the rules out of the realm of impermissibly mandating common carriage, but did not find
anything impermissible about the need for such rules to protect the virtuous cycle.737 Given our
classification of broadband Internet access service as a telecommunications service, the court’s rationale
for vacating our 2010 conduct rules no longer applies and, for the reasons discussed above, we have legal
justification to support our bright-line rules under section 706.738
289.
Our bright-line rules are also well grounded in our Title II authority. In Title II contexts,
the Commission has made clear that blocking traffic generally is unjust and unreasonable under section
201.739 The Commission has likewise found it unjust and unreasonable for a carrier to refuse to allow
non-harmful devices to attach to the network.740 And with respect to throttling, Commission precedent
has likewise held that “no carriers . . . may block, choke, reduce or restrict traffic in any way.”741 We see
no basis for departing from such precedents in the case of broadband Internet access services.742 As
discussed above, the record here demonstrates that blocking and throttling broadband Internet access
services harm consumers and edge providers, threaten the virtuous cycle, and deter broadband
deployment.743 Consistent with our prior Title II precedents, we conclude that blocking and throttling of
broadband Internet access services is an unjust and unreasonable practice under section 201(b).
290.
Some parties have suggested that the Commission cannot adopt a rule banning paid
prioritization under Title II.744 We disagree and conclude that paid prioritization is an unjust and
737

Verizon, 740 F.3d at 655-58.

738

The record generally affirms our authority to adopt bright-line rules under Section 706, absent a contrary
statutory prohibition. See, e.g., Comcast Dec. 24, 2014 Ex Parte Letter at 1-3; Waxman Oct. 3, 2014 Ex Parte Letter
at 9 (“Once broadband Internet access is reclassified, I believe the FCC can use its authorities under section 706 to
adopt three bright-line rules: a ‘no blocking’ rule, a ‘no throttling’ rule, and a ‘no paid prioritization’ rule.”).
739

See USF/ICC Transformation Order, 26 FCC Rcd at 17903 (“Commission precedent provides that no carriers,
including interexchange carriers, may block, choke, reduce or restrict traffic in any way.”); id. at 17903, para. 734
(reiterating that call blocking is impermissible in intercarrier compensation disputes); Developing an Unified
Intercarrier Compensation Regime; Establishing Just and Reasonable Rates for Local Exchange Carriers, WC
Docket No. 07-135, CC Docket No. 01-92, Declaratory Ruling, 27 FCC Rcd 1351, 1354, para. 9 (Wireline Comp.
Bur. 2012) (2012 Declaratory Ruling) (discussing call blocking in rural call completion context); Establishing Just
and Reasonable Rates for Local Exchange Carriers; Call Blocking by Carriers, WC Docket No. 07-135,
Declaratory Ruling and Order, 22 FCC Rcd 11629, 11629-31, paras. 1, 6 (Wireline Comp. Bur. 2007) (2007
Declaratory Ruling) (reiterating that call blocking is impermissible as a self-help measure to address intercarrier
compensation dispute); see also Blocking Interstate Traffic in Iowa, Memorandum Opinion and Order, 2 FCC Rcd
2692 (1987) (denying application for review of Bureau order, which required petitioners to interconnect their
facilities with those of an interexchange carrier in order to permit the completion of interstate calls over certain
facilities).
740

See Carterfone, 13 FCC 2d at 424.

741

USF/ICC Transformation Order, 26 FCC Rcd at 17903, para. 734; 2007 Declaratory Ruling, 22 FCC Rcd at
11631, para 6; see also Rural Call Completion Order, 28 FCC Rcd at 16155-56, para. 29.
742

Commenters agree that the Commission should apply these precedents here. See, e.g., Free Press Comments at
44.; Public Knowledge Nov. 7, 2014 Ex Parte Letter at 1; Waxman Oct. 3, 2014 Ex Parte Letter at 9-10.
743

See supra Section III.C.1.

744

See, e.g., TWC Comments at 15 (“Against this backdrop, it is highly unlikely that Title II would support a flat
ban on an entire category of potential business arrangements, such as paid prioritization.”); NCTA Comments at 2829 (“Thus, far from supporting an outright ban on an entire class of prioritization arrangements between ISPs and
edge providers, Section 202(a) would at most authorize the Commission to undertake a fact-specific, case-by-case
analysis of the reasonableness of any particular prioritization arrangement . . .”); Alcatel-Lucent Comments at 10
(“Because Title II has never been interpreted to prohibit all forms of preferential treatment, the Commission could
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unreasonable practice under section 201(b). The unjust and unreasonable standards in sections 201 and
202 afford the Commission significant discretion to distinguish acceptable behavior from behavior that
violates the Act. Indeed, the very terms “unjust” and “unreasonable” are broad, inviting the Commission
to undertake the kind of line-drawing that is necessary to differentiate just and reasonable behavior on the
one hand from unjust and unreasonable behavior on the other.745
291.
Acting within this discretion, the Commission has exercised its authority, both through
adjudication and rulemaking, under section 201(b) to ban unjust and unreasonable carrier practices as
unlawful under the Act.746 Although the particular circumstances have varied, in reviewing these
precedents, we find that the Commission generally takes this step where necessary to protect competition
and consumers against carrier practices for which there was either no cognizable justification for the
action or where the public interest in banning the practice outweighed any countervailing policy
concerns.747 Based on the record here, we find that paid prioritization presents just such a case,
threatening harms to consumers, competition, innovation, and deployment that outweigh any possible
countervailing justification of public interest benefit.748 Our interpretation and application of section
(Continued from previous page)
not rely upon its Title II authority to declare all forms of paid prioritization inherently unreasonable.”); CenturyLink
Comments at 51.
745

As the D.C. Circuit has stated, for example, “the generality of these terms . . . opens a rather large area for the
free play of agency discretion, limited of course by the familiar ‘arbitrary’ and ‘capricious’ standard in the
Administrative Procedure Act.” Bell Atlantic Tel. Co. v. FCC, 79 F.3d 1195, 1202 (D.C. Cir. 1996). Stated
differently, because both sections “set out broad standards of conduct,” it is up to the “Commission [to] give[] the
standards meaning by defining practices that run afoul of carriers’ obligation, either by rulemaking or by case-bycase adjudication.” Personal Communications Industry Association’s Broadband Personal Communications
Services Alliance’s Petition for Forbearance et al., WT Docket No. 98-100, GN Docket No. 94-33, MSD-92-14,
Memorandum Opinion and Order and Notice of Proposed Rulemaking, 13 FCC Rcd 16857, para. 15 (1998).
746

We disagree with TWC’s suggestion that applying “Section 201(b) requires a contextual, case-specific analysis.”
TWC Comments at 16. The Commission need not proceed through adjudication in announcing a broad ban on a
particular practice. See, e.g., Rural Call Completion Order, 28 FCC Rcd at 16155-56, para. 29; Truth in Billing
Rules, CC Docket No. 98-17, First Report and Order and Further Notice of Proposed Rulemaking, 14 FCC Rcd
7492 (1999) (relying, in part, on section 201(b) in adopting truth-in-billing requirements). Indeed, the text of section
201(b) itself gives the Commission authority to “prescribe such rules and regulations as may be necessary in the
public interest to carry out the provisions of this chapter.” 47 U.S.C. 201(b).
747

See Long Distance Direct, Inc., Apparent Liability for Forfeiture, File No. ENF-99-01, Memorandum Opinion
and Order, 15 FCC Rcd 3297, 3302, para. 14 (2000) (LDDI MO&O) (finding that the company’s practice of
cramming membership and other unauthorized fees on consumer telephone bills was an unjust and unreasonable
practice in connection with communication services); Central Telecom Long Distance, Inc., Apparent Liability for
Forfeiture, File No. EB-TCD-13-00011651, Notice of Apparent Liability For Forfeiture, 29 FCC Rcd 5517, 552327, paras. 14-21 (2014) (Central NAL); U.S. Telecom Long Distance, Inc. Apparent Liability for Forfeiture, File No.
EB-TCD-13-00008959, Notice of Apparent Liability For Forfeiture, 29 FCC Rcd 823, 829-834, paras. 14–20 (2014)
(USTLD NAL); Central Telecom Long Distance, Inc., Apparent Liability for Forfeiture, File No. EB-TCD-1300006333, Notice of Apparent Liability For Forfeiture, 28 FCC Rcd at 17202-06, paras. 15-22 (2013). See also
NobelTel LLC, Apparent Liability for Forfeiture, File No. EB-TCD-12-0000412, Notice of Apparent Liability For
Forfeiture, 27 FCC Rcd 11760, at 11762-63, para. 6 (2012) (finding that “unfair and deceptive marketing practices
by interstate common carriers constitute unjust and unreasonable practices under Section 201(b)”).
748

See supra paras. 126-128. NCTA contends that we cannot apply section 201(b) to ban paid prioritization because
“no broadband providers have entered into such arrangements or even have plans to do so.” NCTA Comments at
29. Our open Internet rules, however, cannot take the status quo for granted, particularly where one provider has
told the D. C. Circuit that but for our 2010 rules, it would be pursuing such arrangements. See Verizon Oral Arg. Tr.
at 31 (“I’m authorized to state by my client [Verizon] today that but for these rules we would be exploring those
commercial arrangements, but this order prohibits those, and in fact would shrink the types of services that will be
available on the Internet.”). Rather, we put in place rules that in our judgment will best protect consumers and
promote competition into the future. Further, as explained above, if a provider can—in the rare case—demonstrate
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201(b) in this case to ban paid prioritization is further bolstered by the directive in section 706 to take
actions that will further broadband deployment.
292.
Several commenters argue that we cannot ban paid prioritization under section 202(a),
pointing to Commission precedents allowing carriers to engage in discrimination so long as it is
reasonable.749 As discussed above, however, we adopt this rule pursuant to sections 201(b) and 706, not
202(a). And nothing about section 202(a) prevents us from doing so. We recognize that the Commission
has historically interpreted section 202(a) to allow carriers to engage in reasonable discrimination,
including by charging some customers more for better, faster, or more service.750 But those precedents
stand for the proposition that such discrimination is permitted, not that it must be allowed in all cases.751
None of those cases of discrimination presented the kinds of harms demonstrated in the record here—
harms that form the basis of our decision to ban the practice as unjust and unreasonable under section
201(b), not 202(a). Furthermore, none of those precedents involved practices that the Commission has
twice found threaten to create barriers to broadband deployment that should be removed under section
706. In light of our discretion in interpreting and applying sections 201 and 202 and insofar as section
706(a) is “a ‘fail-safe’ that ‘ensures’ the Commission’s ability to promote advanced services,”752 we
decline to interpret section 202(a) as preventing the Commission from exercising its authority under
sections 201(b) and 706 to ban paid prioritization practices that harm Internet openness and
deployment.753
293.
With respect to mobile broadband Internet access services, our bright-line rules are also
grounded in the Commission’s Title III authority to ensure that spectrum licensees are providing service
in a manner consistent with the public interest.754
294.
No-Unreasonable Interference/Disadvantage Standard. As with our bright-line rules, the
no-unreasonable interference/disadvantage standard we adopt today is supported by our section 706
(Continued from previous page)
that a particular paid prioritization arrangement would have a cognizable public interest benefit and inflict no harm
to the open nature of the Internet, it may be eligible for a waiver.
749

See, e.g., NCTA Comments 27-29; TWC Comments 14-16; Letter from William L. Kovacks, Chamber of
Commerce to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, at 3, n.13 (filed July 15, 2014); ITIF
Comments at 9.
750

See, e.g., Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and
Local Public Safety Agency Communication Requirements Through the Year 2010; Establishment of Rules and
Requirements for Priority Access Service, WT Docket No. 96-86, Second Report & Order, 15 FCC Rcd 16720
(2000) (finding Priority Access Service, a wireless priority service for both governmental and non-government
public safety personnel, “prima facie lawful” under section 202); Access Charge Reform; Price Cap Performance
Review for Local Exchange Carriers; Interexchange Carrier Purchases Of Switched Access Services Offered By
Competitive Local Exchange Carriers; Petition of US West Communications, Inc. for Forbearance from Regulation
as a Dominant Carrier in the Phoenix, Arizona MSA, CC Docket Nos. 96-262, 94-1, 98-157, CCB/CPD File No. 9863, 14 FCC Rcd 14221 (1999) (granting dominant carriers pricing flexibility for special access services, allowing
both higher charges for faster connections as well as individualized pricing and customers discounts).
See also Orloff v. FCC, 352 F.3d 415 (D.C. Cir. 2003) (upholding carriers’ ability to offer differential discounts to
retail customers); Ameritech Operating Cos. Revisions to Tariff FCC No. 2, Order, DA 94-1121 (Common Carrier
Bur. 1994) (upholding reasonableness of rate differentials based on cost considerations).
751

To be sure, section 202(a) prohibits “unreasonable discrimination” for “like” communications services. But this
provision does not, on its face, deprive the Commission of the authority to take actions under other provisions of the
Act against discrimination that may not constitute “unreasonable discrimination” under section 202(a).
752

Verizon, 740 F.3d at 639 (quoting 2010 Open Internet Order, 25 FCC Rcd at 17969, para. 120).

753

To the extent our prior precedents suggest otherwise, for the reasons discussed in the text, we disavow such an
interpretation as applied to the open Internet context.
754

See supra Section III.F.3.

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authority. Beyond the practices addressed by our bright-line rules, we recognize that broadband providers
may implement unknown practices or engage in new types of practices in the future that could threaten
harm by unreasonably interfering with the ability of end users and edge providers to use broadband
Internet access services to reach one another. Such unreasonable interference creates a barrier that
impedes the virtuous cycle, threatening the open nature of the Internet to the detriment of consumers,
competition, and deployment. For conduct outside the three bright-line rules, we adopt the nounreasonable interference/disadvantage standard to ensure that broadband providers do not engage in
practices that threaten the open nature of the Internet in other or novel ways. This standard is tailored to
the open Internet harms we wish to prevent, including harms to consumers, competition, innovation, and
free expression—all of which could impair the virtuous cycle and thus deter broadband deployment,
undermining the goals of section 706.755
295.
The no-unreasonable interference/disadvantage standard is also supported by section 201
and 202 of the Act, which require broadband providers to engage in practices that are just and reasonable,
and not unreasonably discriminatory.756 The prohibition on no-unreasonable interference/disadvantage
represents our interpretation of these 201 and 202 obligations in the open Internet context—an
interpretation that is informed by section 706’s goals of promoting broadband deployment.757 In other
words, for BIAS, we will evaluate whether a practice is unjust, unreasonable, or unreasonably
discriminatory using this no-unreasonable interference/disadvantage standard. We note, however, that
this rule—on its own—does not constitute common carriage per se.758 The no-unreasonable
interference/disadvantage standard, standing alone, contains no obligation to provide broadband service
to any consumer or edge provider and would not, in its isolated application, necessarily preclude
individualized negotiations so long as they do not otherwise unreasonably interfere with the ability of end
users and edge providers to use broadband Internet access services to reach one another.759 Rather,
particular practices or arrangements that are not barred by our rules against blocking, throttling, and paid
prioritization will be evaluated based on the facts and circumstances they present using a series of factors
specifically designed to protect the virtuous cycle of innovation and deployment.760 Thus, this is a rule
755

Such tailoring is critical to preserving the “unique and open character of the Internet.” Higher Education and
Libraries Comments at 23-24; see also CDT Comments at 19; CDT Reply at 3 (“An innovative approach would be
to articulate a new standard that is tailored to the particular aims of this proceeding and is based upon the compelling
public policy and societal need underpinning an open Internet.”).
756

47 U.S.C. §§ 201, 202 (2012).

757

Given the generality of the terms in sections 201 and 202, the Commission has significant discretion when
interpreting how those sections apply to the different services subject to Title II. See Orloff v. FCC, 352 F.3d 415,
420 (D.C. Cir. 2003) (“With respect to the Commission’s interpretation of § 202 as applied to CMRS, the
‘generality of these terms’—unjust, unreasonable—‘opens a rather large area for the free play of agency discretion .
. .’”) (quoting Bell Atlantic Tel. Co. v. FCC, 79 F.3d 1195, 1202 (D.C. Cir. 1996)).
758

Not all requirements which apply to common carriers need impose common carriage per se. See Verizon, 740
F.3d at 652 (citing Cellco, 700 F.3d at 547 (“[C]ommon carriage is not all or nothing—there is a gray area in which
although a given regulation might be applied to common carriers, the obligations imposed are not common carriage
per se. It is in this realm—the space between per se common carriage and per se private carriage—that the
Commission’s determination that a regulation does or does not confer common carrier status warrants deference.”));
Id. at 653 (citing NARUC v. FCC, 533 F.2d 601, 608 (D.C. Cir. 1976) (NARUC II) (“Since it is clearly possible for a
given entity to carry on many types of activities, it is at least logical to conclude that one may be a common carrier
with regard to some activities but not others.”)).
759

See Nat’l Assoc. of Regulatory Utility Comm’rs v. FCC, 525 F.2d 630, 641 (D.C. Cir. 1976) (NARUC I), cert
den. 425 U.S. 992 (1976) (“But a carrier will not be a common carrier where its practice is to make individualized
decisions, in particular cases, whether and on what terms to deal.”) (citing Semon v. Royal Indemnity Co., 279 F.2d
737, 739-40 (5th Cir. 1960).
760

See supra paras. 138-145.

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tied to particular harms. Broadband providers, having chosen to provide BIAS, may not do so in a way
that harms the virtuous cycle.
296.
For mobile broadband providers, the no-unreasonable interference/disadvantage standard
finds additional support in the Commission’s Title III authority as discussed above.761 The Commission
has authority to ensure that broadband providers, having obtained a spectrum license to provide mobile
broadband service, must provide that service in a manner consistent with the public interest.762 This
standard provides guidance on how the Commission will evaluate particular broadband practices, not
otherwise barred by our bright-line rules, to ensure that they are consistent with the public interest.
297.
Transparency Rule. The D.C. Circuit severed and upheld the Commission’s 2010
transparency rule in Verizon. While the majority did not expressly opine on the legal authority for the
Commission’s prior transparency rule, we feel confident that like the 2010 transparency rule, the
enhanced transparency rule we adopt today falls well within multiple, independent sources of the
Commission’s authority. Beginning with section 706, the transparency rule ensures that consumers have
sufficient information to make informed choices thereby facilitating competition in the local
telecommunications market (to the extent competitive choices are available). 763 Furthermore, these
disclosures remove potential information barriers by ensuring that edge providers have the necessary
information to develop innovative products and services that rely on the broadband networks to reach
consumers, a crucial arc of the virtuous cycle of broadband deployment. Our transparency rule is also
supported by Title II. The Commission has relied on section 201(b) in related billing contexts to ensure
that carriers convey accurate and sufficient information about the services they provide to consumers.764
We do so here as well.765

761

See supra Section III.F.3.

762

The Commission has broad authority to prescribe the nature of services to be rendered by licensed stations,
consistent with the public interest. 47 U.S.C. § 303(b); Cellco Partnership v. FCC, 700 F.3d 534, 542 (D.C. Cir.
2012) (“Although Title III does not ‘confer an unlimited power,’ the Supreme Court has emphasized that it does
endow the Commission with ‘expansive powers’ and a ‘comprehensive mandate to ‘encourage the larger and more
effective use of radio in the public interest.’”) (internal citations omitted) (quoting NBC v. United States, 319 U.S.
190, 216, 219 (1943)).
763

To encourage deployment of “advanced telecommunications capability,” section 706(a) authorizes the
Commission to engage in measures that “promote competition in the local telecommunications market.” 47 U.S.C.
§ 1302(a). And section 706(b) references “promoting competition in the telecommunications market” as among the
immediate actions that Commission shall take to accelerate deployment of “advanced telecommunications
capability” upon a determination that it is not being reasonably and timely deployed. 47 U.S.C. § 1302(b). We
interpret these references to the “telecommunications market” to include the market for “advanced
telecommunications capability.” In any event, having classified broadband Internet access services as
“telecommunications services,” the Commission actions to promote competition among broadband Internet access
services clearly promote competition in the “telecommunications market.”
764

Truth-in-Billing and Billing Format, CC Docket No. 98-170, First Report and Order and Further Notice of
Proposed Rulemaking, 14 FCC Rcd 7492, 7503-04, para. 21 (1999); see generally Truth-in Billing and Billing
Format, CC Docket No. 98-170, CG Docket No. 04-208, Second Report and Order, Declaratory Ruling, and Second
Further Notice of Proposed Rulemaking, 20 FCC Rcd 6448 (2005); Empowering Consumers to Prevent and Detect
Billing for Unauthorized Charges (“Cramming”), Consumer Information and Disclosure, Truth-in-Billing and
Billing and Billing Format, CG Docket Nos. 11-116, 09-158, CC Docket No. 98-170, Report and Order and Further
Notice of Proposed Rulemaking, 27 FCC Rcd 4436, 4476-4479, paras. 114-122 (2011); NobelTel LLC, 27 FCC Rcd
at 11762-63, para. 6 (finding that “unfair and deceptive marketing practices by interstate common carriers constitute
unjust and unreasonable practices under Section 201(b).”).
765

For the reasons discussed above, we likewise rely on Title III to ensure that spectrum licensees provide mobile
broadband Internet access service consistent with the public interest.

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298.
Enforcement. We also make clear that we have ample authority to enforce the rules we
adopt today. Our rules today carry out the provisions of the Communications Act766 and are thus are
covered by our Title IV and V authorities to investigate and enforce violations of these rules.767 With
specific respect to section 706, as noted above, in Verizon, the D.C. Circuit suggested that section 706
was part of the Communications Act of 1934.768 Under such a reading, rules adopted pursuant to section
706 fall within our Title IV and V authorities. But even if this were not the case, we believe it reasonable
to interpret section 706 itself as a grant of authority to investigate and enforce our rules.769 Our
enforcement authority was not explicitly discussed in either the 2010 Open Internet Order or the Verizon
case. As noted above, the court did cite as reasonable, however, the Commission’s view that Congress, in
placing upon the Commission the obligation to carry out the purposes of section 706, “necessarily
invested the Commission with the statutory authority to carry out those acts.”770 We believe it likewise
reasonable to conclude that, having provided the Commission with affirmative legal authority to take
regulatory measures to further section 706’s goals, Congress invested the Commission with the authority
to enforce those measures as needed to ensure those goals are achieved. Indeed, some have suggested
that the Commission could take enforcement action pursuant to section 706 itself, without adopting
rules.771
G.

Other Laws and Considerations

299.
In the 2014 Open Internet NPRM, the Commission tentatively concluded that it should
retain provisions which make clear that the open Internet rules do not alter broadband providers’ rights or
obligations with respect to other laws, safety and security considerations, or the ability of broadband
providers to make reasonable efforts to address transfers of unlawful content and unlawful transfers of
content.772 We affirm this tentative conclusion and reiterate today that our rules are not intended to
expand or contract broadband providers’ rights or obligations with respect to other laws or safety and
security considerations—including the needs of emergency communications and law enforcement, public
safety, and national security authorities. Similarly, open Internet rules protect only lawful content, and
are not intended to inhibit efforts by broadband providers to address unlawful transfers of content or
transfers of unlawful content.
1.

Emergency Communications and Safety and Security Authorities

300.
In the 2010 Open Internet Order we adopted a rule that acknowledges the ability of
broadband providers to serve the needs of law enforcement and the needs of emergency communications
and public safety, national, and homeland security authorities.773 This rule remains in effect today.774 To
766

See, e.g., 47 U.S.C. §§ 201, 202, 303, 316. We discuss section 706 more specifically below.

767

47 U.S.C. §§ 403, 501, 503.

768

See Verizon, 740 F.3d at 650 (stating that “Congress expressly directed that the 1996 Act . . . be inserted into the
Communications Act of 1934”) (citation omitted).
769

Moreover, as discussed above, to the extent that section 706 was not viewed as part of the Communications Act,
we have authority under section 4(i) of the Communications Act to adopt rules implementing section 706. See supra
Section III.F.1. Thus, even then the Commission’s rules, insofar as they are based on our substantive jurisdiction
under section 706, nonetheless would be issued under the Communications Act.
770

Verizon, 740 F.3d at 638 (quoting 2010 Open Internet Order, 25 FCC Rcd at 17969, para. 120).

771

See Hurwitz Comments at 12 (arguing that the best path forward would be to adopt general policy guidelines that
would be directly enforceable under the terms of section 706 through case-by-case adjudication). Thus, for all the
reasons described above, we reject claims that we lack authority to enforce rules implementing section 706. See,
e.g., Earl Comstock Reply at 18-33 (arguing that section 706 contained no affirmative authority for enforcement).
772

2014 Open Internet NPRM, 29 FCC Rcd at 5578, para. 160.

773

2010 Open Internet Order, 25 FCC Rcd at 17963, para. 107.

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make clear that open Internet protections coexist with other legal frameworks governing the needs of
safety and security authorities, we retain this rule, which reads as follows:
Nothing in this part supersedes any obligation or authorization a provider of broadband
Internet access service may have to address the needs of emergency communications or law
enforcement, public safety, or national security authorities, consistent with or as permitted by
applicable law, or limits the provider’s ability to do so.
301.
In retaining this rule, we reiterate that the purpose of the safety and security provision is
first to ensure that open Internet rules do not restrict broadband providers in addressing the needs of law
enforcement authorities, and second to ensure that broadband providers do not use the safety and security
provision without the imprimatur of a law enforcement authority, as a loophole to the rules.775
Application of the safety and security rule should be tied to invocation by relevant authorities rather than
to a broadband provider’s independent notion of the needs of law enforcement.
302.
The record is generally supportive of our proposal to reiterate that open Internet rules do
not supersede any obligation a broadband provider may have—or limit its ability—to address the needs of
emergency communications or law enforcement, public safety, or homeland or national security
authorities (together, “safety and security authorities”).776 Broadband providers have obligations under
statutes such as the Communications Assistance for Law Enforcement Act,777 the Foreign Intelligence
Surveillance Act,778 and the Electronic Communications Privacy Act779 that could in some circumstances
intersect with open Internet protections. Likewise, in connection with an emergency, there may be
federal, state, tribal, and local public safety entities, homeland security personnel, and other authorities
that need guaranteed or prioritized access to the Internet in order to coordinate disaster relief and other
emergency response efforts, or for other emergency communications. Most commenters recognize the
benefits of clarifying that these obligations are not inconsistent with open Internet rules.
303.
Some commenters have proposed revisions to the existing rule which would expand its
application to public utilities and other critical infrastructure operators.780 Because we make sufficient
accommodation for these concerns elsewhere, we choose not to modify this provision to include critical
infrastructure.781
2.

Transfers of Unlawful Content and Unlawful Transfers of Content

304.
In the NPRM, we tentatively concluded that we should retain the definition of reasonable
network management we previously adopted, which does not include preventing transfer of unlawful
content or the unlawful transfer of content as a reasonable practice.782 We affirm this tentative conclusion
and re-state that open Internet rules do not prohibit broadband providers from making reasonable efforts
to address the transfer of unlawful content or unlawful transfers of content to ensure that open Internet
rules are not used as a shield to enable unlawful activity or to deter prompt action against such activity.
(Continued from previous page)
774
47 C.F.R. § 8.9. See Verizon, 740 F.3d at 659 (vacating only the “anti-discrimination and anti-blocking rules”).
Today, we recodify this rule as 47 C.F.R. § 8.19. See infra Appx. A
775

See 2010 Open Internet Order, 25 FCC Rcd at 17964, paras. 108–110.

776

See, e.g., Higher Education and Libraries Comments at 33.

777

See 47 U.S.C. § 1002(a).

778

See 50 U.S.C. §§ 1802(a)(4), 1804, 1805(c)(2).

779

See 18 U.S.C. §§ 2518, 2705.

780

Southern Company Services Comments at 5; Utilities Telecom Council Reply at 3–7.

781

See supra Section III.C.2.

782

2014 Open Internet NPRM, 29 FCC Rcd at 5578, para. 61.

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For example, the no-blocking rule should not be invoked to protect copyright infringement, which has
adverse consequences for the economy, nor should it protect child pornography. We reiterate that our
rules do not alter the copyright laws and are not intended to prohibit or discourage voluntary practices
undertaken to address or mitigate the occurrence of copyright infringement.783 After consideration of the
record, we retain this rule, which is applicable to both fixed and mobile broadband providers engaged in
broadband Internet access service and reads as follows:
Nothing in this part prohibits reasonable efforts by a provider of broadband Internet
access service to address copyright infringement or other unlawful activity.
305.
Some commenters contend that this rule promotes the widespread use of intrusive packet
inspection technologies by broadband providers to filter objectionable content and that such monitoring
poses a threat to customers’ privacy rights.784 Certainly, many broadband providers have the technical
tools to conduct deep packet inspection of unencrypted traffic on their networks,785 and consumer privacy
is a paramount concern in the Internet age. Nevertheless, we believe that broadband monitoring concerns
are adequately addressed by the rules we adopt today, so we decline to alter this provision. This rule is
limited to protecting “reasonable efforts . . . to address copyright infringement or other unlawful
activity.”786 We retain the discretion to evaluate the reasonableness of broadband providers’ practices
under this rule on a case-by-case basis. Consumers also have many tools at their disposal to protect their
privacy against deep packet inspection—including SSL encryption, virtual private networks, and routing
methods like TOR.787 Further, the complaint processes we adopt today add to these technical methods
and advance consumer interests in this area.788
IV.

DECLARATORY RULING: CLASSIFICATION OF BROADBAND INTERNET
ACCESS SERVICES

306.
The Verizon court upheld the Commission’s use of section 706 as a substantive source of
legal authority to adopt open Internet protections. But it held that, “[g]iven the Commission’s stillbinding decision to classify broadband providers . . . as providers of ‘information services,’” open Internet
protections that regulated broadband providers as common carriers would violate the Act.789 Rejecting
the Commission’s argument that broadband providers only served retail consumers, the Verizon court
went on to explain that “broadband providers furnish a service to edge providers, thus undoubtedly
functioning as edge providers’ ‘carriers,’” and held that the 2010 no-blocking and no-unreasonable
discrimination rules impermissibly “obligated [broadband providers] to act as common carriers.”790
307.
The Verizon decision thus made clear that section 706 affords the Commission with
substantive authority and that open Internet protections are within the scope of that authority. And this
Order relies on section 706 for the open Internet rules. But, in light of Verizon, absent a classification of
broadband providers as providing a “telecommunications service,” the Commission may only rely on

783

2010 Open Internet Order, 25 FCC Rcd at 17964-65, para. 111.

784

i2Coalition Comments at 38; Access Comments at 7.

785

See Internet Association Comments at 14; Tumblr Reply at 6-7; Verizon, 740 F.3d at 646 (“[B]roadband
providers have the technological ability to distinguish and discriminate against certain types of traffic.”); but see
NCTA Comments at 15; ADTRAN Reply at 14.
786

See supra para. 304 (emphasis added).

787

i2Coalition Comments at 38.

788

See supra Section III.E.3.

789

Verizon, 740 F.3d at 650.

790

Id. at 653.

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section 706 to put in place open Internet protections that steer clear of what the court described as
common carriage per se regulation.
308.
Taking the Verizon decision’s implicit invitation, we revisit the Commission’s
classification of the retail broadband Internet access service as an information service791 and clarify that
this service encompasses the so-called “edge service.” Based on the updated record, we conclude that
retail broadband Internet access service is best understood today as an offering of a “telecommunications
service.”792
309.
Below we discuss the history of the classification of broadband Internet access service,
describe our rationale for revisiting that classification, and provide a detailed explanation of our
reclassification of broadband Internet access service.
A.

History of Broadband Internet Classification

310.
Congress created the Commission “[f]or the purpose of regulating interstate and foreign
commerce in communication by wire and radio so as to make available, so far as possible, to all people of
the United States . . . a rapid, efficient, Nation-wide, and world-wide wire and radio communication
service with adequate facilities at reasonable charges, for the purpose of the national defense, [and] for the
purpose of promoting safety of life and property through the use of wire and radio communication.”793
Section 2 of the Communications Act grants the Commission jurisdiction over “all interstate and foreign
communication by wire or radio.”794 As the Supreme Court explained in the radio context, Congress
charged the Commission with “regulating a field of enterprise the dominant characteristic of which was
the rapid pace of its unfolding” and therefore intended to give the Commission sufficiently “broad”
authority to address new issues that arise with respect to “fluid and dynamic” communications

791

The Commission has previously classified cable modem Internet access service, wireline broadband Internet
access service, and Broadband over Power Line (BPL)-enabled Internet access service as information services. The
Commission has referred to these services as “wired” broadband Internet access services. See United Power Line
Council’s Petition for Declaratory Ruling Regarding the Classification of Broadband Over Power Line Internet
Access Service as an Information Service, WC Docket No. 06-10, Memorandum Opinion and Order, 21 FCC Rcd
13281, 13281-82, paras. 1-2 (2006) (BPL-Enabled Broadband Order); Appropriate Framework for Broadband
Access to the Internet Over Wireline Facilities et al., CC Docket Nos. 02-33, 01-337, 95-20, 98-10, WC Docket
Nos. 04-242, 05-271, Report and Order and Notice of Proposed Rulemaking, 20 FCC Rcd 14853, 14863-65, 1490912 paras. 14-17, 103-06 (2005) (Wireline Broadband Classification Order and Broadband Consumer Protection
Notice), aff’d sub nom. Time Warner Telecom, Inc. v. FCC, 507 F.3d 205 (3d Cir. 2007) (Time Warner); Inquiry
Concerning High-Speed Access to the Internet Over Cable & Other Facilities; Internet Over Cable Declaratory
Ruling; Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities, GN Docket
No. 00-185, CS Docket No. 02-52, Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCC Rcd 4798,
4819-39, paras. 33-69 (2002) (Cable Modem Declaratory Ruling), aff’d sub nom. Nat’l Cable & Telecomms. Ass’n
v. Brand X Internet Servs., 545 U.S. 967, 978 (2005). The Commission has also previously classified “wireless”
broadband Internet access, which it defined as a service that “uses spectrum, wireless facilities and wireless
technologies to provide subscribers with high-speed (broadband) Internet access capabilities, . . . whether offered
using mobile, portable, or fixed technologies,” as information services. Appropriate Regulatory Treatment for
Broadband Access to the Internet Over Wireless Networks, WT Docket No. 07-53, Declaratory Ruling, 22 FCC Rcd
5901, 5909-10, para. 22 (2007) (Wireless Broadband Classification Order).
792

As discussed in greater detail below, our classification decision arises from our reconsideration of past
interpretations and applications of the Act. We thus conclude that the classification decisions in this Order
appropriately apply only on a prospective basis. See, e.g., Verizon v. FCC, 269 F.3d 1098 (D.C. Cir. 2001) (“In a
case in which there is a substitution of new law for old law that was reasonably clear, a decision to deny retroactive
effect is uncontroversial.”) (internal quotations omitted).
793

47 U.S.C. § 151.

794

Id. § 152(a).

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technologies.795 No one disputes that Internet access services are within the Commission’s subject-matter
jurisdiction and historically have been supervised by the Commission.796
311.
The Computer Inquiries. In 1966, the Commission initiated its Computer Inquiries “to
ascertain whether the services and facilities offered by common carriers are compatible with the present
and anticipated communications requirements of computer users.”797 In the decision known as Computer
I, the Commission required “maximum separation” between large carriers that offered data transmission
services subject to common carrier requirements and their affiliates that sold data processing services.798
Refining this approach, in Computer II and Computer III the Commission required telephone companies
that provided “enhanced services” over their own transmission facilities to separate out and offer on a
common carrier basis the transmission component underlying their enhanced services.799
312.
Commenters disagree about the significance of the Computer Inquiries.800 We believe
the Computer Inquiries are relevant in at least two important respects. First, in Computer II the
Commission distinguished “basic” from “enhanced” services, a distinction that Congress embraced when
it adopted the Telecommunications Act of 1996. Basic services offered on a common carrier basis were
subject to Title II; enhanced services were not.801 When Congress enacted the definitions of

795

National Broadcasting Co., Inc. v. United States, 319 U.S. 190, 219-20 (1943). The Court added that “[i]n the
context of the developing problems to which it was directed, the Act gave the Commission . . . expansive powers . . .
[and] a comprehensive mandate.” Id.
796

See Comcast, 600 F.3d at 646-47.

797

Regulatory & Policy Problems Presented by the Interdependence of Computer & Comm. Servs., Docket No.
16979, Notice of Inquiry, 7 FCC 2d 11, 11-12, para. 2 (1966) (Computer I Notice of Inquiry) (subsequent history
omitted).
798

Regulatory & Policy Problems Presented by the Interdependence of Computer & Comm. Servs., Docket No.
16979, Final Decision and Order, 28 FCC 2d 267, 270, 275, paras. 12, 24 (1971) (Computer I Final Decision), aff’d
sub nom. GTE Servs. Corp. v. FCC, 474 F.2d 724 (2d Cir. 1973), decision on remand, 40 FCC 2d 293 (1972).
799

Amendment of Section 64.702 of the Comm’n’s Rules & Regs, Second Computer Inquiry, Final Decision, 77 FCC
2d 384, 417-35, 461-75, paras. 86-132, 201-31 (1980) (Computer II Final Decision), aff’d sub nom. Computer &
Commc’ns Indus. Ass’n v. FCC, 693 F.2d 198 (D.C. Cir. 1982); Amendment of Section 64.702 of the Comm’n’s
Rules & Regs. (Third Computer Inquiry), CC Docket No. 85-229, Phase I, Report and Order, 104 FCC 2d 958, para.
4 (1986) (Computer III Phase I Order), recon., 2 FCC Rcd 3035 (1987) (Computer III Phase I Reconsideration
Order), further recon., 3 FCC Rcd 1135 (1988) (Computer III Phase I Further Reconsideration Order), second
further recon., 4 FCC Rcd 5927 (1989) (Computer III Phase I Second Further Reconsideration Order); Phase I
Order and Phase I Recon. Order vacated sub nom. California v. FCC, 905 F.2d 1217 (9th Cir. 1990) (California I);
CC Docket No. 85-229, Phase II, 2 FCC Rcd 3072 (1987) (Computer III Phase II Order), recon., 3 FCC Rcd 1150
(1988) (Computer III Phase II Reconsideration Order), further recon., 4 FCC Rcd 5927 (1989) (Phase II Further
Reconsideration Order); Phase II Order vacated, California I, 905 F.2d 1217 (9th Cir. 1990); Computer III Remand
Proceeding, CC Docket No. 90-368, 5 FCC Rcd 7719 (1990) (ONA Remand Order), recon., 7 FCC Rcd 909 (1992),
pets. for review denied sub nom. California v. FCC, 4 F.3d 1505 (9th Cir. 1993) (California II); Computer III
Remand Proceedings: Bell Operating Company Safeguards and Tier 1 Local Exchange Company Safeguards, CC
Docket No. 90-623, 6 FCC Rcd 7571 (1991) (BOC Safeguards Order), BOC Safeguards Order vacated in part and
remanded sub nom. California v. FCC, 39 F.3d 919 (9th Cir. 1994) (California III), cert. denied, 514 U.S. 1050
(1995); Computer III Further Remand Proceedings: Bell Operating Company Provision of Enhanced Services, CC
Docket No. 95-20, Notice of Proposed Rulemaking, 10 FCC Rcd 8360 (1995) (Computer III Further Remand
Notice), Further Notice of Proposed Rulemaking, 13 FCC Rcd 6040 (1998) (Computer III Further Remand Further
Notice); Report and Order, 14 FCC Rcd 4289 (1999) (Computer III Further Remand Order), recon., 14 FCC Rcd
21628 (1999) (Computer III Further Remand Reconsideration Order).
800

Compare AT&T Comments at 46-47 with i2coalition Comments at 17-18; Public Knowledge Comments at 77.

801

Computer II Final Decision, 77 FCC 2d at 428-32, paras. 115-23.

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“telecommunications service” and “information service” in the Telecommunications Act of 1996,802 it
substantially incorporated the “basic” and “enhanced” service classifications.803 Because the statutory
definitions substantially incorporated the Commission’s terminology under the Computer Inquiries,
Commission decisions regarding the distinction between basic and enhanced services—in particular,
decisions regarding features that are “adjunct to basic” services—are relevant in this proceeding.804
313.
Second, the Computer Inquiries disprove the claim that the Commission has never before
mandatorily applied Title II to the transmission component of Internet access service.805 From 1980 to
2005, facilities-based telephone companies were obligated to offer the transmission component of their
enhanced service offerings—including broadband Internet access service offered via digital subscriber
line (DSL)—to unaffiliated enhanced service providers on nondiscriminatory terms and conditions
pursuant to tariffs or contracts governed by Title II.806 There is no disputing that until 2005, Title II
applied to the transmission component of DSL service.807
314.
Prior Classification Decisions. Several commenters, as well as the dissenting statements,
claim that an unbroken line of Commission and court precedent, dating back to the Stevens Report in
1998, 808 supports the classification of Internet access service as an information service, and that this
classification is effectively etched in stone.809 These commenters ignore not only the Supreme Court but
our precedent demonstrating that the relevant statutory definitions are ambiguous, and that classifying
broadband Internet access service as a telecommunications service is a permissible interpretation of the
Act. Indeed, several of the most vocal opponents of reclassification previously argued that the
Commission not only may, but should, classify the transmission component of broadband Internet access
service as a telecommunications service.810
802

Telecommunications Act of 1996, Pub. L. No. 104-104, § 3(a)(2), 110 Stat. 56, 58-60 (1996), codified at 47
U.S.C. §§ 153(24), 153(50), 153(53).
803

Brand X, 545 U.S. at 977; Wireline Broadband Classification Order, 20 FCC Rcd at 14871, para. 29.

804

The Commission’s definition of “adjunct to basic” services has been instrumental in determining which functions
fall within the “telecommunications systems management” exception to the “information service” definition. See
infra paras. 366-367.
805

As discussed below, a large number of rural local exchange carriers (LECs) have also chosen to offer broadband
transmission service as a telecommunications service subject to the provisions of Title II. See infra para. 425.
806

See Computer II Final Decision, 77 FCC 2d at 475, para. 231; see also Wireline Broadband Classification Order,
20 FCC Rcd at 14866-68, para. 24.
807

See, e.g., Wireline Broadband Classification Order, 20 FCC Rcd at 14858, para. 5 (“Facilities-based wireline
broadband Internet access service providers are no longer required to separate out and offer the wireline broadband
transmission component . . . of wireline broadband Internet access services as a stand-alone telecommunications
service under Title II. . . .”).
808

Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Report to Congress, 13 FCC Rcd 11501
(1998) (Stevens Report).
809

See, e.g., ACA Comments at 55-56 (citing the Stevens Report); AT&T Comments at 41-44.

810

See, e.g., Verizon Comments, GN Docket No. 00-185 at 2 (Dec. 1, 2000) (“The Act defines residential broadband
access—whether provided by a local telephone company or a cable operator—as a telecommunications service
subject to ‘common carrier’ regulation.”); Verizon Reply, GN Docket No. 00-185 at 18 (Jan. 10, 2001) (explaining
that cable operators are “providing a telecommunications service by making available to the public a transparent,
unenhanced transmission path that customers can use to reach any Internet service provider or destination on the
Internet from their homes”); Qwest Comments, GN Docket No. 00-185 at 2-3 (Dec. 1, 2000) (“[T]he transport
portion of cable modem service is a telecommunications service under the 1996 Act.”). Contemporaneously,
Verizon and the United States Telecom Association argued in the Gulf Power litigation before the Supreme Court
that cable modem service includes a telecommunications service. See Amicus Brief of United States Telecom Ass’n
and Verizon in National Cable Television Ass’n v. Gulf Power Co., Nos. 00-832, 00-833, 2001 WL 345191, *22
(continued….)

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315.
To begin with, these commenters misconstrue the scope of the Stevens Report, which was
a report to Congress concerning the implementation of universal service mandates, and not a binding
Commission Order classifying Internet access services. Moreover, when the Commission issued that
report, in 1998, broadband Internet access service was at “an early stage of deployment to residential
customers” and constituted a tiny fraction of all Internet connections.811 Virtually all households with
Internet connections used traditional telephone service to dial-up their Internet Service Provider (ISP),
which was typically a separate entity from their telephone company.812 In the Stevens Report, the
Commission stated that Internet access service as it was then typically being provided was an
“information service.”813 The Stevens Report reserved judgment on whether entities that provided Internet
access over their own network facilities were offering a separate telecommunications service.814 The
Commission further noted that “the question may not always be straightforward whether, on the one hand,
an entity is providing a single information service with communications and computing components, or,
on the other hand, is providing two distinct services, one of which is a telecommunications service.”815 A
few months after sending the Stevens Report to Congress, the Commission concluded that “[a]n end-user
may utilize a telecommunications service together with an information service, as in the case of Internet
access.”816 In a follow-up order, the Commission affirmed its conclusion that “xDSL-based advanced
services constitute telecommunications services as defined by section 3(46) of the Act.”817

(Continued from previous page)
(2001) (“[C]able-delivered high-speed Internet access does not fall within the Communications Act’s definition of
an ‘information service’ . . . . Cable operators, of course, like DSL-providing telephone companies, may offer
customers an ISP service, which is an ‘information service.’ . . . But they provide that service along with their
telecommunications service, and, as the Commission’s orders establish, the two services are statutorily distinct and
cannot be conflated.”) (emphasis in original) (citations omitted).
811

See Inquiry Concerning the Deployment of Advanced Telecommunications Services to All Americans in a
Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the
Telecommunications Act of 1996, CC Docket No. 98-146, Report, 14 FCC Rcd 2398, 2446, para. 91 (1999); Ind.
Anal. & Tech. Div., Wireline Comp. Bur., Trends in Telephone Service, 2-12, chart 2.10, 16-3, Tbl. 16.1 (Aug.
2008).
812

See Stevens Report, 13 FCC Rcd at 11540, para. 81 (“Internet access providers, typically, own no
telecommunications facilities. Rather, in order to provide those components of Internet access services that involve
information transport, they lease lines, and otherwise acquire telecommunications, from telecommunications
providers.”).
813

See id. at 11536, para. 73; see also Brand X, 545 U.S. at 978 (“The [Stevens] Report classified ‘non-facilitiesbased’ ISPs—those that do not own the transmission facilities they use to connect the end user to the Internet—
solely as information service providers.”); Inquiry Concerning High-Speed Access to the Internet Over Cable &
Other Facilities, GN Docket No. 00-185, Notice of Inquiry, 15 FCC Rcd 19287, 19297 para. 23 & n.45 (2000)
(Cable Modem Notice of Inquiry) (“We note that the Commission has classified the end user services commonly
provided by dial-up ISPs as information services.”) (citing the Stevens Report).
814

Stevens Report, 13 FCC Rcd at 11530, para. 60 (“[T]he matter is more complicated when it comes to offerings by
facilities-based providers.”), 11535 n.140 (“We express no view in this Report on the applicability of this analysis to
cable operators providing Internet access service.”); see also Cable Modem Declaratory Ruling, 17 FCC Rcd at
4824, para. 41 (“The [Stevens Report] did not decide the statutory classification issue in those cases where an ISP
provides an information service over its own transmission facilities.”); Appropriate Framework for Broadband
Access to Internet Over Wireline Facilities, Universal Service Obligations of Broadband Providers, CC Docket No.
02-33, Notice of Proposed Rulemaking, 17 FCC Rcd 3019, 3027-28, para. 14 (2002) (Wireline Broadband NPRM)
(explaining that the Stevens Report recognized “that its analysis focused on ISPs as entities procuring inputs from
telecommunications service providers”).
815

Stevens Report, 13 FCC Rcd at 11530, para. 60.

816

Deployment of Wireline Services Offering Advanced Telecommunications Capability, CC Docket No. 98-147,
Memorandum Opinion and Order and Notice of Proposed Rulemaking, 13 FCC Rcd 24012, 24030, para. 36 (1998)
(continued….)

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316.
The courts addressed the statutory classification of broadband Internet access service in
June 2000, when the United States Court of Appeals for the Ninth Circuit held in AT&T Corp. v. City of
Portland that cable modem service is a telecommunications service to the extent that the cable operator
“provides its subscribers Internet transmission over its cable broadband facility,” and an information
service to the extent the operator acts as a “conventional” ISP.818 The Ninth Circuit’s decision thus put
cable companies’ broadband transmission service on a regulatory par with DSL transmission service.819
317.
Three months later, the Commission issued the Cable Modem Notice of Inquiry, which
sought comment on whether cable modem service should be treated as a telecommunications service
under Title II or an information service subject to Title I.820 In response, the Bell Operating Companies
(BOCs) unanimously argued that the Commission lawfully could determine that cable modem service
includes a telecommunications service. Verizon and Qwest argued that the transmission component of
cable modem service is a telecommunications service.821 SBC Communications and BellSouth (both now
part of AT&T) argued that the Commission should classify cable modem service as an integrated
information service subject to Title I, but acknowledged that the Commission could lawfully find that
cable modem service includes both a telecommunications service and an information service.822 Verizon,
(Continued from previous page)
(Advanced Services Order). The Advanced Services Order was subject to a voluntary remand requested by the
Commission.
817

Deployment of Wireline Services Offering Advanced Telecommunications Capability, CC Docket No. 98-147,
Order on Remand, 15 FCC Rcd 385, 388 para. 9 (1999) (Advanced Services Remand Order). The definition of
telecommunications service is now in section 3(53) of the Act, 47 U.S.C. § 153(53). The Advanced Services
Remand Order was vacated in part by the D.C. Circuit in WorldCom v. FCC, 246 F.3d 690 (D.C. Cir. 2001).
Specifically, the D.C. Circuit vacated the remand of the Commission’s classification of DSL-based advanced
services as “telephone exchange service” or “exchange access.” “Telephone exchange service” and “exchange
access” are relevant in determining whether a provider is a “local exchange carrier.” See 47 U.S.C. §§ 153(32)
(defining “local exchange carrier”), (20) (defining “exchange access”), (54) (defining “telephone exchange
service”). It has no bearing on the classification of a particular service offering as a telecommunications or
information service under the Act. As such, the further history of the Advanced Services Remand Order is
inapposite to the Commission’s discussion of telecommunications and information services in that Order.
818

AT&T Corp. v. City of Portland, 216 F.3d 871, 877-79 (9th Cir. 2000) (City of Portland). But see Gulf Power
Co. v. FCC, 208 F.3d 1263, 1275-78 (11th Cir. 2000) (holding that Internet access service is neither a cable service
nor a telecommunications service), rev’d on other grounds sub nom. Nat’l Cable & Telecomms. Ass’n v. Gulf Power
Co., 534 U.S. 327 (2002); MediaOne Group, Inc. v. County of Henrico, 97 F. Supp. 2d 712, 715 (E.D. Va. 2000)
(concluding that cable modem service is a cable service), aff’d on other grounds, 257 F.3d 356 (4th Cir. 2001).
819

In 2001, SBC Communications and BellSouth acknowledged the significance of the Computer Inquiries, the
Advanced Services Order, and the Ninth Circuit’s decision in City of Portland: “The Commission currently views
the DSL-enabled transmission path underlying incumbent LEC broadband Internet services as a
‘telecommunications service’ under the Act. As the Ninth Circuit recognized, the exact same logic applies to cable
broadband: ‘to the extent that [a cable ISP] provides its subscribers Internet transmission over its cable broadband
facility, it is providing a telecommunications service as defined in the Communications Act.’” SBC and BellSouth
Reply, GN Docket No. 00-185, at 19 (filed Jan. 10, 2001) (quoting City of Portland, 216 F.3d at 878) (footnote
omitted); see also id. at 19-20 & n.68 (arguing that “cable broadband (like DSL)” is “one type of
telecommunications service”) (citing the Advanced Services Order). SBC subsequently acquired AT&T and
BellSouth to form what is now AT&T.
820

15 FCC Rcd at 19293, para. 15.

821

See supra note 810.

822

See SBC and BellSouth Comments, GN Docket No. 00-185, at 12 (filed Dec. 1, 2000) (arguing that classifying
“the underlying broadband data transmission” as a Title II service “will survive review in courts”); id.at 26 (“The
Commission has statutory authority to impose Title II regulations on cable modem providers.”); SBC and BellSouth
Reply, GN Docket No. 00-185, at 13 (filed Jan. 10, 2001) (“[T]he Commission may resolve this question by
concluding that cable Internet service providers do in fact offer both an ‘information service’ subject to Title I and a
(continued….)

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SBC, and BellSouth also agreed that the Commission could adopt a “middle ground” legal framework by
finding that cable modem service is, in part, a telecommunications service, but grant relief from pricing
and tariffing obligations by either declaring all providers of broadband Internet access service to be
nondominant or by forbearing from enforcing those obligations.823
318.
In March 2002, the Commission exercised its authority to interpret ambiguous language
in the Act and addressed the classification of cable modem service in the Cable Modem Declaratory
Ruling. The Commission stated that “[t]he Communications Act does not clearly indicate how cable
modem service should be classified or regulated.”824 Based on a factual record that had been compiled at
that time, the Commission described cable modem service as “typically includ[ing] many and sometimes
all of the functions made available through dial-up Internet access service, including content, e-mail
accounts, access to news groups, the ability to create a personal web page, and the ability to retrieve
information from the Internet.”825 The Commission noted that cable modem providers often consolidated
these functions “so that subscribers usually do not need to contract separately with another Internet access
provider to obtain discrete services or applications.”826
319.
The Commission identified a portion of cable modem service as “Internet connectivity,”
which it described as establishing a physical connection to the Internet and operating or interconnecting
with the Internet backbone, and sometimes including protocol conversion, Internet Protocol (IP) address
number assignment, DNS, network security, caching, network monitoring, capacity engineering and
management, fault management, and troubleshooting.827 The Ruling also noted that “[n]etwork
monitoring, capacity engineering and management, fault management, and troubleshooting are Internet
access service functions that . . . serve to provide a steady and accurate flow of information between the
cable system to which the subscriber is connected and the Internet.”828 The Commission distinguished
these functions from “Internet applications provided through cable modem services,” including “e-mail,
access to online newsgroups, and creating or obtaining and aggregating content,” “home pages,” and “the
ability to create a personal web page.”829

(Continued from previous page)
‘telecommunications service’ subject to Title II.”) (emphasis in original); id. at 20 (“[T]he plain fact is that cable
broadband service can be—and often is—used as a pure transport service, whatever other incidents may be bundled
with it. A cable-modem subscriber is free to use the connection for nothing but noncable e-mail, for example, or for
downloading content from non-cable (e.g., Disney or MSN) sites.”).
823

See Verizon Comments, GN Docket No. 00-185, at 26 (filed Dec. 1, 2000) (“[T]he Commission could maintain a
nondiscrimination obligation on both cable operators and ILECs but eliminate pricing and tariffing regulation for
broadband access services.”) (emphasis in original); SBC and BellSouth Comments, GN Docket No. 00-185, at 3842 (arguing that the Commission “can opt for a middle-ground of less burdensome regulation under Title II” by
declaring “all broadband Internet providers to be nondominant carriers, subject to minimal tariff and notice
requirements” and by granting forbearance). Cable operators generally argued that the Commission should classify
cable modem service as either a cable service or an information service, but not as a telecommunications service.
See, e.g., Comcast Comments, GN Docket No. 00-185, at 11-18 (filed Dec. 1, 2000); AT&T Comments, GN Docket
No. 00-185, at 6-20 (filed Dec. 1, 2000); Cox Comments, GN Docket No. 00-185, at 26-40 (filed Dec. 1, 2000).
824

Cable Modem Declaratory Ruling, 17 FCC Rcd at 4819, para. 32.

825

Id. at 4804, para. 10 (footnotes omitted).

826

Id. at 4806, para. 11 (footnotes omitted). The Commission defined cable modem service as “a service that uses
cable system facilities to provide residential subscribers with high-speed Internet access, as well as many
applications or functions that can be used with high-speed Internet access.” Id. at 4818-19, para. 31.
827

Id. at 4809-11, paras. 16-17 (citations omitted).

828

Id. at 4810-11, para. 17 (citations omitted).

829

Id. at 4811, para. 18 (citation omitted).

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320.
The Commission found that cable modem service was “an offering . . . which combines
the transmission of data with computer processing, information provision, and computer interactivity,
enabling end users to run a variety of applications.”830 The Commission further concluded that, “as it
[was] currently offered,”831 cable modem service as a whole met the statutory definition of “information
service” because its components were best viewed as a “single, integrated service that enables the
subscriber to utilize Internet access service,” with a telecommunications component that was “not . . .
separable from the data processing capabilities of the service.”832 Significantly, the Commission did not
address whether DNS or any other features of cable modem service fell within the telecommunications
systems management exception to the definition of “information service”833 as there was no reason to do
so. The Cable Modem Declaratory Ruling also included a notice of proposed rulemaking seeking
comment on, among other things, whether the Commission should require cable operators to give
unaffiliated broadband Internet access service providers access to cable broadband networks.834
321.
In October 2003, the United States Court of Appeals for the Ninth Circuit vacated the
Commission’s finding that cable modem service is an integrated information service.835 The court
concluded that it was bound by the prior decision in City of Portland that “the transmission element of
cable broadband service constitutes telecommunications service under the terms of the Communications
Act.”836
322.
In 2005, the Supreme Court reversed the Ninth Circuit’s decision and upheld the Cable
Modem Declaratory Ruling in Brand X.837 The Court held that the word “offering” in the
Communications Act’s definitions of “telecommunications service” and “information service” is
ambiguous, and that the Commission’s finding that cable modem service is a functionally integrated
information service was a permissible, though perhaps not the best, interpretation of the Act.838
323.
Following Brand X, the Commission issued the Wireline Broadband Classification
Order, which applied the “information services” classification at issue in the Cable Modem Declaratory
Ruling to facilities-based wireline broadband Internet access services as well and eliminated the resulting
regulatory asymmetry between cable companies and telephone companies offering wired Internet access
service via DSL and other facilities.839 The Wireline Broadband Classification Order based this decision
on a finding that “providers of wireline broadband Internet access service offer subscribers the ability to
run a variety of applications” that fit the definition of information services, including those that enable
access to email and the ability to establish home pages.840 The Commission therefore concluded that
“[w]ireline broadband Internet access service, like cable modem service, is a functionally integrated,
finished service that inextricably intertwines information-processing capabilities with data transmission
such that the consumer always uses them as a unitary service.”841 The Commission also eliminated the
830

Id. at 4822, para. 38.

831

Id. at 4802, para. 7.

832

Id. at 4823, paras. 38-39.

833

See 47 U.S.C. § 153(24).

834

Cable Modem Declaratory Ruling, 17 FCC Rcd at 4839-41, paras. 72-74.

835

Brand X Internet Services v. FCC, 345 F.3d 1120, 1132 (9th Cir. 2003).

836

Brand X, 545 U.S. at 1129.

837

See Brand X, 545 U.S. 967.

838

Id. at 986-1000.

839

See Wireline Broadband Classification Order, 20 FCC Rcd at 14863-65, paras. 14-17, 14909-12, paras. 103-06.

840

Id. at 14860, para. 9.

841

Id.

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Computer Inquiry requirements for wireline Internet access service.842 In 2006, the Commission issued
the BPL-Enabled Broadband Order, which extended the information service classification to Internet
access service provided over power lines.843
324.
Subsequently, in 2007 the Commission released the Wireless Broadband Classification
Order, which determined that wireless broadband Internet access service was likewise an information
service under the Communications Act.844 The Wireless Broadband Classification Order also found that
although “the transmission component of wireless broadband Internet access service is
‘telecommunications’ . . . the offering of the telecommunications transmission component as part of a
functionally integrated Internet access service offering is not ‘telecommunications service’ under section
3 of the [Communications] Act.”845
325.
The Wireless Broadband Classification Order also considered the application of section
332 of Title III to wireless broadband Internet access service and concluded that “mobile wireless
broadband Internet access service does not meet the definition of ‘commercial mobile service’ within the
meaning of section 332 of the Act as implemented by the Commission’s CMRS rules because such
broadband service is not an ‘interconnected service,’ as defined in the Act and the Commission’s
rules.”846
326.
In 2010, the D.C. Circuit rejected the Commission’s attempt to enforce open Internet
principles based on the Commission’s Title I ancillary authority in Comcast v. FCC.847 Following
Comcast, the Commission issued a Notice of Inquiry (Broadband Classification NOI) that sought
comment on the appropriate approach to broadband policy in light of the D.C. Circuit’s decision.848
Shortly thereafter, the Commission released the 2010 Open Internet Order. The 2010 Order was based in
part on a revised understanding of the Commission’s Title I authority—as well as a variety of other
statutory provisions including section 706—and was again challenged before the D.C. Circuit in Verizon
v. FCC.849 Although the Verizon court accepted the Commission’s reinterpretation of section 706 as an
independent grant of legislative authority over broadband services, the court nonetheless vacated the noblocking and antidiscrimination provisions of the Order as imposing de facto common carrier status on
providers of broadband Internet access service in violation of the Commission’s classification of those
services as information services.850
327.
In response to the Verizon decision, the Commission released a Notice of Proposed
Rulemaking (NPRM) seeking public input on the “best approach to protecting and promoting Internet
openness.”851 Among other things, the 2014 Open Internet NPRM asked for discussion of the proper legal

842

Id. at 14875-98, paras. 41-85.

843

See BPL-Enabled Broadband Order, 21 FCC Rcd at 13281-82, paras. 1-2.

844

Wireless Broadband Classification Order, 22 FCC Rcd at 5901-02, para. 1.

845

Id.

846

Id. at 5916, para. 42.

847

Comcast, 600 F.3d at 661.

848

Framework for Broadband Internet Service, GN Docket No. 10-127, Notice of Inquiry, 25 FCC Rcd 7866 (2010)
(Broadband Classification NOI).
849

Verizon, 740 F.3d at 635-42.

850

Id. at 635-42, 656-59. The Court also found that that authority did not allow the Commission to subject
information services or providers of private mobile services to treatment as common carriers. Id. at 650 (citing 47
U.S.C. § 153(51) and 47 U.S.C. § 332(c)(2)).
851

2014 Open Internet NPRM, 29 FCC Rcd at 5563, para. 4.

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authority on which to base open Internet rules.852 The Commission proposed to rely on section 706 of the
Telecommunications Act of 1996, but at the same time stated that it would “seriously consider the use of
Title II of the Communications Act as the basis for legal authority.”853 The NPRM sought comment on
the benefits of both section 706 and Title II, and emphasized its recognition that “both section 706 and
Title II are viable solutions.”854
B.

Rationale for Revisiting the Commission’s Classification of Broadband Internet
Access Services

328.
We now find it appropriate to revisit the classification of broadband Internet access
service as an information service. The Commission has steadily and consistently worked to protect the
open Internet for the last decade, starting with the adoption of the Internet Policy Statement up through its
recent 2014 Open Internet NPRM following the D.C. Circuit’s Verizon decision.855 Although the Verizon
court accepted the Commission’s interpretation of section 706 as an independent grant of authority over
broadband services, it nonetheless vacated the no-blocking and antidiscrimination provisions of the Open
Internet Order.856 As the Verizon decision explained, to the extent that conduct-based rules remove
broadband service providers’ ability to enter into individualized negotiations with edge providers, they
impose per se common carrier status on broadband Internet access service providers, and therefore
conflict with the Commission’s prior designation of broadband Internet access services as information
services.857 Thus, absent a finding that broadband providers were providing a “telecommunications
service,” the D.C. Circuit’s Verizon decision defined the bounds of the Commission’s authority to adopt
open Internet protections to those that do not amount to common carriage.
329.
The Brand X Court emphasized that the Commission has an obligation to consider the
wisdom of its classification decision on a continuing basis.858 An agency’s evaluation of its prior
determinations naturally includes consideration of the law affecting its ability to carry out statutory policy
objectives.859 As discussed above, the record in the Open Internet proceeding demonstrates that
broadband providers continue to have the incentives and ability to engage in practices that pose a threat to
Internet openness, and as such, rules to protect the open nature of the Internet remain necessary.860 To
protect the open Internet, and to end legal uncertainty, we must use multiple sources of legal authority to
protect and promote Internet openness, to ensure that the Internet continues to grow as a platform for
competition, free expression, and innovation; a driver of economic growth; and an engine of the virtuous
cycle of broadband deployment, innovation, and consumer demand. Thus, we now find it appropriate to
examine how broadband Internet access services are provided today.

852

Id.

853

Id.

854

Id.

855

See Internet Policy Statement, 20 FCC Rcd 14986; 2014 Open Internet NPRM, 29 FCC Rcd 5561; Verizon, 740
F.3d 623.
856

Verizon, 740 F.3d at 635-42, 655-59.

857

Id. at 650-59.

858

Brand X, 545 U.S. at 981-82.

859

See Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 741 (1996) (rejecting argument that deference should
be withheld because regulation was prompted by litigation); Mayo Foundation for Medical Educ. and Research v.
U.S., 562 U.S. 44, 131 S. Ct 704, 712-13 (2011) (explaining that in United Dominion Industries, Inc. v. U.S., 532
U.S. 822, 838 (2001), the Supreme Court “expressly invited the Treasury Department to ‘amend its regulations’ if
troubled by the consequences of our resolution of the case”).
860

See supra Section III.B.

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330.
Changed factual circumstances cause us to revise our earlier classification of broadband
Internet access service based on the voluminous record developed in response to the 2014 Open Internet
NPRM. In the 2002 Cable Modem Declaratory Ruling, the Commission observed that “the cable modem
service business is still nascent, and the shape of broadband deployment is not yet clear. Business
relationships among cable operators and their service offerings are evolving.”861 However, despite the
rapidly changing market for broadband Internet access services, the Commission’s decisions classifying
broadband Internet access service are based largely on a factual record compiled over a decade ago,
during this early evolutionary period.862 The premises underlying that decision have changed. As the
record demonstrates and we discuss in more detail below, we are unable to maintain our prior finding that
broadband providers are offering a service in which transmission capabilities are “inextricably
intertwined” with various proprietary applications and services. Rather, it is more reasonable to assert
that the “indispensable function” of broadband Internet access service is “the connection link that in turn
enables access to the essentially unlimited range of Internet-based services.”863 This is evident, as
discussed below, from: (1) consumer conduct, which shows that subscribers today rely heavily on thirdparty services, such as email and social networking sites, even when such services are included as add-ons
in the broadband Internet access provider’s service; (2) broadband providers’ marketing and pricing
strategies, which emphasize speed and reliability of transmission separately from and over the extra
features of the service packages they offer; and (3) the technical characteristics of broadband Internet
access service. We also note that the predictive judgments on which the Commission relied in the Cable
Modem Declaratory Ruling anticipating vibrant intermodal competition for fixed broadband cannot be
reconciled with current marketplace realities.864
C.

Classification of Broadband Internet Access Service

331.
In this section, we reconsider the Commission’s prior decisions that classified wired and
wireless broadband Internet access service as information services,865 and conclude that broadband
Internet access service is a telecommunications service subject to our regulatory authority under Title II

861

Cable Modem Declaratory Ruling, 17 FCC Rcd at 4843-44, para. 83.

862

See Wireline Broadband Classification Order, 20 FCC Rcd at 14863, para. 14 (“[L]ike cable modem service . . .
wireline broadband Internet access service combines computer processing, information provision, and computer
interactivity with data transport, enabling end users to run a variety of applications (e.g., e-mail, web pages, and
newsgroups).”) (citing the Cable Modem Declaratory Ruling and the Stevens Report); BPL-Enabled Broadband
Order, 21 FCC Rcd at 13286, para. 9 (referencing prior classification of cable modem service and wireline
broadband Internet access service); Wireless Broadband Classification Order, 22 FCC Rcd at 5911, para. 26 (stating
that applications run by wireless broadband Internet access users are “identical to those provided by cable modem
service, wireline broadband Internet access, or BPL-enabled Internet access” and therefore finding that wireless
broadband Internet access service meets the definition of an information service).
863

CDT Comments at 11; see also Vonage Comments at 39 (“The pipe is the essential broadband experience and
speed and capacity drive buying decisions.”); AARP Comments at v (“When a broadband subscriber uploads video
to YouTube, updates their Facebook page, posts on their blog, or shares files, all that is needed from the broadband
provider is pure transmission.”); Free Press Comments at 68 (“A broadband access provider performs one main
function: transmitting Internet Protocol (IP) packets between the addresses of the user’s choosing.”).
864

See, e.g., Wireline Broadband Classification Order, 20 FCC Rcd at 14880-81, para. 50 (finding that “a wide
variety of competitive and potentially competitive providers and offerings are emerging” in the broadband Internet
access services market, and that “an emerging market, like the one for broadband Internet access, is more
appropriately analyzed in view of larger trends in the marketplace, rather than exclusively through the snapshot data
that may quickly and predictably be rendered obsolete as this market continues to evolve”).
865

See Cable Modem Declaratory Ruling, 17 FCC Rcd at 4802, para. 7; Wireline Broadband Classification Order,
20 FCC Rcd at 14862-65, 14909-12, paras. 12-17, 102-06; BPL-Enabled Broadband Order, 21 FCC Rcd at 1328182, paras. 1-2; Wireless Broadband Classification Order, 22 FCC Rcd at 5909-10, para. 22.

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of the Communications Act regardless of the technological platform over which the service is offered.866
We both revise our prior classifications of wired broadband Internet access service and wireless
broadband Internet access service, and classify broadband Internet access service provided over other
technology platforms. In doing so, we exercise the well-established power of federal agencies to interpret
ambiguous provisions in the statutes they administer. The Supreme Court summed up this principle in
Brand X:
In Chevron, this Court held that ambiguities in statutes within an agency’s jurisdiction to
administer are delegations of authority to the agency to fill the statutory gap in reasonable
fashion. Filling these gaps, the Court explained, involves difficult policy choices that
agencies are better equipped to make than courts. If a statute is ambiguous, and the
implementing agency’s construction is reasonable, Chevron requires a federal court to
accept the agency’s construction of the statute, even if the agency’s reading differs from
what the court believes is the best statutory interpretation.867
332.
The Court’s application of this Chevron test in Brand X makes clear our delegated
authority to revisit our prior interpretation of ambiguous statutory terms and reclassify broadband Internet
access service as a telecommunications service. The Court upheld the Commission’s prior information
services classification because “the statute fails unambiguously to classify the telecommunications
component of cable modem service as a distinct offering. This leaves federal telecommunications policy
in this technical and complex area to be set by the Commission . . . .”868 Where a term in the Act
“admit[s] of two or more reasonable ordinary usages, the Commission’s choice of one of them is entitled
to deference.”869 The Court concluded, given the “technical, complex, and dynamic” questions that the
Commission resolved in the Cable Modem Declaratory Ruling, “[t]he Commission is in a far better
position to address these questions than we are.”870
333.
Furthermore, reading the Brand X majority, concurring, and dissenting opinions together,
it is apparent that most, and perhaps all, of the nine Justices believed that it would have been at least
permissible under the Act to have classified the transmission service included with wired Internet access
service as a telecommunications service. Justice Thomas, writing for the majority, noted that “our
conclusion that it is reasonable to read the Communications Act to classify cable modem service solely as
an ‘information service’ leaves untouched Portland’s holding that the Commission’s interpretation is not
the best reading of the statute.”871 Justice Breyer concurred with Justice Thomas, stating that he
“believe[d] that the Federal Communications Commission’s decision f[e]ll[] within the scope of its
statutorily delegated authority,” although “perhaps just barely.”872 And in dissent, Justice Scalia, joined
866

A “telecommunications service” is “the offering of telecommunications for a fee directly to the public, or to such
classes of users as to be effectively available directly to the public, regardless of the facilities used.” 47 U.S.C.
§ 153(53). “Telecommunications” is “the transmission, between or among points specified by the user, of
information of the user’s choosing, without change in the form or content of the information as sent and received.”
Id. § 153(50).
867

Brand X, 545 U.S. at 980 (citations omitted); see also id. at 989 (“[W]here a statute’s plain terms admit of two or
more reasonable ordinary usages, the Commission’s choice of one of them is entitled to deference.”).
868

Id. at 992; see also id. at 991 (“[T]he term ‘offer’ can sometimes refer to a single, finished product and
sometimes to the ‘individual components in a package being offered’ . . . .”); U.S. Telecom Ass’n v. FCC, 295 F.3d
1326, 1332 (D.C. Cir. 2002) (“telecommunications carrier” is an ambiguous statutory term); Virgin Islands Tel.
Comp. v. FCC, 198 F.3d 921, 925-26 (D.C. Cir. 1999) (“telecommunications service” is an ambiguous term).
869

Id. at 989.

870

Id. at 1002-03 (internal citation and quotation marks omitted).

871

Id. at 985-86.

872

Id. at 1003 (Breyer, J., concurring).

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by Justices Souter and Ginsburg, found that the Commission had adopted “an implausible reading of the
statute”873 and that “the telecommunications component of cable-modem service retains such ample
independent identity” that it could only reasonably be classified as a separate telecommunications
service.874
334.
It is also well settled that we may reconsider, on reasonable grounds, the Commission’s
earlier application of the ambiguous statutory definitions of “telecommunications service” and
“information service.”875 Indeed, in Brand X, the Supreme Court, in the specific context of classifying
cable modem service, instructed the Commission to reexamine its application of the Communications Act
to this service “on a continuing basis”:
[I]f the agency adequately explains the reasons for a reversal of policy, “change is not
invalidating, since the whole point of Chevron is to leave the discretion provided by the
ambiguities of a statute with the implementing agency.” “An initial agency interpretation
is not instantly carved in stone. On the contrary, the agency . . . must consider varying
interpretations and the wisdom of its policy on a continuing basis,” for example, in
response to changed factual circumstances, or a change in administrations . . . .876
335.
More recently, in FCC v. Fox Television Stations, Inc., the Supreme Court emphasized
that, although an agency must acknowledge that it is changing course when it adopts a new construction
of an ambiguous statutory provision, “it need not demonstrate to a court’s satisfaction that the reasons for
the new policy are better than the reasons for the old one . . . .”877 Rather, it is sufficient that “the new
policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to
be better, which the conscious change of course adequately indicates.”878 We discuss in detail below why
our conclusion that broadband Internet access service is a telecommunications service is well within our
authority. Having determined that Congress gave the Commission authority to determine the appropriate
classification of broadband Internet access service—and having provided sufficient justification of
changed factual circumstances to warrant a reexamination of the Commission’s prior classification—we
find, upon interpreting the relevant statutory terms, that broadband Internet access service, as offered
today, includes “telecommunications,” and falls within the definition of a “telecommunications service.”
1.

Scope

336.
As discussed below, we conclude that broadband Internet access service is a
telecommunications service. We define “broadband Internet access service” as a mass-market879 retail
873

Id. at 1005 (Scalia, J., dissenting).

874

Id. at 1008 (Scalia, J., dissenting).

875

Id. at 981; see also Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 863 (1984)
(“An initial agency interpretation is not instantly carved in stone.”). Accord Mary V. Harris Foundation v. FCC,
776 F.3d 21, 24 (D.C. Cir. 2015) (“What the Commission did in the past is of no moment, however, if its current
approach reflects a permissible interpretation of the statute.”).
876

Brand X, 545 U.S. at 981 (citations omitted).

877

FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (interpreting statutory ban on indecent
broadcasts).
878

Id.; see also Verizon, 740 F.3d at 636-37 (“In the Open Internet Order, however, the Commission has offered a
reasoned explanation for its changed understanding of section 706(a). . . . In these circumstances . . . we have no
basis for saying that the Commission ‘casually ignored prior policies and interpretations or otherwise failed to
provide a reasoned explanation’ for its changed interpretation.”).
879

By mass market, we mean services marketed and sold on a standardized basis to residential customers, small
businesses, and other end-user customers such as schools and libraries. “Schools” would include institutions of
higher education to the extent that they purchase these standardized retail services. See Higher Education and
Libraries Comments at 11 (noting that institutions of higher education are not “residential customers” or “small
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service by wire or radio that provides the capability to transmit data to and receive data from all or
substantially all Internet endpoints, including any capabilities that are incidental to and enable the
operation of the communications service, but excluding dial-up Internet access service.880 This term also
encompasses any service that the Commission finds to be providing a functional equivalent of the service
described in the previous sentence.881
337.
The term “broadband Internet access service” includes services provided over any
technology platform, including but not limited to wire, terrestrial wireless (including fixed and mobile
wireless services using licensed or unlicensed spectrum), and satellite.882 For purposes of our discussion,
we divide the various forms of broadband Internet access service into the two categories of “fixed” and
“mobile,” rather than between “wired” and “wireless” service. With these two categories of services—
fixed and mobile—we intend to cover the entire universe of Internet access services at issue in the
Commission’s prior broadband classification decisions883 as well as all other broadband Internet access
(Continued from previous page)
businesses” and uncertainty about whether institutions of higher education (and their libraries) are included in the
term “schools” because the term is sometimes interpreted as applying only to K-12 schools). For purposes of this
definition, “mass market” also includes broadband Internet access service purchased with the support of the E-rate,
and Rural Healthcare programs, as well as any broadband Internet access service offered using networks supported
by the Connect America Fund (CAF), but does not include enterprise service offerings or special access services,
which are typically offered to larger organizations through customized or individually negotiated arrangements. See
Open Internet Order, 25 FCC Rcd at 17932, para. 45; supra para. 189 & n.464.
880

As explained above, see supra note 27 , our use of the term “broadband” in this Order includes but is not limited
to services meeting the threshold for “advanced telecommunications capability.”
881

47 C.F.R. § 8.11(a); Open Internet Order, 25 FCC Rcd at 17932, para. 44; id. at 17935, para. 51 (finding that the
market and regulatory landscape for dial-up Internet access service differed from broadband Internet access service);
2014 Open Internet NPRM, 29 FCC Rcd at 5581, para. 54. The Verizon decision upheld the Commission’s
regulation of broadband Internet access service pursuant to section 706 and the definition of “broadband Internet
access service” has remained part of the Commission’s regulations since adopted in 2010. Certain parties have
raised issues in the record regarding the regulatory status of mobile messaging services, e.g., SMS/MMS. See, e.g.,
Twilio Comments at 7-8. We note that the rules we adopt today prohibit broadband providers from, for example,
blocking messaging services that are delivered over a broadband Internet access service. We decline to further
address here arguments regarding the status of messaging within our regulatory framework, but instead plan to
address these issues in the context of the pending proceeding considering a petition to clarify the regulatory status of
text messaging services. See Wireless Telecommunications Bureau Seeks Comment on Petition for Declaratory
Ruling that Text Messaging and Short Codes are Title II Services or Title I Service Subject to Section 202 NonDiscrimination Rule, WT Docket No. 08-7, Public Notice, 23 FCC Rcd 262 (WTB 2008).
882

In classifying wireless broadband Internet access as an information service, the Commission excluded broadband
provided via satellite from classification. See Wireless Broadband Classification Order, 22 FCC Rcd at 5901, n.1.
Thus, our action here expressly classifies the service for the first time. We observe that while our classification
includes broadband Internet access services provided using capacity over fixed or mobile satellite or submarine
cable landing facilities, our classification of these services as telecommunications services or CMRS does not
require changes to the authorizations for satellite earth stations, satellite space stations, or submarine cable landing
facilities.
883

See Wireless Broadband Classification Order, 22 FCC Rcd at 5909-10, paras. 19, 22 (defining wireless
broadband Internet access service as “a service that uses spectrum, wireless facilities and wireless technologies to
provide subscribers with high-speed (broadband) Internet access capabilities” and classifying such service—
“whether offered using mobile, portable, or fixed technologies”—as an information service); Cable Modem
Declaratory Ruling, 17 FCC Rcd at 4818-19, para. 31 (stating that cable modem service is a “service that uses cable
system facilities to provide residential subscribers with high-speed Internet access, as well as many applications or
functions that can be used with high-speed Internet access”); Wireline Broadband Classification Order, 20 FCC Rcd
at 14860, para. 9 (defining wireline broadband Internet access service as “a service that uses existing or future
wireline facilities of the telephone network to provide subscribers with [broadband] Internet access capabilities”);
BPL-Enabled Broadband Order, 21 FCC Rcd 13281.

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services offered over other technology platforms that were not addressed by prior classification orders.
We also make clear that our classification finding applies to all providers of broadband Internet access
service, as we delineate them here, regardless of whether they lease or own the facilities used to provide
the service.884 “Fixed” broadband Internet access service refers to a broadband Internet access service that
serves end users primarily at fixed endpoints using stationary equipment, such as the modem that
connects an end user’s home router, computer, or other Internet access device to the network.885 The term
encompasses the delivery of fixed broadband over any medium, including various forms of wired
broadband services (e.g., cable, DSL, fiber), fixed wireless broadband services (including fixed services
using unlicensed spectrum), and fixed satellite broadband services. “Mobile” broadband Internet access
service refers to a broadband Internet access service that serves end users primarily using mobile
stations.886 Mobile broadband Internet access includes, among other things, services that use smartphones
or mobile-network-enabled tablets as the primary endpoints for connection to the Internet.887 The term
also encompasses mobile satellite broadband services.
338.
In the Verizon opinion, the D.C. Circuit concluded that, in addition to the retail service
provided to consumers, “broadband providers furnish a service to edge providers, thus undoubtedly
functioning as edge providers ‘carriers.’”888 It was because the court concluded that the Commission had
treated this distinct service as common carriage, that it “remand[ed] the case to the Commission for
further proceedings consistent with this opinion.” 889 We conclude now that the failure of the
Commission’s analysis was a failure to explain that the “service to edge providers” is subsumed within
the promise made to the retail customer of the BIAS service. For the reasons we review herein, the
reclassification of BIAS necessarily resolves the edge-provider question as well. In other words, the
Commission agrees that a two-sided market exists and that the beneficiaries of the non-consumer side
either are or potentially could be all edge providers.890 Because our reclassification decision treats BIAS
884

The Commission has consistently determined that resellers of telecommunications services are
telecommunications carriers, even if they do not own any facilities. See, e.g., Regulation of Prepaid Calling Card
Services, WC Docket No. 05-68, Declaratory Ruling and Report and Order, 21 FCC Rcd 7290, 7293-94, 7312,
paras. 10, 65 (2006), vacated in part on other grounds sub nom. Qwest Servs. Corp. v. FCC, 509 F.3d 531 (D.C. Cir.
2007); NOS Communications, Inc., Affinity Network Inc. and NOSVA Limited Partnership, EB Docket No. 03-96,
Order to Show Cause and Notice of Opportunity for Hearing, 18 FCC Rcd 6952, 6953-54, para. 3 (2003);
Regulatory Policies Concerning Resale and Shared Use of Common Carrier Services and Facilities, Docket No.
20097, Report and Order, 60 FCC 2d 261, 265 para. 8 (1976) (“[A]n entity engaged in the resale of communications
service is a common carrier, and is fully subject to the provisions of Title II of the Communications Act.”), aff’d sub
nom. AT&T v. FCC, 572 F.2d 17 (2d Cir. 1978). Further, as the Supreme Court observed in Brand X, “the relevant
definitions do not distinguish facilities-based and non-facilities-based carriers.” Brand X, 545 U.S. at 997.
885

2010 Open Internet Order, 25 FCC Rcd at 17934, para. 49.

886

See 47 U.S.C. § 153(34) (“The term ‘mobile station’ means a radio-communication station capable of being
moved and which ordinarily does move.”); 2010 Open Internet Order, 25 FCC Rcd at 17934, para. 49.
887

We note that section 337(f)(1) of the Act excludes public safety services from the definition of mobile broadband
Internet access service. 47 U.S.C.§ 337(f)(1).
888

Verizon, 740 F.3d at 653.

889

Id. at 659.

890

Verizon, 740 F.3d at 653; Technology Policy Institute Comments at 11 (recognizing a two-sided market);
CenturyLink Comments at 6 (“A two-sided market approach ensures that the costs of content and applications
causing greater bandwidth consumption are ultimately passed on to the subscribers who use those services, ensures
that adequate pricing signals are communicated to edge providers and, overall, produces the optimal economic
outcome.”); id. at 5-7; Hance Haney Comments at 9 (recognizing a two-sided broadband market); Cox Comments at
5 (discussing emerging two-sided market arrangements); ACLU Comments at 7 (acknowledging the broadband
market as a two-sided market); Bright House Comments at 27-28 (explaining that two-sided markets have long
existed under Title II in the provision of long-distance service).

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as a Title II service, Title II applies, as well, to the second side of the market, which is always a part of,
and subsidiary to, the BIAS service. The Verizon court implicitly followed that analysis when it treated
the classification of the retail end user service as controlling with respect to its analysis of the edge
service; its conclusion that an edge service could be not be treated as common carriage turned entirely on
its understanding that the provision of retail broadband Internet access services had been classified as
“information services.”891 The reclassification of BIAS as a Title II service thus addresses the court’s
conclusion that “the Commission would violate the Communications Act were it to regulate broadband
providers as common carriers.”892
339.
Many commenters, while holding vastly different views on our reclassification of BIAS,
are united in the view we need not reach the regulatory classification of the service that the Verizon court
identified as being furnished to the edge.893 We agree. Our reclassification of the broadband Internet
access service means that we can regulate, consistent with the Communications Act, broadband providers
to the extent they are “engaged” in providing the broadband Internet access service.894 As discussed
above, a broadband Internet access service provider’s representation to its end-user customer that it will
transport and deliver traffic to and from all or substantially all Internet endpoints necessarily includes the
promise to transmit traffic to and from those Internet end points back to the user.895 Thus, the so-called
“edge service” is secondary, and in support of, the promise made to the end user, and broadband provider
practices with respect to edge providers—including terms and conditions for the transfer and delivery of
traffic to (and from) the BIAS subscriber—impact the broadband provider’s provision of the Title II
broadband Internet access service.896 For example, where an edge provider attempts to purchase favorable
treatment for its traffic (such as through zero rating), that treatment would be experienced by the BIAS
891

Verizon, 740 F.3d at 650.

892

Id.

893

See, e.g., Letter from Matthew Wood, Policy Director, Free Press to Marlene H. Dortch, Secretary, FCC, GN
Docket Nos. 10-127, 14-28, at 3 (filed Feb. 20, 2015) (“Recognition of [an] edge-facing service as a telecom service
is decidedly not commanded by the D.C. Circuit’s decision in the Verizon case.”); Letter from Sarah Morris, Open
Technology Institute, New America Foundation, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 10-127,
14-28, at 2 (filed Feb. 20, 2015); Letter from Austin C. Schlick, Director, Communications Law, Google, to Marlene
H. Dortch, Secretary, FCC, GN Docket Nos. 10-127, 14-28, at 1 (filed Feb. 20, 2015); Letter from Henry G.
Hultquist, Vice President, AT&T, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 10-127, 14-28, at 7-9
(filed Feb. 18, 2015); Letter from William H. Johnson, Vice President and Associate General Counsel, Verizon, to
Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 2-3 (filed Oct. 17, 2014) (stating that “the fact that
payment for [broadband] service may be split in some fashion between the edge provider and end user does not
magically convert the service into two separate offerings”). We thus decline to adopt proposals identifying and
classifying a separate service provided to edge providers that were presented in the record, and on which we sought
comment, including those by Mozilla, the Center for Democracy and Technology, and Professors Wu and
Narechania. See, e.g., Mozilla’s Petition to Recognize Remote Delivery Services in Terminating Access Networks
and Classify Such Services Under Title II of the Communications Act, WC Docket No. 14-28, at 12 (filed May 5,
2014); Tejas Narechania and Tim Wu, Sender Side Transmission Rules for the Internet, Fed. Comm. L.J.
(forthcoming 2014); Narechania/Wu Apr. 14, 2014 Ex Parte Letter. We believe that our actions here adequately
address the concerns raised by these proposals, consistent with both law and fact.
894

47 U.S.C. § 153(51) (defining “telecommunications carrier”).

895

See supra para. 204.

896

This is not a novel arrangement. Under traditional contract principles, Party A (a broadband provider) can
contract with Party B (a consumer) to provide services to Party C (an edge provider). That the service is being
provided to Party C does not, in any way, conflict with the legal conclusion that the terms and conditions under
which that service is being provided are governed by the agreement—and here the regulatory framework— between
Parties A and B. Most content that flows across the broadband provider’s “last-mile” network to the retail consumer
does not involve a direct agreement between Parties B and C but, as the Verizon court observed, an edge provider,
like Amazon, could enter into an agreement with a broadband provider, like Comcast. See Verizon, 740 F.3d at 653.

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subscriber (such as through an exemption of the edge-provider’s data from a usage limit) and the impact
on the BIAS subscriber, if any, would be assessed under Title II. That is, the legal question before the
Commission turns on whether the provision of that service to the edge provider would be inconsistent
with the provision of the retail service under Title II. That is because the same data is flowing between
end user and edge consumer.897 In other words, to the extent that it is necessary to examine a separate
edge service, that service is simply derivative of BIAS, constitutes the same traffic, and, in any event, fits
comfortably within the command that practices provided “in connection with” a Title II service that must
themselves be just and reasonable.898
340.
Broadband Internet access service does not include virtual private network (VPN)
services, content delivery networks (CDNs), hosting or data storage services, or Internet backbone
services.899 The Commission has historically distinguished these services from “mass market” services
and, as explained in the 2014 Open Internet NPRM, they “do not provide the capability to transmit data to
and receive data from all or substantially all Internet endpoints.”900 We do not disturb that finding here.
Finally, we observe that to the extent that coffee shops, bookstores, airlines, private end-user networks
such as libraries and universities, and other businesses acquire broadband Internet access service from a
broadband provider to enable patrons to access the Internet from their respective establishments,
provision of such service by the premise operator would not itself be considered a broadband Internet
access service unless it was offered to patrons as a retail mass market service, as we define it here.901
Likewise, when a user employs, for example, a wireless router or a Wi-Fi hotspot to create a personal WiFi network that is not intentionally offered for the benefit of others, he or she is not offering a broadband
Internet access service, under our definition, because the user is not marketing and selling such service to
residential customers, small business, and other end-user customers such as schools and libraries.

897

This conclusion does not contradict the economic view that a broadband provider is operating in a two-sided
market. See, e.g., supra note 893. A newspaper looks the same whether viewed by an advertiser or a subscriber,
even though their economic relationship with the newspaper publisher is different. Here the operation of the
broadband Internet access service is so intertwined with the edge service so as to compel the conclusion that the
BIAS reclassification controls any service that is being provided to an edge provider.
898

See 47 U.S.C. 201(b) (“All charges, practices, classifications, and regulations for and in connection with such
communication service, shall be just and reasonable”); see also Truth-in-Billing and Billing Format, CC Docket No.
98-170, First Report and Order and Further Notice of Proposed Rulemaking, 14 FCC Rcd 7492, 7503-06, para. 2124 (1999) (finding that a carrier’s provision of misleading or deceptive billing information “in connection with” a
telecommunications service is unjust and unreasonable in violation of section 201(b)); Empowering Consumers to
Prevent and Detect Billing for Unauthorized Charges (“Cramming”); Consumer Information and Disclosure;
Truth-in-Billing and Billing and Billing Format, CG Docket Nos. 11-116, 09-158, CC Docket No. 98-170, Report
and Order and Further Notice of Proposed Rulemaking, 27 FCC Rcd 4436, 4476-4479, paras. 114-122 (2011)
(finding that the placement of third-party charges on bills for their own telecommunications services such that they
are “often described to look like they are associated with a telecommunications service provided by the carrier” are
subject to section 201(b)); NobelTel LLC, Apparent Liability for Forfeiture, File No. EB-TCD-12-0000412, Notice
of Apparent Liability For Forfeiture, 27 FCC Rcd 11760, 11762-63, para. 6 (2012) (finding that “unfair and
deceptive marketing practices by interstate common carriers constitute unjust and unreasonable practices under
Section 201(b)”).
899

2010 Open Internet Order, 25 FCC Rcd at 17933, para. 47; 2014 Open Internet NPRM, 29 FCC Rcd at 5581,
para. 58; see also, e.g., Cox Comments at 8, 13-14; Nokia Comments at 11; Verizon Comments at 77-78.
900

2014 Open Internet NPRM, 29 FCC Rcd at 5581-82, para. 58. In classifying broadband Internet access service as
a telecommunications service today, the Commission does not, and need not, reach the question of whether and how
these services are classified under the Communications Act.
901

See 2010 Open Internet Order, 25 FCC Rcd at 17935, para. 52.

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The Market Today: Current Offerings of Broadband Internet Access
Service

341.
We begin our analysis by examining how broadband Internet access service was and
currently is offered. In the 2002 Cable Modem Declaratory Ruling, the Commission observed that “the
cable modem service business is still nascent, and the shape of broadband deployment is not yet clear.
Business relationships among cable operators and their service offerings are evolving.”902 Despite the
rapidly changing market for broadband Internet access services, the Commission’s decisions classifying
broadband Internet access service are based largely on a factual record compiled over a decade ago,
during this early evolutionary period. The record in this proceeding leads us to the conclusion that
providers today market and offer consumers separate services that are best characterized as (1) a
broadband Internet access service that is a telecommunications service; and (2) “add-on” applications,
content, and services that are generally information services.
342.
In the past, the Commission has identified a number of ways to determine what
broadband providers “offer” consumers. In the Cable Modem Declaratory Ruling, for example, the
Commission concluded that “the classification of cable modem service turns on the nature of the
functions that the end user is offered.”903 In the Wireline Broadband Classification Order, the
Commission noted that “whether a telecommunications service is being provided turns on what the entity
is ‘offering . . . to the public,’ and customers’ understanding of that service.”904 In the Wireless
Broadband Classification Order, the Commission stated that “[a]s with both cable and wireline Internet
access, [the] definition appropriately focuses on the end user’s experience, factoring in both the functional
characteristics and speed of transmission associated with the service.”905 Similarly, in Brand X, both the
majority and dissenting opinions examined how consumers perceive and use cable modem service,906
technical characteristics of the services and how it is provided,907 and analogies to other services.908
a.

Broadband Internet Access Services at Time of Classification

343.
“Wired” Broadband Services. The Commission’s Cable Modem Declaratory Ruling
described cable modem service as “typically includ[ing] many and sometimes all of the functions made
available through dial-up Internet access service, including content, e-mail accounts, access to news
groups, the ability to create a personal web page, and the ability to retrieve information from the Internet,
including access to the World Wide Web.”909 The Commission also identified functions provided with
cable modem service that it called “Internet connectivity functions.”910 These included establishing a
902

Cable Modem Declaratory Ruling, 17 FCC Rcd at 4843-44, para. 83.

903

Id. at 4822, para. 38 (emphasis added).

904

Wireline Broadband Classification Order, 20 FCC Rcd at 14910, para. 104 (quoting 47 U.S.C. § 153(46)) (citing
Brand X, 545 U.S. at 989-90) (emphasis added).
905

Wireless Broadband Classification Order, 22 FCC Rcd at 5909, para. 21.

906

Brand X, 545 U.S. at 989-990, 993; see also id. at 1005, 1008 (Scalia, J., dissenting).

907

Id. at 990 (“We think that [the transmission component of cable modem service and the finished service] are
sufficiently integrated, because ‘[a] consumer uses the high-speed wire always in connection with the informationprocessing capabilities provided by Internet access, and because the transmission is a necessary component of
Internet access.’”), 991 (“[The entire] question turns not on the language of the Act, but on the factual particulars of
how Internet technology works and how it is provided, questions Chevron leaves to the Commission to resolve in
the first instance.”), 991-92, 998-99; see also id. at 1006-07, 1010 (Scalia, J., dissenting).
908

Id. at 990-91; see also id. at 1008 (Scalia, J., dissenting).

909

Cable Modem Declaratory Ruling, 17 FCC Rcd at 4804, para. 10 (footnotes omitted).

910

Id. at 4809-11, para. 17. Earlier, in its 2001 AOL/Time Warner merger order describing the emerging high speed
Internet access services offered through cable modems, the Commission found that “Internet access services consist
principally of connectivity to the Internet provided to end users.” Applications for Consent to the Transfer of
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physical connection to the Internet and interconnecting with the Internet backbone, protocol conversion,
Internet Protocol address number assignment, domain name resolution through DNS, network security,
caching, network monitoring, capacity engineering and management, fault management, and
troubleshooting.911 In addition, the Commission noted that “[n]etwork monitoring, capacity engineering
and management, fault management, and troubleshooting are Internet access service functions that . . .
serve to provide a steady and accurate flow of information between the cable system to which the
subscriber is connected and the Internet.”912 The Ruling noted that “[c]omplementing the Internet access
functions are Internet applications provided through cable modem service. These applications include
traditional ISP services such as e-mail, access to online newsgroups, and creating or obtaining and
aggregating content. The cable modem service provider will also typically offer subscribers a ‘first
screen’ or ‘home page’ and the ability to create a personal web page.”913 The Commission explained that
“[e]-mail, newsgroups, the ability for the user to create a web page that is accessible by other Internet
users, and DNS are applications that are commonly associated with Internet access service,” and that
“[t]aken together, they constitute an information service.”914 In the Wireline Broadband Classification
Order, the Commission found that end users subscribing to wireline broadband Internet access service
“expect to receive (and pay for) a finished, functionally integrated service that provides access to the
Internet.”915
344.
The Commission’s subsequent wired broadband classification decisions did not describe
wired broadband Internet access services with any greater detail.916
345.
Wireless Broadband Services. In 2007, the Commission described wireless broadband
Internet access service as a service “that uses spectrum, wireless facilities and wireless technologies to
provide subscribers with high-speed (broadband) Internet access capabilities.”917 The Commission noted
that “many of the mobile telephone carriers that provide mobile wireless broadband service for mobile
handsets offer a range of IP-based multimedia content and services—including ring tones, music, games,
video clips and video streaming—that are specially designed to work with the small screens and limited
keypads of mobile handsets. This content is typically sold through a carrier-branded, carrier-controlled
portal.”918
b.

The Growth of Consumer Demand and Market Supply

346.
The record in this proceeding reveals that, since we collected information to address the
classification of cable modem service over a decade ago, the market for both fixed and mobile broadband
(Continued from previous page)
Control of Licenses and Section 214 Authorizations by Time Warner, Inc. and America Online, Inc., Transferors, to
AOL Time Warner, Inc., Transferee, CS Docket No. 00-30, Memorandum Opinion and Order, 16 FCC Rcd 6547,
6572-73, paras. 62, 64 (2001) (describing contracts by cable operators with Road Runner, Excite@Home, and HighSpeed Access Corp. to provide such connectivity).
911

Cable Modem Declaratory Ruling, 17 FCC Rcd at 4809-11, paras. 16-17.

912

Id. at 4810-11, para. 17 (citations omitted).

913

Id. at 4811, para. 18 (emphasis added) (citations omitted).

914

Id. at 4822, para. 38 (emphasis added).

915

Wireline Broadband Classification Order, 20 FCC Rcd at 14910, para. 104.

916

See Wireline Broadband Classification Order, 20 FCC Rcd at 14860, para. 9 (discussing e-mail, websites,
newsgroups, ability to create home pages, and “the ability to run a variety of applications”); BPL-Enabled
Broadband Order, 21 FCC Rcd at 13286, para. 9 ( “[The] characteristics of BPL-enabled Internet access service are
similar to the characteristics that the Commission relied upon in classifying cable modem service and wireline
broadband Internet access service as ‘information services.’”).
917

Wireless Broadband Classification Order, 22 FCC Rcd at 5909, para. 21.

918

Id. at 5908, para. 16 (footnotes omitted).

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Internet access service has changed dramatically. Between December 2000 and December 2013, the
number of residential Internet connections with speeds over 200 kbps in at least one direction increased
from 5.2 million to 87.6 million.919 In 2000, only 5 percent of American households had a fixed Internet
access connection with speeds of over 200 kbps in at least one direction,920 as compared to approximately
72 percent of American households with this same connection today.921 Indeed, as of December 2013, 60
percent of households have a fixed Internet connection with minimum speeds of at least 3 Mbps/768
kbps.922 Moreover, between December 2009 and December 2013, the number of mobile handsets with a
residential data plan with a speed of at least 200 kbps in one direction increased from 43.7 million to
159.2 million, a 265 percent increase.923 By November 2014, 73.6 percent of the entire U.S. age 13+
population was communicating with smart phones, a figure which has continued to rise rapidly over the
past several years.924 Cisco forecasts that by 2019, North America will have nearly 90 percent of its
installed base converted to smart devices and connections, and smart traffic will grow to 97 percent of the
total global mobile traffic.925 In 2013, the United States and Canada were home to almost 260 million
mobile subscriptions for smartphones, mobile PCs, tablets, and mobile routers. In 2014, that number was
expected to increase by 20 percent, to 300 million subscriptions; by 2020, to 450 million, or a population
penetration rate of almost 124 percent.926 In addition, the explosion in the deployment of Wi-Fi
technology in the past few years has resulted in consumers increasingly using that technology to access
third party content, applications, and services on the Internet, in connection with either a fixed broadband
service or a mobile broadband service.
919

Industry Analysis Division, Common Carrier Bureau, High Speed Services for Internet Access: Subscribership as
of December 31, 2000 (Aug. 2001) at 6, Tbl. 3; Industry Analysis and Technology Division, Wireline Competition
Bureau, Internet Access Services: Status as of December 31, 2013 at 17, Tbl. 3 (Oct. 2014) (noting that the estimate
for 2000 overstates residential connections because the residential data include small business connections before
2005); see also John B. Horrigan & Lee Rainie, The Broadband Difference: How Online Behavior Changes with
High-Speed Internet Connections at Home, Pew Internet & American Life Project, 8 (2002) (“When the Pew
Internet and American Life Project in June 2000 first asked Internet users about the type of home connection they
had, 6% of Internet users had a high-speed connection at home.”) (The Broadband Difference).
920

Industry Analysis Division, Common Carrier Bureau, High-Speed Services for Internet Access: Subscribership as
of December 31, 2000 at 6, Tbl. 3 (Aug. 2001); U.S. Department of Commerce, Census Brief, Households and
Families: 2000 at 1 (Sept. 2001) (reporting 105.5 million households; 5.2 million subscribers/105.5 households
equals approximately 5 percent).
921

Industry Analysis and Technology Division, Wireline Competition Bureau, Internet Access Services: Status as of
December 31, 2013 at 35, Tbl. 14 (Oct. 2014),
http://transition.fcc.gov/Daily_Releases/Daily_Business/2014/db1016/DOC-329973A1.pdf.
922

See id. at 34, Tbl. 13.

923

See id. at 17, Tbl. 3; see also Industry Analysis and Technology Division, Wireline Competition Bureau, Internet
Access Services: Status as of June 30, 2011 at 82 (June 2012) (explaining the change in mobile reporting and thus
our estimates are not directly comparable to estimates reported in earlier reporting periods). In addition, the mobile
residential figures may overstate residential handsets because mobile filers report the number of “consumer”
handsets that are not billed to a corporate, non-corporate business, government, or institutional customer account,
and thus could include handsets for which the subscriber is reimbursed by their employee. See FCC Form 477
Filing Instructions at 26, http://transition.fcc.gov/form477/477inst.pdf.
924

See comScore, comScore Reports November 2014 U.S. Smartphone Subscriber Market Share (Jan. 8, 2015),
http://www.comscore.com/Insights/Market-Rankings/comScore-Reports-November-2014-US-SmartphoneSubscriber-Market-Share.
925

Cisco, Cisco Visual Networking Index: Global Mobile Data Traffic Forecast Update 2014-2019 at 9-10 (Feb. 3,
2015), http://www.cisco.com/c/en/us/solutions/collateral/service-provider/visual-networking-indexvni/white_paper_c11-520862.pdf.
926

See Ericsson, Ericsson Mobility Report Appendix: North America, 4 (Nov. 2014),
http://www.ericsson.com/res/docs/2014/emr-november2014-regional-appendices-rnam.pdf.

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347.
This widespread penetration of broadband Internet access service has led to the
development of third-party services and devices and has increased the modular way consumers have come
to use them. As more American households have gained access to broadband Internet access service, the
market for Internet-based services provided by parties other than broadband Internet access providers has
flourished. Consumers’ appetite for third-party services has also received a boost from the shift from
dial-up to broadband, as a high-speed connection makes the Internet much more useful to consumers.927
The impact of broadband on consumers’ demand for third-party services is evident in the explosive
growth of online content and application providers. In early 2003, a year after the Cable Modem
Declaratory Ruling, there were approximately 36 million websites.928 Today there are an estimated 900
million.929 When the Commission assessed the cable modem service market in the Cable Modem
Declaratory Ruling, the service at issue was offered with various online applications, including e-mail,
newsgroups, and the ability to create a web page.930 The Commission observed that subscribers to cable
modem services “usually d[id] not need to contract separately” for “discrete services or applications” such
as e-mail.931 Today, broadband service providers still provide various Internet applications, including email, online storage, and customized homepages, in addition to newer services such as music streaming
and instant messaging.932 But consumers are very likely to use their high-speed Internet connections to
take advantage of competing services offered by third parties.
348.
For example, companies such as Google and Yahoo! offer popular alternatives to the
email services provided to subscribers as part of broadband Internet access service packages.933
According to Experian, Gmail and Yahoo! Mail were among the ten Internet sites most frequently visited
during the week of January 17, 2015, with approximately 400 million and 350 million visits
respectively.934 Some parties even advise consumers specifically not to use a broadband provider-based
email address; because a consumer cannot take that email address with them if he or she switches
providers, some assert that using a broadband provider-provided email address results in a disincentive to

927

For example, early studies showed that broadband users are far more likely than dial-up users to go online to seek
out news, look for travel information, share computer files with others, create content, and download games and
videos. The Broadband Difference at 2, 12.
928

Netcraft, February 2003 Web Server Survey,
http://news.netcraft.com/archives/2003/02/25/february_2003_web_server_survey.html; see also Netcraft, How many
active sites are there?, http://news.netcraft.com/active-sites (last visited Jan. 5, 2015).
929

Netcraft, January 2015 Web Server Survey, http://news.netcraft.com/archives/category/web-server-survey/ (last
visited Jan. 22, 2014).
930

Cable Modem Declaratory Ruling, 17 FCC Rcd at 4811, para. 18.

931

Id. at 4806, para. 11.

932

See, e.g., Comcast Comments at 57-58; AT&T Comments at 49.

933

See Google, Gmail, https://mail.google.com (last visited Feb. 15, 2015); Yahoo!, Yahoo! Mail,
https://mail.yahoo.com (last visited Feb. 15, 2015); see also MailChimp, What Does Your ISP Say About You? (Nov.
26, 2013), http://blog.mailchimp.com/what-does-your-isp-say-about-you/ (showing that in 2013, the top domains for
email addresses were Gmail, Hotmail, Yahoo, and AOL, and that the only broadband provider-based email service
to be in the top five was Comcast, whose usage is not in proportion to its market share).
934

See Experian, Online Consumer Trends, http://www.experian.com/marketing-services/online-trends.html (last
visited Jan. 25, 2015); see also CDT Comments at 11 (citing similar Experian data from June 2014). A 2010
Commission study found that of the time Comcast, AT&T, Time Warner Cable, and Verizon Internet subscribers
spend using web-based email, 95 percent is spent using third-party services such as Yahoo! Mail and only 5 percent
is spent using ISP-provided services (e.g., webmail.verizon.net). See Federal Communications Commission,
Omnibus Broadband Initiative, Broadband Performance: OBI Technical Paper No. 4, at 28 n. 14 (2010) (citing
comScore data).

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switch to a competitive provider due to the attendant difficulties in changing an email address.935 Thirdparty alternatives are also widely available for other services that may be provided along with broadband
Internet access service.936 For example, firms such as Apple, Dropbox, and Carbonite937 provide “cloudbased” storage; services like Go Daddy provide website hosting;938 users rely on companies such as
WordPress and Tumblr to provide blog hosting;939 and firms such as Netvibes and Yahoo! provide
personalized homepages.940 GigaNews and Google provide access to newsgroups, while many broadband
providers have themselves ceased offering this service entirely.941
349.
More generally, both fixed and mobile consumers today largely use their broadband
Internet access connections to access content and services that are unaffiliated with their broadband
Internet access service provider. In this regard, perhaps the most significant trend is the growing
popularity of third-party video streaming services. By one estimate, Netflix and YouTube alone account
for 50 percent of peak Internet download traffic in North America.942 Other sites among the most popular
in the United States include the search engines Google and Yahoo!;943 social networking sites Facebook
and LinkedIn; e-commerce sites Amazon, eBay and Craigslist; the user-generated reference site
Wikipedia; a diverse array of user-generated media sites including Reddit, Twitter, and Pinterest; and

935

See, e.g., Chris Williams, WideNet Consulting, NEVER Use Your ISP’s Email Address,
http://www.widenetconsulting.com/blog/never-use-your-isps-email-address/ (last visited Feb. 17, 2015); BBapply,
Using ISP-provided Email Addresses – A Bad Idea, http://bbapply.com/faq/email-alternatives.html (last visited Feb.
17, 2015); Josh McCarty, Don’t Use Your ISP Email Address (Jul. 25, 2011), http://joshmccarty.com/2011/07/dontuse-your-isp-email-address/ (last visited Feb. 17, 2015); MacMost, MacMost now 655: Five Reasons Not to Use
Your ISP’s Email Service (Jan. 9, 2012), http://joshmccarty.com/2011/07/dont-use-your-isp-email-address/ (last
visited Feb. 17, 2015).
936

DNS, caching, and other services that enable the efficient transmission of data over broadband connections are
considered in Section IV.C.3. below.
937

See Apple, iCloud, http://www.apple.com/icloud/ (last visited Dec. 31, 2014); Dropbox, Dropbox – Home,
https://www.dropbox.com/ (last visited Dec. 31, 2014) (“Your stuff, anywhere”); Carbonite, Carbonite Cloud
Backup Services - Online Backup, http://www.carbonite.com (last visited Dec. 31, 2014).
938

GoDaddy.com, GoDaddy – It’s Go Time, http://www.godaddy.com (last visited Dec. 31, 2014); see also AARP
Comments at iv (“Web hosting is competitively provided, with U.S. broadband providers not even making the top
25 of U.S. web hosting services.”) (citing ICANN data); CDT Comments at 12 (noting that “some major broadband
providers have ceased to offer free personal web page hosting to their subscribers”).
939

WordPress, WordPress.com—Create Your New Website for Free, http://www.wordpress.com (last visited Jan. 5,
2015); Tumblr, Tumblr, http://www.tumblr.com (last Jan. 5, 2014).
940

Netvibes, Netvibes – Dashboard Everything, http://www.netvibes.com/en (last visited Jan. 5, 2015); Yahoo, My
Yahoo!, http://my.yahoo.com (last visited Jan. 5, 2015).
941

CDT Comments at 11.

942

Sandvine, Sandvine Report: Netflix and YouTube Account for 50% of All North American Fixed Network Data,
(Nov. 11, 2013), https://www.sandvine.com/pr/2013/11/11/sandvine-report-netflix-and-youtube-account-for-50-ofall-north-american-fixed-network-data.html; see also Alcatel-Lucent Comments at 5 (“In the United States alone,
Internet video consumption is expected to grow at least 12 times in the next 6 years, and managed video on-demand
(‘VoD’) services are expected to grow 28% per year until 2017.”).
943

As previously discussed, Google and Yahoo! also provide the popular email services Gmail and Yahoo! Mail,
respectively. See supra para. 348.

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news sources such as nytimes.com and CNN.com.944 Overall, broadband providers themselves operate
very few of the websites that broadband Internet access services are most commonly used to access.945
350.
Thus, as a practical matter, broadband Internet access service is useful to consumers
today primarily as a conduit for reaching modular content, applications, and services that are provided by
unaffiliated third parties. As the Center for Democracy & Technology puts it, “[t]he service that
broadband providers offer to the public is widely understood today, by both the providers and their
customers, as the ability to connect to anywhere on the Internet—to any of the millions of Internet
endpoints—for whatever purposes the user may choose.”946 Indeed, the ability to transmit data to and
from Internet endpoints has become the “one indispensable function” that broadband Internet access
service uniquely provides.947
c.

Marketing

351.
That broadband Internet access services today are primarily offerings of Internet
connectivity and transmission capability is further evident by how these services are marketed and priced.
Commenters cite numerous examples of advertisements that emphasize transmission speed as the
predominant feature that characterizes broadband Internet access service offerings.948 For example,
Comcast advertises that its XFINITY Internet service offers “the consistently fast speeds you need, even
during peak hours,”949 and RCN markets its high-speed Internet service as providing the ability “to upload
and download in a flash.”950 Verizon claims that “[w]hatever your life demands, there’s a Verizon FiOS
plan with the perfect upload/download speed for you,”951 while the name of Verizon’s DSL-based service
is simply “High Speed Internet.”952 Furthermore, fixed broadband providers use transmission speeds to
classify tiers of service offerings and to distinguish their offerings from those of competitors. AT&T UVerse, for instance, offers four “Internet Package[s]” at different price points, differentiated in terms of
the “Downstream Speeds” they provide.953 Verizon meanwhile asserts that “the 100% fiber-optic network
that powers FiOS” enables “a level of speed and capacity that cable can’t always compete with—
944

See, e.g., Alexa, Top Sites in United States, http://www.alexa.com/topsites/countries/US (last visited Jan. 22,
2015).
945

See id.; see also comScore, comScore Ranks the Top 50 US Digital Media Properties for August 2014,
http://ir.comscore.com/releasedetail.cfm?ReleaseID=871631 (last visited Jan. 5, 2015).
946

CDT Comments at 9. CDT contrasts the current state of affairs with an earlier time “when Internet access service
providers sought to differentiate themselves by offering ‘walled gardens’ of proprietary content and users looked to
their access provider to serve as a kind of curator of the chaos of the Internet.” Id. at 9-10.
947

See id. at 11; see also AARP Comments at 11 (“[T]he broadband service that consumers rely on primarily today
is pure transmission between their device and remote computing resources or content of their choice.”).
948

See, e.g., Public Knowledge Comments at Appx. A (compiling “[s]elected examples of [broadband provider]
advertisements in July of 2014” to demonstrate that “ISPs advertise their services primarily in terms of the speed
and reliability with which they can transmit data to and from third parties”); see also AARP Comments at 10-11;
CDT Comments at 10-11.
949

Comcast, XFINITY, http://www.comcast.com/internet-service.html (last visited Dec. 31, 2014); see also CDT
Comments at 9 n.8.
950

See Public Knowledge Comments at Appx. A-3.

951

See id. at Appx. A-6.

952

See, e.g., Verizon, Verizon | High Speed Internet, http://www.verizon.com/home/highspeedinternet (last visited
Dec. 31, 2014) (“When you’re looking for all value and consistently fast speeds all the time, Verizon High Speed
Internet is the answer.”); see also AT&T, AT&T DSL High Speed Internet,
http://www.att.com/shop/internet/internet-service.html#fbid=5suMbb0rEF8 (last visited Dec. 31, 2014) (“Make
AT&T your Internet provider and take your pick of broadband Internet speeds to suit every need.”).
953

See Public Knowledge Comments at Appx. A-1.

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especially when it comes to upload speeds.”954 On the mobile side, mobile broadband providers similarly
emphasize transmission speed as well as reliability and coverage as factors that characterize their mobile
broadband Internet access service offering. AT&T, for example, claims that it has the “[n]ation’s most
reliable 4G LTE network” and that what 4G LTE means is “speeds up to 10x faster than 3G.” 955 Sprint
advertises its “Sprint Spark” service as having its “fastest ever data speeds and stronger in-building
signal.”956
352.
The advertisements discussed above link higher transmission speeds and service
reliability with enhanced access to the Internet at large—to any “points” a user may wish to reach957—not
only to Internet-based applications or services that are provided in conjunction with broadband access.
RCN, for instance, claims that its “110 Mbps High-Speed Internet” offering is “ideal for watching
Netflix,” a third-party video streaming service.958 Verizon claims that FiOS’s “75/75 Mbps” speed
“works well for uploading and sharing videos on YouTube and serious multi-user gaming” presumably
by using the FiOS service to access any combination of third-party and Verizon-affiliated content and
services the user chooses.959 AT&T notes that its 4G LTE service “lets you stream clear, crisp video
faster than ever before, download songs in a few beats, apps almost instantly, and so much more.”960
Broadband providers also market access to the Internet through Wi-Fi. Comcast, for example, notes that
with its XFinity Internet services, subscribers can enjoy “access to millions of hotspots nationwide and
stay connected while away from home.”961 T-Mobile advertises the ability to place calls and send
messages over Wi-Fi.962
353.
Fixed and mobile broadband Internet access service providers also price and differentiate
their service offerings on the basis of the quality and quantity of data transmission the offering provides.
AT&T U-Verse, for instance, offers four “Internet Package[s]” at different price points, differentiated in
terms of the “Downstream Speeds” they provide.963 On the mobile side, monthly data allowances—i.e.,
caps on the amount of data a user may transmit to and from Internet endpoints—are among the features
that factor most heavily in the pricing of service plans.964

954

Id. at A-6; see also Comcast, XFINITY vs. the Competition, http://www.comcast.com/compare/comcast-xfinityvs-verizon-fios.html (last visited Jan. 5, 2015).
955

Public Knowledge Comments at Appx. A-2.

956

Public Knowledge Comments at Appx. A-4.

957

See 47 U.S.C. § 153(50) (definition of “telecommunications”).

958

See RCN, High Speed Internet in D.C. Metro Plans & Pricing, http://www.rcn.com/dc-metro/high-speedinternet/services-and-pricing (last visited Feb. 5, 2015); Public Knowledge Comments at Appx. A-3.
959

See Verizon, FiOS Internet, http://www.verizon.com/home/fios-fastest-internet/ (last visited Feb. 5, 2015); see
also Public Knowledge Comments at Appx. A-6.
960

See AT&T, AT&T is the nation’s most reliable LTE network, http://www.att.com/network/en/index.html (last
visited Jan. 25, 2015); Public Knowledge Comments at Appx. A-2.
961

Comcast, XFINITY, http://www.comcast.com/internet-service.html (last visited Feb. 22, 2015).

962

T-Mobile, Now Calling Can Be Done Virtually Everywhere. Every Wi-Fi Connection Works Like a T-Mobile
Tower, http://www.t-mobile.com/offer/wifi-calling-wifi-extenders.html (last visited Feb. 22, 2015).
963

See Public Knowledge Comments at Appx. A-1; see also id. at Appx. A-3, A-5 (similar advertisements from
RCN and Time Warner Cable, respectively).
964

See, e.g., CTIA Comments at 8 n.13 (discussing the characteristics of various mobile service offerings); see also
Verizon Wireless, Single Line Cell Phone Plans, http://www.verizonwireless.com/wcms/consumer/shop/shop-dataplans/single-line-data-plans.html (last visited Jan. 25, 2015); AT&T, Wireless Plans,
http://www.att.com/shop/wireless/plans/mobileshare.html (last visited Jan. 25, 2015); Sprint, The Best Value in
Wireless, http://www.sprint.com/landings/datashare/index.html?INTNAV=ATG:HE:DataShare (last visited Jan. 25,
(continued….)

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354.
In short, broadband Internet access service is marketed today primarily as a conduit for
the transmission of data across the Internet.965 The record suggests that fixed broadband Internet access
service providers market distinct service offerings primarily on the basis of the transmission speeds
associated with each offering. Similarly, mobile providers market their service offerings primarily on the
basis of the speed, reliability, and coverage of their network. Marketing broadband services in this way
leaves a reasonable consumer with the impression that a certain level of transmission capability—
measured in terms of “speed” or “reliability”—is being offered in exchange for the subscription fee, even
if complementary services are also included as part of the offer.
3.

Broadband Internet Access Service Is a Telecommunications Service

355.
We now turn to applying the statutory terms at issue in light of our updated
understanding of how both fixed and mobile broadband Internet access services are offered. Three
definitional terms are critical to a determination of the appropriate classification of broadband Internet
access service. First, the Act defines “telecommunications” as “the transmission, between or among
points specified by the user, of information of the user’s choosing, without change in the form or content
of the information as sent and received.”966 Second, the Act defines “telecommunications service” as “the
offering of telecommunications for a fee directly to the public, or to such classes of users as to be
effectively available directly to the public, regardless of the facilities used.”967 Finally, “information
service” is defined in the Act as “the offering of a capability for generating, acquiring, storing,
transforming, processing, retrieving, utilizing, or making available information via telecommunications
. . . , but does not include any use of any such capability for the management, control, or operation of a
telecommunications system or the management of a telecommunications service.”968 We observe that the
critical distinction between a telecommunications and an information service turns on what the provider is
“offering.” If the offering meets the statutory definition of telecommunications service, then the service
is also necessarily a common carrier service.969
356.
In reconsidering our prior decisions and reaching a different conclusion, we find that this
result best reflects the factual record in this proceeding, and will most effectively permit the
implementation of sound policy consistent with statutory objectives. For the reasons discussed above, we
find that broadband Internet access service, as offered by both fixed and mobile providers, is best seen,
and is in fact most commonly seen, as an offering (in the words of Justice Scalia, dissenting in Brand X)
“consisting of two separate things”: “both ‘high-speed access to the Internet’ and other ‘applications and
functions.’”970 Although broadband providers in many cases provide broadband Internet access service
(Continued from previous page)
2015); T-Mobile, Simple Choice Plan, http://www.t-mobile.com/cell-phone-plans/individual.html (last visited Jan.
25, 2015).
965

The marketing materials discussed here also indicate that broadband providers hold themselves out indifferently
to the public when offering broadband Internet access service. Within particular service areas, broadband providers
tend to offer uniform prices and services to potential customers. See, e.g., Public Knowledge Comments at 79; Free
Press Comments at 64-65. As discussed above, these offers are widely available through advertisements and
marketing materials. See supra paras. 351-353.
966

47 U.S.C. § 153(50).

967

Id. § 153(53).

968

Id. § 153(24).

969

See Universal Service First Report and Order, 12 FCC Rcd at 9177, para. 785 (“We find that the definition of
‘telecommunications services’ in which the phrase ‘directly to the public’ appears is intended to encompass only
telecommunications provided on a common carrier basis.”); U.S. Telecom Ass’n v. FCC, 295 F.3d at 1328-29
(telecommunications carriers limited to common carriers); Cable & Wireless, PLC, Order, 12 FCC Rcd 8516, 8521,
para. 13 (1997) (“[T]he definition of telecommunications services is intended to clarify that telecommunications
services are common carrier services.”).
970

Brand X, 545 U.S. at 1008 (quoting Cable Modem Declaratory Ruling).

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along with information services, such as email and online storage, we find that broadband Internet access
service is today sufficiently independent of these information services that it is a separate “offering.”971
We also find that domain name service (DNS)972 and caching,973 when provided with broadband Internet
access services, fit squarely within the telecommunications systems management exception to the
definition of “information service.”974 Thus, when provided with broadband Internet access services,
these integrated services do not convert broadband Internet access service into an information service.975
357.
The Commission Does Not Bear a Special Burden in This Proceeding. Opponents of
classifying broadband Internet access service as a telecommunications service advocate a narrow reading
of the Supreme Court’s decision in Brand X. They contend that the Court’s decision to affirm the
classification of cable modem service as an information service was driven by specific factual findings
concerning DNS and caching, and argue that the Commission may not revisit its decision unless it can
show that the facts have changed.976 Opponents also cite a passage from the Supreme Court’s Fox
decision suggesting that an agency must provide “a more detailed justification than what would suffice
for a new policy on a blank slate” where the agency’s “new policy rests upon factual findings that

971

See Brand X, 545 U.S. at 1008 (Scalia, J., dissenting) (“[T]he telecommunications component of cable-modem
service retains such ample independent identity that it must be regarded as being on offer—especially when seen
from the perspective of the consumer.”); cf. AT&T Corp. et al., File Nos. E-98-41, E-98-42, E-98-43, Memorandum
Opinion and Order, 13 FCC Rcd 21438 (1998), aff’d sub nom. U.S. West Communications, Inc. v. FCC, 177 F.3d
1057 (D.C. Cir. 1999) (analogizing the 1996 Act’s terms “offer” and “provide,” and finding that BOCs were
unlawfully “providing” long distance service from Qwest in part based on evidence of marketing it as their own).
972

DNS is most commonly used to translate domain names, such as “nytimes.com,” into numerical IP addresses that
are used by network equipment to locate the desired content. See Cable Modem Declaratory Ruling, 17 FCC Rcd at
4810, para. 17 n.74; see also Brand X, 545 U.S. at 987, 999.
973

Caching is the storing of copies of content at locations in a network closer to subscribers than the original source
of the content. This enables more rapid retrieval of information from websites that subscribers wish to see most
often. See Cable Modem Declaratory Ruling, 17 FCC Rcd at 4810, para. 17 n.76.
974

See 47 U.S.C. § 153(24) (“The term ‘information service’ . . . does not include any use of any such capability for
the management, control, or operation of a telecommunications system of the management of a telecommunications
service.”). Hereinafter, we refer to this exception as the “telecommunications systems management” exception.
975

One of the dissenting statements asserts that Congress could not have delegated to the Commission the authority
to determine whether broadband Internet access service is a telecommunications service because “[h]ad Internet
access service been a basic service, dominant carriers could have offered it (and all related computer-processing
functionality) outside the parameters of the Computer Inquiries,” but “I cannot find a single suggestion that anyone
in Congress, anyone at the FCC, anyone in the courts, or anyone at all thought this was the law during the passage of
the Telecommunications Act” in 1996. See Pai Dissent at 37. We disagree with this line of reasoning. First, it
contradicts the Supreme Court’s 2005 holding in Brand X, where the Court explicitly acknowledged that the
Commission had previously classified the transmission service, which broadband providers offer, as a
telecommunications service and that the Commission could return to that classification if it provided an adequate
justification. See supra paras. 332-334. Second, and underscoring the ambiguity that the Brand X court identified in
finding that the Commission had Chevron deference in its classification of broadband Internet access service, the
dissenting statement fails to identify any compelling evidence that Congress thought broadband Internet access
service was an information service.
976

See, e.g., Comcast Reply at 17-23; CenturyLink Comments at 46-47; USTelecom Comments at 24; NCTA
Comments at 30-31; TWC Comments at 9-13; Letter from Michael E. Glover, Senior Vice Pres. and Dep. Gen.
Counsel, Verizon to Marlene H. Dortch, Secretary, FCC , GN Docket Nos. 14-28, 10-127, Attach.at 11-12 (filed
Oct. 29, 2014) (Verizon Title II White Paper); see also Brand X, 545 U.S. at 991 (observing that the question of
whether cable modem service includes separate “offers” of telecommunications service and information service
“turns not on the language of the Act, but on the factual particulars of how Internet technology works and how it is
provided”).

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contradict those which underlay its prior policy,” or “when its prior policy has engendered serious
reliance interests that must be taken into account.”977
358.
We disagree with these commenters on both counts. The Fox court explained that in
these circumstances, “it is not that further justification is demanded by the mere fact of policy change; but
that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were
engendered by the prior policy.”978 As the D.C. Circuit more recently confirmed, “[t]his does not . . .
equate to a ‘heightened standard’ for reasonableness.”979 The Commission need only show “that the new
policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to
be better.”980 Above, we more than adequately explain our changed view of the facts and circumstances
in the market for broadband Internet access services—which is evident from consumers’ heavy reliance
on third-party services and broadband Internet access providers’ emphasis on speed and reliability of
transmission separately from and over the extra features of the service packages they offer.981
Furthermore, our understanding of the facts of how the elements of broadband Internet access service
work has not changed. No one has ever disputed what DNS is or how it works. The issue is whether it
falls within the definition of “information service” or the telecommunications systems management
exception.982 If the latter, as we find below, prior factual findings that DNS was inextricably intertwined
with the transmission feature of cable modem service do not provide support for the conclusion that cable
modem service is an integrated information service.
359.
Moreover, opponents’ reading of Brand X ignores the reasoning and holding of the
Court’s opinion overall. As discussed above, the Brand X opinion confirms that the Supreme Court
viewed the statutory classification of cable modem service as a judgment call for the Commission to
make. If the Commission had concluded that the transmission component of cable modem service was a
telecommunications service, and provided a reasoned explanation for its decision, it is evident that the
Court would have deferred to that finding.983
360.
In Fox, the Supreme Court also suggested that an agency may need to provide “a more
detailed justification” for a change in policy when the prior policy “has engendered serious reliance
interests.”984 Opponents of reclassification contend that broadband providers have invested billions of
dollars to deploy new broadband network facilities in reliance on the Title I classification decisions and it

977

Fox, 556 U.S. at 515 (emphasis added); see also, e.g., Comcast Comments at 54; Verizon Comments at 58.

978

Fox, 556 U.S. at 515-16.

979

Mary V. Harris, 776 F.3d at 24 (quoting Fox, 556 U.S. at 514).

980

Fox, 556 U.S. at 515; see also Mary V. Harris, 776 F.3d at 24.

981

See supra Section IV.C.2.

982

See infra paras. 366-367.

983

See Brand X, 545 U.S. at 985-86 (“[O]ur conclusion that it is reasonable to read the Communications Act to
classify cable modem service solely as an ‘information service’ leaves untouched Portland’s holding that the
Commission’s interpretation is not the best reading of the statute.”), 989 (explaining that because the term “offering”
in section 153(46) admits “of two or more reasonable ordinary usages, the Commission’s choice of one of them is
entitled to deference”), 992 (“[T]he statute fails unambiguously to classify the telecommunications component of
cable modem service as a distinct offering. This leaves federal telecommunications policy in this technical and
complex area to be set by the Commission.”), 1002-03 (“The questions the Commission resolved in the order under
review involve a subject matter [that] is technical, complex, and dynamic. The Commission is in a far better
position to address these questions than we are.”) (internal citation and quotation marks omitted). See also id. at
1003 (Breyer, J., concurring) (“I join the Court’s opinion because I believe that the Federal Communications
Commission’s decision falls within the scope of its statutorily delegated authority—though perhaps just barely.”).
984

Fox, 556 U.S. at 515.

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would be unreasonable to change course now.985 We disagree. As a factual matter, the regulatory status
of broadband Internet access service appears to have, at most, an indirect effect (along with many other
factors) on investment.986 Moreover, the regulatory history regarding the classification of broadband
Internet access service would not provide a reasonable basis for assuming that the service would receive
sustained treatment as an information service in any event. As noted above, the history of the Computer
Inquiries indicates that, at a minimum the regulatory status of these or similar offerings involved a highly
regulated activity for many years.987 The first formal ruling on the classification of broadband Internet
access service came from the Ninth Circuit in 2000, which held that the best reading of the relevant
statutory definitions was that cable modem service in fact includes a telecommunications service.988 The
Cable Modem Declaratory Ruling was expressly limited to cable modem service “as it [was] currently
offered.”989 The lawfulness of the Commission’s 2002 Cable Modem Declaratory Ruling remained
unsettled until the Supreme Court affirmed it in 2005, and the Commission’s Wireline Broadband
Classification Order was not affirmed until two years later, in 2007.990 In 2010, the Commission sought
comment on reclassifying broadband Internet access services, and sought to refresh the record again in
2014.991 While the Commission did classify wireless broadband Internet access service as an information
service in 2007, the Comcast and Verizon decisions, in 2009 and 2014 respectively, called into doubt the
Commission’s ability to rely upon its Title I ancillary authority to protect the public interest and carry out
its statutory duties to promote broadband investment and deployment. The legal status of the information
service classification thus has been called into question too consistently to have engendered such
substantial reliance interests that our reclassification decision cannot now be sustained absent
985

See, e.g., CenturyLink Comments at 45-46; TWC Comments at 13; NCTA Comments at 33-34; AT&T
Comments at 47-48; CTIA Reply at 49-51; Letter from Scott Bergmann, Vice Pres. Reg. Affairs, CTIA to Marlene
H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, Attach. at 20-21 (filed Dec. 22, 2014) (CTIA Dec. 22,
2014 Ex Parte Letter).
986

See infra Section IV.C.5; see also, e.g., Free Press Comments at 116-20 (evaluating stock prices of major
broadband provider companies one month, three months, and six months after the Broadband Classification NOI
and showing that those stocks outperformed the broader market, except for Comcast, which was undergoing a
merger); id. at 92-93 n.198 (“For example, shortly after former Chairman Genachowski announced his intention to
apply common carriage to broadband access services . . . Landell Hobbs, then Time Warner Cable’s Chief Operating
Officer, stated on an investor call that the Title II classification proposed by the Genachowski FCC ‘is a light
regulatory touch. . . . [The FCC’s] focus is really to put them in a position where they can execute around their
[N]ational [B]roadband [P]lan, not to rate regulate or crush investment in our sector. That’s not at all what we
believe. So . . . yes, we will continue to invest[.]’ See JP Morgan Global Technology, Media and Telecom
Conference: Time Warner Cable, Inc. Management Discussion (May 19, 2010) (emphasis added). A week after the
former Chairman’s announcement, Comcast CEO Brian Roberts (a signatory of the May 2014 Broadband for
America Letter) responded to questions about the FCC’s Third Way proposal before an audience at the 2010 Cable
Show. He said that ‘the government is not a big worry,” and also said that he expected the industry to continue to
invest and innovate. See Michelle Ow, Top MSOs Weigh In on Reclassification, SNL Kagan (May 12, 2010). Also,
Lowell McAdam, then-CEO of Verizon Wireless, emphasized that the company had no plans to slow investment in
its wireless broadband network as a result of the FCC’s move. See Niraj Sheth, Verizon in Talks to License 4G
Spectrum to Rural Carriers, Wall Street Journal (May 13, 2010).”); USTelecom, Historical Broadband Provider
Capex, http://www.ustelecom.org/broadband-industry-stats/investment/historical-broadband-provider-capex (last
visited Jan. 5, 2015) (showing U.S. broadband providers’ capital expenditures continued to increase yearly after the
Broadband Classification NOI).
987

See supra paras. 311-313.

988

AT&T Corp. v. City of Portland, 216 F.3d at 877-80.

989

Cable Modem Declaratory Ruling, 17 FCC Rcd at 4802, para. 7.

990

Time Warner Telecom, Inc. v. FCC, 507 F.3d 205 (3d Cir. 2007).

991

Broadband Classification NOI, 25 FCC Rcd 7866; Wireline Competition Bureau Seeks to Refresh the Record in
the 2010 Proceeding on Title II and Other Potential Legal Frameworks for Broadband Internet Access Service, GN
Docket No. 10-127, Public Notice, 29 FCC Rcd 5856 (Wireline Comp. Bur. 2014).

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extraordinary justifications.992 Finally, the forbearance relief we grant in the accompanying order in
conjunction with our reclassification decision keeps the scope of our proposed regulatory oversight within
the same general boundaries that the Commission earlier anticipated drawing under its Title I authority.
We thus reject the claims that our action here unlawfully upsets reasonable reliance interests. In any
event, we provide in this ruling a compelling explanation of why changes in the marketing, pricing, and
sale of broadband Internet access service, as well as the technical characteristics of how the service is
offered, now justify a revised classification of the service. 993
a.

Broadband Internet Access Service Involves Telecommunications

361.
Broadband Internet Access Service Transmits Information of the User’s Choosing
Between Points Specified by the User. As discussed above, the Act defines “telecommunications” as “the
transmission, between or among points specified by the user, of information of the user’s choosing,
without change in the form or content of the information as sent and received.”994 It is clear that
broadband Internet access service is providing “telecommunications.” Users rely on broadband Internet
access service to transmit “information of the user’s choosing,” “between or among points specified by
the user.”995 Time Warner Cable asserts that broadband Internet access service cannot be a
telecommunications service because—as end users do not know where online content is stored—Internet
communications allegedly do not travel to “points specified by the user” within the statutory definition of
“telecommunications.”996 We disagree. We find that the term “points specified by the user” is
ambiguous, and conclude that uncertainty concerning the geographic location of an endpoint of
communication is irrelevant for the purpose of determining whether a broadband Internet access service is
providing “telecommunications.” Although Internet users often do not know the geographic location of
edge providers or other users, there is no question that users specify the end points of their Internet
communications.997 Consumers would be quite upset if their Internet communications did not make it to
992

See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125, 160 (2000) (setting aside FDA decision, in
1996, to assert jurisdiction to regulate tobacco after repeatedly disavowing its authority to do so since its inception in
1914).
993

In response to arguments raised in the dissenting statements, we clarify that, even assuming, arguendo, that the
facts regarding how BIAS is offered had not changed, in now applying the Act’s definitions to these facts, we find
that the provision of BIAS is best understood as a telecommunications service, as discussed below, see infra
Sections IV.C.3.b., IV.C.3.c., and disavow our prior interpretations to the extent they held otherwise.
994

47 U.S.C. § 153(50).

995

Id.; see Barbara A. Cherry and Jon M. Peha, The Telecom Act of 1996 Requires the FCC to Classify Commercial
Internet Access as a Telecommunications Service, GN Docket No. 14-28, at 5 (filed Dec. 22, 2014) (Cherry and
Peha Dec. 22, 2014 Ex Parte) (“It is clear that IP Packet Transfer means transmission of information that is of the
packet sender’s choosing, since the sender chooses what information to put in each packet. Moreover, it is the
nature of IP Packet Transfer that the ‘form and content of the information’ is precisely the same when an IP packet
is sent by the sender as when that same packet is received by the recipient.”).
996

TWC Comments at 12; see also Letter from Christopher S. Yoo to Marlene H. Dortch, Secretary, FCC, GN
Docket Nos. 14-28, 09-191, 10-127, at 2-3 (filed Dec. 22, 2014) (Yoo Dec. 22, 2014 Ex Parte Letter) (asserting that
broadband Internet access transmission does not take place between points specified by the user because physical
locations are identified by an Internet Protocol address, and end users and applications generally use domain names
and rely on a DNS service to map domain names onto IP addresses).
997

See Cherry and Peha Dec. 22, 2014 Ex Parte at 5 (“In each IP packet, the sender places the IP address of the
packet’s intended recipient. In some cases, the sender knows the recipient’s IP address already, and in some cases
the sender must first look up the desired IP address. Either way, communications is clearly to a point specified by
the user sending the packet.”); AT&T Reply at 101 (stating that once traffic is delivered to AT&T via
interconnection, “AT&T, just like any other ISP, delivers that traffic to its intended destination”). For example, in
transmissions from the user to an edge provider, a user either directly specifies the domain name of the edge
provider or utilizes a search engine to determine the domain name. The application that a user chooses then uses
DNS to translate the domain name into an IP address associated with the edge provider, which is placed into the
(continued….)

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their intended recipients or the website addresses they entered into their browser would take them to
unexpected web pages. Likewise, numerous forms of telephone service qualify as telecommunications
even though the consumer typically does not know the geographic location of the called party. These
include, for example, cell phone service,998 toll free 800 service,999 and call bridging service.1000 In all of
these cases, the user specifies the desired endpoint of the communication by entering the telephone
number or, in the case of broadband Internet access service, the name or address of the desired website or
application. More generally, we have never understood the definition of “telecommunications” to require
that users specify—or even know—information about the routing or handling of their transmissions along
the path to the end point, nor do we do so now. Further, that there is not a one-to-one correspondence
between IP addresses and domain names, and that DNS often routes the same domain name to different
locations based on its inference of which location is most likely to be the one the end user wants, does not
alter this analysis.1001 It is not uncommon in the toll-free arena for a single number to route to multiple
locations, and such a circumstance does not transform that service to something other than
telecommunications.1002
362.
Information is Transmitted Without Change in Form or Content. Broadband Internet
access service may use a variety of protocols to deliver content from one point to another. However, the
packet payload (i.e., the content requested or sent by the user) is not altered by the variety of headers that
a provider may use to route a given packet. The information that a broadband provider places into a
packet header as part of the broadband Internet access service is for the management of the broadband
Internet access service and it is removed before the packet is handed over to the application at the
destination.1003 Broadband providers thus move packets from sender to recipient without any change in
format or content, and “merely transferring a packet to its intended recipient does not by itself involve
generating, acquiring, transforming, processing, retrieving, utilizing, or making available information.”1004
(Continued from previous page)
packet as its destination. For transmissions from an edge provider to a user, the edge provider places the user’s IP
address into the packet as the destination IP address.
998

Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Report and Order, 12 FCC Rcd 8776,
9175, para. 780 (1997) (Universal Service First Report and Order), rev’d in part on other grounds Texas Office of
Public Utility Counsel v. FCC, 183 F.3d 393 (5th Cir. 1999); see also 47 U.S.C. § 332(c)(1) (providers of
commercial mobile radio service shall be treated as common carriers).
999

Universal Service First Report and Order, 12 FCC Rcd at 9175, para. 780; see also AT&T Corp. v. Winback &
Conserve Program, Inc., File No. E-97-02, Memorandum Opinion and Order, 16 FCC Rcd 16074, 16075, para. 2
(2001).
1000

Request for Review by InterCall, Inc. of Decision of Universal Service Administrator, CC Docket No. 96-45,
Order, 23 FCC Rcd 10731, 10734-35, para. 11 (2008).
1001

See Yoo Dec. 22, 2014 Ex Parte Letter at 2.

1002

See, e.g., U.S. Department of Health and Human Services Substance Abuse and Mental Health Services
Administration Petition for Permanent Reassignment of Three Toll Free Suicide Prevention Hotline Numbers; Toll
Free Service Access Codes, WC Docket No. 07-271, CC Docket No. 95-155, Memorandum Opinion and Order and
Order on Review, 24 FCC Rcd 13022, 13023, para. 2 (2009) (“The hotlines are routing mechanisms for hundreds of
local suicide prevention organizations. When a person calls a hotline, the call is directly routed to a trained crisis
counselor in the organization local to the caller who can assess the situation and determine the proper steps to follow
to assist the caller.”).
1003

See Internet Engineering Task Force, Requirements for Internet Hosts – Communications Layers, RFC 1122
(Oct. 1989), https://tools.ietf.org/html/rfc1122.
1004

Cherry and Peha Dec. 22, 2014 Ex Parte at 8; see also, e.g., NTCA Comments at 10 (“The transport, routing,
conveyance, and exchange of data over networks is transparent, and involves no storage, transformation, or other
manipulation of data.”); CDT Comments at 29 (“Broadband providers are not engaging in their own speech through
the provision of Internet access. They are simply communications conduits.”); id. at 28-30; EFF Comments at 14
(“Many competitive providers offer content and services similar to what the ISPs might bundle with their
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Rather, “it is the nature of [packet delivery] that the ‘form and content of the information’ is precisely the
same when an IP packet is sent by the sender as when that same packet is received by the recipient.”1005
b.

Broadband Internet Access Service is a “Telecommunications
Service”

363.
Having affirmatively determined that broadband Internet access service involves
“telecommunications,” we also find that broadband Internet access service is a “telecommunications
service.” A “telecommunications service” is the “offering of telecommunications for a fee directly to the
public, . . . regardless of the facilities used.”1006 We find that broadband Internet access service providers
offer broadband Internet access service “directly to the public.” As discussed above, the record indicates
that broadband providers routinely market broadband Internet access services widely and to the general
public.1007 Because a provider is a common carrier “by virtue of its functions,” we find that such offerings
are made directly to the public within the Act’s definition of telecommunications service.1008 We draw
this conclusion based upon the common circumstances under which providers offer the service, and we
reject the suggestion that we must evaluate such offerings on a narrower carrier-by-carrier or geographic
basis.1009 Further, that some broadband providers require potential broadband customers to disclose their

(Continued from previous page)
transmission, e.g., email, web browsers, search engines, etc., but those services do not provide the transmission
service itself. Even if a transport provider bundles these other services along with its transmission service, they
remain distinct from that transmission component.”); Free Press Comments at 63 (“[N]othing in the offering of the
service suggests that the ISP will be changing the form or content of the information. And the broadband service
itself does not in fact change the form or content of the information. For if it did, many of the online services that
are widely used would not function properly.”) (emphasis in original). A BIAS provider, when utilizing the Internet
Protocol, may fragment packets into multiple pieces. However, such fragmentation does not change the form or
content, as the pieces are reassembled before the packet is handed over to the application at the destination. See
Internet Protocol, DARPA Internet Program Protocol Specification, RFC 791 (Sept. 1981),
https://tools.ietf.org/html/rfc791.
1005

Cherry and Peha Dec. 22, 2014 Ex Parte at 5; see also Internet Protocol, DARPA Internet Program Protocol
Specification, RFC 791, para. 1.2 (Sept. 1981), https://tools.ietf.org/html/rfc791 (“The internet protocol is
specifically limited in scope to provide the functions necessary to deliver a package of bits (an internet datagram)
from a source to a destination over an interconnected system of networks.”). For example, when a person sends an
email, he or she expects that the content of the email, and any attachments, to be delivered to the recipient unaltered
in content or form. We note that a user may choose to use an application, such as email, that is a separate
information service offered by the BIAS provider. When this occurs, the provider of the information service may
place information into the packet payload that changes the form or content. However, this change in form or content
is purely implemented as part of the separable information service. The broadband provider, in transmitting the
packet via BIAS, does not alter the form or content of the packet payload.
1006

47 U.S.C. § 153(53).

1007

See supra Section IV.C.2. See, e.g., Free Press Comments at 64-65; Public Knowledge Comments at 79.

1008

See NARUC I, 525 F.2d at 644 (citing Lone Star Steel Co. v. McGee, 380 F.2d 640, 648 (5th Cir. 1967) (whether
an entity is a common carrier “depends not upon its corporate character or declared purposes, but upon what it
does”) (citations omitted)).
1009

See, e.g., Wireline Broadband Classification Order, 20 FCC Rcd at 14879-81, paras. 48-51 (declining to
evaluate the market for broadband Internet access service on a local market basis, and instead finding that the
broadband Internet access market is “more appropriately analyzed in view of larger trends in the marketplace, rather
than exclusively through the snapshot data that may quickly and predictably be rendered obsolete as [the] market
continues to evolve”); Cable Modem Declaratory Ruling, 17 FCC Rcd at 4809 n.69 (“We recognize that not all
cable operators include all of these functions in their cable modem service offerings.”); id. at 4822-23, para. 38
(basing cable modem classification on how service was offered generally, “regardless of whether every cable
modem service provider offers each function that could be included in the service”).

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addresses and service locations before viewing such an offer does not change our conclusion.1010 The
Commission has long maintained that offering a service to the public does not necessarily require holding
it out to all end users.1011 Some individualization in pricing or terms is not a barrier to finding that a
service is a telecommunications service.1012
364.
In addition, the implied promise to make arrangements for exchange of Internet traffic as
part of the offering of broadband Internet access service does not constitute a private carriage
arrangement.1013 First, in offering broadband Internet access service to its end-user customers, the
broadband provider has voluntarily undertaken an obligation to arrange to transfer that traffic on and off
its network.1014 Broadband providers hold themselves out to carry all edge provider traffic to the
broadband provider’s end user customers regardless of source and regardless of whether the edge provider
itself has a specific arrangement with the broadband provider.1015 Merely asserting that the traffic
exchange component of the service may have some individualized negotiation does not alter the nature of
the underlying service. Second, the record reflects that broadband providers assert that multiple routes to
reach their networks are widely and readily available.1016 They cannot, at the same time, assert that all
arrangements for delivering traffic to their end-user subscribers are individually negotiated with every
edge provider.1017 Third, the record reflects that the majority of arrangements for traffic exchange are
1010

See Public Knowledge Comments at 79; but see Letter from Gary L. Phillips, General Attorney & Assoc.
General Counsel, AT&T to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 6-7 (filed Feb. 2,
2015) (AT&T Feb. 2, 2015 Ex Parte Letter) (asserting that broadband providers may decide on a case-by-case basis
whether to service a particular end user, what connection speeds to offer, and at what price).
1011

See Federal-State Joint Bd. On Universal Serv., CC Docket No. 96-45, Order on Remand, 16 FCC Rcd 571,
573-74, paras. 7-10 (2000), aff’d U.S.Telecom Ass’n v. FCC, 295 F.3d 1326, 1332-33 (D.C. Cir. 2002) (“[A] carrier
offering its services only to a legally defined class of users may still be a common carrier if it holds itself out
indiscriminately to serve all within that class.”); NARUC I, 525 F.2d at 641 (“One may be a common carrier though
the nature of the service rendered is sufficiently specialized as to be of possible use to only a fraction of the total
population. And business may be turned away either because it is not of the type normally accepted or because the
carrier’s capacity has been exhausted.”).
1012

See Orloff v. FCC, 352 F.3d 415, 419-20 (D.C. Cir. 2003). To the extent our prior precedents might suggest
otherwise, we disavow such an interpretation in this context.
1013

See, e.g., AT&T Feb. 2, 2015 Ex Parte Letter at 7; Verizon Dec. 17, 2014 Ex Parte Letter at 7-9; Letter from
Comcast to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 3-4 (filed Jan. 23, 2015)
(Comcast Jan. 23, 2015 Ex Parte Letter). Commission precedent “holds that a carrier will not be a common carrier
‘where its practice is to make individualized decisions in particular cases whether and on what terms to serve.’”
Universal Service First Report and Order, 12 FCC Rcd at 9178, para. 785.
1014

See, e.g., COMPTEL Feb. 19, 2015 Ex Parte Letter at 8.

1015

See, e.g., Comcast Reply at 38 n. 131 (“Netflix could have chosen from a number or routes, including routes
through various transit providers and CDNs, to reach Comcast’s network.”); Cox Reply at 21 (“ ISPs interconnect
with a variety of transit and [CDN] providers, ensuring that edge providers have multiple cost effective routes to
choose from to reach each ISP’s customers.”); TWC Reply at 16 (“With countless partners from which to choose,
content providers are not faced with a gatekeeper limiting their use of peering, transit, and CDN arrangements.”); id.
at 18 (“TWC (like other ISPs) has substantial interconnection capacity available through a multiplicity of transit
routes, and edge providers (rather than ISPs) control which routes their traffic will traverse.”); Suddenlink Reply at 7
(“In today’s market, there are multiple paths across the backbone and into and out of operator networks.”); AT&T
Reply at 100-101 (explaining that there are often dozens of different ways to deliver traffic onto the ISP’s network).
1016

See supra note 1015.

1017

See, e.g., NCTA Comments at 80-81; Verizon Dec. 17, 2014 Ex Parte Letter at 8-9; Comcast Comments at 3637; see also Vitelco v. FCC, 198 F.3d 921, 925 (1999) (“Noting that the Bureau had found that ‘AT&T–SSI would
have to engage in negotiations with each of its customers on the price and other terms which would vary depending
on the customers’ capacity needs, duration of the contract, and technical specifications,’ the Commission found that
AT&T–SSI ‘will not sell capacity in the proposed cable indifferently to the public.’”).

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informal handshake agreements without formalized terms and conditions that would indicate any kind of
individualized negotiations.1018 We recognize that there are some interconnection agreements that do
contain more individualized terms and conditions.1019 However, this circumstance is not inherently
different from similarly individualized commercial agreements for certain enterprise broadband services,
which the Commission has long held to be common carriage telecommunications services subject to Title
II.1020 That the individualized terms may be negotiated does not change the underlying fact that a
broadband provider holds the service out directly to the public. As discussed above, it must necessarily
do so, in order to offer and provide its broadband Internet access service. Further, we note that these
types of individualized negotiations are analogous to other telecommunications providers whose customer
service representatives may offer variable terms and conditions to customers in circumstances where the
customer threatens to switch service providers.1021 We therefore find that the implied representation that
broadband Internet access service providers will arrange for transport of traffic on and off their networks
as part of the BIAS offering does not constitute private carriage. As such, we find that broadband Internet
access service is offered “directly to the public,” and falls within the definition of “telecommunications
service.”1022
c.

Broadband Internet Access Service is Not an “Information Service”

365.
We further find that broadband Internet access service is not an information service. The
Act defines “information service” as “the offering of a capability for generating, acquiring, storing,
transforming, processing, retrieving, utilizing, or making available information via telecommunications . .
. but does not include any use of any such capability for the management, control, or operation of a
telecommunications system or the management of a telecommunications service.”1023 To the extent that
broadband Internet access service is offered along with some capabilities that would otherwise fall within
the information service definition, they do not turn broadband Internet access service into a functionally
integrated information service. To the contrary, we find these capabilities either fall within the
telecommunications systems management exception or are separate offerings that are not inextricably
integrated with broadband Internet access service, or both.
366.
DNS Falls Within the Telecommunications Systems Management Exception to the
Definition of Information Services. As the Supreme Court spotlighted in Brand X, the Commission
predicated its prior conclusion that cable modem service was an integrated information service at least in

1018

See Letter from Chris Hutchins, Liberty Global, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28,
Attach. at 22 (filed Nov. 25, 2014) (“A survey by OECD, published in early 2013, reported that 99.51% of the
142.210 surveyed Peering agreements were ‘handshake agreements’ in which the parties agreed to commonly
understood terms without creating a written document.”); Google Feb. 20, 2015 Ex Parte Letter at 1-2.
1019

See, e.g., Letter from Kathryn A. Zachem, Senior Vice President, Regulatory and State Legislative Affairs,
Comcast Corporation, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 8 (filed Jan. 30,
2015).
1020

See infra para. 424.

1021

Cf. Orloff v. FCC, 352 F.3d 415 (D.C. Cir. 2003) (allowing individualized negotiation under sections 201 and
202 of the Act).
1022

If an offering meets the definition of telecommunications service, then the service is also necessarily a common
carrier service. See Universal Service First Report and Order, 12 FCC Rcd at 9178, para. 785 (“We find that the
definition of ‘telecommunications services’ in which the phrase ‘directly to the public’ appears is intended to
encompass only telecommunications provided on a common carrier basis.”); U.S. Telecom Ass’n v. FCC, 295 F.3d
at 1328-29 (noting that telecommunications carriers are limited to common carriers); Cable & Wireless, PLC, Order,
12 FCC Rcd 8516, 8521, para. 13 (1997) (“[T]he definition of telecommunications services is intended to clarify
that telecommunications services are common carrier services.”).
1023

47 U.S.C. § 153(24).

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part on the view that it “transmits data only in connection with the further processing of information.”1024
That was so, under the theory of the Cable Modem Declaratory Ruling, because “[a] user cannot reach a
third-party’s Web site without DNS, which (among other things) matches the Web site address the end
user types into his browser (or ‘clicks’ on with his mouse) with the IP address of the Web page’s host
server.”1025 The Commission had assumed without analysis that DNS, when provided with Internet access
service, is an information service. The Commission credited record evidence that DNS “enable[s]
routing” and that “[w]ithout this service, Internet access would be impractical for most users.”1026 In his
Brand X dissent, however, Justice Scalia correctly observed that DNS “is scarcely more than routing
information, which is expressly excluded from the definition of ‘information service’” by the
telecommunications systems management exception set out in the last clause of section 3(24) of the
Act.1027 Thus, in his view, such functions cannot be relied upon to convert what otherwise would be a
telecommunications service into an information service. Therefore, consideration of whether DNS
service falls within the telecommunications systems management exception could have been
determinative in the Court’s outcome in Brand X, had it considered the question.
367.
Although the Commission assumed in the Cable Modem Declaratory Ruling—sub
silentio—that DNS fell outside the telecommunications systems management exception,1028 Justice
Scalia’s assessment finds support both in the language of section 3(24), and in the Commission’s
consistently held view that “adjunct-to-basic” functions fall within the telecommunications systems
management exception to the “information service” definition.1029 Such functions, the Commission has
1024

Brand X, 545 U.S. at 998 (emphasis added); see generally Cable Modem Declaratory Ruling, 17 FCC Rcd at
4821-23, paras. 37-38.
1025

Brand X, 545 U.S. at 999; see Cable Modem Service Declaratory Ruling, 17 FCC Rcd at 4822-23, para. 38
n.153 (noting that “[n]early every cable modem subscriber . . . accesses the DNS that is provided as part of the
service” in connection with cable modem service communications).
1026

Cable Modem Declaratory Ruling, 17 FCC Rcd at 4821-22, para. 37 n.147 (internal citation omitted) (emphasis
in original).
1027

Brand X, 545 U.S. at 1012-13 (Scalia, J., dissenting) (citing 47 U.S.C. § 153(20) (defining “information
service”)). The definition of “information service” has since been moved from subsection 20 to subsection 24 of
section 3 but has not itself been revised. The telecommunications systems management exception in section 3(24)
provides that the term “information service” “does not include” the use of any data processing, storage, retrieval or
similar capabilities “for the management, control, or operation of a telecommunications system or the management
of a telecommunications service.” 47 U.S.C. § 153(24).
1028

See Cable Modem Declaratory Ruling, 17 FCC Rcd at 4822, para. 38 n.150 (containing a passing reference to
the telecommunications systems management exception). The Commission’s subsequent conclusions that wireline
broadband services offered by telephone companies and broadband offered over power lines were unitary
information services followed the same theory, also without any analysis of the telecommunications systems
management exception. See Wireline Broadband Classification Order, 20 FCC Rcd at 14864, para. 15; BPLEnabled Broadband Order, 21 FCC Rcd at 13284-87, paras. 5-9.
1029

See Implementation of the Non-Accounting Safeguards of Sections 271 and 272 of the Communications Act of
1934, as Amended, CC Docket No. 96-149, First Report and Order and Further Notice of Proposed Rulemaking, 11
FCC Rcd 21905, 21958, para. 107 (1996) (Non-Accounting Safeguards Order), recon., 12 FCC Rcd 2297, 2298-99,
para. 2 (1997). Throughout the history of computer-based communication, Title II covered more than just the
simple transmission of data. Some features and services that met the literal definition of “enhanced service,” but did
not alter the fundamental character of the associated basic transmission service, were considered “adjunct-to-basic”
and treated as basic (i.e., telecommunications) services even though they went beyond mere transmission. See
Computer II Final Decision, 77 FCC 2d at 421, para. 98; AT&T Corp. Petition for Declaratory Ruling Regarding
Enhanced Prepaid Calling Card Services, Regulation of Prepaid Calling Card Services, WC Docket Nos. 03-133,
05-68, Order and Notice of Proposed Rulemaking, 20 FCC Rcd 4826, 4831, para. 16 (2005), aff’d, AT&T Corp. v.
FCC, 454 F.3d 329 (D.C. Cir. 2006). Thus, the Commission’s definition of “basic services” (the regulatory
predecessor to “telecommunications services”) includes, among other things, those intelligent features that run the
network or improve its usefulness to consumers, such as a carrier’s use of “companding [compressing/expanding]
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held: (1) must be “incidental” to an underlying telecommunications service—i.e., “‘basic’ in purpose and
use” in the sense that they facilitate use of the network; and (2) must “not alter the fundamental character
of [the telecommunications service].”1030 By established Commission precedent, they include “speed
dialing, call forwarding, [and] computer-provided directory assistance,”1031 each of which shares with
DNS the essential characteristic of using computer processing to convert the number or keystroke that the
end user enters into another number capable of routing the communication to the intended recipient.
Similarly, traditional voice telephone calls to toll free numbers, pay-per-call numbers, and ported
telephone numbers require a database query to translate the dialed telephone number into a different
telephone number and/or to otherwise determine how to route the call properly,1032 and there is no doubt

(Continued from previous page)
techniques, bandwidth compression techniques, circuit switching, message or packet switching, error control
techniques, etc. that facilitate economical, reliable movement of information does not alter the nature of the basic
service.” Computer II Final Decision, 77 FCC 2d at 420, para. 95; see also Computer III Phase I Order, 104 FCC
2d at 968, para. 10 (“Data processing, computer memory or storage, and switching techniques can be components of
a basic service if they are used solely to facilitate the movement of information.”). Basic service can also include
“memory or storage within the network . . . used only to facilitate the transmission of the information from the
origination to its destination,” Computer II Final Decision, 77 FCC 2d. at 420, para. 95, and certain types of
protocol processing. Non-Accounting Safeguards Order, 11 FCC Rcd at 21957-58, para. 106, recon., 12 FCC Rcd
at 2298-99, para. 2. See generally CDT Comments at 15; Kendall Koning Comments at 28-29; Vimeo Reply at 10;
Vonage Comments at 39.
1030

See North American Telecommunications Association Petition for Declaratory Ruling Under §64.702 of the
Commission's Rules Regarding the Integration of Centrex, Enhanced Services, and Customer Premises Equipment,
101 FCC 2d 349, 359-61, paras. 24, 27, 28 (1985) (NATA/Centrex Order).
1031

Non-Accounting Safeguards Order, 11 FCC Rcd at 21958, para. 107 n.245. See also NATA/Centrex Order, 101
FCC 2d at 360, para. 26 (“In the case of speed dialing and call forwarding, the stored telephone numbers specified
by the customer and the customer’s interaction with that stored information serve but one purpose: facilitating
establishment of a transmission path over which a telephone call may be completed. . . . When a customer uses
directory assistance, that customer accesses information stored in a telephone company data base. . . . An offering
of access to a data base for the purpose of obtaining telephone numbers may be offered as an adjunct to basic
telephone service.”).
1032

See, e.g., Telephone Number Portability, CC Docket No. 95-116, Notice of Proposed Rulemaking, 10 FCC Rcd
12350, 12354, para. 10 (1995) (“[T]elephone numbers with certain NPA codes [such as 800, 900, and 500] are
portable between geographic locations because the IXCs are able to ‘map’, or translate, the dialed, non-geographic
number into a geographic number.”); Telephone Number Portability, CC Docket No. 95-116, Second Report and
Order, 12 FCC Rcd 12281, 12287-88, para. 8 (1997) (“Carriers routing telephone calls to customers who have
ported their telephone numbers from one carrier to another query the local Service Management System (SMS)
database to obtain the location routing number that corresponds to the dialed telephone number. This database
query is performed for all calls to switches from which at least one number has been ported. Based on the location
routing number, the querying carrier then would route the call to the carrier serving the ported number.”) (citations
omitted); Application of Bellsouth Corporation, Bellsouth Telecommunications, Inc., and Bellsouth Long Distance,
Inc., for Provision of In-Region, Interlata Services In Louisiana, CC Docket No. 98-121, Memorandum Opinion and
Order, 13 FCC Rcd 20599, para. 275 n.858 (1998) (under an initial, interim form of local number portability, “the
carrier that originally served the called customer redirects the telephone calls by translating the dialed number to a
new transparent number associated with the acquiring carrier’s switch, essentially placing a second telephone call to
the customer’s new location”); Numbering Resource Optimization, CC Docket No. 99-200, Report and Order and
Further Notice of Proposed Rulemaking, 15 FCC Rcd 7574, 7623, para. 118 n.242 (2000) (“[T]o facilitate proper
network routing in a thousands-block number pooling environment, every service provider’s existing LNP SCP
database within the pooling area would store specific LRN routing information for thousand number blocks within
the same NXX. In addition, each service provider’s LNP mechanism would query its database for calls to pooled
numbers allocated to other service providers.”).

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that the inclusion of that functionality does not somehow convert the basic telecommunications service
offering into an information service.1033
368.
Citing language from a staff decision to the effect that adjunct-to-basic functions do not
include functions that are “useful to end users, rather than carriers,”1034 AT&T argues that DNS must fall
outside of the telecommunications systems management exception because “Internet access providers use
DNS functionality not merely (or even primarily) to ‘manage’ their networks more efficiently, but to
make the Internet as a whole easily accessible and convenient for their subscribers.”1035 We disagree.
The particular function at issue in the cited staff decision—the “storage and retrieval of information that
emergency service personnel use to respond to E911 calls”—was not instrumental in placing calls or
managing the communications network, but simply allowed certain telecommunications consumers (E911
answering centers and first responders) to identify the physical location of the distressed caller in order to
render assistance, a benefit to be sure, but one unrelated to telecommunications.1036 By contrast, DNS—
like the speed dialing, call forwarding, and computer-provided directory assistance functions that already
have been definitively classified as falling within the telecommunications systems management exception
to section 3(24)— allows more efficient use of the telecommunications network by facilitating accurate
and efficient routing from the end user to the receiving party.1037
369.
AT&T’s other arguments regarding DNS also fail. Contrary to its suggestion,1038 the fact
that the analogous speed dialing, call forwarding, and computer-provided directory assistance functions
that the Commission has designated as falling within the telecommunications systems management
exception were adjunct to “legacy telephone (‘basic’) services” rather than to “Internet-based services”
provides no basis to discard the logic of that analysis in the broadband context. Nor are we persuaded by
AT&T’s observation that DNS systems provide additional “reverse look-up” functions (i.e., converting a
numeric IP address into a domain name) that are “analogous to (though far more sophisticated than)
‘reverse directory assistance’” services that were deemed to be enhanced services in the legacy circuit-

1033

Consider also the role that telephone operators traditionally played in routing telephone calls. Traditional
telephony required a telephone operator to route and place calls requested by the customer. We do not believe that
anyone would argue that such arrangements would turn traditional telephone service into an information service.
1034

Petitions for Forbearance from the Application of Section 272 of the Communications Act of 1934, As Amended,
to Certain Activities, Bell Operating Companies, CC Docket No. 96-149, Memorandum Opinion and Order, 13 FCC
Rcd 2627, 2639, para. 18 (Com. Car. Bur. 1998) (1998 272 Forbearance Order).
1035

AT&T Reply at 39-40 (emphasis in original).

1036

1998 272 Forbearance Order, 13 FCC Rcd at 2638-39, para. 18 & n.70.

1037

See, e.g., Vimeo Reply at 10 (“DNS’ analog equivalents—the old-time switchboard, live operator, directory
assistance, or a phone book—never made Ma Bell an ‘information service.’”); CDT Comments at 14.
Notwithstanding the close resemblance between DNS and these features that the Commission previously has found
to be within the telecommunications systems management exception, USTelecom contends that “DNS does not
manage or control a telecommunications system or a telecommunications service.” USTelecom Reply at 32. As
with call forwarding, speed dialing, and computer-provided directory assistance, however, DNS manages the
network in the sense of facilitating efficient routing and call completion. In any event, even if DNS were not viewed
as facilitating network management, it clearly would fall within the exception as a capability used for the “operation
of a telecommunications system.” 47 U.S.C. § 153(24). Responding to assertions in one of the dissenting
statements, (Pai Dissent at 36-37), we expressly find this rationale applies equally to other services that arguably
serve the interests of subscribers, such as, for example, caching. While these services do provide a benefit to
subscribers in the form of faster, more efficient service, they also serve to manage the network by facilitating
efficient retrieval of requested information, reducing a broadband provider’s costs in the provision of the service. In
addition, caching and other services which provide a benefit to subscribers, like DNS, also serve as a capability used
for the operation of a telecommunications system by enabling the efficient retrieval of information.
1038

AT&T Reply at 38.

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switched telephone service environment.1039 Even assuming, arguendo, that such “reverse look-up”
functions were analogous, we do not believe that the inclusion of such functionality would convert what
was otherwise a telecommunications service into an information service. As the Supreme Court
recognized, an entity may not avoid Title II regulation of its telecommunications service simply by
packaging that service with an information service.1040 As the Court explained, “a telephone company
that packages voice mail with telephone service offers a transparent transmission path—telephone
service—that transmits information independent of the information-storage capabilities provided by voice
mail. For instance, when a person makes a telephone call, his ability to convey and receive information
using the call is only trivially affected by the additional voice-mail capability.”1041 Likewise, we find that
to the extent a DNS “reverse look-up” functionality is included with the offering of broadband Internet
access service, the service itself—the transmission of data to and from all or substantially all Internet
endpoints—is only trivially dependent on, if at all, the “reverse look-up” function cited by AT&T. We
find that this analysis applies equally to the DNS “assist capabilities” cited by AT&T, in which the
provider’s DNS functionality may also be used occasionally to guess what a user meant when she
mistyped an address.1042
370.
Although we find that DNS falls within the telecommunications systems management
exception, even if did not, DNS functionality is not so inextricably intertwined with broadband Internet
access service so as to convert the entire service offering into an information service. First, the record
indicates that “IP packet transfer does work just as well without DNS, but is simply less useful, just as a
telephone system is less useful without a phone book.”1043 Indeed, “[t]here is little difference between
DNS support offered by a broadband Internet access provider and the 411 directory service offered by
many providers of telephone service. Both allow a user to discover how to reach another party, but no
one argued that telephone companies were not providing a telecommunications service because they
offered 411.”1044 Second, the factual assumption that DNS lookup necessarily is provided by the
broadband Internet access provider is no longer true today, if it ever was. While most users rely on their
broadband providers to provide DNS lookup,1045 the record indicates that third-party-provided-DNS is
now widely available,1046 and the availability of the service from third parties cuts against a finding that
1039

Id. at 41.

1040

Brand X, 545 U.S. at 997-98 (citing Federal-State Joint board on Universal Service, 13 FCC Rcd 11501, 11530,
para. 60 (1998)).
1041

Brand X, 545 U.S. at 998.

1042

See AT&T Reply at 40-41. In the context of voice telephone service, the Commission has recognized that the
availability of reverse directory capability does not transform that service from a telecommunications service into an
information service. See, e.g., Regulation of Prepaid Calling Card Services, WC Docket No. 05-68, Declaratory
Ruling and Report and Order, 21 FCC Rcd 7290, 7294-96, paras. 11-17 (2006) (finding that the ability of callers to
access functions such as a reverse directory service did not convert calling card services from telecommunications
services into information services).
1043

Cherry and Peha Dec. 22, 2014 Ex Parte at 6.

1044

Id. at 7.

1045

See AT&T Comments at 48; Comcast Comments at 58.

1046

See, e.g., AARP Comments at 11; CDT Comments at 14 (“DNS service, much like e-mail, web-hosting, and the
other services discussed above, is available from third-party sources. Google Public DNS processes about 130
billion queries per day. OpenDNS likewise processes over 50 billion daily. Internet users are free to use the DNS
provider of their choice, and switching between them does not require altering any aspect of the Internet access
service itself. Users need only quickly update a single setting in their operating system’s Internet preferences to
point DNS requests to another server.”); Kendall Koning Comments at 29; Public Knowledge Comments at 78. To
be clear, we do not find that DNS is a telecommunications service (or part of one) when provided on a stand-alone
basis by entities other than the provider of Internet access service. In such instances, there would be no
telecommunications service to which DNS is adjunct, and the storage functions associated with stand-alone DNS
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Internet transmission and DNS are inextricably intertwined, whether or not they were at the time of the
Commission’s earlier classification decisions.1047 In any event, the fact that DNS may be offered by a
provider of broadband Internet access service does not affect our conclusion that the telecommunications
is offered directly to the public.
371.
Accordingly, we now reconsider our prior analysis and conclude for two reasons that the
bundling of DNS by a provider of broadband Internet access service does not convert the broadband
Internet access service offering into an integrated information service.1048 This is both because DNS falls
within the telecommunications systems management exception to the definition of information service
and because, regardless of its classification, it does not affect the fundamental nature of broadband
Internet access service as a distinct offering of telecommunications.
372.
Caching Falls Within the Telecommunications Systems Management Exception.
Opponents of revisiting the Commission’s earlier classification decisions also point to caching as another
feature of broadband Internet access service packages that the Commission relied upon to find such
packages to be information services.1049 In the Cable Modem Declaratory Ruling, the Commission
described caching as “the storing of copies of content at locations in the network closer to subscribers
than their original sources.”1050 While the Commission noted the caching function in the Cable Modem
Declaratory Ruling, it did not rely on the caching function (as opposed to the DNS capability) as a basis
for its classification determination.1051 When offered as part of a broadband Internet access service,
caching, like DNS, is simply used to facilitate the transmission of information so that users can access
other services, in this case by enabling the user to obtain “more rapid retrieval of information” through the
network.1052 Thus, it falls easily within the telecommunications systems management exception to the
(Continued from previous page)
would likely render it an information service. See Petition for Declaratory Ruling that Pulver.Com’s Free World
Dialup Is Neither Telecommunications nor a Telecommunications Service, WC Docket No. 03-45, Memorandum
Opinion and Order, 19 FCC Rcd 3307, 3315, para. 13 (2004) (when computer processing functions falling within
the telecommunications systems management exception are offered on a stand-alone basis, they are not
“transformed into telecommunications services”).
1047

See Cherry and Peha Dec. 22, 2014 Ex Parte at 7.

1048

See, e.g., CDT Comments at 15 (stating that “the services cited in the Cable Modem Order are all either wholly
separable and available from third parties; so directed at routing and other critical network functionality as to be
considered analogous to adjunct-to-basic services; or, in the case of DNS lookup, both”). We also observe that addon services to DNS, such as DNS security extensions, do not convert BIAS into an information service. DNS
security extensions provide authentication that the messages sent between DNS servers, and between a DNS server
and a DNS client, are not altered. As such, DNS security extensions facilitate accurate DNS information, and, like
DNS itself, are incidental to BIAS, and do not alter the fundamental character of BIAS. We accordingly disagree
with the contrary interpretation of the role of DNS security extensions described in one of the dissenting statements.
Pai Dissent at 35-37.
1049

See, e.g., Bright House Reply at 6-7; AT&T Reply at 54.

1050

Cable Modem Declaratory Ruling, 17 FCC Rcd at 4810 n.76.

1051

Compare Cable Modem Declaratory Ruling, 17 FCC Rcd at 48909-10, para. 17 & n.76 (identifying caching as
part of the Internet connectivity function) with id. at 4822, para. 38 (identifying other functionality—but not
caching—as a basis for the ultimate information service classification). To the extent that Brand X can be read as
reaching a different conclusion, we find the Court’s characterization of “caching” as enabling “subscribers [to] reach
third-party Web sites via the World Wide Web, and browse their contents, [only] because their service provider
offers the capability for . . . acquiring, [storing] . . . retrieving [and] utilizing information” to be technically
inaccurate. See Brand X, 545 U.S. at 999-1000 (internal quotations omitted).
1052

Cable Modem Declaratory Ruling, 17 FCC Rcd at 4810 n.76. Caching is akin to a “store and forward
technology [used] in routing messages through the network as part of a basic service.” See Computer II Final
Decision, 77 FCC 2d at 421, para. 97 n.35 (emphasis omitted). See, e.g., CDT Comments at 14 (“Caching, too,
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information service definition. We observe that this caching function provided by broadband providers as
part of a broadband Internet service, is distinct from third party caching services provided by parties other
than the provider of Internet access service (including content delivery networks, such as Akamai), which
are separate information services.1053
373.
Other Features Within the Telecommunications Systems Management Exception.
Opponents raise, as well, a variety of new network-oriented, security-related computer processing
capabilities that are used to address broader threats to their broadband networks and customers, including
the processing of Internet traffic to check for worms and viruses and features that block access to certain
websites.1054 They claim that, as with DNS, a consumer cannot utilize the service without also receiving
many of these security mechanisms. Whether or not a consumer necessarily must utilize security-related
blocking functions when using a provider’s broadband Internet access service, we find that, like DNS and
caching, such capabilities provide telecommunications systems management functions that do not
transform what otherwise would be a telecommunications service into an information service. Some
security functions, e.g., blocking denial of service attacks, fall within the telecommunications systems
management exception because they are used exclusively for the management, control, or operation of the
telecommunications system. Many such network security functions are analogs of outbound and inbound
“call blocking” services, such as those blocking calls to 900 and 976 numbers and those blocking calls
from telemarketers, that have always been considered adjunct-to-basic with respect to voice telephony.1055
Other security functions—firewalls and parental controls, for example—either fall within the
telecommunications systems management exception because they are used exclusively for management
of the telecommunication service or are separable information services that are offered by providers other
than providers of broadband Internet access service. Such security features simply filter out unwanted
traffic, and do not alter the fundamental character of the underlying telecommunications service offered to
(Continued from previous page)
meets the criteria for an adjunct-to-basic service that should not turn an otherwise telecommunications service into
an information service. This function involves simply re-routing traffic to alternate copies of websites stored closer
to the subscriber. Its purpose is to reduce network congestion and improve the perceived speed of users’
connections. It does not alter the information or provide access to information other than that requested by
subscribers. In short, it is simply a technical tool to speed network performance.”).
1053

Third party “content delivery networks” provide extensive caching services. See Akamai Comments at 3
(explaining that it deploys its technologies deep in the networks of last-mile broadband Internet providers and
caches content locally, and stating that it has deployed approximately 150,000 servers in thousands of locations
inside over 1,200 global networks located in over 650 cities and 92 countries); Akamai, Facts & Figures,
http://www.akamai.com/html/about/facts_figures.html (last visited Jan. 2, 2015) (“Akamai delivers daily Web traffic
reaching more than 15 Terabits per second.”).
1054

See, e.g., AT&T Comments at 48-49 (explaining that it includes, as part of its residential broadband service,
“security screening, spam protection, pop-up blockers, parental controls, email with virtually unlimited storage,
instant messaging with enhanced voice communication, a streaming music service, access to programing content,
on-the-go access to the entire national AT&T Wi-Fi Hot Spot network, and the att.net Toolbar for quick access back
to a customer’s homepage, email, search, games, videos, music, and AT&T support tools”); Comcast Comments at
57; Verizon Comments at 59-60; NCTA Comments at 34-35; TWC Comments at 12 (stating that TWC also
provides “highly valued tools such as security screening, spam protection, anti-virus and anti-botnet technologies,
pop-up blockers, parental controls, online email and file storage, and a customizable home page for each user”); TMobile Comments at 20 (arguing that the transition to LTE and, more generally, to IP-based mobile networks
exposes mobile networks to new and rapidly evolving security threats, and that “[s]uch threats require the use of
network intelligence and visibility into real-time traffic patterns to improve detection of malicious attacks and
accidental traffic floods, as well as scalable, distributed, and automated security tools for discovery and remediation
of problems. These tools tightly integrate processing and transmission functions”); CenturyLink Comments at 4445; Charter Comments at 14-15; ACA Comments at 54-60; USTelecom Comments at 26-27; USTelecom Reply at
29.
1055

Non-Accounting Safeguards Order, 11 FCC Rcd at 21958, para. 107 n.245.

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users.1056 All of these functions ensure that users can use other Internet applications and services without
worrying about interference from third parties.
374.
CTIA contends that the integration between transmission and processing that
characterizes mobile broadband Internet access service requires that it be classified as an information
service, and notes that such integration is essential “whether a user is browsing a website, engaged in
mobile video conferencing, or undertaking any of the myriad other activities made possible by mobile
broadband.”1057 We find that that, rather than transforming what otherwise would be a
telecommunications service into an information service, the functions CTIA describes fall within the
telecommunications management exception because they serve to facilitate the transmission of
information and allow mobile subscribers to make use of other Internet applications and services. Other
commenters contend that broadband providers’ assignment of Internet Protocol (IP) addresses is also an
information service that renders broadband Internet access service an information service.1058 We
disagree. IP address assignment is akin to telephone number assignment, making a user’s computer
locatable by other users on the network.1059 Thus, this function serves to enable the transmission of
information for the use of other services.1060 The fact that the end user’s equipment must periodically
obtain an IP address from the broadband provider’s server does not change the fundamental purpose of
the service. It is analogous to adjunct-to-basic services that the Commission has held fall squarely within
the telecommunications systems management exception.1061
375.
Finally, Comcast asserts that “with the rise of IPv6 as the eventual replacement for IPv4
as the protocol for identifying and routing Internet content, Comcast and other [providers] also now
provide the functionality necessary to transform an IPv4 address into an IPv6 address (and vice versa),” a
“processing function” it claims is “part and parcel of broadband Internet access service.”1062 We
conclude that, as with DNS functions, the IP conversion functionality is akin to traditional adjunct-tobasic services, which fall under the telecommunications systems management exception.1063 As discussed
above, such functions must be “incidental” to an underlying telecommunications service, and must not
alter the fundamental character of the telecommunications service. We find that the conversion of IPv4 to
IPv6 and vice versa does not alter the information being transmitted, but rather enables the transmission
of the information, analogous to traditional voice telephone calls to toll free numbers, pay-per-call
numbers, and ported telephone numbers that require a database query to translate the dialed telephone
number into a different telephone number and/or to otherwise determine how to route the call properly.1064
As with these traditional services, the inclusion of this functionality does not somehow convert the basic
telecommunications service offering into an information service.

1056

See, e.g., CDT Comments at 14-15 (“Like caching, [network security, network monitoring, capacity
management, and troubleshooting] are intended to preserve a fast, uncongested, working network. They are most
often largely invisible to consumers, in the sense that most consumers are unaware of how they relate to their
connection; rather, these activities are simply part and parcel of running a network. To the extent that security
services are aimed at securing subscribers’ computers and not the network itself, they are typically offered as
optional services amid a sea of third-party anti-virus and anti-malware competitors.”).
1057

CTIA Reply at 49.

1058

See, e.g., TWC Comments at 12.

1059

See Cherry and Peha Dec. 22, 2014 Ex Parte at 7.

1060

See, e.g., Independent Documentary Association Reply at 9; Cherry and Peha Dec. 22, 2014 Ex Parte at 7.

1061

See supra note 1029.

1062

Comcast Reply at 22 (internal quotation omitted); see also Verizon Comments at 60-61.

1063

See supra note 1029.

1064

See supra note 1032.

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376.
Broadband Internet Access Service Is Not Inextricably Intertwined With Add-On
Information Services. Some commenters contend that broadband Internet access service must be a
functionally integrated information service because it is offered in conjunction with information services,
such as cloud-based storage services, email, and spam protection.1065 We find that such services are not
inextricably intertwined with broadband transmission service, but rather are a “product of the [provider’s]
marketing decision not to offer the two separately.”1066 The transmission service provided by broadband
providers is functionally distinguishable from the Internet application add-ons they provide.1067 Service
providers cannot avoid the scope of Title II merely by bundling broadband Internet access service with
information services. As the Supreme Court majority in Brand X recognized, citing the Stevens Report,
“a company ‘cannot escape Title II regulation’” of a telecommunications service “‘simply by packaging
that service with voice mail’” or similar information services.1068
377.
We find that these services identified in the record—email, cloud-based storage, and
spam protection—are separable information services. We conclude that e-mail accounts and cloud-based
storage provided along with broadband Internet access services are akin to voicemail services offered
along with traditional telephone service. As the Court found, “a telephone company that packages voice
mail with telephone service offers a transparent transmission path—telephone service—that transmits
information independent of the information-storage capabilities provided by voicemail. . . . [W]hen a
person makes a telephone call, his ability to convey and receive information using the call is only trivially
affected by the additional voice-mail capability.”1069 Likewise, the broadband Internet access service that
consumers purchase is only trivially affected, if at all, by the e-mail and cloud-based storage
functionalities that broadband providers may offer with broadband Internet access service.1070 Finally,
security functions such as spam blocking are add-ons to separable information services such as email, and
are themselves separable information services.
378.
It is also notable that engineers view the Internet in terms of network “layers” that
perform distinct functions.1071 Each network layer provides services to the layer above it.1072 Thus the
1065

See, e.g., Verizon Comments at 59-60 (describing how it now integrates additional features into its broadband
offerings, including “cloud-based services” and “caching servers and CDNs that store media content to enable
consumers to access that content at faster speeds”); AT&T Comments at 48-49; TWC Comments at 12; NCTA Dec.
23, 2014 Ex Parte Letter at 10-11.
1066

See Brand X, 545 U.S. at 1009, n.4 (Scalia, J., dissenting); see also, e.g., Free Press Comments at 66-67; AARP
Comments at 11; CDT Comments at 10; Cherry and Peha Dec. 22, 2014 Ex Parte at 6, 8.
1067

See, e.g., WGAW Reply at 33 (“While BIAPs sometimes bundle this telecommunications capability with true
information services—such as email services, web-hosting, newsgroups, or anti-virus software—those services are
not fundamental to the BIAS service itself. Consumers can and often do obtain those information services from
third parties. But more importantly, the BIAS service’s functionality would in no way be diminished if a provider
failed to provide any of those services, and it is unclear that most subscribers would even notice their absence.”);
CDT Comments at 11; Free Press Comments at 66-67; AARP Comments at 11.
1068

Brand X, 545 U.S. at 997-98 (quoting Stevens Report, 13 FCC Rcd at 11530, para. 60); see also Independent
Data Communications Manuf. Ass’n, Inc., Memorandum Opinion and Order, 10 FCC Rcd 13717, 13723, paras. 42,
44-45 (Com. Car. Bur. 1995) (rejecting the argument that AT&T’s bundling of enhanced protocol conversion with
basic frame relay service renders the whole service an enhanced service).
1069

Brand X, 545 U.S. at 998.

1070

See supra Section IV.C.2.

1071

See, e.g., Douglas Sicker & Joshua Mindel, Refinements of a Layered Model for Telecommunications Policy, 1 J.
Telecomm. & High Tech L. 69, 86-88 (2002); Rob Frieden, Adjusting the Horizontal and Vertical in
Telecommunications Regulation: A Comparison of the Traditional and a New Layered Approach, 55 Fed. Comm.
L.J. 207 (2003).
1072

See, e.g., Andrew S. Tanenbaum & David J. Wetherall, Computer Networks, 29 (Prentice-Hall, 5th ed. 2011)
(“The purpose of each layer is to offer certain services to the higher layers while shielding those layers from the
(continued….)

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lower layers, including those that provide transmission and routing of packets, do not rely on the services
provided by the higher layers. In particular, the transmission of information of a user’s choosing (which
is a service offered by lower layers) does not depend on add-on information services such as cloud-based
storage services, email, or spam protection (which are services offered at the application layer). Also,
application layer services that fall within the telecommunications management exception (e.g., DNS,
caching, or security services offered as part of broadband Internet access service) similarly do not depend
on add-on information services. As such, add-on information services are separated from the functions,
like DNS, that facilitate transmission, and are not “inextricably intertwined” with broadband Internet
access services.
379.
Other recent developments also show that consumers’ use of today’s Internet to access
content and applications is not inextricably intertwined with the underlying transmission component. For
instance, consumers are increasingly accessing content and applications on the Internet using Wi-Fi-only
devices that take advantage of Wi-Fi hotspots not provided by the consumer’s underlying broadband
service provider.1073 Similarly, consumers can sometimes use Wi-Fi-enabled smartphones not only to
access the Internet via their service provider’s mobile broadband network or Wi-Fi hotspots, but also
using Wi-Fi hotspots offered by premises operators. Further, many consumers purchase content that can
be accessed over any of a number of different transmission paths and devices over the Internet – for
example, video over a fixed broadband connection to a flat-screen television, or over a Wi-Fi router
connected to a fixed broadband connection to a tablet, or over a mobile broadband network to a
smartphone.
380.
In addition, countless third parties are now embedding electronics, software, sensors, and
other forms of connectivity into a wide variety of everyday devices, such as wearables, appliances,
thermostats, and parking meters that rely on Internet connectivity to provide value to the American
consumer,1074 including through mHealth, Smart Grid, connected education, and other initiatives.1075 The
growth of the Internet of Things is yet another clear indication that devices and services that consumers
use with today’s Internet are not inextricably intertwined with the underlying transmission component.
381.
Finally, we observe that the Commission itself recognized in 2005 that the “link”
between the transmission element of broadband Internet access service and the information service was
not inextricable. Specifically, the 2005 Wireline Broadband Classification Order granted wireline
broadband providers the option of offering the transmission component of broadband Internet access as a
distinct common carrier service under Title II on a permissive basis,1076 and a large number of rural
carriers have exercised this option for nearly a decade.1077 As NTCA explains, “[t]he fact that the
Commission recognized as far back as 2005 that the transmission component could be separated out, and
the fact that it has been separated out and offered separately on a tariffed basis by a large number of
(Continued from previous page)
details of how the offered services are actually implemented. In a sense, each layer is a kind of virtual machine,
offering certain services to the layer above it.”).
1073

See, e.g., OTI Comments at 27-28.

1074

See, e.g., Consumer Reports, What Is The Internet of Things, and Why Should You Care? (Aug. 14,2014),
http://www.consumerreports.org/cro/news/2014/08/what-is-the-internet-ofthings/index.htm (describing the Internet
of Things and predicting its widespread adoption by consumers in the near future); Cisco, The Zettabyte Era: Trends
and Analysis at 1 (June 10, 2014), http://www.cisco.com/c/en/us/solutions/collateral/service-provider/visualnetworking-index-vni/VNI_Hyperconnectivity_WP.html (describing the “tangible growth” of the next wave of the
Internet in which people, processes, data, and things connect to the Internet and each other).
1075

See, e.g., GSMA Connected Life, Understanding the Internet of Things (July 2014) (discussing how the Internet
of Things has the potential to improve energy efficiency, security, health, education and other aspects of daily life).
1076

See Wireline Broadband Classification Order, 20 FCC Rcd at 14900-903, paras. 89-95.

1077

See Free Press Comments at 46; Free Press Reply at 30; NTCA Comments at 9; NTCA Reply at 7-8.

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carriers undercuts any argument” that the transmission service and the services that ride atop that service
are inextricably intertwined.1078 Further, the 2007 Wireless Broadband Classification Order permitted
providers of mobile broadband Internet access service to offer the “transmission component [of wireless
broadband Internet access service] as a telecommunications service.1079
d.

Opponents’ Remaining Challenges Are Insubstantial

382.
Some commenters contend that our ruling is contrary to a Congressional intent for
keeping the Internet unregulated.1080 We are not, however, regulating the Internet, per se, or any Internet
applications or content. Rather, our reclassification of broadband Internet access service involves only
the transmission component of Internet access service. As the D.C. Circuit has explained, “Congress did
not choose between” competing “market-based” and “common-carrier, equal access” philosophies for
broadband regulation; rather, “the FCC possesses significant, albeit not unfettered, authority and
discretion to settle on the best regulatory or deregulatory approach to broadband—a statutory reality that
assumes great importance when parties implore courts to overrule FCC decisions on this topic.”1081 We
recognize that the Commission’s previous classification decisions concluded that classifying broadband
Internet access service as an information service would “establish a minimal regulatory environment” that
would promote the Commission’s goal of “ubiquitous availability of broadband to all Americans.”1082 We
do not today abandon that goal but instead seek to promote it through a “light-touch” regulatory
framework for broadband Internet access services under Title II. As noted earlier, there will be no rate
regulation, no unbundling of last-mile facilities, no tariffing, and a carefully tailored application of only
those Title II provisions found to directly further the public interest in an open Internet.1083
383.
Several commenters argue that we should rely exclusively on industry self-regulation to
promote the policies discussed above.1084 While we applaud voluntary industry initiatives, we find the
self-regulation option to be lacking in a number of respects. First, for the reasons discussed in our
forbearance analysis in Section IV, we find that applying the few provisions in Title II necessary to
implement the policy objectives identified above is in the public interest. We conclude that in the absence
of credible Commission authority to step in when necessary in the public interest, voluntary measures will
prove inadequate. Second, even the best-intentioned voluntary regulation initiatives are more likely to
protect consumers when there is an expert agency that can provide a backstop to inadequate industry

1078

NTCA Reply at 8; see also NTCA Comments at 9-10.

1079

Wireless Broadband Classification Order, 22 FCC Rcd at 5913, para. 32.

1080

See, e.g., USTelecom Reply at 25-26; Alcatel-Lucent Comments at 8; Free State Comments at 20 (“Congress
did not intend for the Commission to subject broadband ISPs to Title II regulations. Nor did Congress intend for the
Commission to use its forbearance authority as a loophole to evade Congress’ intent to facilitate deregulatory
approaches.”).
1081

Ad Hoc Telecommunications Users Committee v. FCC, 572 F.3d 903, 906-07 (D.C. Cir. 2009) (citing 47 U.S.C.
§ 1302).
1082

Wireline Broadband Classification Order, 20 FCC Rcd at 14855, para. 1; Wireless Broadband Classification
Order, 22 FCC Rcd at 5902, para. 2.
1083

See also infra Section IV.C.5 (discussing the effects of our classification decision on investment and innovation
in the Internet ecosystem).
1084

See, e.g., CenturyLink Comments at 72 (asserting that because of concerns about the Commission’s legal
authority in this area, the Commission should “consider seeking first to address issues via referrals to appropriate
technical advisory groups”); Roslyn Layton Comments at 18-19 (asserting that the Commission should eschew new
rules and pursue a multi-stakeholder governance model backed by the FTC's antitrust authority); Bright House
Comments at 26-27; Comcast Comments at 70; Verizon Comments at 17; Telefonica Internacional USA Comments
at 6; TechFreedom & ICLE Legal Comments at 99-100.

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action that may result from collective action or coordination problems beyond any single firm’s
control.1085
384.
Other commenters argue that classifying broadband Internet access service as a
telecommunications service would impermissibly compel providers of broadband Internet access service
to operate as common carriers.1086 This argument misconstrues the nature of our ruling. Our decision to
classify broadband Internet access service as a telecommunications service subject to the requirements of
Title II derives from the characteristics of this service as it exists and is offered today. We do not
“require” that any service “be offered on a common carriage basis,”1087 but rather identify an existing
service that is appropriately offered on a common carriage basis “by virtue of its functions,”1088 as
explained in detail above. Our classification decision is easily distinguished from the rules struck down
in Midwest Video II, as those rules impermissibly attached common carrier obligations to services the
Commission plainly lacked statutory authority to regulate in this manner.1089 Congress has not spoken
directly to the regulatory treatment of broadband Internet access services. Our classification of these
services as telecommunications services is a permissible exercise of our delegated authority, one which
we have adequately justified and defended based on the record before us. Because we have appropriately
classified these services as telecommunications services, we do not run afoul of the Act’s provision that a
“telecommunications carrier shall be treated as a common carrier under this Act only to the extent that it
is engaged in providing telecommunications services.”1090 We thus reject the argument that our ruling
impermissibly compels common carriage.
385.
Commenters also argue that the classification of broadband Internet access service as a
telecommunications service results in this service being classified as both a telecommunications service
and an information service, in violation of Congressional intent.1091 We agree with commenters that these
are best construed as mutually exclusive categories, and our classification ruling appropriately keeps them
distinct. In classifying broadband Internet access service as a telecommunications service, we conclude
that this service is not a functionally integrated information service consisting of a telecommunications
component “inextricably intertwined” with information service components. Rather, we conclude, for the
reasons explained above, that broadband Internet access service as it is offered and provided today is a
distinct offering of telecommunications and that it is not an information service. As further explained
above, any functional integration of DNS or caching with broadband Internet access service does not
disrupt this classification, as both of those functions fall within the “telecommunications systems
management exception” to the definition of an information service.1092 Nor does the mere “packaging” of
information services such as email with broadband Internet access service convert the latter into an
information service.1093 Our classification of broadband Internet access service therefore does not create
any definitional inconsistency.
1085

See, e.g., Mark Cooper/CFA Comments at 3 (arguing that it is “a mistake to believe that [multi-stakeholder, selfregulatory institutions] would have succeeded without the strong action of the FCC to create and preserve the space
of freedom for entrepreneurial experimentation”).
1086

See Verizon Title II White Paper at 1-5; NCTA Dec. 23, 2014 Ex Parte Letter at 11-12; Letter from Gary L.
Phillips, AT&T, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28 and 10-127 (filed Feb. 2, 2015).
1087

Verizon Title II White Paper at 4.

1088

See NARUC I, 525 F.2d at 644.

1089

FCC v. Midwest Video Corp., 440 U.S. 689, 705 (1979) (Midwest Video II); see also Verizon, 740 F.3d at 65152 (discussing Midwest Video II).
1090

47 U.S.C. § 153(51).

1091

See AT&T Comments at 41-44; CenturyLink Comments at 41; Verizon Comments at 61-62.

1092

See supra paras. 366-372.

1093

See supra paras. 376-378; see also Brand X, 545 U.S. at 997-98.

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386.
We also reject the argument1094 that the classification of broadband Internet access service
as an information service is implicit in the definition of “interactive computer service” set forth in section
230 of the Communications Act, a provision focused on the blocking and screening of offensive
material.1095 We find it unlikely that Congress would attempt to settle the regulatory status of broadband
Internet access services in such an oblique and indirect manner, especially given the opportunity to do so
when it adopted the Telecommunications Act of 1996.1096 At any rate, the definition does not expressly
classify broadband Internet access service, as we define that term herein, as an information service.1097
We therefore find no basis in section 230 for reconsidering our judgment that this service is properly
understood to be a telecommunications service, for the reasons explained above.
387.
Finally, we disagree with the suggestion that our decision to “reclassify, to forbear, and to
adopt rules grounded in Title II” is not a “logical outgrowth” of the 2014 Open Internet NPRM.1098 The
approach we adopt today is more than a logical outgrowth of the NPRM; it is one that the NPRM
expressly identified as an alternative course of action.1099 It is one on which the Commission sought
comment in almost every section of the NPRM.1100 It is one that several broadband Internet access
service providers vigorously opposed in their comments in light of their own reading of the NPRM.1101
1094

See Pai Dissent at 32.

1095

47 U.S.C. § 230(f). (Defining the term to mean “any information service, system, or access software provider
that provides or enables computer access by multiple users to a computer server, including specifically a service or
system that provides access to the Internet . . .”); see also id. § (a)(2) (referring to “the Internet and other interactive
computer services”).
1096

See Telecommunications Act of 1996, Pub. L. No 104-104, 110 Stat. 56, §509.

1097

For one thing, the phrase “any information service, system or access software provider”, see id. § (f), may be
broader in scope than the term “information service” as defined in section 3 of Act. To read the text otherwise
would suggest that Congress intended the liability protections of section 230 to apply narrowly, excluding, for
example, local exchange carriers that offered DSL, which as noted above was classified as a telecommunications
service until 2005. See supra para. 39.
1098

Pai Dissent at 19.

1099

See Pai Dissent at 20-21 (quoting 2014 Open Internet NPRM, 29 FCC Rcd at 5613-14, paras. 149-50).

1100

Thus, at the very outset, in addition to “the [section 706] blueprint offered by the D.C. Circuit” on which the
dissent now seeks to focus, Pai Dissent at 16-19, the Commission made clear that in looking for the “best approach
to protecting and promoting Internet openness,” it “will seriously consider the use of Title II,” “seeks comment on
the benefits of both . . ., including the benefits of one approach over the other,” and “emphasize[s] . . . that the
Commission recognizes that both section 706 and Title II are viable solutions and seek[s] comment on their potential
use.” See, e.g., NPRM, 29 FCC Rcd at 5563, para. 4. See also id. at 5593, 5595-96, paras. 89, 96 (seeking comment
on whether to adopt a no-blocking rule “that does not allow for priority agreements with edge providers” and how to
do so consistent, inter alia, with Title II), id. at 5600, para. 112 (seeking comment on alternative to standard of
commercial reasonableness), id. at 5604, para. 121 (seeking comment on unreasonable discrimination standard,
including application of sections 201 and 202), id. at 5612-16, paras. 148-155 (specific questions about applicability
of Title II and forbearance approaches, including forbearance as to specific Title II provisions). The NPRM in this
proceeding is thus nothing like the NPRM that was at issue in Prometheus. Prometheus Radio Project v. FCC, 652
F.3d 431, 445-46, 450-51 (3rd Cir. 2011). We also note that, under the APA, notice-and-comment rulemaking
requirements apply only to the extent that we herein adopt legislative rules. 5 U.S.C. §§ 553(b)(A), 553(d)(2).
1101

See e.g., AT&T Comments at 39-72; Bright House Comments at 20-29; CenturyLink Comments at 36-51;
Charter Comments at 13-21; Comcast Comments at 42-67; Cox Comments at 30-31; Frontier Communications
Comments at 2-4; Time Warner Comments at 9-23; T-Mobile Comments at 18-24; Verizon Comments at 46-69.
And parties on the other side of the issue just as vigorously argued in support of our approach in their comments.
See, e.g., Ad Hoc Comments at 2-7; CDT Comments at 8-16; Cogent Comments at 9-12; Common Cause
Comments at 13-16; Consumers Union Comments at 10; EFF Comments at 13-17; Etsy Comments at 9; Free Press
Comments at 54-90; New America Foundation Comments at 22-27; Public Knowledge Comments at 60-104;
WGAW Comments at 28-31. Dissents to the NPRM likewise reflect that this approach was on the table. See 2014
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Mobile Broadband Internet Access Service is Commercial Mobile Service

388.
As outlined above, we conclude that broadband Internet access service, whether provided
by fixed or mobile providers, is a telecommunications service. We also find that mobile broadband
Internet access service is a commercial mobile service. In any event, however, even if that service falls
outside the definition of “commercial mobile service,” we find that it is the functional equivalent of a
commercial mobile service and, thus, not a private mobile service.
389.
Congress adopted the commercial mobile service provisions in the Act with the goal of
creating regulatory symmetry among similar mobile services.1102 Section 332(d)(1) of the
Communications Act defines “commercial mobile service” as “any mobile service . . . that is provided
for profit and makes interconnected service available (A) to the public or (B) to such classes of eligible
users as to be effectively available to a substantial portion of the public, as specified by regulation by the
Commission.”1103 We find that mobile broadband Internet access service meets this definition. First, we
find that mobile broadband Internet access service is a “mobile service”1104 because subscribers access the
service through their mobile devices. Next, we find that mobile broadband Internet access service is
provided “for profit” because service providers offer it to subscribers with the intent of receiving
compensation.1105 We also conclude the mobile broadband Internet access services are widely available to
the public, without restriction on who may receive them.1106
390.
Finally, we conclude that mobile broadband Internet access service is an interconnected
service. Section 332(d)(2) states that the term “interconnected service” means “service that is
interconnected with the public switched network (as such terms are defined by regulation by the

(Continued from previous page)
Open Internet NPRM, 29 FCC Rcd at 5653-55 (dissenting Statement of Commissioner Pai) (recognizing “[i]t’s not
news that people of good faith disagree” on the right approach, stating that “[s]ome would like to regulate broadband
providers as utilities under Title II,” and discussing the scope of Title II’s “unjust or unreasonable discrimination”
requirement, the consequences of reclassification under Title II, and the alleged regulatory uncertainties posed under
either section 706 “or Title II”).
1102

Second Report and Order Implementing Sections 3(n) and 332 of the Communications Act, as Amended by
Section 6002(b) of the Omnibus Reconciliation Act of 1993, GN Docket No. 93-252, Second Report and Order, 9
FCC Rcd 1411, 1413, para. 2 (1994) (Second CMRS Report and Order). In describing the background against
which Congress enacted the Omnibus Budget and Reconciliation Act of 1993, the Commission noted that it had
traditionally classified mobile services into the categories of public mobile services subject to common carrier
regulation and private land mobile services, such as taxi dispatch services, developed to provide service tailored to
the needs of particular groups, and not subject to common carrier regulation. Id. at 1414, paras. 3-4. The
Commission noted that the series of its decisions in this context created the prospect of direct competition between
private land mobile services and similar common carrier services under disparate regulatory regimes, for example,
by permitting the predecessor of Nextel to develop an SMR system “comparable or superior to cellular in quality.”
Id. at 1415, para. 7. The Commission noted that, in revising Section 332, Congress “replaced traditional regulation
of mobile service with an approach that brings all mobile service providers under a comprehensive, consistent,
regulatory framework.” Id. at 1417, para. 12.
1103

47 U.S.C. § 332(d)(1).

1104

“Mobile service” is defined under the Commission’s rules to mean “a radio communication service carried on
between mobile stations or receivers and land stations, and by mobile stations communicating among themselves . . .
.” 47 C.F.R. § 20.3.
1105

The Second CMRS Report and Order defined the statutory phrase “for profit” to include: “any mobile service
that is provided with the intent of receiving compensation or monetary gain.” See Second CMRS Report and Order,
9 FCC Rcd at 1427, para. 43.
1106

In the Second CMRS Report and Order, the Commission determined that a service is available “to the public” if
it is “offered to the public without restriction in who may receive it.” Id. at 1439, para. 65.

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Commission) . . . .”1107 The Commission has defined “interconnected service” as a service “that gives
subscribers the capability to communicate to or receive communication from all other users on the public
switched network.”1108 The Commission has defined the term “public switched network” to mean “[a]ny
common carrier switched network, whether by wire or radio, including local exchange carriers,
interexchange carriers, and mobile service providers, that use[s] the North American Numbering Plan in
connection with the provision of switched services.”1109
391.
While mobile broadband Internet access service does not use the North American
Numbering Plan, we conclude for the reasons set out below that we should update our definition of public
switched network pursuant to the authority granted to the Commission in section 332 so that our
definition reflects the current network landscape rather than that existing more than 20 years ago. In its
Order defining the terms “interconnected” and “public switched network” the Commission concluded that
the term “public switched network” should not be defined in a static way, recognizing that the network is
continuously growing and changing because of new technology and increasing demand.1110 The purpose
of the public switched network, the Commission noted, is “to allow the public to send or receive
messages to or from anywhere in the nation.”1111 This quality of “ubiquitous access,”1112 for which the
NANP was viewed as a proxy in 1994, was consistent with the key distinction underlying the formulation
of the CMRS definition by Congress—differentiating the emerging cellular-based technology for
“commercial” SMR service being deployed by Nextel’s predecessor as a mass market service from the
traditional “private” SMR dispatch services employed by taxi services and other private fleets.1113 Today,
consistent with our authority under the Act,1114 and with the Commission’s previous recognition that the
“public switched network” will grow and change over time, we update the definition of public switched
network to reflect current technology. Specifically, we revise the definition of “public switched network”
to mean “the network that includes any common carrier switched network, whether by wire or radio,
including local exchange carriers, interexchange carriers, and mobile service providers, that use[s] the
North American Numbering Plan, or public IP addresses,1115 in connection with the provision of switched
services.” This definition reflects the emergence and growth of packet switched Internet Protocol-based
networks. Revising the definition of public switched network to include networks that use standardized
addressing identifiers other than NANP numbers for routing of packets recognizes that today’s broadband
Internet access networks use their own unique addressing identifier, IP addresses, to give users a
1107

47 U.S.C. § 332(d)(2). The commercial mobile service provisions of the Act are implemented under section
20.3 of the Commission’s rules, which employs the term “commercial mobile radio service” (CMRS).
1108

47 C.F.R. § 20.3.

1109

Id.

1110

Second CMRS Report and Order, 9 FCC Rcd at 1436, para. 59; see also Letter from Michael Calabrese, Dir.
Wireless Future Project, New America Open Technology Institute, to Marlene H. Dortch, Secretary, FCC, GN
Docket Nos. 10-127, 14-28, at 8 (filed Jan. 27, 2015) (OTI Jan. 27, 2015 Ex Parte Letter) (arguing that “today there
is no networked service more open, interconnected and universally offered than broadband Internet access service,
whether fixed or mobile”).
1111

Second CMRS Report and Order, 9 FCC Rcd at 1436, para. 59.

1112

Id. at 1437, para. 60.

1113

See id. at 1413-17, paras. 1-10.

1114

Section 332(d)(2) of the Communications Act states that “the term ‘interconnected service’ means service that is
interconnected with the public switched network (as such terms are defined by regulation by the Commission) . . . .”
47 U.S.C. §332(d)(2).
1115

Public IP addresses are globally routable unicast IP addresses. See Internet Engineering Task Force, The
Internet Numbers Registry System, RFC 7020 (Aug. 2013), https://tools.ietf.org/html/rfc7020 (discussing nonreserved globally unique unicast IP addresses assigned through the Internet Numbers Registry System).

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universally recognized format for sending and receiving messages across the country and worldwide.1116
We find that mobile broadband Internet access service is interconnected with the “public switched
network” as we define it today and is therefore an interconnected service.1117
392.
Some commenters contend that the Commission is barred from taking any actions that
would change the definition of “public switched network.” CTIA, for example, argues that a revision to
the definition of “public switched network” is “beyond the scope of this rulemaking” because the 2014
Open Internet NPRM “only asks whether mobile broadband falls within the definition of CMRS and does
not propose any changes to the well-established definitions in section 20.3 of the FCC’s rules.”1118 AT&T
similarly argues that the Commission has not provided sufficient public notice.1119 CTIA also argues that,
even if there were notice, the Commission could not interpret the definition of “public switched network”
to include the Internet, stating that “[w]hile Section 332 directs the Commission to define ‘public
switched network’ by regulation, that definition must be consistent with the statutory text and
congressional intent. Here, whatever limited discretion the Commission has as to that definition, it cannot
be interpreted broadly enough to cover the broadband Internet.”1120 Verizon agrees that the NPRM did not
provide notice that the Commission might change its regulations or their interpretation. In addition,
Verizon argues that, although the Commission is statutorily authorized to define “public switched
network,” the definition must still be consistent with the statutory text and congressional intent.
Accordingly, Verizon contends, “no matter how the Commission may redefine the ‘public switched
network’ any new definition still would need to be anchored to the public switched telephone networks,
which is what Section 332 was designed to address.”1121
393.
Contrary to these arguments, we find that revising the definition of “public switched
network” and classifying mobile broadband Internet access service as a commercial mobile service is a
logical outgrowth of the proposals in the 2014 Open Internet NPRM.1122 As discussed above, in the
NPRM, the Commission proposed relying on section 706 of the Telecommunications Act of 1996 for
legal authority to adopt rules to protect the open Internet but indicated that it would also seriously
consider the use of Title II of the Communications Act as a basis for legal authority.1123 The Commission
sought comment on whether, in the event that it decided to reclassify broadband Internet access service
under Title II, mobile broadband Internet access service would fit within the definition of “commercial
mobile service” under section 332 of the Act and the Commission’s rules implementing that section.1124
1116

This definitional change to our regulations in no way asserts Commission jurisdiction over the assignment or
management of IP addressing by the Internet Numbers Registry System.
1117

As discussed further below, we also find that mobile broadband is an interconnected service because it gives its
users the capability to send and receive communications from all other users of the Internet.
1118

CTIA Reply at 44-45; see also CTIA Dec. 22, 2014 Ex Parte Letter, Attach at 5-9; Letter from Scott K.
Bergmann, Vice Pres. Reg. Affairs, CTIA to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at
14 (filed Feb. 10, 2015) (CTIA Feb. 10, 2015 Ex Parte Letter).
1119

Letter from Gary L. Phillips, General Attorney & Assoc. Gen. Counsel, AT&T Services, Inc. to Marlene H.
Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 2 (filed Jan. 8, 2015) (AT&T Jan. 8, 2015 Ex Parte
Letter).
1120

CTIA Dec. 22, 2014 Ex Parte Letter, Attach. at 7.

1121

Verizon Title II White Paper at 15; id. at 13-15; see also Letter from William H Johnson, Vice Pres. & Assoc.
Gen. Counsel, Verizon to Marlene H Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 2-3 (filed Dec. 24,
2014) (Verizon Dec. 24, 2014 Ex Parte Letter).
1122

See Crawford v. FCC, 417 F.3d 1289, 1295 (D.C. Cir. 2005) (the rule ultimately adopted may be a “logical
outgrowth” of the original proposal).
1123

2014 Open Internet NPRM, 29 FCC Rcd at 5563, para. 4.

1124

Id. at 5614, para. 150.

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In addition, the NPRM noted that the Commission’s Broadband Classification NOI also asked whether
the Commission should revisit its classification of wireless broadband Internet access services, noted that
the NOI docket “remains open,” and directed that the record be refreshed in that proceeding “including
the inquiries contained herein.”1125 In the Broadband Classification NOI, the Commission sought
comment on “legal issues specific to . . . wireless services that bear on their appropriate classification.”1126
More specifically, it asked “which of the three legal frameworks” described therein (which included a
Title II approach) “would best support the Commission’s policy goals for wireless broadband.”1127 In
particular, it asked “[t]o what extent should section 332 of the Act affect our classification of wireless
broadband Internet services?”1128 In the 2014 Open Internet NPRM, the Commission also noted that
section 332 requires that wireless services that meet the definition of commercial mobile services be
regulated as common carriers under Title II.1129 The NPRM also asked about the extent to which
forbearance should apply, if the Commission were to classify mobile broadband Internet access service as
a CMRS service subject to Title II, and noted that the Broadband Classification NOI also asked whether
the Commission could and should apply section 332(c)(1) as well as section 10 in its forbearance analysis
for mobile services.1130 The 2014 Open Internet NPRM also sought comment on defining mobile
broadband Internet access service and on application of Internet openness requirements to mobile
broadband services.1131
394.
We find that our decision today to classify mobile broadband Internet access service as
both a telecommunications service under Title II and CMRS is a logical outgrowth of these discussions
and requests for comments. The discussion and questions posed in the 2014 Open Internet NPRM gave
clear notice that the Commission was considering whether to reclassify mobile broadband Internet access
under Title II as a telecommunications service and whether mobile broadband Internet access service
would fit within the definition of “commercial mobile service” under the Act and the Commission’s rules,
including whether mobile broadband would meet the “interconnected service” component of the
commercial mobile service definition. It was “reasonably foreseeable”1132 that in answering that question
the Commission would explore the scope of that component of the definition. Stated another way,
“interested parties should have anticipated that the change [in that definition] was possible, and thus
reasonably should have filed their comments on the subject during the notice-and-comment period.”1133
While we think this proposition is clear from the questions posed by the 2014 Open Internet NPRM, we
further note that in this case mobile broadband providers “themselves had no problem understanding the
scope of the issues up for consideration; several . . . submitted comments” on the issue.1134 And, other
1125

Id. at 5613, para. 149 n.302. See also 79 Fed. Reg. 37448-01, 37468 (2014); Wireline Competition Bureau
Seeks to Refresh the Record in the 2010 Proceeding on Title II and Other Potential Legal Frameworks for
Broadband Internet Access Service, GN Docket No. 10-127, Public Notice, 29 FCC Rcd 5856 (Wireline Comp. Bur.
2014).
1126

Broadband Classification NOI, 25 FCC Rcd at 7867, para. 2.

1127

Id. at 7908, para. 102.

1128

Id. at 7909, para. 104.

1129

2014 Open Internet NPRM, 29 FCC Rcd at 5613-14, para. 149.

1130

Id. at 5616, para. 155.

1131

Id. at 5583-84, 5598, paras. 62, 105.

1132

Long Island Care at Home, Ltc. v. Coke, 551 U.S. 158, 175 (2007).

1133

Agape Church, Inc. v. FCC, 738 F.3d 397, 411 (D.C. Cir. 2013).

1134

National Ass’n of Mfrs. v. EPA, 750 F.3d 921, 926 (D.C. Cir. 2014); see also In re Polar Bear Endangered
Species Act Listing, 720 F.3d 354, 363 (D.C. Cir. 2013) (“Indeed, the [appellant] seems to have understood this
[effect of the proposal]: it submitted comments” on the issue); CTIA Reply at 44 (arguing that the Commission
“cannot upend the statutory scheme simply by ‘updating’ the definition of CMRS to determine that the use of IP
addresses renders an offering ‘interconnected,’ as Vonage contends”); Verizon Title II White Paper at 15 (arguing
(continued….)

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parties commented that the Commission should update its definition of the term “public switched
network.”1135 Moreover, as referenced above, evidence in the record shows that a number of parties have
directly addressed the application of section 332(d) and the Commission’s implementing rules to mobile
broadband Internet access and thus have been aware that the Commission was considering taking action
to update the definition of “public switched network” and reclassify mobile broadband Internet access as
commercial mobile service.1136
395.
We also disagree with arguments that we are barred from updating the definition of
public switched network to include networks that use addressing identifiers beyond NANP numbers
associated with traditional telephone networks. CTIA, Verizon, and AT&T argue that the history of the
legislation that defined “commercial mobile service” indicates that Congress intended the term “public
switched network” to mean the “public switched telephone network.” CTIA, for example, argues that
when Congress used the term “public switched network” in 1993, “it did so knowing that the Commission
and the courts routinely used that term interchangeably with ‘public switched telephone network’” and
that “[i]t is axiomatic that, when Congress ‘borrows’ a term of art that has been given meaning by the
courts or the relevant agency, it ‘intended [that term] to have its established meaning.’”1137 It argues also
that “the Conference Report accompanying the legislation confirms that, although Congress used the term
‘public switched network,’ it viewed that term as synonymous with ‘the [p]ublic switched telephone
network.’”1138 AT&T notes that Congress “used the term ‘the public switched network’” and that
“Congress’s use of the definite article ‘the’ and the singular ‘network’ makes clear that it was referring to
a single ‘public switched network’”1139 The parties also argue that the text of the FirstNet public safety
legislation supports their argument because it distinguishes between the “public switched network” and
the “public Internet.1140 AT&T contends also that the text of section 230 supports its views.1141
(Continued from previous page)
that “no matter how the Commission may redefine the ‘public switched network,’ any new definition still would
need to be anchored to public switched phone networks, which is what Section 332 was designed to address”).
1135

Vonage Comments at 41-44; see also Letter from Joshua M. Bobeck, Counsel to Vonage Holdings Group to
Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 2 (filed Jan. 15, 2015) (noting that the
Commission “plainly put interested parties on notice that it was considering rules based in Title II and that it would
explore alternative construction of the statutory terms applicable to mobile broadband under section 332”); Letter
from Michael Calabrese, Dir., Wireless Future Project, New America, Open Technology Institute to Marlene H.
Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 5 (filed Nov. 10, 2014) (arguing that “since the statute
does not limit the definition of ‘public switched network’ to one that uses the NANP, an update could add to the
rather self-evident notion that in 2014, (unlike 1993) the Internet and its IP addressing system is now the
predominant network”).
1136

See, e.g., CTIA Reply at 44-45; CTIA Dec. 22, 2014 Ex Parte Letter; CTIA Feb. 10, 2015 Ex Parte Letter;
Verizon Title II White Paper at 13-15; AT&T Feb. 2, 2015 Ex Parte Letter; Letter from Jonathan Spalter, Chairman,
Allison Remsen, Exec. Director, Rachael Bender, Policy Director, Mobile Future to Marlene H. Dortch, Secretary,
FCC, GN Dockets 14-28, 10-127 (filed Dec. 5, 2014); Letter from Matt Wood, Policy Director, Free Press to
Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127 (filed Dec. 17, 2014); Letter from Michael
Calabrese, Dir, Wireless Future Project, Open Technology Institute, New America Foundation, Erik Stallman, Dir.,
Open Internet Project, Center for Democracy and Technology, and Harold Feld, Sen. Vice Pres. Public Knowledge,
to Marlene H. Dortch, Secretary, FCC GN Docket Nos. 14-28, 10-127 (filed Dec. 11, 2014) (New America, CDT,
PK, Dec. 11, 2014 Ex Parte Letter).
1137

CTIA Dec. 22, 2014 Ex Parte Letter, Attach. at 7-8.

1138

CTIA Dec. 22, 2014 Ex Parte Letter, Attach. at 8-9; CTIA Feb. 10, 2015 Ex Parte Letter at 15 (arguing that
Congress demonstrated that “it viewed the terms as interchangeable by describing the legislation as requiring
interconnection with the ‘public switched telephone network’ in the Conference Report”); see also AT&T Feb. 2,
2015 Ex Parte Letter at 1.
1139

AT&T Feb. 2, 2015 Ex Parte Letter at 2; see also CTIA Dec. 22, 2014 Ex Parte Letter, Attach. at 8.

1140

CTIA Dec. 22, 2014 Ex Parte Letter, Attach. at 8; Verizon Dec. 24, 2014 Ex Parte Letter at 2.

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396.
We agree with other commenters that these arguments do not give sufficient weight to
Congressional intent as reflected in the text of the statute itself.1142 As noted above, section 332(d)(2) of
the Act uses the term “public switched network” rather than “public switched telephone network.”
Moreover, as CTIA, Verizon, and AT&T acknowledge, the statute expressly delegates authority to the
Commission to define the term “public switched network.” While we agree with CTIA that the
delegation of authority does not provide boundless discretion,1143 we find that what is clear from the
statutory language is not what the definition of “public switched network” was intended to cover but
rather that Congress expected the notion to evolve and therefore charged the Commission with the
continuing obligation to define it. In short, by defining such terms by reference to the way they “are
defined by regulation by the Commission,” Congress expressly delegated this policy judgment to the
Commission.1144 As noted above, in defining the terms “interconnected service” and “public switched
network,” the Commission concluded that the term “public switched network” should not be defined in a
static way and recognized that the network is continuously growing and changing because of new
technology and increasing demand. The Commission expressly rejected calls in 1994 to define the public
switched network as the “public switched telephone network” finding that a broader definition was
consistent with Congress’s decision to use the term “public switched network,” rather “than the more
technologically based term ‘public switched telephone network.’”1145 Today, we build upon this analysis
(Continued from previous page)
1141
See 47 U.S.C. §230(b)(2); AT&T Feb. 2, 2015 Ex Parte Letter at 2-3.
1142

See, e.g., Letter from Harold Feld, Senior Vice Pres., Public Knowledge to Marlene H. Dortch, Secretary, FCC,
GN Docket Nos. 14-28, 10-127, at 1 (filed Jan. 15, 2015) (arguing that “[i]f the term ‘public switched network’ was
so well understood, why did Congress explicitly require that the Commission define it”) (emphasis in original); OTI
Jan. 27, 2015 Ex Parte Letter at 5 (arguing that “Congress could have referred specifically to the ‘telephone’
network (or at least used the word ‘telephone’) if it intended to strictly limit the future services that the Commission
might designate as CMRS-but instead it cast the provision more broadly”).
1143

See CTIA Feb. 10, 2015 Ex Parte Letter at 15.

1144

Thus, the question here is not one of interpreting certain terms used by Congress as one of the dissents states
(Pai Dissent at 45-51), but rather of the exercise of the discretion explicitly granted by Congress to the Commission
to define these terms.
1145

Second CMRS Report and Order, 9 FCC Rcd at 1436, para. 59. Contrary to one of the dissenting statements,
(Pai Dissent at 46-47 & n.337), the Commission made clear it was not limiting the term “public switched network”
to the traditional network. First, as noted above, it rejected that view in favor of the position of other commenters
that “the network should not be defined in a static way,” an interpretation it found more consistent with the
determination by Congress not to employ the term “public switched telephone network.” Second, it stated that any
switched common carrier service that is interconnected with the traditional local or interexchange switched network
would be defined “as part of” the public switched network “for purposes of our definition,” id. at 1436-37. Even as
early as 1994, the comments on which the Commission relied for its definition, id. at 1437, para. 60, made this very
point. Comments of Nextel Communications, Inc. at 11 (“In the not-too-distant future, telephony will consist of
‘networks of networks’ linking together landline, fiber, wireless, microwave and satellite systems,” so that the
definition should include “any services – whether landline or wireless – offered on a co-carrier basis to enhance or
extend the reach and functionalities of traditional local exchange or interexchange facilities”); Comments of Pacific
Bell and Nevada Bell at 5 (current definition is “a vestige of telecommunications history” and “needs to be revised,”
given “revolution” in the industry in which “new providers and new services appear almost weekly” that are
interconnected with the traditional PSN and “are substitutes for components of the PSN”). Comments of other
wireless providers, with whom the Commission agreed about avoiding “a static way” of defining the network, id. at
1436, para. 59, made the same point. See, e.g., Comments of Bell Atlantic Cos. at 6, 9 & n.9 (citing Commission’s
“poor experience” in trying to apply definitions, arguing that “[b]road definitions are essential,” emphasizing that
the Commission “cannot anticipate all such [new PCS] technologies . . . interfacing with the network,” and urging it
to “discard the use of the anachronistic term ‘public switched telephone network’ (‘PSTN’)”); Comments of
NYNEX Corp. at 8-9 (definition should not include “only the traditional LEC-provided public switched telephone
network (‘PSTN’),” so as to “reflect today’s competitive environment for wireless services” and the “quickly and
constantly evolving concept” of the network, in which cable, cellular, and PCS systems and other services could,
“for millions of people, make access to the ‘old PSTN’ unnecessary”).

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and update our definition of “public switched network” to reflect changes in technology. Reflecting the
foregoing changes in technology and telecommunications infrastructure, our definition contemplates a
single network comprised of all users of public IP addresses and NANP numbers, and not two separate
networks as AT&T argues.1146 We find that this action is consistent both with the text of the statute and
Congressional intent.1147
397.
We recognize that, in the 2007 Wireless Broadband Classification Order, the
Commission previously concluded that section 332 —“as implemented by the Commission’s CMRS
rules”— did not contemplate wireless broadband Internet access service “as provided today,”1148 citing the
Second CMRS Report and Order’s finding that “‘commercial mobile service’ must still be interconnected
with the local exchange or interexchange switched network as it evolves.”1149 The Commission also
found that mobile broadband Internet access was not an “interconnected service” based on its reading of
the Commission’s existing rule, because the service did not provide its users with the capability to reach
all other users of the public switched network.1150 In addition, in 2011, in its order adopting data roaming
requirements, the Commission defined services subject to the data roaming rule as services that are not
interconnected with the public switched network.1151 However, the 2007 Wireless Broadband
Classification Order (on which the 2011 Data Roaming Order also relied1152) was premised both on its
view of the service “as provided today”1153 and on “an internal contradiction”1154 that a finding that
1146

See AT&T Feb. 2, 2015 Ex Parte Letter at 2; see also CTIA Dec. 22, 2014 Ex Parte Letter, Attach. at 8.

1147

We are not persuaded by AT&T’s arguments that rely, not on the foregoing language or purpose of the 1993
statute at issue, but on subsequent statutes enacted for different purposes in 1996 and 2012. See, e.g., Gutierrez v.
Ada, 528 U.S. 250, 257-58 (2000). Quite apart from canons of statutory construction, this argument disregards the
signal difference in Section 332(d), which delegates the question of the scope of its terms to the Commission in light
of its experience and market developments over time. We note, however, that AT&T’s reliance on the “policy” of
the 1996 Act reflected in Section 230 is similar to one that Verizon made but that was not found by the Verizon
court to be a bar to its conclusion that “section 706 grants the Commission authority to promote broadband
deployment by regulating how broadband providers treat edge providers.” Verizon, 740 F.3d at 649; see Verizon Br.
At 23, 27-28, Verizon v. FCC, No. 11-1355 (D.C. Cir. filed Jan. 18, 2013).
1148

Wireless Broadband Classification Order, 22 FCC Rcd at 5918, para. 45, n.119.

1149

Id.

1150

Id. at 5917-18, para. 45.

1151

The Commission defined “commercial mobile data service” which is subject to the data roaming rule as “any
mobile data service that is not interconnected with the public switched network.” See Reexamination of Roaming
Obligations of Commercial Mobile Radio Service Providers and Other Providers of Mobile Data Services, WT
Docket No. 05-265, Second Report and Order, 26 FCC Rcd 5411, 5412, para. 1 n.1 (2011) (Data Roaming Order).
We note that if a mobile service is not interconnected to the public switched network (as updated herein) and
otherwise meets the definition of “commercial mobile data service” in section 20.3 of the Commission’s rules, it will
continue to be subject to the data roaming rules. See 47 C.F.R. §§ 20.3, 20.12(e); see also infra Section V.C.2.i
(discussing applicability of roaming requirements to mobile broadband Internet access services). Opponents of
reclassifying mobile broadband Internet access services have argued that the D.C. Circuit’s decisions on data
roaming and on the 2010 Open Internet Order bar the Commission from reclassifying mobile broadband Internet
access as commercial mobile service. See CTIA Dec. 22, 2014 Ex Parte Letter, Attach. at 4-5 (citing the court’s
finding that mobile broadband services were “statutorily immune, perhaps twice over,” from common carrier
treatment (citing Cellco P’ship v FCC, 700 F.3d 534, 538 (D.C. Cir. 2012)). First, we note that the issue of revising
the Commission’s definitions was neither raised nor discussed in the data roaming or open Internet decisions.
Moreover, contrary to these arguments, we find that the Court’s acceptance of the Commission’s previous decisions
based on its existing definitions does not preclude the Commission from revisiting and revising its definitions, as
expressly permitted by the language of Section 332. See Brand X, 545 U.S. at 981 (finding that “[a]gency
inconsistency is not a basis for declining to analyze the agency’s interpretation under the Chevron framework”).
1152

See Data Roaming Order, 26 FCC Rcd at 5414, para. 6 n.12.

1153

Wireless Broadband Classification Order, 22 FCC Rcd at 5918, para. 45 n.119.

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wireless broadband Internet access was a commercial mobile would have caused with the finding that it
was an “information service.” Moreover, in neither instance did the Commission consider whether it
should revise the definition of “public switched network,” on which its conclusion in the 2007 Wireless
Broadband Classification Order was premised.
398.
Today, we update the definition of “public switched network” to reflect current
technology and conclude that mobile broadband Internet access is an interconnected service. First, as
outlined above, we find that mobile broadband is an “interconnected service” because it interconnects
with “public switched network” as we define it today. We find also that mobile broadband is an
interconnected service because it gives its users the capability to send and receive communications from
all other users of the Internet. In defining the term “interconnected service” in the Second CMRS Report
and Order, the Commission indicated its belief that, by using the term “interconnected service,”
Congress intended to focus on whether mobile services “make interconnected service broadly available
through their use of the public switched network.”1155 In addition, the Commission noted that Congress’s
purpose was to “ensure that a mobile service that gives its customers the capability to communicate or to
receive communications from other users of the public switched network should be treated as a common
carriage offering.” This was by contrast with the alternative “private mobile service” classification,
which by statute includes services not “effectively available to a substantial portion of the public.”1156
Mobile broadband Internet access service fits the former classification as millions of subscribers use it to
send and receive communications on their mobile devices every day. In sharp contrast to 2007 when the
Commission characterized mobile broadband Internet access services as being in a nascent stage,1157 today
the mobile broadband marketplace has evolved such that hundreds of millions of consumers now use
mobile broadband to access the Internet. For example, as noted earlier, by November 2014, 73.6 percent
of the entire U.S. age 13+ population was communicating with smart phones, a figure which has
continued to rise rapidly over the past several years.1158 In addition, the number of mobile connections
already exceeds the U.S. population1159 and Cisco forecasts that by 2019, North America will have nearly
90% of its installed based converted to smart devices and connections, and smart traffic will grow to 97%
of the total global mobile traffic.1160 Mobile broadband subscribers, who use the same devices to receive
voice and data communications, can also send or receive communications to or from anywhere in the
nation, whether connected with other mobile broadband subscribers, fixed broadband subscribers, or the
hundreds of millions of websites available to them over the Internet. This evidence of the extensive
(Continued from previous page)
1154
Id. at 5916, para. 41.
1155

Second CMRS Report and Order, 9 FCC Rcd at 1434, para. 54.

1156

47 U.S.C. § 332(d)(1), (d)(3).

1157

Wireless Broadband Classification Order, 22 FCC Rcd at 5921-22, para. 59.

1158

See comScore, comScore Reports September U.S. Smartphone Subscriber Market Share, Nov. 6, 2014,
http://www.comscore.com/Insights/Market-Rankings/comScore-Reports-September-2014-US-SmartphoneSubscriber-Market-Share (last visited Feb. 4, 2015).
1159

Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993, Annual Report and
Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile
Services, WT Docket No. 13-135, Seventeenth Report, 29 FCC Rcd 15311, 15345-46, para. 66 (Wireless Tel. Bur.
2014) (Seventeenth Annual Wireless Competition Report). The total U.S. population of all ages, as of the end of
2013 was estimated by the Census Bureau to be 317.2 million. See United States Census Bureau, U.S. and World
Population Clock, http://www.census.gov/popclock/ (last visited Feb. 5, 2015). The total number of mobile
connections as of the end of 2013 was 335.7 million. Seventeenth Annual Wireless Competition Report, 29 FCC
Rcd at 15319-20, Chart II.B.1.
1160

Cisco, Cisco Visual Networking Index: Global Mobile Data Traffic Forecast Update 2014-2019, at 9-10,
http://www.cisco.com/c/en/us/solutions/collateral/service-provider/visual-networking-index-vni/white_paper_c11520862.html#Trend_1_Continuing_Shift_to_Smarter (last visited Feb. 4, 2015).

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changes that have occurred in the mobile marketplace demonstrates the ubiquity and wide scale use of
mobile broadband Internet access service today.
399.
Today we update the definition of “public switched network” to reflect current mass
market communications network technologies and configurations, and the rapidly growing and virtually
universal use of mobile broadband service. It also is more consistent with Congressional intent to
recognize as an “interconnected service” today’s broadly available mobile broadband Internet access
service, which connects with the Internet and provides its users with the ability to send and receive
communications from all other users connected to the Internet, (whether fixed or mobile).1161 As CTIA
recognizes,1162 Congress’s intent in enacting section 332 was to create a symmetrical regulatory
framework among similar mobile services that were made available “to the public or . . . to such classes
of eligible users as to be effectively available to a substantial portion of the public.”1163 Given the
universal access provided today and in the foreseeable future by and to mobile broadband and its present
and anticipated future penetration rates in the United States, we find that our decision today classifying
mobile broadband Internet access as a commercial mobile service is consistent with Congress’s objective.
As noted above, that is a policy judgment that section 332(d) expressly delegated to the Commission,
consistent with its broad spectrum management authority under Title III.1164
400.
Moreover, we agree with commenters who argue that mobile broadband Internet access
service meets the definition of interconnected service for a wholly independent reason:1165 because— even
under our existing definition of “public switched network” adopted in 1994— users have the “capability,”
as provided in section 20.3 of our rules, to communicate with NANP numbers using their broadband
connection through the use of VoIP applications.1166 Other parties disagree, arguing that, regardless of the
attributes of VoIP services that ride over broadband Internet access networks, broadband Internet access
service itself does not offer the ability to reach all NANP endpoints. These parties note also that the

1161

Mobile broadband is an increasingly important pathway to the Internet, and many households subscribe to both
fixed and mobile services as distinct product offerings with contrasting advantages in speed, usage limits, and
mobility. See 2015 Broadband Progress Report at para. 120; see also Public Knowledge Comments at 18-19
(arguing that mobile broadband is not a substitute for fixed broadband services, so its increased adoption does not
“change the essential points about terminating monopolies”).
1162

See CTIA Feb. 10, 2015 Ex Parte Letter at 16 (arguing that “Congress’s intent was not to maximize the
application of common carrier requirements” but rather to “ensure that new offerings that were similar to preexisting
cellular offerings be treated alike ”).
1163

47 U.S.C. § 332(d)(1).

1164

See Cellco P’ship v. FCC, 700 F.3d 534, 541-42 (D.C. Cir. 2012) (citing NBC v. United States, 319 U.S. 190
(1943). As the Supreme Court recognized in NBC with respect to the Commission’s Title III authority, Congress
did not “frustrate the purposes for which the Communications Act of 1934 was brought into being by attempting an
itemized catalogue of the specific manifestations of the general problems for the solution of which” it established the
Commission, for the purpose of “regulating a field of enterprise the dominant characteristic of which was the rapid
pace of its unfolding.” 319 U.S. at 219.
1165

Contrary to the suggestion in the dissent, Pai Dissent at 44, our decision to reclassify mobile broadband Internet
access service as CMRS also relies on our section 332(d) authority as described herein, and thus is not based
exclusively on our analysis here of VoIP services. See infra para. 401.
1166

See New America, CDT, PK, Dec. 11, 2014 Ex Parte Letter at 5; Letter from Michael Calabrese, Dir. Wireless
Future Project, New America Open Technology Institute, to Marlene H. Dortch, Secretary, FCC GN Docket Nos.
10-127, 14-28, at 8 (filed Jan. 27, 2015); Letter from Sarah Morris, Michael Calabrese, Joshua Stager, Open
Technology Institute, New America Foundation to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 10-127,
14-28, at 2-3 (filed Feb. 2, 2015).

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Commission itself has previously concluded that mobile broadband Internet access, in and of itself, does
not provide the ability to reach all other users of the public switched network.1167
401.
We find that the Commission’s previous determination about the relationship between
mobile broadband Internet access and VoIP applications in the context of section 332 no longer
accurately reflects the current technological landscape. Today, users on mobile networks can
communicate with users on traditional copper based networks and IP based networks, making more and
more networks using different technologies interconnected. In addition, mobile subscribers continue to
increase their use of smartphones and tablets and the significant growth in the use of mobile broadband
Internet access services has spawned a growing mobile application ecosystem.1168 The changes in the
marketplace have increasingly blurred the distinction between services using NANP numbers and services
using public IP addresses and highlight the convergence between mobile voice and data networks that has
occurred since the Commission first addressed the classification of mobile broadband Internet access in
2007. Today, mobile VoIP, as well as over-the-top mobile messaging, is among the increasing number of
ways in which users communicate indiscriminately between NANP and IP endpoints on the public
switched network.1169 In view of these changes in the nature of mobile broadband service offerings, we
find that mobile broadband Internet access service today, through the use of VoIP, messaging, and similar
applications, effectively gives subscribers the capability to communicate with all NANP endpoints as well
as with all users of the Internet.1170
402.
We also note that, under the Commission’s definition of “interconnected service” in
section 20.3 of the rules, a service is interconnected even if “. . . the service provides general access to
points on the public switched network but also restricts access in certain limited ways.”1171 Thus, the
Commission’s definition, while requiring that the interconnected service provide the “capability” for
access to all other users of the public switched network, also recognizes that services that restrict access to
the public switched network, in certain limited ways, should also be viewed as interconnected.1172
Accordingly, to the extent that there is an argument that, even with an updated definition of public
1167

See CTIA Dec. 22, 2014 Ex Parte Letter, Attach. at 11-13; Verizon Dec. 24, 2014 Ex Parte Letter at 4; Wireless
Broadband Classification Order, 22 FCC Rcd at 5917-18, para. 45.
1168

See New America, CDT, PK, Dec. 11, 2014 Ex Parte Letter at 4-6.

1169

See Facilitating the Deployment of Text-to-911 and Other Next Generation 911 Applications, Report and Order,
28 FCC Rcd 7556, 7561-62, para. 15 (2013) (“. . . the rapid proliferation of smartphones and other advanced mobile
devices is providing consumers with numerous new options for IP-based Text applications. In fact, Informa
estimates that ‘By the end of 2013 . . . 41 billion OTT messages will be sent every day . . . .”).
1170

In support of arguments regarding interconnection, one of the dissents (Pai Dissent at 51 n.362), cites the
inapposite Time Warner Cable Request for Declaratory Ruling That Competitive Local Exchange Carriers May
Obtain Interconnection under Section 251 of the Communications Act of 1934, as Amended, to Provide Wholesale
Telecommunications Services to VoIP Providers, Memorandum Opinion and Order, 22 FCC Rcd 3513, 3520-21,
paras. 15-16 (Wireline Comp. Bur. 2007). Our interpretation here of the Commission’s own rule as to what
constitutes the “capability” to communicate with NANP endpoints is a completely different question from whether
wholesale carriers are entitled to interconnection rights under Section 251 of the Act regardless of the regulatory
status of VoIP services provided to end users, which was the issue addressed by the staff in the Time Warner Cable
request for a Declaratory Ruling.
1171

47 C.F.R. § 20.3.

1172

In adopting the definition of interconnected service in the Second CMRS Report and Order, the Commission
recognized that interconnected services could be limited and noted that “[i]n defining interconnected service in
terms of transmissions to or from ‘anywhere’ on the PSN, we note that it is necessary to qualify the scope of the
term ‘anywhere’; if a service that provides general access to points on the PSN also restricts calling in certain
limited ways (e.g., calls attempted to be made by the subscriber to ‘900’ telephone numbers are blocked), then it is
our intention still to include such a service within the definition of ‘interconnected service’ for purposes of our Part
20 rules.” Second CMRS Report and Order, 9 FCC Rcd at 1434-35, para. 55 n.104.

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switched network, mobile broadband Internet access still would not meet the definition of interconnected
because it would only enable communications with some rather than all users of the public switched
network, i.e., users with NANP numbers, we disagree and find that the Commission’s rules recognize that
interconnected services may be limited in certain ways. Our interpretation of the Commission’s rules is
consistent with their purpose, which is to ascertain whether the interconnected service is “broadly
available.”1173 It is also most consistent with, and must be informed by, the key section 332(d) guidepost
that Congress provided to the Commission in granting it authority to define these terms. This guidepost
refers to a service available to “the public” or to such classes of eligible users as to be effectively
available “to a substantial portion of the public.”1174 This focus of the inquiry on availability to the public
or a substantial portion of it is also consistent with the specific purpose of the statute, which was to create
a symmetrical regulatory framework for similar commercial services then being offered to consumers by
cellular licenses and by SMR licensees who were using licenses that traditionally had been used to
provide wireless service only to limited groups of users (e.g., taxi fleets).1175
403.
Lastly, because today we classify mobile broadband Internet access service as a
telecommunications service, designating it also as commercial mobile service subject to Title II is most
consistent with Congressional intent to apply common carrier treatment to telecommunications services.
Specifically, as in 2007, but for different reasons in light of our reclassification of the service as a
“telecommunications service,” we find that classifying mobile broadband Internet access service as a
commercial mobile service is necessary to avoid a statutory contradiction that would result if the
Commission were to conclude both that mobile broadband Internet access was a telecommunications
service and also that it was not a commercial mobile service. A statutory contradiction would result from
such a finding because, while the Act requires that providers of telecommunications services be treated as
common carriers,1176 it prohibits common carrier treatment of mobile services that do not meet the
definition of commercial mobile service.1177 Finding mobile broadband Internet access service to be
commercial mobile service avoids this statutory contradiction and is most consistent with the Act’s intent
to apply common carrier treatment to providers of telecommunication services.1178
404.
Mobile Broadband Internet Access Service Is Not a Private Mobile Service. Our
conclusion that mobile broadband Internet access service is a commercial mobile service, through the
application of our updated definition of “public switched network,” leads unavoidably to the conclusion
that it is not a private mobile service.1179 Indeed, we believe that today’s mobile broadband Internet
access service, with hundreds of millions of subscribers and the characteristics discussed above, is not
1173

See Second CMRS Report and Order, 9 FCC Rcd at 1434, para. 54; Wireless Broadband Classification Order,
22 FCC Rcd at 5917, para. 44.
1174

47 U.S.C. § 332(d)(1).

1175

See, e.g., CTIA Feb. 10, 2015 Ex Parte Letter, at 16 (“Congress intended to ensure that new offerings that were
similar to preexisting cellular offerings be treated alike”). To make this point clear, and in the exercise of our
authority to “specif[y] by regulation” what services qualify as CMRS services that make interconnected service
available to the public or to such classes of eligible users as to be effectively available to a substantial portion of the
public, we have made a conforming change to the definition of Interconnected Service in section 20.3 of the
Commission’s rules.
1176

47 U.S.C. §153(51).

1177

47 U.S.C. §332(c)(2).

1178

We disagree with CTIA’s argument that section 332 mandates classification of mobile broadband Internet access
service as private mobile service. See CTIA Feb. 10, 2015 Ex Parte Letter at 16. Section 332 sets forth the
definition of commercial mobile service and requires that services meeting the definition of commercial mobile
service be treated as common carriers. For the reasons described above, today, we find that mobile broadband
Internet access service meets the definition of commercial mobile service.
1179

See 47.U.S.C. §332(d)(3).

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akin to the private mobile service of 1994, such as a private taxi dispatch service, services that offered
users access to a discrete and limited set of endpoints. Even, however, if that were not so, there is another
reason that mobile broadband Internet access service is not a private mobile service: it is the functional
equivalent of a commercial mobile service, even under the previous definition of “public switched
network.” As with the policy judgments reflected in the other two definitional subsections of section
332(d) and described above, Congress expressly delegated authority to the Commission to determine
whether a particular mobile service may be the functional equivalent of a commercial mobile service.
Specifically, section 332 of the Act defines “private mobile service” as “any mobile service . . . that is not
a commercial mobile service or the functional equivalent of a commercial mobile service, as specified by
regulation by the Commission.”1180 We find that mobile broadband Internet access service is functionally
equivalent to commercial mobile service because, like commercial mobile service, it is a widely available,
for profit mobile service that offers mobile subscribers the capability to send and receive communications
on their mobile device to and from the public. Although the services use different addressing identifiers,
from an end user’s perspective, both are commercial services that allow users to communicate with the
vast majority of the public.
405.
CTIA, Verizon, and AT&T argue that mobile broadband Internet access service cannot
be considered the functional equivalent of commercial mobile service. First, they argue that the
Commission failed to provide notice that it might deem mobile broadband the functional equivalent of
CMRS.1181 Next, CTIA argues that “Congress intended the hallmark of CMRS to be the provision of
interconnected service through use of the PSTN. No service lacking this essential attribute could amount
to a functional equivalent of CMRS.”1182 Verizon argues that “because mobile broadband Internet access
service cannot, on its own, be used to place calls to telephone numbers, and CMRS cannot be used to
connect with (for example) Google’s search engine or Amazon.com or any of the millions of other
sources of online content, these two services are not substitutes, and cannot be deemed functionally
equivalent.”1183 AT&T and CTIA argue that mobile broadband Internet access is not a substitute for
CMRS and therefore is not the functional equivalent of CMRS.1184 Verizon, CTIA, and AT&T argue that
the issue of whether or not mobile VoIP applications or services themselves may be interconnected with
the public switched network should have no bearing on the determination of whether mobile broadband
Internet access service itself may be viewed as the functional equivalent of commercial mobile service.1185
406.
We disagree with these arguments. First, for the reasons discussed above, we disagree
with the parties’ arguments regarding notice. We find that our decision today that mobile broadband
Internet access service may be viewed as the functional equivalent of commercial mobile service is a
logical outgrowth of the discussions and questions presented in the 2014 Open Internet NPRM. As noted
above, our 2014 Open Internet NPRM sought comment on the option of revising the classification of
mobile broadband Internet access service and on whether it would fit within the definition of commercial
mobile service under section 332 of the Act and the Commission’s rules implementing that section,
including section 20.3.1186 Section 20.3 of the Commission’s rules defines commercial mobile radio
service as a mobile service that is: “provided for profit, i.e., with the intent of receiving compensation or
monetary gain; an interconnected service; and available to the public or to such classes of eligible users as
1180

Id.

1181

CTIA Dec. 22, 2014 Ex Parte Letter, Attach. at 13-15; Verizon Dec. 24, 2014 Ex Parte Letter at 5-6.

1182

CTIA Dec. 22, 2014 Ex Parte Letter, Attach. at 15.

1183

Verizon Dec. 24, 2014 Ex Parte Letter at 6.

1184

AT&T Jan. 8, 2015 Ex Parte Letter at 4-5; CTIA Feb. 10, 2015 Ex Parte Letter at 16.

1185

CTIA Dec. 22, 2014 Ex Parte Letter, Attach. at 11-13; AT&T Jan. 8, 2015 Ex Parte Letter at 4; Verizon Dec.
24, 2014 Ex Parte Letter at 4-5.
1186

2014 Open Internet NPRM, 29 FCC Rcd at 5614, para. 150.

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to be effectively available to a substantial portion of the public; or the functional equivalent of such a
mobile service . . . .”1187 Interested parties should have reasonably foreseen and in fact were aware that
the Commission would analyze the functional equivalence of mobile broadband Internet access service as
part of its consideration of whether it should revise the classification of mobile broadband Internet access
and whether mobile broadband Internet access would fit within the definition of commercial mobile
service under section 332. Indeed, several parties have submitted comments on this question.1188
407.
We also disagree with CTIA’s contention that, if a mobile service is not an
interconnected service through the use of the public switched telephone network, it may not be considered
the functional equivalent of commercial mobile service. This argument would render the functional
equivalence language in the statute superfluous by essentially requiring a functionally equivalent service
to meet the literal definition of commercial mobile service. We find that Congress included the functional
equivalence provision in the statute precisely to address such new developments for services that may not
meet the literal definition of commercial mobile service. We also disagree with Verizon that, because
mobile broadband subscribers may use their service to communicate with a different and broader range of
entities, the two services cannot be functionally equivalent. As noted above, both mobile broadband
Internet access service and commercial mobile service provide their users with a service that enables
ubiquitous access to the vast majority of the public. The fact that the services may also enable
communications in other ways or with different groups does not make them less useful as substitutes for
commercial mobile service. Moreover, regardless of whether providers may offer voice and data services
separately,1189 as discussed above, from both a technical as well as a consumer perspective, there are
increasingly fewer distinctions or interoperability issues between these types of services. The
marketplace changes that have occurred since the Commission first addressed the classification of mobile
broadband Internet access service in 2007 support our finding that mobile broadband Internet access
service offered to the mass market must be viewed today as the functional equivalent of commercial
mobile service.
408.
We recognize that, in the Second CMRS Report and Order, the Commission created a
petition-based process for parties interested in challenging the classification of a particular service as
private mobile service, and indicated that it would consider a variety of factors to determine whether a
particular service is the functional equivalent of a CMRS service.1190 Specifically, as AT&T and CTIA
point out, the Commission said it would consider consumer demand for the service in question to
determine whether the service is closely substitutable for a commercial mobile radio service; whether
changes in price for the service under examination, or for the comparable commercial mobile radio
service, would prompt customers to change from one service to the other; and market research
information identifying the targeted market for the service under review.1191 Section 20.9 of the
Commission’s rules articulates the same standard for parties interested in challenging the classification of
a service as a private mobile service.1192 While we do not amend section 20.9’s separate provision for a
petition process in other contexts, for the reasons stated above related to today’s widespread distribution
and use of mobile broadband devices, we are amending section 20.3 to reflect our conclusion that mobile
broadband Internet access service is the functional equivalent of CMRS.
1187

47 C.F.R. § 20.3.

1188

See, e.g., Public Knowledge Nov. 7, 2014 Ex Parte Letter at 3-5; CTIA Reply Comments at 46; CTIA Dec. 22,
2014 Ex Parte Letter, Attach. at 15-18; CTIA Feb. 10, 2015 Ex Parte Letter at 16.
1189

See CTIA Feb. 10, 2015 Ex Parte Letter at 18 (also noting that providers typically treat voice minutes differently
from data usage and allow users to adjust one without changing the other).
1190

Second CMRS Report and Order, 9 FCC Rcd at 1447-48, paras. 79-80.

1191

Id. at 1447-48, para. 80.

1192

47 C.F.R. § 20.9(a)(14)(ii)(B).

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FCC 15-24

The Reclassification of Broadband Internet Access Service Will Preserve
Investment Incentives

409.
In this section, we address potential effects of our classification decision on investment
and innovation in the Internet ecosystem. Our classification of broadband Internet access service flows
from the marketplace realities in how this service is offered.1193 In reaching these conclusions, we also
consider whether the resulting regulatory environment produces beneficial conditions for investment and
innovation while also ensuring that we are able to protect consumers and foster competition. We find that
classifying broadband Internet access service as a telecommunications service—but forbearing from
applying all but a few core provisions of Title II—strikes an appropriate balance by combining minimal
regulation with meaningful Commission oversight. This approach is based on the proven model Congress
and the Commission have applied to CMRS, under which investment has flourished.
410.
Based on our review of the record, the proven application of the CMRS model, and our
predictive judgment about the future of the ecosystem under our new legal framework, we conclude that
the new framework will not have a negative impact on investment and innovation in the Internet
marketplace as a whole. As is often the case when we confront questions about the long-term effects of
our regulatory choices, the record in this proceeding presents conflicting viewpoints regarding the likely
impact of our decisions on investment. We cannot be certain which viewpoint will prove more accurate,
and no party can quantify with any reasonable degree of accuracy how either a Title I or a Title II
approach may affect future investment.1194 Moreover, regulation is just one of many factors affecting
investment decisions.1195 Although we appreciate carriers’ concerns that our reclassification decision
could create investment-chilling regulatory burdens and uncertainty, we believe that any effects are likely
to be short term and will dissipate over time as the marketplace internalizes our Title II approach, as the
record reflects and we discuss further, below. More significantly, to the extent that our decision might in
some cases reduce providers’ investment incentives, we believe any such effects are far outweighed by
positive effects on innovation and investment in other areas of the ecosystem that our core broadband
policies will promote.1196 Industry representatives support this judgment, stating that combined
reclassification and forbearance decisions will provide the regulatory predictability needed to spur
continued investment and innovation not only in infrastructure but also in content and applications.1197
411.
Investment Incentives. The 2014 Open Internet NPRM generated spirited debate about
the consequences that classifying broadband Internet access service as a telecommunications service
would have for investment incentives. Opponents of reclassification assert that Title II requirements will
stifle innovation and investment.1198 Other commenters vigorously support the opposite position,
asserting that reliance on section 706 authority to support open Internet rules is a course fraught with
1193

See supra Sections IV.B., IV.C.2.

1194

See infra paras. 415-416.

1195

See, e.g., Free Press Nov. 21, 2014 Ex Parte Letter at 5.

1196

See, e.g., Letter from Angie Kronenberg, COMPTEL, to Marlene H. Dortch, Secretary, FCC, GN Docket 14-28,
at 2 (filed Jan. 13, 2015) (COMPTEL Jan. 13, 2015 Ex Parte Letter).
1197

See, e.g., Sprint Jan. 16, 2015 Ex Parte Letter at 1 (“Sprint does not believe that a light touch application of Title
II, including appropriate forbearance, would harm the continued investment in, and deployment of, mobile
broadband services.”); Letter from Andrew W. Guhr, Counsel for AOL, Inc. to Marlene H. Dortch, Secretary, FCC,
GN Docket No. 14-28 (filed Dec. 5, 2014); COMPTEL Comments at 21-24; Vonage Reply at 32.
1198

See, e.g., Charter Comments at 13, 15-16; Comcast Comments at 46-50; Verizon Comments at 57; NCTA Dec.
23, 2014 Ex Parte Letter at 3-5; ACA Comments at 60-66; Alcatel-Lucent Comments at 2; AT&T Comments at 5153; CenturyLink Comments at 5-6; Cisco Comments at 27; CTIA Comments at 46-48; Cox Comments at 34-36;
Frontier Comments at 2-4; Qualcomm Comments at 4-7; Letter from Laurence Brett Glass, d/b/a LARIAT to
Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (filed Jan. 9, 2015).

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prolonged uncertainty that will stifle investment and that has already had detrimental economic effects.1199
These and other commenters claim that a cautious regulatory approach based on Title II will provide
much-needed predictability to investors and consumers alike, while ensuring that the Commission has the
statutory authority necessary to protect the open Internet, promote competition, and protect consumers.1200
412.
The key drivers of investment are demand and competition. Internet traffic is expected to
grow substantially in the coming years,1201 and the profits associated with satisfying that growth provide a
strong incentive for broadband providers to continue to invest in their networks.1202 In addition,
continuing advances in technology are lowering the cost of providing Internet access service.1203 The
possibility of enhancing profit margins can be expected to induce broadband providers to make the
appropriate network investments needed to capture a reduction in costs made possible only through
technological advances.
413.
Competition not only creates the correct incentives for investment and promotes
innovation in the broadband infrastructure needed to support robust and ubiquitous Internet access
service, but also spurs innovation and investment at the “edge” of the network, where content and
applications are created and deployed.1204 As one commenter explains, “Title II promotes competitive
entry in at least two ways.”1205 First, section 224 (from which we do not forbear in the context of
broadband Internet access service, as discussed below) “ensures that telecommunications carriers receive
access to the poles of local exchange carriers and other utilities at just, reasonable, and nondiscriminatory
rates,”1206 an “important investment benefit that will enable those deploying fiber-to-the-home or other
competitive networks to deploy more expeditiously and efficiently.”1207 Title II also “offers other benefits
1199

See, e.g., Vonage Comments at 35- 36; AARP Comments at 38-42.

1200

See, e.g., Common Cause Comments at 13-16; WGAW Comments at 28-31; Public Knowledge Reply at 16-22;
OTI Reply at 3-11; EFF Comments at 13-15; NASUCA Comments at 4-6; CDT Comments at 15-16; Cogent
Comments at 11.
1201

See, e.g., Cisco Comments at 4-5 (stating that “[g]lobal IP traffic has increased more than fivefold in the past 5
years and will increase threefold over the next 5 years” and that it “expects traffic to grow from 16,607 petabytes of
data in 2013 to 40,545 petabytes of data in 2018”); see also AARP Comments at 47-48 & fig. 2 (explaining that
“[b]roadband providers have faced nearly exponential year-over-year growth in traffic flows for the entire history of
the broadband market,” and that trend is expected to continue).
1202

See, e.g., AARP Comments at 48 (arguing that “[b]ecause of the ongoing growth in traffic, broadband providers
have had to continuously upgrade their network’s capacity,” and “broadband providers benefit from the growth in
traffic volume associated with video services as it drives end-user demand for higher-priced, higher-speed
offerings”); Access Comments at 13 (“The demand for faster and better access to the internet will grow, generating
more value for and a stronger incentive to invest in enhanced network capacity.”).
1203

See Free Press Comments at 94-95 n.200 (describing declining costs for cable, LEC, and wireless broadband
service providers due to technological and market developments); ACI Reply, Attach., Innovation and National
Broadband Policies at 16-32 (discussing technological advancements in cable, wireline, and wireless networks and
describing their benefits, including improved capacity and “declining costs and rates”).
1204

See Verizon, 740 F.3d at 644-45; COMPTEL Jan. 13, 2015 Ex Parte Letter at 2.

1205

Letter from Marvin Ammori to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 3 (filed Dec. 19,
2014) (Ammori Dec. 19, 2014 Ex Parte Letter).
1206

Id. at 3; see also 47 U.S.C. § 224.

1207

Ammori Dec. 19, 2014 Ex Parte Letter at 3-4; see also Letter from Austin C. Schlick, Director,
Communications Law, Google, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 2 (explaining that
reclassifying broadband Internet access service as a telecommunications service would extend the statutory right of
access to utility infrastructure to all providers of these services, “regardless of what services they otherwise
provide”). Conversely, ACA asserts that reclassification would result in increased pole attachment rates for many of
its members, which would have the effect of lowering investment incentives both for continued investment in
existing facilities and for new deployments. See ACA Comments at 62, 64, 66. We do not agree with ACA’s
(continued….)

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at the state level, including access to public rights of way,” which some broadband providers reportedly
utilize to deploy networks.1208
414.
Further, contrary to the assertions of opponents of reclassification, sensible regulation and
robust investment are not mutually exclusive.1209 The investment record of incumbent LECs since
passage of the 1996 Act calls into question claims that regulation necessarily stifles investment. Indeed, it
appears that AT&T, Verizon, and Qwest (now CenturyLink) increased their capital investments as a
percentage of revenues immediately after the Commission expanded Title II requirements pursuant to the
Telecommunications Act of 1996,1210 while investment levels decreased after 2001,1211 during a period
when the Commission relieved providers of many unbundling requirements and other regulatory
obligations.1212 And, of course, wireline DSL was regulated as a common-carrier service until 2005—a
(Continued from previous page)
prediction concerning investment incentives. As we explain further below, we are committed to avoiding an
outcome in which entities misinterpret today’s decision as an excuse to increase pole attachment rates of cable
operators providing broadband Internet access service. It is not the Commission’s intent to see any increase in the
rates for pole attachments paid by cable operators that also provide broadband Internet access service, and we
caution utilities against relying on this decision to that end. See infra paras. 482-484. This Order does not itself
require any party to increase the pole attachment rates it charges attachers providing broadband Internet access
service, and we would consider such outcomes unacceptable as a policy matter. We will be monitoring marketplace
developments following this Order and will promptly take further action in that regard if warranted. In any case,
such arguments do not persuade us not to reclassify broadband Internet access service, since in reclassifying that
service we simply acknowledge the reality of how it is being offered today.
1208

See Ammori Dec. 19, 2014 Ex Parte Letter at 4 (citing Jon Brodkin, “Report: Verizon FiOS claimed public
utility status to get government perks,” Ars Technica, May 28, 2014, http://arstechnica.com/techpolicy/2014/05/report-verizon-fios-gets-perks-from-government-while-avoiding-regulations/; Bruce Kushnick,
Public Utility Law Project of New York, Inc., It’s All Interconnected: Oversight and Action is Required to Protect
Verizon New York Telephone Customers and Expand Broadband Services (May 13, 2014),
http://newnetworks.com/wp-content/uploads/PublicNN3.pdf.
1209

See Sprint Jan. 16, 2015 Ex Parte Letter at 1 (“Sprint does not believe that a light touch application of Title II,
including appropriate forbearance, would harm the continued investment in, and deployment of, mobile broadband
services.”).
1210

See, e.g., Free Press Comments at 102 (arguing that “the average annual investment by telecom carriers was 55
percent higher under the period of Title II’s application than it has been in the years since the FCC removed
broadband from Title II”). The 1996 Telecom Act imposed a set of new obligations on incumbent local exchange
carriers, including, most importantly, the duty to provide competing carriers access to unbundled network elements
at cost-based rates. See 47 U.S.C. §§ 251(c)(3), 252(d)(1). The Commission adopted rules implementing the
unbundling requirements in 1996. Implementation of the Local Competition Provisions in the Telecommunications
Act of 1996; Interconnection between Local Exchange Carriers and Commercial Mobile Radio Service Providers,
CC Docket Nos. 96-98, 95-185, First Report and Order, 11 FCC Rcd 15499 (1996). But see Access Charge Reform,
CC Docket No. 96-262, Fifth Report and Order, 14 FCC Rcd 14221 (1999) (Pricing Flexibility Order), aff'd,
WorldCom v. FCC, 238 F.3d 449 (D.C. Cir. 2001) (granting carriers pricing flexibility).
1211

See, e.g., USTelecom, Historical Broadband Provider Capex, http://www.ustelecom.org/broadband-industrystats/investment/historical-broadband-provider-capex (last visited Jan. 21, 2015) (showing a drop in capex
expenditures by broadband providers from a high of $118 billion in 2000 to a low of $57 billion in 2003).
1212

See Petition of AT&T Inc. for Forbearance Under 47 U.S.C. § 160(c) from Title II and Computer Inquiry Rules
with Respect to Its Broadband Services et al., WC Docket No. 06-125, Memorandum Opinion and Order, 22 FCC
Rcd 18705 (2007), aff’d sub nom. Ad Hoc v. FCC, 572 F.3d 903 (AT&T Forbearance Order) (granting AT&T
forbearance from rules applicable to enterprise broadband services); Verizon Telephone Companies’ Petition for
Forbearance from Title II and Computer Inquiry Rules with Respect to their Broadband Services Is Granted by
Operation of Law, WC Docket No. 04-440, News Release (rel. Mar. 20, 2006) (informing the public of deemed
grant of Verizon petition for forbearance with respect to enterprise broadband services); Wireline Broadband
Classification Order, 20 FCC Rcd 14853 (eliminating Computer Inquiry requirements and other rules governing
wireline broadband Internet access service); Unbundled Access to Network Elements, Review of the Section 251
(continued….)

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period in the late ‘90s and the first five years of this century, which saw the highest levels of wireline
broadband infrastructure investment to date.1213 At a minimum, this evidence demonstrates that robust
investment can and does occur even when new regulations are adopted.1214 Our conclusions are not
premised on the assumption that regulation never harms investment, nor do we deny that deregulation
often promotes investment; rather, we reject assertions that reclassification will substantially diminish
overall broadband investment. This is further supported by examining broadband providers’ investment
histories since the announcement of the Broadband Classification NOI in 2010. While the Commission
did not utilize reclassification to support its 2010 Open Internet Order, it did not close the docket on the
Broadband Classification NOI, indicating that reclassification remained an open question. The record
demonstrates that broadband providers continued to invest, at ever increasing levels, in their networks
post-2010, after which broadband providers were clearly on notice that the Commission was considering
reclassifying broadband Internet access service as a telecommunications service and imposing certain
Title II regulations upon them.1215
415.
A number of market analysts concur that dire predictions of disastrous effects on
investment are overblown.1216 Although some commenters claim that then-Chairman Genachowski’s
(Continued from previous page)
Unbundling Obligations of Incumbent Local Exchange Carriers, WC Docket No. 04-13, CC Docket No. 01-338,
Order on Remand, 20 FCC Rcd 2533 (2005) (eliminating unbundled switching and significantly scaling back
unbundling of other network elements); Review of the Section 251 Unbundling Obligations of Incumbent Local
Exchange Carriers. Implementation of the Local Competition Provisions of the Telecommunications Act of 1996,
Deployment of Wireline Services Offering Advanced Telecommunications Capability, CC Docket Nos. 01-338, 9698, and 98-147, Report and Order and Notice of Proposed Rulemaking, 18 FCC Rcd 16978 (2003) (subsequent
history omitted) (eliminating line-sharing).
1213

See US Telecom Research Brief, Latest Data Show Broadband Investment Surged in 2013 at 2, Chart 2 (wireline
broadband capital expenditures peaked at $79 billion in 2000),
http://www.ustelecom.org/sites/default/files/documents/090814%20Latest%20Data%20Show%20Broadband%20In
vestment%20Surged%20in%202013.pdf.
1214

See Vonage Comments at 13-15 (noting “substantial broadband network investments” by AT&T and Verizon
following the release of the Internet Policy Statement).
1215

See, e.g., AT&T Comments at 19 (“[A]nnual investment in U.S. wireless networks grew more than 40 percent
between 2009 and 2012, from $21 billion to $30 billion.” (citing “Four Years of Broadband Growth,” Office of
Science and Technology Policy & The National Economic Council (June 2013),
http://www.whitehouse.gov/sites/default/files/broadband_report_final.pdf) (Four Years of Broadband Growth); Free
State Comments at 7 n.17 (“The telecommunications and cable sector was responsible for $50.5 billion of
investment, comprising more than one-third of total capital investments in the U.S. economy last year.”); Verizon
Comments, Lerner Declaration at 20 (citing Four Years of Broadband Growth at 4-5: “[S]ince President Obama
took office in early 2009, nearly $250 billion in private capital has been invested in U.S. wired and wireless
broadband networks. In just the last two years, more high-speed fiber cables have been laid in the United States
than in any similar period since 2000.”); Free Press Comments at 102, 100 fig. 1 (“The data also show that the
implementation of the FCC’s 2010 Open Internet Order was followed by an increase in telco capital investment.
From the end of 2011 to the end of 2013 capex by the companies tracked in Figure 1 increased 7 percent (if the
cable MSOs are included, the increase is 5 percent). This is noteworthy because the same warnings about the harm
Title II would cause to investment were made about the Open Internet rules – predictions that were flat out wrong.”).
1216

See, e.g., Free Press Nov. 21, 2014 Ex Parte Letter at 7 n.14 (quoting J.P. Morgan, North American Equity
Research, Nov. 11, 2014, Net Neutrality: Prepared for Title II but We Take Less Negative View, “[w]e wouldn’t
change any of the fundamental assumptions on cable companies under our coverage under Title II, and shares are
likely to rebound over time.”), id. at 7 (quoting Bernstein Research Note, Nov. 17, 2014: “We note that during the
three years in which the 2010 rules were in place while Verizon pursued its (unnecessary) litigation there did not
appear to be any effect on investment decisions from the resulting litigation uncertainty. Further, the evidence
carriers produce to support their argument that Title II classification will reduce investment tends to consist of
commentary from analysts and network-equipment suppliers, as well as the results of their own discretionary
choices. . . .”).

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May 6, 2010 announcement that the Commission would consider adopting a Title II approach prompted
analysts to downgrade the ratings of Internet access service providers and sent stock prices downward, the
effect of this announcement on stock prices, if any, is by no means clear.1217 Further, there was no
appreciable movement in capital markets following substantial public discussion of the potential use of
Title II in November.1218 What is clear from this debate is that stock price fluctuations can be caused by
many different factors and are susceptible to various interpretations.1219 Accordingly, we find
unpersuasive the arguments that Title II classification would have a negative impact on stock value.
416.
Tellingly, major infrastructure providers have indicated that they will in fact continue to
invest under the framework we adopt, despite suggesting otherwise in their filed comments in this
proceeding.1220 For example, Sprint asserts in a letter in this proceeding that “[s]o long as the FCC
continues to allow wireless carriers to manage our networks and differentiate our products, Sprint will
continue to invest in data networks regardless of whether they are regulated by Title II, Section 706, or
some other light touch regulatory regime.”1221 It adds that “Sprint does not believe that a light touch
application of Title II, including appropriate forbearance, would harm the continued investment in, and
deployment of, mobile broadband services.”1222 Verizon’s chief financial officer, Francis Shammo, told
investors in a conference call in response to a question about the effect of “this move to Title II,” that “I
1217

Free Press explains that following the announcement of the 2010 Broadband Classification NOI, “[m]ost of the
ISP stocks barely moved from this announcement. Verizon and AT&T each fell 2 percent. Cable stocks did drop
more (on substantially higher volume), but this was primarily due to . . . over-valuation of these stocks following
better-than-expected Q1 earnings reports. This was compounded by the broader market concerns stemming from
the EU debt crisis.” Free Press Comments at 114. In the months following the announcement the “ILECs, Cable
and Wireless companies were outperforming the broader market, and vastly outperforming the edge companies’
stocks. Comcast was the only ISP in negative territory, yet still outperformed the broader market. And its issues
were more related to the merger than the [NOI].” Id. at 117-118.
1218

See New York Stock Exchange, https://www.nyse.com/index (last visited Jan. 23, 2015) (detailing stock price
information from October 1, 2014 to January 23, 2015 for Verizon (NYSE:VZ), AT&T (NYSE:T), Time Warner
Cable (NYSE:TWC), CenturyLink (NYSE:CTL), Sprint (NYSE:S), T-Mobile (NSYE:TMUS), and Cablevision
(NYSE:CVC); NASDAQ, http://www.nasdaq.com/ (last visited Jan. 23, 2015) (detailing stock price information
from October 1, 2014 to January 23, 2015 for Comcast (NASDAQ:CMCSA) and Charter (NASDAQ:CHTR).
1219

At any moment in time, the price of a stock reflects the market’s valuation of the cash-flow-generating
capability of the firm. Because a firm’s cash flow is based on a multitude of factors, it is improper to infer that
observed stock price changes reflect the market’s belief that infrastructure investment will decline.
1220

See, e.g., Letter from COMPTEL, Engine, CCIA, and Internet Freedom Business Alliance to Chairman Wheeler,
GN Docket No. 14-28, at 2 n.4 (filed Dec. 30, 2014) (COMPTEL Dec. 30, 2014 Ex Parte Letter); Brian Fung,
Verizon: Actually, strong net neutrality rules won’t affect our network investment, Washington Post, Dec. 10, 2014,
available at http://www.washingtonpost.com/blogs/the-switch/wp/2014/12/10/verizon-actuallystrong-net-neutralityrules-wont-affect-our-network-investment/?wpisrc=nlswbd& wpmm=1 ; Brian Fung, Comcast, Charter and Time
Warner Cable all say Obama’s net neutrality plan shouldn’t worry investors, Washington Post, Dec. 16, 2014,
available at http://www.washingtonpost.com/blogs/the-switch/wp/2014/12/16/comcast-charter-andtime-warnercable-all-tell-investors-strict-net-neutrality-wouldnt-change-much /. See also COMPTEL Dec. 11, 2014 Ex Parte
Letter (urging the Commission “to consider [a Verizon disclosure regarding the impact of regulation on its
investment plans] and discount the claims [in the record] that network investment will decline if the Commission
reclassifies broadband Internet access services”); see also Free Press Comments at 92-93, 97 nn.198 & 205; Alan
Breznick, CenturyLink Eyes More Gig Launches, LightReading, Feb. 12, 2015, at
http://www.lightreading.com/gigabit/gigabit-cities/centurylink-eyes-more-gig-launches/d/d-id/713723 (last visited
Feb. 17, 2015).
1221

Sprint Jan. 16, 2015 Ex Parte Letter at 1-2; see also Thomas Gryta, T-Mobile Joins Sprint In Downplaying
FCC’s Broadband Reclassification, Wall Street Journal (Feb. 19, 2015), http://blogs.wsj.com/corporateintelligence/2015/02/19/t-mobile-joins-sprint-in-downplaying-fccs-broadband-reclassification/ (T-Mobile US stating
that “the regulatory reclassification of the Internet as a utility would not be an impediment to its business”).
1222

Id. at 1.

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mean to be real clear, I mean this does not influence the way we invest. I mean we’re going to continue
to invest in our networks and our platforms, both in Wireless and Wireline FiOS and where we need to.
So nothing will influence that. I mean if you think about it, look, I mean we were born out of a highly
regulated company, so we know how this operates.”1223
417.
Today’s Order addressing forbearance from Title II and accompanying rules for BIAS
will resolve concerns about uncertainty regarding the application of Title II to these services, which some
argue could chill investment.1224 By grounding our regulatory authority on firm statutory footing and
defining the scope of our intended regulation, our decision establishes the regulatory predictability needed
by all sectors of the Internet industry to facilitate prudent business planning, without imposing undue
burdens that might interfere with entrepreneurial opportunities.1225 Moreover, the forbearance we grant
we today is broad in scope and extends to obligations that might be viewed as characteristic of “utilitystyle” regulation. In particular, we forbear from imposing last-mile unbundling requirements, a
regulatory obligation that several commenters argue has led to depressed investment in the European
broadband marketplace.1226 As such, we disagree with commenters who assert that classification of BIAS
as a telecommunications service would chill investment due to fears that future Commissions will reverse
our forbearance decision,1227 and that forbearance will engender protracted litigation.1228
1223

Brian Fung, Verizon: Actually, strong net neutrality rules won’t affect our network investment, Washington Post,
Dec. 10, 2014, available at http://www.washingtonpost.com/blogs/the-switch/wp/2014/12/10/verizonactuallystrong-net-neutrality-rules-wont-affect-our-network-investment/?wpisrc=nlswbd& wpmm=1; see also Free
Press Nov. 14, 2014 Ex Parte Letter at 6 (stating that “when asked if the President’s push for Title II reclassification
would affect your investment in broadband,” Mr. Shammo answered “No”); Thomson Reuters Streetevents, Edited
Transcript, VZ – Verizon Communications Inc at UBS Global Media and Communications Conference, at 13 (Dec.
9, 2014), available at http://publicpolicy.verizon.com/assets/images/content/VZ_at_UBS_Conf.pdf. Over one
month later, Mr. Shammo stated, in an investor call on Jan. 22, 2015, that his earlier comments had been
“misquoted” and asserted that reclassifying broadband as a Title II service will affect “long-term investment in our
networks.” See Brian Fung, Did Congress, the media and the FCC all misunderstand what Verizon said on net
neutrality? Verizon thinks so, Washington Post, Jan. 23, 2014, available at
http://www.washingtonpost.com/blogs/the-switch/wp/2015/01/23/did-congress-the-media-and-the-fcc-allmisunderstand-what-verizon-said-on-net-neutrality-verizon-thinks-so/.
1224

See infra Section V.

1225

But see NASUCA Comments at 12 (noting that “litigation is inevitable no matter which direction the
Commission chooses” and arguing that “[t]he Commission is far more likely to avoid reversal by the courts if it
adopts an open Internet regime based on reclassifying broadband as Title II”); CCIA Nov. 19, 2014 Ex Parte Letter
(“The group also discussed the inevitable litigation that will ensue no matter what open Internet rules the
Commission adopts.”).
1226

See Letter from Christopher Yoo to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 (filed June 10,
2014); Comcast Dec. 24, 2014 Ex Parte Letter at 5-7 (citing Martin H. Thelle & Dr. Bruno Basalisco, Copenhagen
Economics, Europe Can Catch Up with the US: A Contrast of Two Contrary Broadband Models (June 2013),
http://www.copenhageneconomics.com/Website/News.aspx?PID=3058&M=NewsV2&Action=1&NewsId=708; see
also Letter from Maggie McCready, Vice President, Federal Regulatory Affairs, Verizon, to Marlene H. Dortch,
Secretary, FCC, GN Docket No. 14-28 (filed Jan. 26, 2015).
1227

See, e.g., Ericsson Comments at 12 (“[T]he potential for reversals of forbearance decisions based on shifts in
political winds and accompanying Commission leadership changes would deter investment in the short and long
term.”); AT&T Comments at 67-68.
1228

See, e.g., Verizon Comments at 68; AT&T Comments at 67-68 (arguing that broadband service providers
“would be kept in a constant state of regulatory uncertainty” because forbearance decisions “are not irreversible”);
Ericsson Comments at 12 (“[T]he potential for reversals of forbearance decisions based on shifts in political winds
and accompanying Commission leadership changes would deter investment in the short and long term.”); AlcatelLucent Comments at 13 (“It could take years for the Commission to sort through which Title II requirements should
apply to broadband, and the inevitable legal appeals would only prolong a state of regulatory instability.”); ARRIS
Comments at 11-12; CTIA Oct. 17, 2014 Ex Parte Letter at 5. Other commenters also wrongly suggest that we plan
(continued….)

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418.
Some opponents argue that classifying broadband Internet access services as
telecommunications services will necessarily lead to regulation of Internet backbone services, CDNs, and
edge services, compounding the suppressive effects on investment and innovation throughout the
ecosystem.1229 Our findings today regarding the changed broadband market and services offered are
specific to the manner in which these particular broadband Internet access services are offered, marketed,
and function.1230 We do not make findings with regard to the other services, offerings, and entities over
which commenters raise concern, and in fact explicitly exclude such services from our definition of
broadband Internet access services.1231
419.
CALinnovates submitted a commissioned White Paper by NERA Economic Consulting,
asserting that reclassification will have a strong negative effect on innovation (with associated harms to
investment and employment).1232 The White Paper asserts that small edge providers will be harmed by
reclassification, as Title II provisions “will serve to increase the capital costs for innovators both directly
and indirectly as well as to foster the sort of regulatory uncertainty that deters investors from ever
investing.”1233 We disagree. The White Paper assumes that broadband Internet access services will be
subject to the full scope of Title II provisions, and ascribes increased costs to regulatory uncertainty. As
discussed below,1234 we forbear from application of many of Title II’s provisions to broadband Internet
access services, and in doing so, provide the regulatory certainty necessary to continued investment and
innovation. We also reject the argument, set forth by the Phoenix Center, that reclassification would
require broadband providers “to create, and then tariff, a termination service for Internet content under
Section 203 of the Communications Act.”1235
420.
US Telecom submitted a study finding that under Title II regulation, wireline broadband
providers are likely to invest significantly less than they would absent Title II regulation over the next
five years, putting at risk much of the large capital investments that will be needed to meet the expected
increases in demand for data service.1236 The study contains several substantial analytical flaws which
call its conclusions into question. First, the study inaccurately assumes that no wireless services are Title
II services.1237 In fact, wireless voice service is subject to Title II with forbearance, similar to the
(Continued from previous page)
to apply “old world” common carrier rules to Internet access service, conjuring the specter of pervasive and
intrusive cost-of-service rate regulation. See, e.g., Consumer Electronics Association Comments at 13; Yoo Dec.
22, 2014 Ex Parte Letter at 6; GSM Comments at 10-11.
1229

See, e.g., Ericsson Comments at 12; Alcatel-Lucent Comments at 2; AT&T Comments at 4-5; Verizon
Comments at 55; NCTA Dec. 23, 2014 Ex Parte Letter at 7; CBIT Reply at 27; Cisco Comments at 27; Letter from
John Mayo, Exec. Director, Georgetown Center for Business and Public Policy to Marlene H. Dortch, Secretary,
FCC, GN Docket No. 14-28 (filed Jan. 16, 2015), Attach. Anna-Maria Kovacs, Regulatory Uncertainty: The FCC’s
Open Internet Docket, at 6-7 (Jan. 2015).
1230

See supra Section IV.C.2.

1231

See supra Section IV.C.1.

1232

See CALinnovates Reply, Attach. NERA Economic Consulting, Economic Repercussions of Applying Title II to
Internet Services at 2 (NERA White Paper).
1233

NERA White Paper at 22.

1234

See infra Section V.

1235

See Digital Policy Institute Reply, Attach. at 4 (George S. Ford and Lawrence J. Spiwak, Phoenix Center Policy
Bulletin No. 36, Tariffing Internet Termination: Pricing Implications of Classifying Broadband as a Title II
Telecommunications Service (Sept. 2014) (Phoenix Center Policy Bulletin No. 36)) (emphasis omitted).
1236

See Letter from Patrick S. Brogan, USTelecom to Marlene Dortch, Secretary, FCC, GN Docket No. 14-28 (filed
Nov. 19, 2014) (attaching Hassett, Kevin A and Shapiro, Robert J., The Impact of Title II Regulation of Internet
Providers on Their Capital Investment (USTelecom Study)) (USTelecom Nov. 19, 2014 Ex Parte Letter).
1237

Free Press Nov. 21, 2014 Ex Parte Letter at 1.

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approach that we adopt here for BIAS. Second, the empirical models in the study incorrectly leave out
factors that are important determinants of the dependent variables. For example, the level of the firm’s
demand for wireline services and its predicted rate of growth are left out as factors that clearly should be
considered as determinants of wireline capital expenditures in Table 1.1238 The statistical models in the
paper are thus forced to either over- or under-estimate the role of the variables that are considered in the
study, and as a result the predicted level of wireline investment subject to Title II regulation and its
predicted rate of growth are not correct. We also agree with Free Press’ argument that the study ignores
the reality that once last-mile networks are built, the substantial initial investment has already been
outlayed. For example, for the authors to observe that there was less investment in wireline networks
than in wireless networks following the 2009 recession merely observes that wireline networks were
largely constructed prior to 2009, while mobile wireless data networks were not.1239 Further, as Free Press
asserts, the study ignores evidence of massive network investments by incumbent LECs in the Ethernet
market, which is regulated under Title II.1240 The US Telecom study also did not factor in the potential
effect of forbearance on investment decisions. We are thus unpersuaded that this study is determinative
regarding the effect that reclassification will have on investment.
421.
CMRS, Enterprise Broadband, and Voluntary Title II. Our conclusions are further borne
out in examining the market for those services that are already subject to Title II. The Commission’s
experience with CMRS, to which Title II explicitly applies, demonstrates that application of Title II is not
inconsistent with robust investment in a service.1241 The sizable investments made by CMRS providers,
who operate under a market-based Title II regulatory regime, allow us to predict with ample confidence
that our narrowly circumscribed application of Title II to broadband Internet access service will not
cripple the regulated industries or deprive consumers of the benefits of continued investment and
innovation in network infrastructure and Internet applications.
422.
In 1993, Congress established a new regulatory framework for CMRS by giving the
Commission the authority to forbear from applying any provision of Title II to CMRS except sections
201, 202, or 208.1242 Congress prescribed the standard for forbearance in terms nearly identical to the
standard it later adopted for common carriage services in the Telecommunications Act of 1996.1243 In
1994, the Commission implemented its new authority by forbearing from applying sections 203, 204,
205, 211, 212, and portions of 214,1244 thereby relieving providers of the burdens associated with the
filing of tariffs, Commission investigation of new and existing rates, rate prescription and refund orders,
1238

See USTelecom Study at 13, Tbl. 1.

1239

Free Press Nov. 21, 2014 Ex Parte Letter at 2.

1240

Id. at 2-3. Free Press asserts that Verizon “long ago stopped investing in residential fiber,” even while its retail
broadband service offerings have been classified as an information service, and AT&T “never bothered to deploy
retail fiber-to-the-home services.” Free Press Nov. 14, 2014 Ex Parte Letter at 4.
1241

See, e.g., WGAW Reply at 34-35.

1242

Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66, § 6002(b), codified at 47 U.S.C. § 332(c). As
discussed above, the Act defines CMRS as “any mobile service . . . that is provided for profit and makes
interconnected service available (A) to the public or (B) to such classes of eligible users as to be effectively
available to a substantial portion of the public.” 47 U.S.C. § 332(d)(1). “Interconnected service” is “service that is
interconnected with the public switched network.” 47 U.S.C. § 332(d)(2). This statutory framework, set forth in
section 332 of the Communications Act, also preempts State or local government regulation of CMRS rates and
entry, but permits State or local regulation of other CMRS terms and conditions. 47 U.S.C. § 332(c)(3).
1243

Compare 47 U.S.C. § 332(c)(1)(A), 332(c)(1)(D) with 47 U.S.C. § 160(a)–(b).

1244

Implementation of Sections 3(n) and 332 of the Communications Act; Regulatory Treatment of Mobile Services,
GN Docket No. 93-252, Second Report and Order, 9 FCC Rcd 1411 (1994), corrected, 9 FCC Rcd 2156 (Wireless
Forbearance Order), order on reconsideration, 10 FCC Rcd 7824 (1995) (clarifying preemption standard); see also
47 U.S.C. §§ 203, 204, 205, 211, 212, 214.

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regulations governing interlocking directorates, and regulatory control of market entry and exit.1245
CMRS providers remain subject to the remaining provisions in Parts I and II of Title II. Recognizing that
the “continued success of the mobile telecommunications industry is significantly linked to the ongoing
flow of investment capital into the industry,” the Commission sought to ensure that its policies fostered
robust investment, and it chose a regulatory path intended to establish “a stable, predictable regulatory
environment that facilitates prudent business planning.”1246
423.
Mobile providers have thrived under a market-based Title II regime. During the period
between 1993 and the end of 2009, while mobile voice was the primary driver of mobile revenues,
wireless subscribership grew over 1600 percent, with more than 285 million subscribers at the end of
2009.1247 Industry revenues increased from $10.9 billion in 1993 to over $152 billion—a 1300 percent
increase.1248 Further, between 1993 and 2009, the industry invested more than $271 billion in building out
their wireless networks, which was in addition to monies spent acquiring spectrum.1249 Verizon Wireless,
in particular, has invested tens of billions of dollars in deploying mobile wireless services since being
subject to the 700 MHz C Block open access rules, which overlap in significant parts with the open
Internet rules we adopt today.1250 Similarly, during this period, the wireless industry built nearly 235,000
cell sites across the country—more than an 1800 percent increase over the approximately 13,000 sites at
the end of 1993.1251 Wireless voice service is now available to over 99.9 percent of the U.S.
population.1252 More than 99.4 percent of subscribers are served by at least two providers, and more than
96 percent are served by at least three providers.1253 Finally, the recent AWS auction, conducted under
the specter of Title II regulation, generated bids (net of bidding credits) of more than $41 billion—
1245

Wireless Forbearance Order, 9 FCC Rcd at 1510-11, para. 272.

1246

Id. at 1421, para. 22.

1247

CTIA Wireless Industry Indices: Annual Wireless Survey Results: A Comprehensive Report from CTIA
Analyzing the U.S. Wireless Industry year-End 2013 Results, 2014 at 25.
1248

Id. at 76.

1249

Id. at 97. We note that Verizon argues that wireless investment began increasing around 2003 due to growth in
mobile broadband, and disputes the idea that this investment was driven by CMRS voice services. See Letter from
William H. Johnson, Vice President and Associate General Counsel, Verizon, to Marlene H. Dortch, Secretary,
Federal Communications Commission, GN Docket No. 14-28, at 2-4 (filed Feb. 19, 2015); O’Rielly Dissent at 6 &
n.17. However, given that mobile broadband was not classified as a Title I information service until 2007, it is not
clear the extent to which increases in investment before then can be attributed to a non-CMRS regulatory
environment. Furthermore, voice service has continued to account for a significant portion of revenues. See CTIA,
Annual Wireless Industry Survey (2014) at 84; see also Bank of America/Merrill Lynch Global Wireless Matrix
4Q14 at 274 (reporting that data revenues represented only 40.7 percent of total service revenues reported in 2014 in
the US). Free Press cites data showing substantial investment growth in the late 1990s (a time of increased demand
for voice services) and the late 2000s to present (a period of increased smartphone use). See Letter from Derek
Turner, Research Director, Free Press, to Marlene H. Dortch, Secretary, Federal Communications Commission, GN
Docket No. 14-28, at 2-4 (filed Feb. 23, 2015). During the latter years, as discussed above, Verizon’s LTE network
was subject to openness rules imposed by spectrum licensing conditions. Regardless of which assumptions are
made, it is clear that there has been substantial network investment by mobile wireless providers during a significant
period of time in which these providers’ services have been subject to Title II regulation or openness requirements.
Indeed, the data suggest that network investments have been driven more by overall market conditions, including
consumer demand, than by the particular regulatory framework in place. See id. at 3.
1250

See Verizon Communications Inc., 10K Financial Statements 2008-2014,
http://www.verizon.com/about/investors/quarterly-reports/.
1251

Id. at 107.

1252

Seventeenth Annual Wireless Competition Report, 29 FCC Rcd at 15333, para. 47.

1253

Id. at 15334, Chart III.A.1.

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demonstrating that robust investment is not inconsistent with a light-touch Title II regime.1254 Fears that
our classification decision will lead to excessive regulation of Internet access service should be dispelled
by our record of regulating the wireless voice industry for nearly twenty years under Title II.
424.
In addition, the key provisions of Title II apply to certain enterprise broadband services.
In a series of forbearance orders in 2007 and 2008, the Commission forbore from application of a number
of Title II’s provisions to AT&T, Qwest, Embarq, and Frontier.1255 Since that time, those services have
been subject to sections 201, 202, and 208, as well as certain other provisions that the Commission
determined were in the public interest. AT&T has recently called this framework an “unqualified
regulatory success story,” and claimed that these services “represent the epicenter of broadband
investment that the Commission’s national broadband policies seek to promote.”1256 The record does not
evince any evidence that continued “light touch” Title II regulation has hindered investment in these
services.
425.
We observe that Title II currently applies not just to interconnected mobile voice and data
services and to enterprise broadband services, but also the wired broadband offerings of more than 1000
rural local exchange carriers (LECs) that voluntarily offer their DSL and fiber broadband services as
common carrier offerings “in order to participate in National Exchange Carrier Association (NECA) tariff
pools, which allow small carriers to spread costs and risks amongst themselves,” without harmful effects
on investment.1257 As NTCA, which represents many of these entities, explained, “[c]ontrary to the dire,
and somewhat hyperbolic, predictions of a few, the application of Title II only and strictly to the transport
and transmission component underpinning retail broadband service will not cause investment in
broadband networks and the services that ride atop them to grind to a halt. To the contrary, a continued
lack of clear ‘rules of the road’ is far more likely to have a deleterious effect on investment nationwide by
providers large and small.”1258 Thus, we disagree with assertions by the American Cable Association that
1254

See FCC, Auction 97 – Advanced Wireless Services (AWS-3),
http://wireless.fcc.gov/auctions/default.htm?job=auction_summary&id=97 (last visited Feb. 4, 2015).
1255

See AT&T Enterprise Forbearance Order, 22 FCC Rcd 18705; Qwest Petition for Forbearance Under 47
U.S.C. § 160(c) from Title II and Computer Inquiry Rules with Respect to Broadband Services, WC Docket No. 06125, Memorandum Opinion and Order, 23 FCC Rcd 12260 (2008) (Qwest Forbearance Order); Petition of the
Embarq Local Operating Companies for Forbearance Under 47 U.S.C. § 160(c) from Application of Computer
Inquiry & Certain Title II Common-Carriage Requirements; Petition of the Frontier and Citizens ILECs for
Forbearance Under Section 47 U.S.C. § 160(c) from Title II and Computer Inquiry Rules with Respect to Their
Broadband Services, WC Docket No. 06-147, Memorandum Opinion and Order, 22 FCC Rcd 19478 (2007)
(Embarq/Frontier Forbearance Order), aff'd sub nom. Ad Hoc Telecom. Users Committee v. FCC, 572 F.3d 903
(D.C. Cir. 2009).
1256

See Marvin Ammori Dec. 19, 2014 Ex Parte Letter at 6 (citing AT&T Comments, WC Docket No. 05-25, RM10593, at 3 (filed Apr. 16, 2013)); see also Free Press Reply at 29.
1257

Free Press Comments at 46; see also Free Press Reply at 30; NTCA Comments at 9; Wireline Broadband
Classification Order, 20 FCC Rcd at 14900-903, paras. 89-95. See Wireline Broadband Classification Order, 20
FCC Rcd at 14901, para. 90 (“[P]roviders of wireline broadband Internet access service that offer [broadband
Internet access] transmission as a telecommunications service after the effective date of this Order may do so on a
permissive detariffing basis.”); id. at 14901, n.270 (“For example, Qwest has indicated that it may continue offering
a common carrier DSL transmission service to end users (i.e., its current retail ‘DSL+’ transmission service) . . .”).
As discussed above, see Section IV.C.1., the broadband Internet access service we define today is itself a
transmission service. We disagree with the argument that in classifying BIAS, rather than a transmission
“component” of BIAS, we are diverging from prior precedent regarding these DSL services and what the Justices
were debating in Brand X. See Pai Dissent at 40-42. Whether we refer to that function as “access,” “connectivity,”
or “transmission,” we have defined BIAS today such that it is the capability to send and receive packets to all or
substantially all Internet endpoints. See supra Section IV.C.1. Thus, the service we define and classify today is the
same transmission service as that discussed in prior Commission orders.
1258

NTCA Reply at 10.

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“Title II ‘reclassification’ or partial ‘classification’ of broadband Internet access service would have
immediate and disastrous economic consequences for small and medium-sized ISPs.”1259
D.

Judicial Estoppel Does Not Apply Here

426.
Finally, we reject the argument that we are judicially estopped from finding that
broadband Internet access service is a telecommunications service. Judicial estoppel is an equitable
doctrine that courts may invoke at their discretion to prevent a party that prevailed on an issue in one case
from taking a contrary position in another case.1260 Several commenters contend that because the
Commission successfully argued before the Supreme Court in Brand X that cable modem service is an
information service, the Commission is judicially estopped from finding that broadband Internet access
service is a telecommunications service.1261
427.
We disagree. Although the Supreme Court has not adopted a blanket rule barring
estoppel against the government, if it exists at all it is “hen’s teeth rare.”1262 Judicial estoppel may be
invoked against the government only when “it conducts what ‘appears to be a knowing assault upon the
integrity of the judicial system,’”1263 such as when the inconsistent positions are tantamount to a knowing
misrepresentation or even fraud upon the court.1264 Judicial estoppel will not be applied when the shift in
position “is the result of a change in public policy.”1265
428.
In Brand X, the Supreme Court confirmed not only that an administrative agency can
change its interpretation of an ambiguous statute, but that it “‘must consider varying interpretations and
the wisdom of its policy on a continuing basis.’”1266 Following that directive, we have reexamined the
Commission’s prior classification decisions and now conclude that broadband Internet access service is a
telecommunications service. This Declaratory Ruling is the result of what we believe to be the better
reading of the Communications Act under current factual and legal circumstances; it manifestly is not the
product of fraud or other egregious misconduct.
429.
Moreover, judicial estoppel does not apply unless a party’s current position is “clearly
inconsistent” with its position in an earlier legal proceeding.1267 In the Brand X litigation and now, the
1259

ACA Comments at 44; see also id. at 62-66; Letter from Brian Gray, Connectivity Manager, Joink, LLC to
Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 2 (filed Feb. 2, 2015).
1260

See New Hampshire v. Maine, 532 U.S. 742, 749-50 (2001); Pegram v. Herdrich, 530 U.S. 211, 227 n.8 (2000)
(explaining that judicial estoppel “generally prevents a party from prevailing in one phase of a case on an argument
and then relying on a contradictory argument to prevail in another phase”).
1261

See, e.g., US Telecom Comments at 28-31; Alcatel-Lucent Comments at 12.

1262

Costa v. INS, 233 F.3d 31, 38 (1st Cir. 2000); see also OPM v. Richmond, 496 U.S. 414, 422 (1990) (noting that
the Supreme Court has reversed every finding of estoppel against the government that it has reviewed); Heckler v.
Community Health Services of Crawford County, 467 U.S. 51, 60 (1984) (“[I]t is well settled that the Government
may not be estopped on the same terms as any other litigant.”); Nagle v. Acton-Boxborough Regional School Dist.,
576 F.3d 1, 3 (1st Cir. 2009).
1263

United States v. Owens, 54 F.3d 271, 275 (6th Cir. 1995) (quoting Reynolds v. Commissioner of Internal
Revenue, 861 F.2d 469, 474 (6th Cir. 1988)).
1264

Chao v. Roy’s Construction, Inc., 517 F.3d 180, 186 n.5 (3d Cir. 2008); see also United States v. Williams, 612
F.3d 500, 513-14 (6th Cir. 2010); Morris Communications, Inc. v. FCC, 566 F.3d 184, 191 (D.C. Cir. 2009)
(equitable estoppel may be applied only if the government “engaged in affirmative misconduct,” such as
“misrepresentation or concealment”).
1265

United States v. Owens, 54 F.3d at 275; see also New Hampshire v. Maine, 532 U.S. at 755.

1266

Brand X, 545 U.S. at 981 (quoting Chevron, 467 U.S. at 863-64) (emphasis added); see also Verizon, 740 F.3d at
636.
1267

New Hampshire v. Maine, 532 U.S. at 750 (quoting United States v. Hook, 195 F.3d 299, 306 (7th Cir. 1999).

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Commission has consistently maintained the position that the relevant statutory provisions are susceptible
to more than one reasonable interpretation. Counsel for the Commission argued in Brand X that the
Commission reasonably construed ambiguous statutory language in finding that cable modem service is
an information service.1268 The Supreme Court agreed and deferred to the Commission’s judgment, but
recognized that a contrary interpretation also would be permissible: “[O]ur conclusion that it is
reasonable to read the Communications Act to classify cable modem service solely as an ‘information
service’ leaves untouched Portland’s holding that the Commission’s interpretation is not the best reading
of the statute.”1269 Although we respect the Commission’s prior classification decisions and the policy
considerations underlying them, we believe the better view at this time is that broadband Internet access is
a telecommunications service as defined in the Act. Because our decision does not result in “‘the
perversion of the judicial process,’”1270 judicial estoppel should not be applied here.
E.

State and Local Regulation of Broadband Services

430.
We reject the argument that “potential state tax implications” counsel against the
classification of broadband Internet access service as a telecommunications service.1271 Our classification
of broadband Internet access service as a telecommunications service appropriately derives from the
factual characteristics of these services as they exist and are offered today. At any rate, we observe that
the recently reauthorized Internet Tax Freedom Act (ITFA) prohibits states and localities from imposing
“[t]axes on Internet access.”1272 This prohibition applies notwithstanding our regulatory classification of
broadband Internet access service.1273 Indeed, the legislative history of ITFA emphasizes that Congress
drafted its definition of “Internet access” to be independent of the regulatory classification determination
in order to “clarify that all transmission components of Internet access, regardless of the regulatory
treatment of the underlying platform, are covered under the ITFA’s Internet tax moratorium.”1274
1268

See Brief for the Federal Petitioners at 26-28, 38-44, Brand X, 545 U.S. 967.

1269

Brand X, 545 U.S. at 985-86 (emphasis in original).

1270

New Hampshire v. Maine, 532 U.S. at 750 (quoting In re Cassidy, 892 F.2d 627, 641 (7th Cir. 1990)).

1271

See Letter from James Assey, Executive Vice President, NCTA, to Jonathan Sallet, General Counsel, FCC, GN
Docket Nos. 14-28 & 10-127, at 1 (filed Dec. 2, 2014) (NCTA Dec. 2, 2014 Ex Parte Letter); see also Letter from
Will Marshall, President, Progressive Policy Institute to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28
(filed Dec. 16, 2014) (PPI Dec. 16, 2014 Ex Parte Letter); MMTC Comments at 9; ACA Comments at 62-64; Letter
from James Assey, Exec. Vice President, NCTA, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28 &
10-127 (filed Nov. 14, 2014) (NCTA Nov. 14, 2014 Ex Parte Letter); Letter from James Assey, Exec. Vice
President, NCTA, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28 & 10-127, at 2 (filed Oct. 30,
2014) (NCTA Oct. 30, 2014 Ex Parte Letter); TWC Comments at 19.
1272

Internet Tax Freedom Act § 1101(a)(1), Pub. L. 105–277, 112 Stat. 2681–719 (1998) (codified at 47 U.S.C. §
151 nt.). In December 2014, Congress extended ITFA through September 2015 as part of a continuing resolution
and omnibus spending package. See Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No.
113-235, § 624, 128 Stat. 2130, 2377 (2014). See also Letter from Matthew F. Wood, Policy Director, Free Press, to
Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28 & 10-127, at 4-5 (filed Dec. 15, 2014) (Free Press Dec.
15, 2014 Ex Parte Letter).
1273

See id. § 1105 of the ITFA defines “Internet access” to include “the purchase, use or sale of telecommunications
. . . to the extent such telecommunications are purchased, used or sold . . . to provide [a service that enables users to
connect to the Internet to access content, information, or other services offered over the Internet].” 47 U.S.C. § 151
nt.
1274

S. Comm. On Commerce, Sci. & Transp., Internet Tax Nondiscrimination Act of 2003, S. Rep. No. 108-155, at
2 (Sept. 29, 2003), reprinted in 2004 U.S.C.C.A.N. 2435, 2437. Moreover, today’s decision would not bring
broadband providers within the ambit of any state or local laws that impose property taxes on “telephone
companies” or “utilities,” as those terms are commonly understood. See, e.g., Letter from Samuel L. Feder, counsel
to Charter Communications, Inc. to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 (filed Feb. 18, 2015).
As noted herein, we are not regulating broadband Internet access service as a utility or telephone company.

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431.
Today, we reaffirm the Commission’s longstanding conclusion that broadband Internet
access service is jurisdictionally interstate for regulatory purposes.1275 As a general matter, mixedjurisdiction services are typically subject to dual federal/state jurisdiction, except where it is impossible or
impractical to separate the service’s intrastate from interstate components and the state regulation of the
intrastate component interferes with valid federal rules or policies.1276 With respect to broadband Internet
access services, the Commission has previously found that, “[a]lthough . . . broadband Internet access
service traffic may include an intrastate component, . . . broadband Internet access service is properly
considered jurisdictionally interstate for regulatory purposes.”1277 The Commission thus has evaluated
possible state regulations of broadband Internet access service to guard against any conflict with federal
law.1278 Though we adopt some changes to the legal framework regulating broadband, the Commission
has consistently applied this jurisdictional conclusion to broadband Internet access services, and we see
no basis in the record to deviate from this established precedent.1279 The “Internet’s inherently global and
open architecture” enables edge providers to serve content through a multitude of distributed origination
points, making end-to-end jurisdictional analysis extremely difficult—if not impossible—when the
services at issue involve the Internet.1280
432.
We also make clear that the states are bound by our forbearance decisions today. Under
section 10(e), “[a] State commission may not continue to apply or enforce any provision” from which the
Commission has granted forbearance.1281 With respect to universal service, we conclude that the
imposition of state-level contributions on broadband providers that do not presently contribute would be
inconsistent with our decision at the present time to forbear from mandatory federal USF contributions,
and therefore we preempt any state from imposing any new state USF contributions on broadband—at

1275

See, e.g., Cable Modem Declaratory Ruling, 17 FCC Rcd at 4832, para. 59 (using the end-to-end analysis to
determine that cable modem Internet access service is jurisdictionally interstate); BPL-Enabled Broadband Order,
21 FCC Rcd at 13288, para. 11; Wireless Broadband Classification Order, Memorandum Opinion and Order, 22
FCC Rcd at 5911, para. 28; GTE Telephone Operating Cos. GTOC Tariff No. 1, GTOC Transmittal No. 1148, 13
FCC Rcd 22466, 22474-83, paras. 16-32 (1998) (GTE Order), recon., 17 FCC Rcd 27409, 27411-12, para. 9 (1999).
The record generally supports the continued application of this conclusion to broadband Internet access service.
See, e.g., Free Press Dec. 15, 2014 Ex Parte Letter at 5-6.
1276

Vonage Holdings Corp., WC Docket No. 03-211, Memorandum Opinion and Order, 19 FCC Rcd 22404, 22419,
para. 17 (2004) (citing Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 368 (1986); Petition for Emergency
Relief and Declaratory Ruling Filed by the BellSouth Corporation, Memorandum Opinion and Order, 7 FCC Rcd
1619, 1622-23, paras. 18-19 (1992)). Notwithstanding the interstate nature of BIAS, states of course have a role
with respect to broadband. As the Commission has stated “finding that this service is jurisdictionally interstate []
does not by itself preclude” all possible state requirements regarding that service. National Association of
Regulatory Utility Commissioners Petition for Clarification or Declaratory Ruling that No FCC Order or Rule
Limits State Authority to Collect Broadband Data, 25 FCC Rcd 5051, 5054-55, para. 9 (2010) (NARUC Broadband
Data Order) (“Given the specific federal recognition of a State role in broadband data collection, we anticipate that
such State efforts will not necessarily be incompatible with the federal efforts or inevitably stand as an obstacle to
the implementation of valid federal “polic[i]es.”).
1277

NARUC Broadband Data Order, 25 FCC Rcd at 5054, para. 8 n.24 (citing GTE Order, 13 FCC Rcd at 22475,
para. 16).
1278

See generally, e.g., NARUC Broadband Data Order, 25 FCC Rcd 5051.

1279

See, e.g., Cable Modem Declaratory Ruling, 17 FCC Rcd at 4832, para. 59; Wireless Broadband Classification
Order, 22 FCC Rcd at 5911, para. 28; BPL-Enabled Broadband Order, 21 FCC Rcd at 13288, para. 11.
1280

See, e.g., Cable Modem Declaratory Ruling, 17 FCC Rcd at 4832, para. 59 (using the end-to-end analysis to
determine that cable modem Internet access service is jurisdictionally interstate); GTE Order, 13 FCC Rcd 22466
(finding GTE’s ADSL service to be properly tariffed as an interstate service).
1281

47 U.S.C. § 160(e).

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least until the Commission rules on whether to provide for such contributions.1282 We recognize that
section 254 expressly contemplates that states will take action to preserve and advance universal service,
but as discussed below, our actions in this regard will benefit from further deliberation.1283
433.
Finally, we announce our firm intention to exercise our preemption authority to preclude
states from imposing obligations on broadband service that are inconsistent with the carefully tailored
regulatory scheme we adopt in this Order.1284 While we establish a comprehensive regulatory framework
governing broadband Internet access services nationwide today, situations may nonetheless arise where
federal and state actions regarding broadband conflict.1285 The Commission has used preemption to
protect federal interests when a state regulation conflicts with federal rules or policies, and we intend to
exercise this authority to preempt any state regulations which conflict with this comprehensive regulatory
scheme or other federal law.1286 For example, should a state elect to restrict entry into the broadband
market through certification requirements or regulate the rates of broadband Internet access service
through tariffs or otherwise, we expect that we would preempt such state regulations as in conflict with
our regulations. While we necessarily proceed on a case-by-case basis in light of the fact specific nature
of particular preemption inquiries, we will act promptly, whenever necessary, to prevent state regulations
that would conflict with the federal regulatory framework or otherwise frustrate federal broadband
policies.
V.

ORDER: FORBEARANCE FOR BROADBAND INTERNET ACCESS SERVICES

434.
Having classified broadband Internet access service as a telecommunications service, we
now consider whether the Commission should grant forbearance as to any of the resulting requirements of
the Act or Commission rules. As proposed in the 2014 Open Internet NPRM, we do not forbear from
sections 201, 202, and 208, along with key enforcement authority under the Act, both as a basis of
authority for adopting open Internet rules as well as for the additional protections those provisions
directly provide. As discussed below, we also do not forbear from certain provisions in the context of
1282

47 U.S.C. § 254(f). Preemptive delay of state and local regulations is appropriate when the Commission
determines that such action best serves federal communications policies. See, e.g., New York State Comm’n on
Cable Television v. FCC, 669 F.2d 58, 66 (2d Cir. 1982) (affirming delay of state regulation to comport with
Commission policy) (citing Brookland Cable TV, Inc. v. Kelly, 573 F.2d 765 (2d Cir.) cert denied, 441 U.S. 904
(1978); NARUC 1, 525 F.2d at 646). We note that we are not aware of any current state assessment of broadband
providers for state universal service funds, as we understand that those carriers that have chosen voluntarily to offer
Internet transmission as a Title II service classify such revenues as 100 percent interstate.
1283

See infra Section V.C.1.d.

1284

See infra Section V.

1285

We note also that we do not believe that the classification decision made herein would serve as justification for a
state or local franchising authority to require a party with a franchise to operate a “cable system” (as defined in
Section 602 of the Act) to obtain an additional or modified franchise in connection with the provision of broadband
Internet access service, or to pay any new franchising fees in connection with the provision of such services. See,
e.g., Letter from Matthew A. Brill, Counsel for NCTA, to Marlene H. Dortch, Secretary, FCC at 3 (filed Feb. 4,
2015) (“[I]t would be inappropriate for franchising authorities to require additional franchises, fees, or concessions
for the provision of broadband Internet access service by a provider that already has a franchise, either through
service regulation or claimed regulation of broadband equipment that adds no appreciable burden to the rights of
way.”).
1286

See, e.g., Computer & Commc’ns Indus. Ass’n v. FCC, 693 F.2d 198, 214 (D.C. Cir. 1982) (“Courts have
consistently held that when state regulation of intrastate equipment or facilities would interfere with achievement of
a federal regulatory goal, the Commission’s jurisdiction is paramount and conflicting state regulations must
necessarily yield to the federal regulatory scheme.”); see also, e.g., Minnesota Pub. Utilities Comm’n. v. FCC, 483
F.3d 570, 580 (8th Cir. 2007) (“Competition and deregulation are valid federal interests the FCC may protect
through preemption of state regulation.”); Pub. Util. Comm’n of Texas v. FCC, 886 F.2d 1325, 1334 (D.C. Cir.
1989); Nat'l Ass'n of Regulatory Util. Comm’rs v. FCC, 737 F.2d 1095, 1114 (D.C. Cir. 1984).

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broadband Internet access service to protect customer privacy, advance access for persons with
disabilities, and foster network deployment. Because we believe that those protections and our open
Internet rules collectively will strike the right balance at this time of minimizing the burdens on
broadband providers while still adequately protecting the public, particularly given the objectives of
section 706 of the 1996 Act, we otherwise grant substantial forbearance.
A.

Forbearance Framework

435.
Section 10 provides that the Commission “shall” forbear from applying any regulation or
provision of the Communications Act to telecommunications carriers or telecommunications services if
the Commission determines that:
(1) enforcement of such regulation or provision is not necessary to ensure that the
charges, practices, classifications, or regulations by, for, or in connection with that
telecommunications carrier or telecommunications service are just and reasonable
and are not unjustly or unreasonably discriminatory;
(2) enforcement of such regulation or provision is not necessary for the protection of
consumers; and
(3) forbearance from applying such provision or regulation is consistent with the public
interest.1287
436.
The Commission previously has considered whether a current need exists for a rule in
evaluating whether a rule is “necessary” under the first two prongs of the three-part section 10
forbearance test.1288 In particular, the current need analysis assists in interpreting the word “necessary” in
sections 10(a)(1) and 10(a)(2). For those portions of our forbearance analysis that do require us to assess
whether a rule is necessary, the D.C. Circuit concluded that “‘it is reasonable to construe ‘necessary’ as
referring to the existence of a strong connection between what the agency has done by way of regulation
and what the agency permissibly sought to achieve with the disputed regulation.’”1289 In contrast, section
10(a)(3) requires the Commission to consider whether forbearance is consistent with the public interest,
an inquiry that also may include other considerations.1290
1287

47 U.S.C. § 160(a). “In making the determination under subsection (a)(3) [that forbearance is in the public
interest,] the Commission shall consider whether forbearance from enforcing the provision or regulation will
promote competitive market conditions, including the extent to which such forbearance will enhance competition
among providers of telecommunications services. If the Commission determines that such forbearance will promote
competition among providers of telecommunications services, that determination may be the basis for a Commission
finding that forbearance is in the public interest.” Id. § 160(b). In addition, “[a] State commission may not continue
to apply or enforce any provision” from which the Commission has granted forbearance under section 10. 47 U.S.C.
§ 160(e). For the same reasons set forth herein with respect to the forbearance granted under our section 10(a)
analysis, forbearance from those same provisions and regulations in the case of the mobile broadband Internet access
services also is consistent with the virtually identical forbearance standards for CMRS set forth in section
332(c)(1)(A). 47 U.S.C. § 332(c)(1)(A).
1288

Petition of AT&T Inc. for Forbearance under 47 U.S.C. § 160 from Enforcement of Certain of the Commission’s
Cost Assignment Rules, WC Docket Nos. 07-21, 05-342, Memorandum Opinion and Order, 23 FCC Rcd 7302,
7314, para. 20 (2008) (AT&T Cost Assignment Forbearance Order) (concluding that a rule is not “necessary” under
section 10(a)(1) where there is not a current need, and citing Cellular Telecomms. & Internet Ass’n v. FCC, 330
F.3d 502, 512 (D.C. Cir. 2003), which was interpreting the term “necessary” in the context of section 10(a)(2)).
1289

AT&T Cost Assignment Forbearance Order, 23 FCC Rcd at 7314, para. 20 (citing Cellular Telecommunications
& Internet Ass’n v. FCC, 330 F.3d 502, 512 (2003) (evaluating the Commission’s interpretation of section 10(a)(2)
under Chevron step 2)).
1290

See AT&T Cost Assignment Forbearance Order, 23 FCC Rcd at 7321, para. 32 (forbearing “because there is no
current, federal need for the [rules in question] in these circumstances, and the section 10 criteria otherwise are
met”) (emphasis added).

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437.
Also central to our analysis, section 706 of the 1996 Act “explicitly directs the FCC to
‘utiliz[e]’ forbearance to ‘encourage the deployment on a reasonable and timely basis of advanced
telecommunications capability to all Americans.’”1291 In its most recent Broadband Progress Report, the
Commission found “that broadband is not being deployed to all Americans in a reasonable and timely
fashion.”1292 This, in turn, triggers a duty under section 706 for the Commission to “take immediate
action to accelerate deployment.”1293 Within the statutory framework that Congress established, the
Commission “possesses significant, albeit not unfettered, authority and discretion to settle on the best
regulatory or deregulatory approach to broadband.”1294
438.
This proceeding is unlike typical forbearance proceedings in that, often, a petitioner files
a petition seeking relief pursuant to section 10(c).1295 In such proceedings, “the petitioner bears the
burden of proof—that is, of providing convincing analysis and evidence to support its petition for
forbearance.”1296 However, under section 10, the Commission also may forbear on its own motion.1297
Because the Commission is forbearing on its own motion, it is not governed by its procedural rules
insofar as they apply, by their terms, to section 10(c) petitions for forbearance.1298 Further, the fact that
the Commission may adopt a rule placing the burden on a party filing a section 10(c) petition for
forbearance in implementing an ambiguous statutory provision in section 10 of the Act,1299 does not
require the Commission to assume that burden where it forbears on its own motion, and we reject
suggestions to the contrary.1300 Because the Commission is not responding to a petition under section
10(c), we conduct our forbearance analysis under the general reasoned decision making requirements of
the Administrative Procedure Act, without the burden of proof requirements that section 10(c) petitioners

1291

EarthLink v. FCC, 462 F.3d 1, 8-9 (D.C. Cir. 2006) (alteration in original).

1292

2015 Broadband Progress Report at para. 4.

1293

Id. at para. 12.

1294

Ad Hoc Telecommunications Users Committee v. FCC, 572 F.3d 903, 906-07 (D.C. Cir. 2009).

1295

47 U.S.C. § 160(c).

1296

Petition to Establish Procedural Requirements to Govern Proceedings for Forbearance Under Section 10 of the
Communications Act, as Amended, WC Docket No. 07-267, Report and Order, 24 FCC Rcd 9543, 9554–55, para. 20
(2009) (Forbearance Procedures Order). This burden of proof “encompasses both the burden of production and the
burden of persuasion.” Id. at 9556, para. 21. Thus, in addition to stating a prima facie case in support of
forbearance, “the petitioner’s evidence and analysis must withstand the evidence and analysis propounded by those
opposing the petition for forbearance.” Id.
1297

See 47 U.S.C. § 160(a).

1298

47 C.F.R. §§ 1.53-1.59. We thus also reject criticisms of possible forbearance based on arguments that the 2014
Open Internet NPRM would not satisfy those rules. See, e.g., Letter from Earl Comstock, et al. Counsel for Full
Service Network and TruConnect, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 6-10, 14 (filed
Feb. 3, 2015) (Full Service Network/TruConnect Feb. 3, 2015 Ex Parte Letter). Indeed, while the Commission
modeled its forbearance procedural rules on procedures from the notice and comment rulemaking context in certain
ways, in other, significant ways it drew upon procedures used outside that context. Compare, e.g., Forbearance
Procedures Order, 24 FCC Rcd at 9558-59, paras. 19, 29 (filing format and notice requirements modeled on
procedures used in the notice and comment rulemaking context) with, e.g., id. at 9551, para. 13 & n.51 (requiring
that forbearance petitions be complete as filed, drawing from requirements in the section 271, tariffing, and formal
complaint contexts and distinguishing the Commission’s approach in notice and comment rulemaking proceedings).
Thus, the Commission’s adoption of these rules neither expressly bound the Commission nor reflected its view of
the general standards relevant to a notice and comment rulemaking.
1299

See, e.g., Verizon v. FCC, 770 F.3d 961, 967 (D.C. Cir. 2014); Qwest v. FCC, 689 F.3d 1214, 1226 (10th Cir.
2012).
1300

See, e.g., Full Service Network/TruConnect Feb. 3, 2015 Ex Parte Letter at 8 n.23.

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face. We conclude that the analysis below readily satisfies both the standards of section 101301 and the
reasoned decision making requirements of the APA1302 and thus reject claims that broad forbearance
accompanying classification decisions necessarily would be arbitrary and capricious.1303
439.
We reject arguments suggesting that persuasive evidence of competition is a necessary
prerequisite to granting forbearance under section 10 even if the section 10 criteria otherwise are met.1304
For example, the Commission has in the past granted forbearance from particular provisions of the Act or
regulations where it found the application of other requirements (rather than marketplace competition)
adequate to satisfy the section 10(a) criteria,1305 and nothing in the language of section 10 precludes the
1301

We conclude that the section 10 analytical framework described above comports with the statutory requirements,
and is largely consistent with alternative formulations suggested by others. See, e.g., Letter from Lawrence J.
Spiwak, President, Phoenix Center for Advanced Legal and Economic Public Policy Studies, to Marlene H. Dortch,
Secretary, FCC, GN Docket No. 14-28, Attach. 3 at 134-37 (filed Feb. 18, 2015). To the extent that such comments
could be read to suggest different analyses in any respects, we reject them as not required by section 10, as we
interpret it above.
1302

As discussed below, we also find that, in proceeding via notice and comment rulemaking here, the Commission
provided adequate notice of forbearance. See infra Section V.D.
1303

Letter from Sarah J. Morris, Senior Policy Counsel, Open Technology Institute, New America Foundation, to
Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 2 (filed Oct. 22, 2014).
1304

See, e.g., AT&T Comments at 67; TechFreedom Comments at 37; Time Warner Cable Comments at 18; CBIT
Reply at 41-43; Full Service Network/TruConnect Feb. 3, 2015 Ex Parte Letter at 16 & n.61.
1305

See, e.g., Petition of USTelecom for Forbearance Under 47 U.S.C. § 160(c) from Enforcement of Certain
Legacy Telecommunications Regulations, WC Docket No. 12-61, Memorandum Opinion and Order, 28 FCC Rcd
7627, 7675-76, paras. 107-08 (2013) (USTelecom Forbearance Long Order) (granting forbearance from certain cost
assignment rules where conditions imposed on the forbearance and other still-applicable rules and requirements
were adequate to meet the Commission’s needs); id. at 7668, paras. 86-87 (granting forbearance from property
record requirements where the Commission’s needs could be met through compliance plans put in place as
conditions of forbearance); id at 7672, para. 98 (forbearing from requirements that interexchange carriers keep
certain information in hard copy conditioned on that information being available on the carrier’s website); id. at
7675, para. 104-06 (granting forbearance from certain reporting requirements in light of other still-applicable
regulatory requirements and conditions on forbearance); id. at 7678-79, paras. 113-15 (forbearing from other
reporting requirements where the information at issue still would be filed or otherwise available in light of other
still-applicable regulatory requirements and conditions on forbearance); id. at 7691-92, paras. 142-48 (forbearing
from separate affiliate requirements given other still-applicable regulatory requirements and conditions on
forbearance); id. at 7705, para. 175 (forbearing from rules governing recording of conversations with the telephone
company in light of other, still-applicable legal requirements); Review of Foreign Ownership Policies for Common
Carrier and Aeronautical Radio Licensees, IB Docket No. 11-133, First Report and Order, 27 FCC Rcd 9832, 9841,
para. 20 (2012) (incorporating section 310(b)(4) requirements in order to satisfy section 10(a)(3) forbearance
standard for section 310(b)(3) in certain cases); Petition for Forbearance of Iowa Telecommunications Services, Inc.
d/b/a/ Iowa Telecom Pursuant to 47 U.S.C. § 160(c) from the Deadline for Price Cap Carriers to Elect Interstate
Access Rates Based on The CALLS Order or a Forward Looking Cost Study, CC Docket No. 01-331, Order, 17 FCC
Rcd 24319, 24325-26, paras. 18-19 (2002) (granting forbearance from an interstate switched access rate regulation
to allow rates to be re-set at a forward-looking cost level in light of the protections of the forward-looking cost
approach to setting the rate and other, still-applicable legal requirements); Petition for Forbearance from
Application of the Communications Act of 1934, as Amended, to Previously Authorized Services, Memorandum
Opinion and Order, 12 FCC Rcd 8408, 8411-12, paras. 9-10 (Common Car. Bur. 1997) (granting forbearance from
section 203 for purposes of providing a refund in light of other, still-applicable legal requirements). See also, e.g.,
Implementation of Sections 3(n) and 332 of the Communications Act, Regulatory Treatment of Mobile Servs., GN
Docket No. 93-252, Second Report and Order, 9 FCC Rcd 1411, 1479, para. 176 (granting forbearance under
section 332(c)(1)(A) from section 205 in light of other, still-applicable enforcement provisions) (CMRS Title II
Forbearance Order). We reiterate that although the Commission has discretion to grant forbearance where other
protections that include conditions on forbearance are adequate, in the case of section 10(c) petitions for forbearance
the Commission is “under no statutory obligation to evaluate [a] Petition other than as pled.” Petition of Qwest
(continued….)

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Commission from proceeding on that basis where warranted.1306 Thus, although, in appropriate
circumstances, persuasive evidence of competition can be a sufficient basis to grant forbearance, it is not
inherently necessary to a grant of forbearance under section 10. The Qwest Phoenix Order, cited by some
commenters in this regard, is not to the contrary. Unlike here, the Commission in the Qwest Phoenix
Order was addressing a petition where the rationale for forbearance was premised on the state of
competition.1307 This proceeding does not involve a similar request for relief, and, indeed, the Qwest
Phoenix Order itself specifically observed that “a different analysis may apply when the Commission
addresses advanced services, like broadband services,” where the Commission, among other things, “must
take into consideration the direction of section 706.”1308 For similar reasons we reject as inconsistent with
the text of section 10 and our associated precedent the argument that forbearance only is appropriate when
the grant of forbearance will itself spur conduct that mitigates the need for the forborne-from
requirements.1309
B.

Maintaining the Customer Safeguards Critical to Protecting and Preserving the
Open Internet

440.
As discussed below, we find sections 201 and 202 of the Act, along with section 208 and
certain fundamental Title II enforcement authority, necessary to ensure just and reasonable conduct by
broadband providers and necessary to protect consumers under sections 10(a)(1) and (a)(2). We also find
that forbearance from these provisions would not be in the public interest under section 10(a)(3), and
therefore do not grant forbearance from those provisions and associated enforcement procedural rules
with respect to the broadband Internet access service at issue here.

(Continued from previous page)
Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Omaha Metropolitan Statistical Area, WC
Docket No. 04-223, Memorandum Opinion and Order, 20 FCC Rcd 19415, 19445, para. 61 n.161 (2005).
1306

Section 10(b) does direct the Commission to consider whether forbearance will promote competitive market
conditions as part of the public interest analysis under section 10(a)(3). 47 U.S.C. § 160(b). However, while a
finding that forbearance will promote competitive market conditions may provide sufficient grounds to find
forbearance in the public interest under section 10(a)(3), see id., nothing in the text of section 10 makes such a
finding a necessary prerequisite for forbearance where the Commission can make the required findings under section
10(a) for other reasons. See generally 47 U.S.C. § 160. For similar reasons we reject the suggestion that more
geographically granular data or information or an otherwise more nuanced analysis are needed with respect to some
or all of the forbearance granted in this Order. See, e.g., Full Service Network/TruConnect Feb. 3, 2015 Ex Parte
Letter at 14-16. The record and our analysis supports forbearance from applying the statutory provisions and
Commission regulations to the extent described below based on considerations that we find to be common
nationwide, and as discussed in our analysis of the record below, we do not find persuasive evidence or arguments to
the contrary in the record as to any narrower geographic area(s) or as to particular provisions or regulations. See
generally infra Section V.C.
1307

Petition of Qwest Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Phoenix, Arizona
Metropolitan Statistical Area, WC Docket No. 09-135, Memorandum Opinion and Order, 25 FCC Rcd 8622, 8622,
para. 1 (2010) (Qwest Phoenix Order). Insofar as the Commission likewise was responding to arguments that
competition was sufficient to warrant forbearance when acting on other forbearance petitions, this distinguishes
those decisions, as well. Likewise, to the extent that the Commission has found competition to be a sufficient basis
to grant forbearance on its own motion in the past, that does not dictate that it only can grant forbearance under such
circumstances. Rather, the Commission grants forbearance where it finds that the section 10(a) criteria are met.
1308

Id. at 8644-45, para. 39.

1309

See, e.g., Hurwitz Comments at 11.

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Authority to Protect Consumers and Promote Competition: Sections 201
and 202

441.
The Commission has found that sections 201 and 202 “lie at the heart of consumer
protection under the Act,”1310 and we find here that forbearance from those provisions would not be in the
public interest under section 10(a)(3). The Commission has never previously forborne from applying
these “bedrock consumer protection obligations,”1311 and we generally do not find forbearance warranted
here. This conclusion is consistent with the views of many commenters that any service classified as a
telecommunications service should remain subject to those provisions.1312 However, particularly in light
of the protections the open Internet rules provide and the ability to employ sections 201 and 202 in caseby-case adjudications, we are otherwise persuaded to forbear from applying sections 201 and 202 of the
Act in a manner that would enable the adoption of ex ante rate regulation of broadband Internet access
service in the future, as discussed below.1313
442.
For one, sections 201 and 202 help enable us to preserve and protect Internet openness
broadly, and applying those provisions benefits the public broadly by helping foster innovation and
competition at the edge,1314 thereby promoting broadband infrastructure investment nationwide.1315 As
explained above, the open Internet rules adopted in this Order reflect more specific protections against
unjust or unreasonable rates or practices for or in connection with broadband Internet access service.1316
These benefits—which can extend beyond the specific dealings between a given broadband provider and
a given customer—persuade us that forbearance from sections 201 and 202 here is not in the public
interest.
443.
Retaining these provisions, moreover, is in the public interest because it provides the
Commission direct statutory authority to protect Internet openness and promote fair competition while
allowing the Commission to adopt a tailored approach and forbear from most other requirements. As
discussed below, this includes forbearance from the pre-existing ex ante rate regulations and other
Commission rules implementing sections 201 and 202.1317 As another example, this authority supports
1310

Personal Communications Industry Association's Broadband Personal Communications Services Alliance’s
Petition for Forbearance for Broadband Personal Communications Services et al., WT Docket No. 98-100, GN
Docket No. 94-33, Memorandum Opinion and Order and Notice of Proposed Rulemaking, 13 FCC Rcd 16857,
16865, para. 15 (1998) (PCIA Forbearance Order).
1311

PCIA Forbearance Order, 13 FCC Rcd at 16865, para. 15.

1312

See, e.g., AARP Comments at 42; CDT Comments at 15; COMPTEL Comments at 22-23; Consumers Union
Comments at 11; Mozilla Comments at 13; Free Press Reply at 26-27; Sidecar Technologies Reply at 6; Letter from
Michael Beckerman, President & CEO, The Internet Association, to Marlene H. Dortch, Secretary, FCC, GN
Docket No. 14-28 at 2 (filed Jan. 6, 2015) (Internet Association Jan. 6, 2015 Ex Parte Letter); Letter from William
B. Wilhelm, Counsel for Vonage, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (filed Jan. 7,
2015) (Vonage Jan. 7, 2015 Ex Parte Letter); NTCA Jan. 8, 2015 Ex Parte Letter at 2.
1313

To be clear, this ex ante rate regulation forbearance does not extend to inmate calling services and therefore has
no effect on our ability to address rates for inmate calling services under section 276. See infra para. 521.
1314

Thus, in this respect, our decision to apply the provisions actually will promote competitive market conditions at
the edge. See 47 U.S.C. § 160(b) (directing the Commission, in “making the determination under subsection (a)(3)
of this section, [to] consider whether forbearance from enforcing the provision or regulation will promote
competitive market conditions, including the extent to which such forbearance will enhance competition among
providers of telecommunications services”).
1315

See supra Section III.B.1.

1316

See supra Section III.

1317

See infra Section V.C.3. We thus reject the arguments of some commenters against the application of these
provisions insofar as they assume that such additional regulatory requirements also will apply in the first instance.
See, e.g., TIA Comments at 16 (“47 C.F.R. is filled with detailed mandates (e.g., Part 64) implementing Section 201
(continued….)

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our forbearance from other interconnection requirements in the Act.1318 Such considerations provide
additional grounds for our conclusion that section 10(a)(3) is not satisfied as to forbearance from sections
201 and 202 of the Act with respect to broadband Internet access service.
444.
We also conclude that it would not be in the public interest to forbear from applying
sections 201 and 202 given concerns that limited competition could, absent the backstop provided by that
authority, result in harmful effects. Among other things, broadband providers are in a position to be
gatekeepers to the end-user customers of their broadband Internet access service.1319 In addition, although
there is some amount of competition for broadband Internet access service, it is limited in key respects.
While harmful practices by broadband providers—whether in general or as to particular customers—
conceivably could motivate an end user to select a different provider of broadband Internet access service,
the record does not provide convincing evidence of the nature or extent of such effects in particular.1320
To the contrary, for example, data show that the majority of Americans face a choice of only two
providers of fixed broadband for service at speeds of 3 Mbps/768 kbps to 10 Mbps/768 kbps, and no
choice at all (zero or one service provider) for service at 25/3 Mbps.1321 We also find significant costs
associated with switching service that further limit the potential benefits of any competition that would
otherwise exist.1322 These collectively persuade us that we cannot simply conclude, as a general matter,
that there is extensive competition sufficient to constrain providers’ conduct here. Moreover, as the
Commission found in the CMRS context, competition would “not necessarily protect all consumers from
all unfair practices. The market may fail to deter providers from unreasonably denying service to, or
discriminating against, customers whom they may view as less desirable.”1323 In addition, and again
(Continued from previous page)
or other statutory provisions from which the Commission would either have to forbear – or not. Imposition of those
most basic of all common carrier statutory obligations undoubtedly would lead to protracted debates over the
application of specific rules and the lawfulness of existing broadband ISP service rates, terms, and business
practices.”).
1318

See infra Section V.C.2.e.

1319

See supra Section III.B.

1320

Commenters citing generalized information about the extent of switching among broadband providers does not
address the specific concerns that we identify here about consumers’ likelihood and ability to switch broadband
providers based on particular practices by those providers, nor on the likelihood that any such switching would deter
the harmful conduct. See, e.g., USTelecom Comments at 11-13; Verizon Reply at 45-46.
1321

2015 Broadband Progress Report, Chart 2; see also, e.g., CCIA Reply at 2.

1322

See supra Section III.B.

1323

PCIA Forbearance Order, 13 FCC Rcd at 16868, para. 23; see also, e.g., Qwest Petition for Forbearance Under
47 U.S.C. § 160(c) from Title II and Computer Inquiry Rules with Respect to Broadband Services, WC Docket No.
06-125, Memorandum Opinion and Order, 23 FCC Rcd 12260, 12291-92, para. 64 (2008) (Qwest Enterprise
Broadband Forbearance Order); Petition of the Embarq Local Operating Companies for Forbearance Under 47
U.S.C. § 160(c) from Application of Computer Inquiry & Certain Title II Common-Carriage Requirements et al.,
WC Docket No. 06-147, Memorandum Opinion and Order, 22 FCC Rcd 19478, 19507-08, para. 59 (2007), aff’d sub
nom. Ad Hoc Telecom. Users Committee v. FCC, 572 F.3d 903 (D.C. Cir. 2009); Petition of AT&T Inc. for
Forbearance Under 47 U.S.C. § 160(c) from Title II and Computer Inquiry Rules with Respect to Its Broadband
Services et al., WC Docket No. 06-125, Memorandum Opinion and Order, 22 FCC Rcd 18705, 18737-38, para. 67
(2007) (AT&T Enterprise Broadband Forbearance Order), aff’d sub nom. Ad Hoc v. FCC, 572 F.3d 903; Petition of
ACS of Anchorage, Inc. Pursuant to Section 10 of the Communications Act of 1934, as amended (47 U.S.C. §
160(c)), for Forbearance from Certain Dominant Carrier Regulation of Its Interstate Access Services, and for
Forbearance of Title II Regulation of Its Broadband Services, in the Anchorage, Alaska, Incumbent Local Exchange
Carrier Study Area, WC Docket No. 06-109, Memorandum Opinion and Order, 22 FCC Rcd 16304, 16360, para.
128 (2007); Petition of SBC Communications, Inc. for Forbearance from the Application of Title II Common
Carrier Regulation to IP Platform Services, WC Docket No. 04-29, Memorandum Opinion and Order, 20 FCC Rcd
9361, 9367-68, para. 17 (2005) (SBC IP Platform Services Forbearance Order), pet. for review granted on other
grounds sub nom. AT&T Inc. v. FCC, 452 F.3d 830 (D.C. Cir. 2006).

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similar to the Commission’s conclusion in the CMRS context,1324 even in a competitive market certain
conditions could create incentives and opportunities for service providers to engage in discriminatory and
unfair practices.1325 Furthermore, no matter how many options end users have in selecting a provider of
Internet access service, or how readily they could switch providers, an edge provider only can reach a
particular end user through his or her broadband provider.1326 We thus reject suggestions that market
forces will be sufficient to ensure that providers of broadband Internet access service do not act in a
manner contrary to the public interest.1327
445.
Against this backdrop we are unpersuaded by arguments seeking forbearance from
sections 201 and 202 based on generalized arguments about marketplace developments, such as network
investment or changes in performance or price per megabit, in the recent past.1328 However,
counterarguments in the record, longer-term trends, and our experience in the CMRS context where
sections 201 and 202 have applied, leave us unpersuaded that the inapplicability of sections 201 and 202
were a prerequisite for any such marketplace developments.1329 We are similarly unpersuaded by
arguments comparing the U.S. broadband marketplace with those in Europe,1330 given, among other
things, the differences between the regulatory approach there and the regulatory framework that results
from this Order.1331 We thus find those arguments for forbearance sufficiently speculative and subject to
debate that they do not overcome our public interest analysis above.

1324

PCIA Forbearance Order, 13 FCC Rcd at 16868, para. 23.

1325

For the same reasons discussed above, we are not persuaded to reach a different forbearance decision based on
asserted levels of competition faced by small- or mid-sized broadband providers. See, e.g., Letter from Barbara S.
Esbin, Counsel for ACA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 10-11 (filed Jan. 12,
2015) (ACA Jan. 12, 2015 Ex Parte Letter).
1326

See, e.g., Ad Hoc Comments at 7 (“Competitive conditions vary, not only geographically but also structurally.
Thus, a subscriber selecting its Internet access service provider may have competitive alternatives that make
forbearance from regulation of that transaction necessary and beneficial. But businesses trying to communicate with
that subscriber after the choice is made to have no competitive alternatives.”).
1327

See, e.g., Americans for Tax Reform and Digital Liberty Comments at 5 (“Title II regulation of the competitive
broadband industry would abruptly decelerate the speed of Internet innovation to the speed of government . . . .”);
CEA Comments at 13 (“Reclassification would be an excessive ‘solution’ out of proportion to the perceived
problem, especially given that any discriminatory behaviors very likely would be mitigated by a competitive
market.”); CenturyLink Comments at 48-49 (“[O]ne would expect to find the forces of competition protecting
consumer interests, as providers work to capture and retain customers by responding to customer needs.”); Ericsson
Comments at 11 (arguing that the provision of Internet service is “a vibrant, competitive industry” and arguing
further that applying “[s]ections 201 and 202 of the Act to broadband Internet access would stifle investment and
innovation”).
1328

See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 10-11; Comcast Dec. 24, 2014 Ex Parte Letter at 4-6; NCTA
Dec. 23, 2014 Ex Parte Letter at 19-20.
1329

See, e.g., supra Section IV.C.5.

1330

See, e.g., Comcast Dec. 24, 2014 Ex Parte Letter at 5-6; NCTA Dec. 24, 2014 Ex Parte Letter at 20.

1331

See, e.g., Charles Acquard, Executive Director, NASUCA, to Marlene H. Dortch, Secretary, FCC, GN Docket
No. 14-28, Attach. at 5 (filed Sept. 22, 2014) (noting the “distinction between the US and European regulatory
treatment of broadband . . . that incumbent providers make access to elements of their broadband infrastructures
available on an unbundled basis for use by rival providers”); see also Letter from Derek Turner, Research Director,
Free Press to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127 at 4 (filed Feb. 19, 2015) (Free
Press Feb. 19, 2015 Ex Parte Letter) (“For 2011–2012, total fixed and mobile capital intensity (capital expenditures
as a percentage of revenues) was 12.2 percent in the E.U. countries reporting data, versus 14.1 percent in the U.S.
Among the 23 E.U. countries with complete data, 13 reported higher capital intensities than the U.S. did during this
two-year period.”)(internal citation omitted).

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446.
For these same reasons, we are not persuaded that application of sections 201 and 202 is
not necessary to ensure just, reasonable, and nondiscriminatory conduct by broadband providers and for
the protection of consumers under sections 10(a)(1) and (a)(2). As discussed above, applying these
provisions enables us to protect customers of broadband Internet access service from potentially harmful
conduct by broadband providers both by providing a basis for our open Internet rules and for the
important statutory backstop they provide regarding broadband provider practices more generally.
447.
We also observe that our forbearance decision as to sections 201 and 202 for broadband
Internet access service is informed by the CMRS experience, where Congress specifically recognized the
importance of sections 201 and 202 (along with section 208) in excluding those provisions from possible
forbearance under section 332(c)(1)(A).1332 Application of sections 201 and 202 has not frustrated
investment in the wireless marketplace, nor has it led to ex ante regulation of rates charged to consumers
for wireless voice service. Indeed, we find that the successful application of this legal framework in the
CMRS context responds to the concerns of some commenters about the potential burdens, or uncertainty,
resulting from the application of sections 201 and 202, which they contend could create disincentives for
investment even standing alone and apart from ex ante rules.1333 Moreover, within their scope, our open
Internet rules reflect our interpretation of how sections 201 and 202 apply, providing further guidance and
addressing possible concerns about uncertainty regarding the application of sections 201 and 202.1334
Beyond that, we are not persuaded that concerns about the burdens or uncertainty associated with sections
201 and 202 counsel in favor of a contrary public interest finding under section 10(a)(3), particularly
given the very generalized concerns commenters raised.1335
448.
Although some have argued that section 706 of the 1996 Act provides sufficient authority
to adopt open Internet protections,1336 and we do, in fact, conclude that section 706 provides additional
support here, we nonetheless conclude that the application of sections 201 and 202 is appropriate to
remove any ambiguity regarding our authority to enforce strong, clear open Internet rules.1337 Further,
comments focused exclusively on section 706 authority neglect the direct role that sections 201 and 202
1332

47 U.S.C. § 332(c)(1)(A) (specifying that although Title II applies to CMRS, the Commission may forbear from
enforcing any provision of the title other than sections 201, 202, and 208).
1333

See, e.g., Alcatel-Lucent Comments at 15; ACA Comments at 63-64; AT&T Comments at 64–65; Ericsson
Comments at 11; TIA Comments at 16; NCTA Reply at 15; Verizon Reply at 51-52; Comcast Dec. 23, 2014 Ex
Parte Letter at 18-19; NCTA Dec. 24, 2014 Ex Parte Letter at 18; Letter from William H. Johnson, Vice President
& Associate General Counsel, Verizon, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 3-7 (filed
Jan. 26, 2015) (Verizon Jan. 26, 2015 Ex Parte Letter); Letter from Barbara S. Esbin, Counsel for ACA, to Marlene
H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 5 (filed Feb. 2, 2015). While Verizon attempts to distinguish
the CMRS experience by claiming that, unlike voice service, “broadband has never been subject to Title II,” Verizon
Jan. 26, 2015 Ex Parte Letter at 5, this is both factually incorrect for the reasons described above, see supra Sections
IV.A, IV.C.5, nor does it meaningfully address the fact that the CMRS marketplace has seen substantial growth and
investment under the regulatory framework that the Commission did apply.
1334

See supra Section III.F.4.

1335

In any case, the three prongs of section 10(a) are conjunctive and the Commission could properly deny a petition
for failure to meet any one prong. Cellular Telecomms. & Internet Ass'n v. FCC, 330 F.3d 502, 509 (D.C. Cir.
2003). Here, and as to the enforcement provisions below, we find none of the prongs satisfied.
1336

See, e.g., AT&T Comments at 3; Comcast Comments at 42-43; Georgetown Center for Business and Public
Policy Comments at 4; NCTA Reply at 24-30; WISPA Reply at 27.
1337

For example, although we find that we have authority under section 706 of the 1996 Act to implement
appropriate enforcement mechanisms, our reliance on sections 201 and 202 as additional sources of authority
(coupled with the enforcement provisions from which we do not forbear, as discussed below), eliminates possible
arguments to the contrary. See, e.g., Comstock Reply at 22 (noting that the Commission’s forfeiture “regulations at
47 C.F.R. 1.80 (2013) list the violations of specific Acts to which forfeitures apply and section 706 of the
Telecommunications Act is not one of them”).

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will play in the overall regulatory framework we adopt, with respect to practices for or in connection with
broadband Internet access service that are not directly governed by our rules.
449.
We are persuaded, in part, by arguments that we should forbear from sections 201 and/or
202 outside the open Internet context,1338 although we reject calls to entirely forbear from applying
sections 201 and 202 outside that context or that we otherwise adopt a more granular decision regarding
forbearance from provisions in sections 201 and/or 202.1339 While open Internet considerations have led
the Commission to revisit its prior decisions,1340 our ultimate classification decision here simply
acknowledges the reality of how these services are being offered today.1341 Having classified BIAS as a
telecommunications service, we exercise our forbearance authority to establish a tailored Title II
regulatory framework that adequately protects consumers, ensures just and reasonable broadband provider
conduct, and furthers the public interest—consistent with our goals of more, better, and open broadband.
In addition, insofar as commenters cite the same arguments about past network investment or changes in
performance or price per megabit in the recent past that we discussed above,1342 we again find them
sufficiently speculative and subject to debate that they do not overcome our forbearance analysis for
sections 201 and 202 above.1343 Moreover, as we noted above, our decision not to forbear from applying
sections 201 and 202 not only enables our open Internet regulatory framework but supports our grant of
broad forbearance from other provisions and regulations, as discussed below.1344 In particular, as
discussed below, we find that our sections 201 and 202 authority provides a more flexible framework
better suited to this marketplace than many of the alternative regulations that otherwise would apply.1345
450.
Nor do commenters adequately explain how forbearance could be tailored in these ways,
at least in the context of case-by-case adjudication. For broadband providers’ interconnection practices,
which are not covered by the open Internet rules we adopt today, we expressly rely on the backstop of
sections 201 and 202 for case-by-case decision making. 1346 We also rely on both sections 201 and 202 for
conduct that is covered by the open Internet rules adopted here. Those rules reflect the Commission’s
interpretation of how sections 201 and 202 apply in that context, and thus the requirements of section 201
and 202 are coextensive as to broadband Internet access service covered by those rules. Commenters do
1338

See, e.g., Letter from Matthew A. Brill, Counsel for NCTA, to Marlene H. Dortch, Secretary, FCC, GN Docket
No. 14-28, at 4-6 (filed Jan. 14, 2015) (NCTA Jan. 14, 2015 Ex Parte Letter).
1339

See, e.g., NCTA Jan. 14, 2015 Ex Parte Letter at 5 (proposing that the Commission forbear from section 201(b)
either in its entirety or outside the open Internet context); NCTA Dec. 24, 2014 Ex Parte Letter at 18-19 (citing a
proposal from Congresswoman Eshoo to forbear from all of Title II other than section 202(a)); Letter from Kathryn
A. Zachem, Senior Vice President, Regulatory and State Legislative Affairs, Comcast, to Marlene H. Dortch,
Secretary, FCC, GN Docket No. 14-28, at 1-2 (filed Feb. 11, 2015) (seeking forbearance from applying the
prohibition on unjust and unreasonable “charges” under section 201(b)).
1340

While the Commission can proceed incrementally, see, e.g., NCTA v. Brand X, 545 U.S. 967, 1002 (2005), the
agency also has a “continuing obligation to practice reasoned decisionmaking” that includes revisiting prior
decisions to the extent warranted. Aeronautical Radio v. FCC, 928 F.2d 428 (D.C. Cir. 1991).
1341

See supra Section IV. We thus reject claims that we somehow are using forbearance to increase regulation. See,
e.g., Letter from CTIA to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 10-11 (filed Feb. 10, 2015);
Letter from Timothy M. Boucher, Associate General Counsel, CenturyLink, to Marlene H. Dortch, Secretary, FCC,
GN Docket No. 14-28, at 3-4 (filed Feb. 4, 2015). Rather, we are using it to tailor the regulatory regime otherwise
applicable to these telecommunications services.
1342

See, e.g., NCTA Jan. 14, 2015 Ex Parte Letter at 4.

1343

See supra para.445.

1344

See infra Sections V.C.2, V.C.3.

1345

See infra Section V.C.2.e (relying in part on the applicability of section 201(a), in particular, as part of the
justification for forbearance from other interconnection requirements).
1346

See supra Section III.D.2.

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not indicate, nor does the record otherwise reveal, an administrable way for the Commission to grant the
requested partial forbearance while still pursuing such case-by-case decisions in the future. Further, while
section 706 of the 1996 Act would remain, as well, we find that sections 201 and 202 provide a more
certain foundation for evaluating providers’ conduct and pursuing enforcement if warranted in relevant
circumstances arising in the future.1347 We thus are not persuaded that even these more limited proposals
for forbearance from provisions in sections 201 and/or 202 as applied on a case-by-case basis would be in
the public interest under section 10(a)(3).
451.
Although we conclude that the section 10 criteria are not met with respect to the full
scope of forbearance that these commenters seek, because we do not and cannot envision adopting new ex
ante rate regulation of broadband Internet access service in the future, we forbear from applying sections
201 and 202 to broadband services to that extent. As described above, our approach here is informed by
the success of the CMRS framework, which has not, in practice, involved ex ante rate regulation. In
addition, as courts have recognized, when exercising its section 10 forbearance authority “[g]uided by
section 706,” the Commission permissibly may “decide[] to balance the future benefits” of encouraging
broadband deployment “against [the] short term impact” from a grant of forbearance.1348 Under the
totality of the circumstances here, including the protections of our open Internet rules—which focus on
what we identify and the most significant problems likely to arise regarding these broadband services—
and our ability to address issues ex post under sections 201 and 202 we do not find ex ante rate
regulations necessary for purposes of section 10(a)(1) and (a)(2). Further, guided by section 706, and
reflecting the tailored regulatory approach we adopt in this item,1349 we find it in the public interest to
forbear from applying sections 201 and 202 insofar as they would support the adoption of ex ante rate
regulations for broadband Internet access service in the future.
452.
To the extent some commenters express concern about future rules that the Commission
might adopt based on this section 201 and 202 authority,1350 we cannot, and do not, envision going beyond
our open Internet rules to adopt ex ante rate regulations based on that section 201 and 202 authority in this
context. Consequently, we forbear from sections 201 and 202 in that respect, as discussed above. In this
Order, we decide only that forbearance from sections 201 and 202 of the Act to broadband Internet access
service is not warranted under section 10 to the extent described above. Indeed, we find here that the
application of sections 201 and 202 of the Act enable us to forbear from other requirements, including
pre-existing tariffing requirements and Commission rules governing rate regulation, which we find are not
warranted here.1351 Thus, any pre-existing rate regulations adopted by the Commission under its Title II
authority—including any regulations adopted under sections 201 and 202—will not be imposed on
broadband Internet access service as a result of this Order. Finally, while other types of rules also
potentially could be adopted based on section 201 and 202 authority, any Commission rules adopted in
the future would remain subject to judicial review under the APA.1352
1347

See supra Section III.F.4.

1348

EarthLink, 462 F.3d at 9.

1349

Our decision to proceed in a tailored manner is discussed in greater detail below. See infra paras. 495-496;
Section V.C.2.a.
1350

See, e.g., Ericsson Comments at 11 (expressing concern about the risks of long-term rate regulation and other
uncertainties caused by the application of Sections 201 and 202); NCTA Reply at 15 (citing a “dizzying array” of
requirements that the Commission has adopted in the past pursuant to its authority under sections 201 and 202).
1351

See infra Sections V.C.2, V.C.3.

1352

In this regard, commenters advocating forbearance from sections 201 and 202 to guard against new rules that the
Commission might adopt pursuant to that authority do not meaningfully explain what incremental benefit that would
achieve given that any future Commission proceeding would be required to adopt such rules in any case. See, e.g.,
Comcast Dec. 24, 2014 Ex Parte Letter at 18; Letter from Matthew A. Brill, Counsel for NCTA, to Marlene H.
Dortch, Secretary, FCC, GN Docket No. 14-28, at 5-6 (filed Jan. 14, 2015) (NCTA Jan. 15, 2015 Ex Parte Letter).

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Enforcement

453.
We also retain certain fundamental Title II enforcement provisions, as well as the
Commission’s rules governing section 208 complaint proceedings. In particular, we decline to forbear
from applying section 208 of the Act and the associated procedural rules, which provide a complaint
process for enforcement of applicable provisions of the Act or any Commission rules.1353 Section 208
permits “[a]ny person, any body politic, or municipal organization, or State commission, complaining of
anything done or omitted to be done by any common carrier subject to this chapter in contravention of the
provisions thereof” to file a complaint with the Commission and seek redress.1354 We also retain
additional statutory provisions that we find necessary to ensuring a meaningful enforcement process. In
particular, we decline to forbear from sections 206, 207, and 209 as a necessary adjunct to the section 208
complaint process. As the Commission has held previously, forbearing from sections 206, 207, and 209
“would eviscerate the protections of Section 208” because “[w]ithout the possibility of obtaining redress
through collection of damages, the complaint remedy is virtually meaningless.”1355 We similarly do not
forbear from sections 216 and 217, which “merely extend the Title II obligations of [carriers] to their
trustees, successors in interest, and agents. The sections were intended to ensure that a common carrier
could not evade complying with the Act by acting through others over whom it has control or by selling
its business.”1356 Thus, we decline to forbear from enforcing these key Title II enforcement provisions
with respect to broadband Internet access service.
454.
We find that forbearance from these key enforcement provisions and the associated
procedural rules does not satisfy any of the section 10(a) criteria. As discussed above, we decline to
forbear from enforcement of sections 201 and 202 as they apply to broadband Internet access service.1357
To make application of these provisions meaningful, the possibility of enforcement needs to be available.
Consequently, insofar as we find above that sections 201 and 202 are necessary to guard against unjust,
unreasonable, or unjustly or unreasonably discriminatory conduct by broadband providers and to protect
consumers, that presumes the viability of enforcement. For these same reasons, forbearance from these
key Title II enforcement provisions would not be in the public interest. Thus, our conclusion that section
10(a) is not met as to these key Title II enforcement provisions builds on our prior conclusion to that
effect as to sections 201 and 202.1358
455.
In the event that a carrier violates its common carrier duties, the section 208 complaint
process would permit challenges to a carrier’s conduct, and many commenters advocate for section 208 to

1353

47 U.S.C. § 208; see, e.g., 47 C.F.R. §§ 1.701-.736 (informal and formal complaints regarding common
carriers), 8.12-.17 (rules for formal complaints alleging violation of open Internet rules).
1354

47 U.S.C. § 208.

1355

Implementation of Sections 3(n) and 332 of the Communications Act, Regulatory Treatment of Mobile Servs.,
Second Report and Order, 9 FCC Rcd 1411, 1482, para. 16 (1994) (CMRS Title II Forbearance Order). See also,
e.g., Full Service Network/TruConnect Feb. 3, 2015 Ex Parte Letter at 21 (discussing sections 206 and 207).
Allowing for the recovery of damages does not mean that an award of damages necessarily would be appropriate in
all, or even most, cases. The Commission has discretion to deny an award of damages and grant only prospective
injunctive-type relief where a case raises novel issues on which the Commission has not previously spoken, or
where the measurement of damages would be speculative. The Commission also has authority to adopt rules and
procedures that are narrowly tailored to address the circumstances under which damages would be available in
particular types of cases.
1356

Wireless Forbearance Order, 9 FCC Rcd at 1482, para. 186.

1357

See supra Section V.B.1.

1358

Consistent with our analysis above, see supra para.448, although section 706 of the 1996 Act would remain,
these Title II enforcement provisions provide a more certain foundation for pursuing enforcement if warranted in
relevant circumstances arising in the future. See supra Section III.F.4.

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apply.1359 The Commission’s procedural rules establish mechanisms to carry out that enforcement
function in a manner that is well-established and clear for all parties involved. The Commission has
never previously forborne from section 208.1360 Indeed, we find it instructive that in the CMRS context
Congress specifically precluded the Commission from using section 332 to forbear from section 208.1361
Commenters also observe the important interrelationship between section 208 and sections 206, 207, 209,
216, and 217,1362 which the Commission itself has recognized in the past, as discussed above.1363 In
addition, to forbear from sections 216 and 217 would create a loophole in our ability to evenly enforce the
Act, which would imperil our ability to protect consumers and to protect against unjust or unreasonable
conduct, and would be contrary to the public interest. The prospect that carriers may be forced to defend
their practices before the Commission supports the strong public interest in ensuring the reasonableness
and non-discriminatory nature of those actions, protecting consumers, and advancing our overall public
interest objectives.1364 While some commenters express fears of “threats of abusive litigation” or other
burdens arising from the application of these provision,1365 other commenters correctly note the
speculative nature of those arguments given the lack of evidence of such actions where those provisions
historically have applied (including in the CMRS context).1366 In hearing section 207 claims, courts have
historically been careful to consider the Commission’s views as a matter of primary jurisdiction on the
reasonableness of a practice under section 201(b), both in general and before awarding damages under
section 207. In a number of cases, courts have held that there is no entitlement to damages under section
207 for a claim under section 201(b) unless the Commission has already determined that a particular
practice is “unreasonable.”1367 We endorse that approach here. At a minimum, we believe that courts
1359

See, e.g., AARP Comments at 42; CDT Comments at 15; COMPTEL Comments at 22-23; Mozilla Comments at
13; Free Press Reply at 26-27; Sidecar Technologies Reply at 6.
1360

2010 Broadband Classification NOI, 25 FCC Rcd at 7898, para. 75

1361

47 U.S.C. § 332(c)(1).

1362

See, e.g., Public Knowledge et al. Comments at 93.

1363

Because we conclude that forbearance is not warranted under the section 10(a) criteria, we need not, and do not,
reach the question of the scope of our authority to forbear from provisions such as 206 and 207. Compare, e.g.,
Letter from Matthew A. Brill, Counsel for NCTA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at
2-4 (filed Feb. 20, 2015) (NCTA Feb. 20, 2015 Ex Parte Letter) (arguing that we have authority under section 10 to
fully forbear from sections 206 and 207) with, e.g., Public Knowledge Comments at 93 (questioning whether we
have authority to forbear from section 207).
1364

For the reasons discussed above, we thus reject the assertions of some commenters that enforcement is unduly
burdensome. See, e.g., ACA Comments at 63-64 (expressing concern about unspecified “[i]ncreased legal expenses
and time associated with case-by-case adjudication of rates, terms, conditions of service under Section 208”). In
particular, we are not persuaded that such concerns outweigh the overarching interest advanced by the enforceability
of sections 201 and 202. Nothing in the record demonstrates that our need for enforcement differs among broadband
providers based on their size, and we thus are not persuaded that a different conclusion in our forbearance analysis
should be reached in the case of small broadband providers, for example. See, e.g., ACA Jan. 12, 2015 Ex Parte
Letter at 11; Letter from Gregory A. Friedman, Owner, AireBeam, to Marlene H. Dortch, Secretary, FCC, GN
Docket No. 14-28 at 2 (filed Jan. 30, 2015) (AireBeam Jan. 30, 2015 Ex Parte Letter).
1365

See, e.g., NCTA Feb. 20, 2015 Ex Parte Letter at 6.

1366

See, e.g., Letter from Harold Feld, Senior Vice President, Public Knowledge, to Marlene H. Dortch, Secretary,
FCC, GN Docket No. 14-28 at 2-3 (filed Feb. 20, 2015).
1367

See, e.g., North Cty. Commc’ns Corp. v. California Catalog & Tech., 594 F.3d 1149, 1158 (9th Cir. 2010)
(North County) (“[G]iven the broad language of” section 201(b), “it is within the Commission’s purview to
determine whether a particular practice constitutes a violation for which there is a private right to compensation.”);
Hoffman v. Rashid, 388 Fed. Appx. 121, 123 (3d Cir. 2010) (adopting the same position in a per curiam opinion that
summarily affirmed the district court’s judgment); Iris Wireless LLC v. Syniverse Tech., 2014 WL 4436021, *3
(M.D. Fla. Sept. 8, 2014) (“a court should not ‘fill in the analytical gap’ where the Commission has not made a
determination regarding whether a company’s action violates section 201(b)”) (quoting North County, 594 F.3d at
(continued….)

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reviewing BIAS practices under section 207 in the first instance should recognize the Commission’s
primary jurisdiction in a context such as this.1368 The doctrine of primary jurisdiction is particularly
important here, because the broadband Internet ecosystem is highly dynamic and the Commission has
carefully designed a regulatory framework for BIAS to protect Internet openness and other important
communications network values without deterring broadband investment and innovation. As a result, for
all of the forgoing reasons, we conclude that none of the section 10(a) criteria are met as to forbearance
from these fundamental Title II enforcement provisions and the associated Commission procedural rules
with respect to the broadband Internet access service.
C.

Forbearance Analysis Specific to Broadband Internet Access Service

456.
As discussed elsewhere, with respect to broadband Internet access service we find that
the standard for forbearance is not met with respect to the following limited provisions:
a) sections 201, 202, and 208, along with the related enforcement provisions of sections 206, 207,
209, 216, and 217, and the associated complaint procedures; and the Commission’s implementing
regulations (but, to be clear, the Commission forbears from all ratemaking regulations adopted
under sections 201 and 202);1369
b) section 222, which establishes core customer privacy protections;
c) section 224 and the Commission’s implementing regulations, which grant certain benefits that
will foster network deployment by providing telecommunications carriers with regulated access
to poles, ducts, conduits, and rights-of-way;
d) sections 225, 255, and 251(a)(2), and the Commission’s implementing regulations, which
collectively advance access for persons with disabilities; except that the Commission forbears
from the requirement that providers of broadband Internet access service contribute to the
Telecommunications Relay Service (TRS) Fund at this time. These provisions and regulations
support the provision of TRS and require providers of broadband Internet access service, as
(Continued from previous page)
1158); see also id. (“if the Court were to make a declaratory ruling” on an issue that the Commission had not yet
addressed, “it would ‘put interpretation of a finely-tuned regulatory scheme squarely in the hands of private parties
and some 700 federal district judges, instead of in the hands of the Commission’”) (quoting North County, 594 F.3d
at 1158); Havens v. Mobex Network Servs., LLC, 2011 WL 6826104, *9 (D.N.J. Dec. 22, 2011) (in dismissing a
claim that “it is a violation of section 201(b) for a party to ‘warehouse’ toll free numbers without identified
subscribers,” the court reasoned that because previous Commission orders “do not address the precise type of
conduct at issue in this case,” the court could not “risk disturbing the delicate regulatory framework that the
Commission is tasked with maintaining”).
1368

In re Long Distance Telecomm. Litigation, 831 F.2d 627, 631 (6th Cir. 1987) (“claims based on section 201(b)
of the Communications Act are within the primary jurisdiction of the FCC,” and an assessment of whether
“defendants engaged in unreasonable practices . . . is a determination that Congress has placed squarely in the hands
of the [FCC]”) (internal quotation marks omitted); Free Conferencing Corp. v. T-Mobile US, Inc., 2014 WL
7404600, *7 (C.D. Cal. Dec. 30, 2014) (because “re-routing calls to rural LECs is an evolving area of law,” and
because it “is important to ‘protect[ ] the integrity’ of the FCC’s evolving regulatory scheme,” the court decided “not
to meddle” in this area until the Commission had ruled on the question) (quoting United States v. General Dynamics
Corp., 828 F.2d 1356, 1362 (9th Cir. 1987)); James v. Global Tel*Link Corp., 2014 WL 4425818, **6-7 (D.N.J.
Sept. 8, 2014) (“where the question is whether an act is reasonable” under section 201(b), “primary jurisdiction
should be applied”; the reasonableness of defendants’ charges and practices in providing inmate calling services
“implicates technical and policy questions that the FCC has the special expertise to decide in the first instance”)
(internal quotation marks omitted); Demmick v. Cellco P’ship, 2011 WL 1253733, *6 (D.N.J. March 29, 2011)
(“courts have consistently found that reasonableness determinations under [section] 201(b) lie within the primary
jurisdiction of the FCC, because they involve policy considerations within the agency’s discretion and particular
field of expertise”).
1369

See supra Section V.B.1.

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telecommunications carriers, to ensure that the service is accessible to and usable by individuals
with disabilities, if readily achievable; and
e) section 254, the interrelated requirements of section 214(e), and the Commission’s implementing
regulations to strengthen the Commission’s ability to support broadband, supporting the
Commission’s ongoing efforts to support broadband deployment and adoption; the Commission
forbears from immediate contributions requirements, however, in light of the ongoing
Commission proceeding.1370
457.
We naturally also do not forbear from applying open Internet rules1371 and section 706 of
the 1996 Act itself. For convenience, we collectively refer to these provisions and regulations for
purposes of this Order as the “core broadband Internet access service requirements.”
458.
Beyond those core broadband Internet access service requirements we grant extensive
forbearance as permitted by our authority under section 10 of the Act. As described in greater detail
below, it is our predictive judgment that the statutory and regulatory requirements that remain are
sufficient to ensure just, reasonable, and not unjustly or unreasonably discriminatory conduct by providers
of broadband Internet access service and to protect consumers with respect to broadband Internet access
service. Those same considerations, plus the overlay of section 706 of the 1996 Act and our desire to
proceed incrementally when considering what new requirements that should apply here, likewise
persuade us that this forbearance is in the public interest.
459.
Our forbearance decision in this subsection focuses on addressing consequences arising
from the classification decision in this Order regarding broadband Internet access service.1372 Thus, we do
not forbear with respect to requirements to the extent that they already applied prior to this Order without
regard to the classification of broadband Internet access service. For example, as discussed in greater
detail below, this includes things like certain requirements of the Twenty-First Century Communications
and Video Accessibility Act of 2010 (CVAA),1373 as well as things like liability-limitation provisions that
do not vary in application based on the classification of broadband Internet access service.1374 Similarly, to
the extent that provisions or regulations apply to an entity by virtue of other services it provides besides
broadband Internet access service, the forbearance in this Order does not extend to that context.1375
1370

See infra Section V.C.1.

1371

See supra Section III.

1372

The 2014 Open Internet NPRM here did not contemplate possible forbearance from the open Internet rules
themselves, and thus they are beyond the scope of regulations addressed by this forbearance decision. In any case,
the very reasons that persuade us to adopt the rules in the Order likewise demonstrate that forbearance from those
rules would not satisfy the section 10(a) criteria here.
1373

See infra Section V.C.1.b.

1374

See infra Section V.C.3.

1375

This Order does not alter any additional or broader forbearance previously granted that already might encompass
broadband Internet access service in certain circumstances, for example, insofar as broadband Internet access
service, when provided by mobile providers, is a CMRS service. As one example, the Commission has granted
some forbearance from section 310(d) for certain wireless licensees that meet the definition of “telecommunications
carrier,” see generally Federal Communications Bar Association's Petition for Forbearance from Section 310(d) of
the Communications Act, Memorandum Opinion and Order, 13 FCC Rcd 6293 (1998) (FCBA Forbearance Order),
but section 310(d) is not itself framed in terms of “common carriers” or “telecommunications carriers” or providers
of “CMRS” or the like, nor is it framed in terms of “common carrier services,” “telecommunications services,”
“CMRS services” or the like. To the extent that such forbearance thus goes beyond the forbearance for wireless
providers granted in this Order, this Order does not narrow or otherwise modify that pre-existing grant of
forbearance. For clarity, we observe, however, that the broadband Internet access service covered by our open
Internet rules is beyond the scope of a petition for forbearance from Verizon regarding certain broadband services
that was deemed granted by operation of law on March 19, 2006. See Verizon Telephone Companies' Petition for
(continued….)

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460.
In addition, prior to this Order some incumbent local exchange carriers or other common
carriers chose to offer Internet transmission services as telecommunications services subject to the full
range of Title II requirements.1376 Our forbearance with respect to broadband Internet access service does
not encompass such services. As a result, such providers remain subject to the rights and obligations that
arise under Title II and the Commission’s rules by virtue of their elective provision of such services,1377
along with the rules adopted to preserve and protect the open Internet to the extent that those services fall
within the scope of those rules.1378

(Continued from previous page)
Forbearance from Title II and Computer Inquiry Rules with Respect to their Broadband Services Is Granted by
Operation of Law, WC Docket No. 04-440, News Release (rel. Mar. 20, 2006). While Verizon’s initial petition
sought broad relief from “all” broadband services, in its February 7, 2006, amendment to its petition, Verizon
provided a “List of Broadband Services for Which Verizon Is Seeking Forbearance,” which did not encompass a
broadband Internet access service of the sort at issue here. Letter from Edward Shakin, Vice President and
Associate General Counsel, Verizon, to Marlene H. Dortch, Secretary, FCC, WC Docket No. 04-440, Attach. 1
(filed Feb. 7, 2006) (Verizon Feb. 7, 2006 Forbearance Ex Parte Letter). Indeed, the Commission previously has
distinguished between the enterprise broadband services for which Verizon was deemed granted relief by operation
of law and broadband Internet access service. Compare Petition of ACS of Anchorage, Inc. Pursuant to Section 10
of the Communications Act of 1934, As Amended (47 U.S.C. § 160(c)), For Forbearance From Certain Dominant
Carrier Regulation of Its Interstate Access Services, and For Forbearance From Title II Regulation of Its
Broadband Services, In the Anchorage, Alaska, Incumbent Local Exchange Carrier Study Area, WC Docket No. 06109, Memorandum Opinion and Order, 22 FCC Rcd 16304, 16315-16, para. 21 (2007) (“ACS seeks relief
‘consistent with that granted to Verizon Telephone Companies on March 19, 2006,’ for ‘broadband services.’
Specifically, ACS seeks relief from regulation as a common carrier or telecommunications service provider for any
packetized broadband services it offers or may offer in Anchorage.”) with id. at 16318, para. 25 (distinct from the
request for forbearance comparable to that deemed granted to Verizon, “ACS requests conditional forbearance from
dominant carrier regulation of its interstate switched and special access services, and contends that such relief would
be consistent with the Qwest Omaha Order. To the extent that ACS seeks relief for . . . mass market broadband
Internet access transmission services, its request falls within the same category of services for which relief was
granted to Qwest.”). See also, e.g., Petition of AT&T Inc. For Forbearance Under 47 U.S.C. § 160(c) From Title II
and Computer Inquiry Rules With Respect To Its Broadband Services, et al., WC Docket No. 06-125, Memorandum
Opinion and Order, 22 FCC Rcd 18705, 18714-15, para. 14 n. 59 (2008) (“Verizon restricted its forbearance request
to ten of its then-existing telecommunications services offerings. See Verizon WC Docket No. 04-440 Feb. 7 Letter
at Attach. 1, at 1 (providing ‘List of Broadband Services for Which Verizon Is Seeking Forbearance’).”).
1376

We note that the Commission did adopt permissive detariffing for such services. Wireline Broadband
Classification Order, 20 FCC Rcd at 14900-03, paras. 89-95. See also, e.g., Letter from Michael R. Romano, Senior
Vice President—Policy, NTCA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 2 (filed Feb. 9,
2015) (“as part of any statements with respect to classification of broadband in the order, NTCA urged the
Commission to ensure that small rural telcos such as those within NTCA’s membership can continue to avail
themselves of the option to tariff broadband-capable transmission services that underpin retail broadband Internet
access services.”).
1377

See, e.g., Wireline Broadband Classification Order, 20 FCC Rcd at 14927-29, paras. 139-44 (discussing the
application of section 254(k) and related cost-allocation rules); id. at paras. 126-27 (“Thus, competitive LECs will
continue to have the same access to UNEs, including DS0s and DS1s, to which they are otherwise entitled under our
rules, regardless of the statutory classification of service the incumbent LECs provide over those facilities. So long
as a competitive LEC is offering an ‘eligible’ telecommunications service – i.e., not exclusively long distance or
mobile wireless services – it may obtain that element as a UNE.”). For example, if a rate-of-return incumbent LEC
(or other provider) voluntarily offers Internet transmission outside the forbearance framework adopted in this Order,
it remains subject to the pre-existing Title II rights and obligations, including those from which we forbear in this
Order.
1378

If such a provider wants to change to offer Internet access services pursuant to the construct adopted in this
Order, it should notify the Wireline Competition Bureau 60 days prior to implementing such a change.

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Provisions that Protect Customer Privacy, Advance Access For Persons with
Disabilities, and Foster Network Deployment

461.
We generally grant extensive forbearance from the provisions and requirements that
newly apply by virtue of our classification of broadband Internet access service. However, the record
persuades us that we should not forbear with respect to certain key provisions that protect customer
privacy, advance access for persons with disabilities, and foster network deployment.
a.

Customer Privacy (Section 222)

462.
As supported by a number of commenters, we decline to forbear from applying section
222 of the Act in the case of broadband Internet access service.1379 We do, however, find the section
10(a) criteria met to forbear at this time from applying our implementing rules, pending the adoption of
rules to govern broadband Internet access service in a separate rulemaking proceeding. Section 222 of the
Act governs telecommunications carriers’ protection and use of information obtained from their
customers or other carriers, and calibrates the protection of such information based on its sensitivity.
Congress provided protections for proprietary information, according the category of customer
proprietary network information (CPNI)1380 the greatest level of protection. Section 222 imposes a duty
on every telecommunications carrier to protect the confidentiality of its customers’ private
information.1381 Section 222 also imposes restrictions on carriers’ ability to use, disclose, or permit access
to customers’ CPNI without their consent.1382
1379

See, e.g., CDT Comments at 16; NMR Comments at 25; Rural Broadband Policy Group Comments at 8-9;
Public Knowledge Dec. 19, 2014 Ex Parte Letter at 19; Free Press Nov. 21, 2014 Ex Parte Letter at 1; Full Service
Network/TruConnect Feb. 3, 2015 Ex Parte Letter at 21.
1380

CPNI is defined as “(A) information that relates to the quantity, technical configuration, type, destination,
location, and amount of use of a telecommunications service subscribed to by any customer of a telecommunications
carrier, and that is made available to the carrier by the customer solely by virtue of the carrier-customer relationship;
and (B) information contained in the bills pertaining to telephone exchange service or telephone toll service received
by a customer of a carrier.” 47 U.S.C. § 222(h)(1).
1381

47 U.S.C. § 222(a); Implementation of the Telecommunications Act of 1996: Telecommunications Carriers’ Use
of Customer Proprietary Network Information and Other Customer Information, CC Docket No. 96-115, Report and
Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 6927, 6959, para. 64 (2007); Declaratory Ruling,
28 FCC Rcd 9609 (2013). We take this mandate seriously. For example, the Commission recently took
enforcement action under section 222 (and section 201(b)) against two telecommunications companies that stored
customers’ personal information, including social security numbers, on unprotected, unencrypted Internet servers
publicly accessible using a basic Internet search. This unacceptably exposed these consumers to the risk of identity
theft and other harms. See TerraCom, Inc. and YourTel America, Inc. Apparent Liability for Forfeiture, File No.:
EB-TCD-13-00009175, Notice of Apparent Liability, FCC 14-173, paras. 31-41 (rel. Oct. 24, 2014). See also, e.g.,
Letter from Erik Stallman, Director, Open Internet Project, CDT, to Marlene H. Dortch, Secretary, FCC, GN Docket
No. 14-28 at 3-4 (filed Feb. 4, 2015) (CDT Feb. 4, 2015 Ex Parte Letter).
1382

See 47 U.S.C. § 222(c)(1) (permitting a carrier, except as required by law or with the customer’s consent, to use,
disclose, or permit access to individually identifiable CPNI only “in its provision of (A) the telecommunications
service from which such information is derived, or (B) services necessary to, or used in, the provision of such
telecommunications service, including the publishing of directories.”). The Commission has made clear that “to the
extent a telecommunications carrier that is a provider of electronic communication services or remote computing
services is compelled by 18 U.S.C. § 2258A to disclose CPNI in a report to the CyberTipline, that carrier would not
be in violation of its privacy duties under section 222 of the Communications Act.” Implementation of the
Telecommunications Act of 1996: Telecommunications Carriers’ Use Of Customer Proprietary Network
Information and Other Customer Information, CC Docket No. 96-115, Declaratory Ruling, 25 FCC Rcd 14335,
14336-37, para. 5 (Wireline Comp. Bur. 2010). See also Implementation of the Telecommunications Act of 1996:
Telecommunications Carriers' Use of Customer Proprietary Network Information and Other Customer Information,
CC Docket No. 96-115, Declaratory Ruling, 21 FCC Rcd 9990 (2006) (addressing the predecessor disclosure
provision). That interpretation of section 222 remains true as to broadband Internet access service.

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463.
We find that forbearance from the application of section 222 with respect to broadband
Internet access service is not in the public interest under section 10(a)(3), and that section 222 remains
necessary for the protection of consumers under section 10(a)(2).1383 The Commission has long supported
protecting the privacy of users of advanced services, and retaining this provision thus is consistent with
the general policy approach.1384 The Commission has emphasized that “[c]onsumers’ privacy needs are
no less important when consumers communicate over and use broadband Internet access than when they
rely on [telephone] services.”1385 As broadband Internet access service users access and distribute
information online, the information is sent through their broadband provider. Broadband providers serve
as a necessary conduit for information passing between an Internet user and Internet sites or other Internet
users, and are in a position to obtain vast amounts of personal and proprietary information about their
customers.1386 Absent appropriate privacy protections, use or disclosure of that information could be at
odds with those customers’ interests.
464.
We find that if consumers have concerns about the privacy of their personal information,
such concerns may restrain them from making full use of broadband Internet access services and the
Internet, thereby lowering the likelihood of broadband adoption and decreasing consumer demand. 1387 As
the Commission has found previously, the protection of customers’ personal information may spur
consumer demand for those services, in turn “driving demand for broadband connections, and
consequently encouraging more broadband investment and deployment” consistent with the goals of the
1996 Act.1388 Notably, commenters opposing the application of section 222 to broadband Internet access
service make general arguments about the associated burdens, but do not include a meaningful analysis of
why the section 10(a) criteria are met (or why relief otherwise should be granted) nor why the concerns
they identify—even assuming arguendo that they were borne out by evidence beyond that currently in the
record—should outweigh the privacy concerns identified here.1389 We therefore conclude that the

1383

47 U.S.C. § 160(a)(2), (3).

1384

For example, the Commission has noted that “long before Congress enacted section 222 of the Act, the
Commission had recognized the need for privacy requirements associated with the provision of enhanced services
and had adopted CPNI-related requirements in conjunction with other Computer Inquiry obligations.” Wireline
Broadband Classification Order, 20 FCC Rcd at 14931, para. 149 & n.447 (seeking comment on privacy
protections).
1385

Id. at 14930, para. 148 (“For example, a consumer may have questions about whether a broadband Internet
access service provider will treat his or her account and usage information as confidential, or whether the provider
reserves the right to use account information for marketing and other purposes.”).
1386

See, e.g., Access Comments at 7 (stating that broadband providers have the technological capacity to exercise
monitoring and control of their customers’ use of the Internet using techniques such as deep packet inspection).
1387

See, e.g., 2015 Broadband Progress Report, paras. 104-05; National Broadband Plan at 17 (citing John
Horrigan, Broadband Adoption and Use in America (OBI, Working Paper No. 1, 2010). See also, e.g., Pew
Research Center, Who’s not online and why, at 6 (Sept. 2013), http://www.pewinternet.org/files/oldmedia/Files/Reports/2013/PIP_Offline%20adults_092513_PDF.pdf.
1388

Implementation of the Telecommunications Act of 1996: Telecommunications Carriers’ Use of Customer
Proprietary Network Information and Other Customer Information; IP-Enabled Services, CC Docket No. 96-115,
WC Docket No. 04-36, Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 6927, 6957,
para. 59 (2007); see also National Broadband Plan at 55 (explaining that without privacy protections, new
innovation and investment in broadband applications and content may be held back, and these applications and
content, in turn, are likely the most effective means to advance many of Congress’s goals for broadband).
1389

See, e.g., MediaFreedom Comments at 2; TIA Comments at 17; ADTRAN Reply at 17-18; Letter from Robert
W. Quinn, Jr., Senior Vice President, Federal Regulatory and Chief Privacy Officer, AT&T, to Marlene H. Dortch,
Secretary, FCC, GN Docket No. 14-28 at 5 (filed May 9, 2014). Consequently, we reject those arguments.

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application and enforcement of section 222 to broadband Internet access services is in the public interest,
and necessary for the protection of consumers.1390
465.
We also reject arguments that section 706 itself provides adequate protections such that
forbearance from section 222 is warranted.1391 While section 706 of the 1996 Act would continue to
apply even if we granted forbearance here, we find that section 222 provides a more certain foundation
for evaluating providers’ conduct and pursuing enforcement if warranted in relevant circumstances arising
in the future.1392 Among other things, while the concerns discussed in the preceding paragraph have a
nexus with the standards of sections 706(a) and (b), as discussed earlier in this section, the public interest
in protecting customer privacy is not limited to the universe of concerns encompassed by section 706.
466.
We recognize that some commenters, while expressing concern about consumer privacy,
nonetheless suggest that the Commission conceivably need not immediately apply section 222 and its
implementing rules, pending further proceedings.1393 We are persuaded by those arguments, but only as
to the Commission’s rules. With respect to the application of section 222 of the Act itself, as discussed
above, with respect to broadband Internet access service the record here persuades us that the section
10(a) forbearance criteria are not met to justify such relief. Indeed, even as to services that historically
have been subject to section 222, questions about the application of those privacy requirements can arise
and must be dealt with by the Commission as technology evolves,1394 and the record here does not

1390

See 47 U.S.C. § 160(a)(2); see also, e.g., Free Press Comments at 83, n.180; Public Knowledge Reply at 20-22.
Some commenters contend that the Commission should forbear from all of Title II based on generalized arguments
about the marketplace, such as past network investment or changes in performance or price per megabit in the recent
past. See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 10-11; Comcast Dec. 24, 2014 Ex Parte Letter at 4-6; NCTA
Dec. 23, 2014 Ex Parte Letter at 19-20. We are not persuaded that those arguments justify a different outcome here,
both for the reasons discussed previously, see supra Section V.B.1, and because commenters do not meaningfully
explain how these arguments impact the section 10 analysis here, given that the need to protect consumer privacy is
not self-evidently linked to such marketplace considerations. Nothing in the record suggests that concerns about
consumer privacy are limited to broadband providers of a particular size, and we thus are not persuaded that a
different conclusion in our forbearance analysis should be reached in the case of small broadband providers, for
example. See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 11; AireBeam Jan. 30, 2015 Ex Parte Letter at 2.
1391

See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 11; NCTA Jan. 14, 2015 Ex Parte Letter at 3-4.

1392

See, e.g., supra Section III.F.4. We also note, for example, that this approach obviates the need to determine
whether or to what extent section 222 is more specific than section 706 of the 1996 Act in relevant respects, and thus
could be seen as exclusively governing over the provisions of section 706 of the 1996 Act as to some set of privacy
issues. Cf. Bloate v. U.S., 559 U.S. 196, 208 (2010) (“‘[g]eneral language of a statutory provision, although broad
enough to include it, will not be held to apply to a matter specifically dealt with in another part of the same
enactment’”) (citation omitted). The approach we take avoids this potential uncertainty, and we thus need not and
do not address this question.
1393

See, e.g., CDT Comments at 16; Letter from Marvin Ammori and Julie Samuels, to Marlene H. Dortch,
Secretary, FCC, GN Docket No. 14-28, at 2 (filed Nov. 12, 2014); Letter from COMPTEL, CCIA, Engine, and
IFBA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1-2 n.1 (filed Dec. 30, 2014). While CDT
references the questions regarding the application of section 222 and our implementing rules raised in the 2010
Broadband Classification NOI, CDT Comments at 16 (citing 2010 Broadband Classification NOI, 25 FCC Rcd at
7900-01, para. 82), that NOI cited reasons why the Commission might immediately apply section 222 and the
Commission’s implementing rules if it reclassified broadband Internet access service as well as reasons why it might
defer the application of those requirements. We thus find that the 2010 NOI does not itself counsel one way or the
other, and in light of the record here, we decline to defer the application of section 222.
1394

See, e.g., Implementation of the Telecommunications Act of 1996: Telecommunications Carriers' Use of
Customer Proprietary Network Information and Other Customer Information, CC Docket No. 96-115, Declaratory
Ruling, 28 FCC Rcd 9609 (2013) (Wireless Device Privacy Declaratory Ruling) (“address[ing] the real privacy and
security risks that consumers face when telecommunications carriers use their control of customers’ mobile devices
to collect information about their customers’ use of the network”). We also note in this regard that the Commission
(continued….)

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demonstrate specific concerns suggesting that Commission clarification of statutory terms as needed
would be inadequate in this context.1395
467.
We are, however, persuaded that the section 10(a) criteria are met for us to grant
forbearance from applying our rules implementing section 222 insofar as they would be triggered by the
classification of broadband Internet access service here. Beyond the core broadband Internet access
service requirements, we apply section 222 of the Act, which itself directly provides important privacy
protections.1396 Further, on this record, we are not persuaded that the Commission’s current rules
implementing section 222 necessarily would be well suited to broadband Internet access service. The
Commission fundamentally modified these rules in various ways subsequent to decisions classifying
broadband Internet access service as an information service, and certain of those rules appear more
focused on concerns that have been associated with voice service.1397 For example, the current rules have
requirements with respect to “call detail information,” defined as “[a]ny information that pertains to the
transmission of specific telephone calls, including, for outbound calls, the number called, and the time,
location, or duration of any call and, for inbound calls, the number from which the call was placed, and
the time, location, or duration of any call.”1398 More generally, the existing CPNI rules do not address
many of the types of sensitive information to which a provider of broadband Internet access service is
likely to have access, such as (to cite just one example) customers’ web browsing history. Insofar as rules
focused on addressing problems in the voice service context are among the central underpinnings of our
CPNI rules, we find the better course to be forbearance from applying all of our CPNI rules at this time.
As courts have recognized, when exercising its section 10 forbearance authority “[g]uided by section
706,” the Commission permissibly may “decide[] to balance the future benefits” of encouraging
broadband deployment “against [the] short term impact” from a grant of forbearance.1399 In light of the
record here and given that the core broadband Internet access requirements and section 222 itself will
apply, and guided by section 706, we find that applying our current rules implementing sections 222—
which, in critical respects, appear to be focused on addressing problems that historically arise regarding
voice service—is not necessary to ensure just and reasonable rates and practice or for the protection of
consumers under sections 10(a)(1) and (a)(2) and that forbearance is in the public interest under section

(Continued from previous page)
cannot impose a penalty in the absence of “fair notice of what is prohibited.” FCC v. Fox Television Stations, 132 S.
Ct. 2307, 2317 (2012).
1395

See, e.g., CDT Comments at 17 (asserting, without explanation, that a rulemaking might be needed to “address
exactly how Section 222 should apply in the Internet connectivity context, including how to define ‘customer
proprietary network information’ (CPNI) for this purpose”); Verizon Jan. 26, 2015 Ex Parte Letter at 7-8 (arguing
that it is unclear what certain requirements of section 222 would mean in the context of broadband Internet access
service).
1396

See, e.g., TerraCom, Inc. and YourTel America, Inc. Apparent Liability for Forfeiture, File No.: EB-TCD-1300009175, Notice of Apparent Liability, FCC 14-173, paras. 31-41 (rel. Oct. 24, 2014); Wireless Device Privacy
Declaratory Ruling, 28 FCC Rcd at 9619-20, paras. 29-32 (discussing statutory restrictions applicable to CPNI).
1397

The Commission adopted significant reforms to its rules implementing section 222 in 2007. Implementation of
the Telecommunications Act of 1996: Telecommunications Carriers' Use of Customer Proprietary Network
Information and Other Customer Information; IP-Enabled Services, CC Docket No. 96-115, WC Docket No. 04-36,
Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 6927 (2007). In doing so, the
Commission was, in significant part, focused on dealing with problems of “pretexting,” which involved “data
brokers . . . obtain[ing] private and personal information, including what calls were made to and/or from a particular
telephone number and the duration of such calls.” Id. at 6928-29, para. 2; see also id. at 6928, para. 1 n.1 (noting
Congress’ criminalization of pretexting activity in 18 U.S.C. § 1039, which focuses on “phone” records).
1398

47 C.F.R. §§ 64.2003, 64.2010.

1399

EarthLink, 462 F.3d at 9.

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10(a)(3).1400 We emphasize, however, that forbearance from our existing CPNI rules in the context of
broadband Internet access services does not in any way diminish the applicability of these rules to
services previously found to be within their scope.1401
b.

Disability Access Provisions (Sections 225, 255, 251(a)(2))

468.
We agree with commenters that we should apply section 225 and the Commission’s
implementing rules—rather than forbear for broadband Internet access service—because of the need to
ensure meaningful access to all Americans,1402 except to the extent provided below with respect to
contributions to the Interstate TRS Fund. Section 225 mandates the availability of interstate and intrastate
TRS to the extent possible and in the most efficient manner to individuals in the United States who are
deaf, hard of hearing, deaf-blind, and who have speech disabilities.1403 The Act directs that TRS provide
the ability for such individuals to engage in communication with other individuals, in a manner that is
“functionally equivalent to the ability of a hearing individual who does not have a speech disability to
communicate using voice communication services.”1404 To achieve this, the Commission has required all
interstate service providers (other than one-way paging services) to provide TRS.1405 People who are
blind, hard of hearing, deaf-blind, and who have speech disabilities increasingly rely upon Internet-based
video communications, both to communicate directly (point-to-point) with other persons who are deaf or
hard of hearing who use sign language and through video relay service (VRS)1406 with individuals who do
not use the same mode of communication that they do.1407 In doing so, they rely on high definition two1400

Our decision to proceed in a tailored manner is discussed in greater detail below. See infra paras. 495-496;
Section V.C.2.a.
1401

See, e.g., Wireless Device Privacy Declaratory Ruling, 28 FCC Rcd 9609 (addressing how section 222 of the
Act, and the Commission’s implementing rules, apply to information relating to telecommunications service and
interconnected VoIP service that fits the statutory definition of CPNI when such information is collected by the
customer’s device, provided the collection is undertaken at the mobile wireless carrier’s direction and the carrier or
its designee has access to or control over the information).
1402

See, e.g., Public Knowledge Comments at 95; Rural Broadband Policy Group Comments at 8;
Telecommunications for the Deaf and Hard of Hearing Comments at 8-13.
1403

47 U.S.C. §§ 225(a)(3), (b)(1) .

1404

47 U.S.C. § 225(a)(3).

1405

See generally Telecommunications Relay Services, and the Americans with Disabilities Act of 1990, CC Docket
No. 90–571, Notice of Proposed Rule Making, 5 FCC Rcd 7187 (1990); Report and Order and Request for
Comment, 6 FCC Rcd 4657, 4660, para. 17 (1991) (TRS Order); Order on Reconsideration, Second Report and
Order and Further Notice of Proposed Rule Making, 8 FCC Rcd 1802 (1993) (TRS II); Third Report and Order, 8
FCC Rcd 5300 (1993) (TRS III).
1406

VRS is a form of TRS that allows people who are blind, hard of hearing, deaf-blind, and who have speech
disabilities who use sign language to communicate with voice telephone users through a CA using video
transmissions over the Internet. See 47 C.F.R. § 64.601(a)(40).
1407

See generally Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing
and Speech Disabilities; E911 Requirements for IP-Enabled Service Providers, CG Docket No. 03-123, WC Docket
No. 05-196, Report and Order and Further Notice of Proposed Rulemaking, 23 FCC Rcd 11591 (2008) (First
Internet-Based TRS Order); Second Report and Order and Order on Reconsideration, 24 FCC Rcd 791 (2008)
(Second Internet-Based TRS Order). In addition, these populations rely on other forms of Internet-based TRS
(iTRS), including Internet Protocol Relay Service (IP Relay) and Internet Protocol Captioned Telephone Service (IP
CTS). IP Relay is a “telecommunications relay service that permits an individual with a hearing or a speech
disability to communicate in text using an Internet Protocol-enabled device via the Internet, rather than using a text
telephone (TTY) and the public switched telephone network.” 47 C.F.R. § 64.601(a)(17). IP CTS is a
“telecommunications relay service that permits an individual who can speak but who has difficulty hearing over the
telephone to use a telephone and an Internet Protocol-enabled device via the Internet to simultaneously listen to the
other party and read captions of what the other party is saying.” 47 C.F.R. § 64.601(a)(16).

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party or multiple-party video conferencing that necessitates a broadband connection.1408 As technologies
advance, section 225 maintains our ability to ensure that individuals who are deaf, hard of hearing, deafblind, and who have speech disabilities can engage in service that is functionally equivalent to the ability
of a hearing individuals who do not have speech disabilities to use voice communication services.1409
Limits imposed on bandwidth use through network management practices that might otherwise appear
neutral, could have an adverse effect on iTRS users who use sign language to communicate by degrading
the underlying service carrying their video communications. The result could potentially deny these
individuals functionally equivalent communications service. Additionally, if VRS and other iTRS users
are limited in their ability to use Internet service or have to pay extra for iTRS and point-to-point
services, this could cause discrimination against them because for many such individuals, TRS is the only
form of communication that affords service that is functionally equivalent to what voice users have over
the telephone. Moreover, limiting their bandwidth capacity could compromise their ability to obtain
access to emergency services via VRS and other forms of iTRS, which is required by the Commission’s
rules implementing section 225.1410
469.
While we base the open Internet rules adopted here solely on section 706 of the 1996 Act
and other provisions of the Act besides section 225—and thus do not adopt any new section 225-based
rules in this Order—largely preserving this provision is important not only to the extent that it might be
used in the future as the basis for new rules adopting additional protections but also to avoid any
inadvertent uncertainty regarding Internet-based TRS providers’ obligations under existing rules. To be
compensated from the federal TRS fund, providers must provide service in compliance with section 225
and the Commission’s TRS rules and orders.1411 As discussed in the prior paragraph, however, a number
of TRS services are carried via users’ broadband Internet access services. Forbearing from applying
section 225 and our TRS service requirements would risk creating loopholes in the protections otherwise
afforded users of iTRS services or even just uncertainty that might result in degradation of iTRS. More
specifically, if we forbear from applying these provisions, we run the risk of allowing actions taken by
Internet access service providers to come into conflict with the overarching goal of section 225, i.e.,
ensuring that the communication services made available through TRS are functionally equivalent, that is,
mirror as closely as possible the voice communication services available to the general public.
Enforcement of this functional equivalency mandate will protect against such degradation of service. In
sum, with the exception of TRS contribution requirements discussed below, we find that the enforcement
of section 225 is necessary for the protection of consumers under section 10(a)(2), and that forbearance
would not be in the public interest under section 10(a)(3).
470.
Notwithstanding the foregoing, for now we do forbear in part from the application of
TRS contribution obligations that otherwise would newly apply to broadband Internet access service.
Section 225(d)(3)(B) and our implementing rules require federal TRS contributions for interstate
telecommunications services, which now would uniformly include broadband Internet access service by
virtue of the classification decision in this order.1412 Applying new TRS contribution requirements on
broadband Internet access potentially could spread the base of contributions to the TRS Fund, having the
benefit of adding to the stability of the TRS Fund. Nevertheless, before taking any steps that would
depart from the status quo in this regard, the Commission would like to assess the need for such
additional funding, and the appropriate contribution level, given the totality of concerns implicated in this
1408

See, e.g., Structure and Practices of the Video Relay Service Program, CG Docket No. 10-51, Declaratory
Ruling, Order and Notice of Proposed Rulemaking, 25 FCC Rcd 6012, 6014, para. 3 (2010).
1409

See 47 U.S.C. § 225(a)(3).

1410

See 47 C.F.R. § 64.605.

1411

See, e.g., Purple Communications, Inc., File No.: EB-TCD-12-00000376, Notice of Apparent Liability, 29 FCC
Rcd 5491, para. 29 & n.71 (2014) (citing and summarizing precedent).
1412

47 U.S.C. § 225(d)(3)(B); 47 C.F.R. § 64.604(c)(5)(iii).

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context. As courts have recognized, when exercising its section 10 forbearance authority “[g]uided by
section 706,” the Commission permissibly may “decide[] to balance the future benefits” of encouraging
broadband deployment “against [the] short term impact” from a grant of forbearance.1413 Our decision,
guided by section 706, to tailor the regulations applied to broadband Internet access service thus tips the
balance in favor of the finding that applying new TRS fund contribution requirements at this time is not
necessary to ensure just, reasonable and nondiscriminatory conduct by the provider of broadband Internet
access service or for the protection of consumers under sections 10(a)(1) and (a)(2) and that forbearance
is in the public interest under section 10(a)(3).1414 The competing considerations here make this a closer
call under our section 10(a) analysis, however, and thus we limit our action only to forbearing from
applying section 225(d)(3)(B) and our implementing rules insofar as they would immediately require new
TRS contributions from broadband Internet access services but not insofar as they authorize the
Commission to require such contributions should the Commission elect to do so in a rulemaking in the
future.1415 In particular, we find it in the public interest to limit our forbearance in this manner to enable
us to act even more nimbly in the future should we need to do so based on future developments.1416
471.
Nothing in our forbearance from TRS Fund contribution requirements for broadband
Internet access service is intended to encompass, however, situations where incumbent local exchange
carriers or other common carriers voluntarily choose to offer Internet transmission services as
telecommunications services subject to the full scope of Title II requirements for such services. As a
result, such providers remain subject to the Interstate TRS Fund contribution obligations that arise under
section 225 and the Commission’s rules by virtue of their elective provision of such services until such
time as the Commission further addresses such contributions in the future.
472.
Consistent with some commenters’ proposals,1417 with respect to broadband Internet
access service we also do not forbear from applying sections 255 and the associated rules, which require
telecommunications service providers and equipment manufacturers to make their services and equipment
accessible to individuals with disabilities, unless not readily achievable.1418 We also do not find the
statutory forbearance test met for related protections afforded under section 251(a)(2) and our
implementing rules, which precludes the installation of “network features, functions, or capabilities that
do not comply with the guidelines and standards established pursuant to section 255.”1419 We therefore do
not forbear from this provision and our associated rules. In prior proceedings, the Commission has
1413

EarthLink, 462 F.3d at 9.

1414

Our decision to proceed in a tailored manner is discussed in greater detail below. See infra paras.495-496;
Section V.C.2.a.
1415

As noted below, we do not forbear from the obligation of carriers that have chosen voluntarily to offer
broadband as a Title II service to contribute to the Interstate TRS Fund.
1416

Cf. Misuse of Internet Protocol (IP) Captioned Telephone Service; Telecommunications Relay Services and
Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CG Docket Nos. 13-24, 03-123,
Order and Notice of Proposed Rulemaking, 28 FCC Rcd 703, 707, para. 7 (2013) (describing potential AntiDeficiency Act issues that could arise if there were insufficient TRS funds available and the impact that would have
on all TRS programs) rev’d Sorenson v. FCC, 755 F.3d 702 (2014) (finding, in pertinent part, that the Commission
had not sufficiently demonstrated the actual imminence of a fiscal calamity to support good cause to forgo notice
and comment).
1417

See, e.g., Public Knowledge Comments at 95; Rural Broadband Policy Group Comments at 8;
Telecommunications for the Deaf and Hard of Hearing Comments at 8-13; The Advanced Communications Law &
Policy Institute at New York Law School Reply, Attach. 8; Letter from Teresa Favuzzi, Executive Director,
California Foundation of Independent Living Centers, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28
at 3 (filed Dec. 17, 2014) (CFILC Dec. 17, 2014 Ex Parte Letter).
1418

47 U.S.C. § 255.

1419

47 U.S.C. § 251(a)(2).

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emphasized its commitment to implementing the important policy goals of section 255 in the Internet
service context.1420 Evidence cited in the National Broadband Plan also demonstrated that, while
broadband adoption has grown steadily, it “lags considerably” among certain groups, including
individuals with disabilities.1421 Adoption of Internet access services by persons with disabilities can
enable these individuals to achieve greater productivity, independence, and integration into society in a
variety of ways.1422 These capabilities, however, are not available to persons with disabilities if they face
barriers to Internet service usage, such as inaccessible hardware, software, or services.1423 We anticipate
that increased adoption of services and technologies accessible to individuals with disabilities will, in
turn, spur further availability of such capabilities, and of Internet access services more generally.1424
473.
Our forbearance analysis regarding sections 255, 251(a)(2), and our implementing rules
also is informed by the incremental nature of the requirements imposed.1425 In particular, the TwentyFirst Century Communications and Video Accessibility Act of 2010 (CVAA),1426 expanding beyond the

1420

See, e.g., Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in
a Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of
the Telecommunications Act of 1996, CC Docket No. 98-146, Report, 14 FCC Rcd 2398, 2437-38, paras. 75-77
(1999) (First Broadband Deployment Report) (“We caution, however, that the promise of advanced
telecommunications capability for people with disabilities will not be realized unless inherent barriers in
telecommunications products and services are removed, and accessible equipment and services are widely available
through mainstream markets. . . . [W] e are committed to taking advantage of any opportunities to encourage the
deployment of advanced telecommunications service to people with disabilities. Plans for the deployment of
advanced services should also address the needs of persons with disabilities.”); Wireline Broadband Classification
Order, 20 FCC Rcd at 14919-22, paras. 121-24 (“[T]he Commission will remain vigilant in monitoring the
development of wireline broadband Internet access service and its effects on the important policy goals of section
255. As noted above, we will exercise our Title I ancillary jurisdiction to ensure achievement of important policy
goals of section 255 and also section 225 of the Act.”).
1421

National Broadband Plan at 21; id. at 169 (stating, “Devices often are not designed to be accessible for people
with disabilities.”). See also, e.g., CFILC Dec. 17, 2014 Ex Parte Letter at 1-2.
1422

See e.g., Elizabeth E. Lyle, A Giant Leap & A Big Deal: Delivering on the Promise of Equal Access to
Broadband for People with Disabilities, 4 (FCC Omnibus Broadband Initiative, Working Paper No. 2, 2010) (OBI
Working Paper No. 2) (noting broadband allows persons with disabilities to telecommute or run a business in their
homes); CFILC Dec. 17, 2014 Ex Parte Letter at 1-2. Moreover, broadband can make telerehabilitation services
possible, by providing long-term health and vocational support within the individual’s home. See, e.g., CFILC Dec.
17, 2014 Ex Parte Letter at 2; OBI Working Paper No. 2 at 4. Broadband can also provide increased access to
online education classes and digital books and will offer real time interoperable voice, video and text capabilities for
E911. See, e.g., CFILC Dec. 17, 2014 Ex Parte Letter at 2; OBI Working Paper No. 2 at 5. In addition, as
commenters note, “society as a whole” can “benefit[] when people with disabilities have access to [broadband
Internet access] services in a manner equivalent to the non-disabled population.” CFILC Dec. 17, 2014 Ex Parte
Letter at 1.
1423

See, e.g., CFILC Dec. 17, 2014 Ex Parte Letter at 1-2; OBI Working Paper No. 2 at 4-5.

1424

Cf. Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a
Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the
Telecommunications Act of 1996, GN Docket No. 07-45, 23 FCC Rcd 9615, 9643-44, para. 57 (2008) (Fifth
Broadband Deployment Report) (through actions to extend the requirements of sections 225 and 255, “the
Commission availed broadband offerings to more Americans, which in turn increased broadband deployment
demand”).
1425

See, e.g., Ammori Dec. 19, 2014 Ex Parte Letter at 5.

1426

Twenty-First Century Communications and Video Accessibility Act of 2010, Pub. L. No. 111-260, 124 Stat.
2751 (2010) (codified in various sections of 47 USC) (CVAA), amended by Pub. L. No. 111-265, 124 Stat. 2795
(2010) (technical corrections).

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then-existing application of section 255,1427 adopted new section 716 of the Act, which requires that
providers of advanced communications services (ACS) and manufacturers of equipment used for ACS
make their services and products accessible to people with disabilities, unless it is not achievable to do so.
These mandates already apply according to their terms in the context of broadband Internet access
service.1428 The CVAA also adopted a requirement, in section 718, that ensures access to Internet
browsers in wireless phones for people who are blind and visually impaired.1429 In addition, the CVAA
directs the Commission to enact regulations to prescribe, among other things, that networks used to
provide ACS “may not impair or impede the accessibility of information content when accessibility has
been incorporated into that content for transmission through . . . networks used to provide [ACS].”1430
Finally, new section 717 creates new enforcement and recordkeeping requirements applicable to sections
255, 716, and 718.1431 Thus, a variety of accessibility requirements already have applied in the context of
broadband Internet access service under the CVAA.
474.
We are persuaded by the record of concerns about accessibility in the context of
broadband Internet access service that we should not rest solely on the protections of the CVAA,
however. But we do clarify the interplay of those provisions. At the time of section 255’s adoption in the
1996 Act, Congress stated its intent to “foster the design, development, and inclusion of new features in
communications technologies that permit more ready accessibility of communications technology by
individuals with disabilities . . . as preparation for the future given that a growing number of Americans
have disabilities.”1432 More recently, Congress adopted the CVAA after recognizing that since it added
section 255 to the Communications Act, “Internet-based and digital technologies . . . driven by growth in
broadband . . . are now pervasive, offering innovative and exciting ways to communicate and share
information.”1433 Congress thus clearly had Internet-based communications technologies in mind when
enacting the accessibility provisions of sections section 716 (as well as the related provisions of sections
717-718), and in providing important protections with respect to ACS. Thus, insofar as there is any
conflict between the requirements of sections 255, 251(a)(2), and our implementing rules, on the one
hand, and sections 716-718 and our implementing rules on the other hand, we interpret the latter
requirements as controlling.1434 On the other hand, insofar as sections 255, 251(a)(2), and our
implementing rules impose different requirements that are reconcilable with the CVAA, we find it
1427

47 U.S.C. § 617(f) (“The requirements of this section shall not apply to any equipment or services, including
interconnected VoIP service, that are subject to the requirements of section 255 of this title on the day before
October 8, 2010. Such services and equipment shall remain subject to the requirements of section 255 of this title.”).
1428

Implementation of Sections 716 and 717 of the Communications Act of 1934, as Enacted by the Twenty-First
Century Communications and Video Accessibility Act of 2010 et al., CG Docket No. 10-213 et al., Second Report
and Order, 28 FCC Rcd 5957, 5960-61, para. 7 (2013).
1429

47 U.S.C. §§ 617, 619. ACS means: “(A) interconnected VoIP service; (B) non-interconnected VoIP service;
(C) electronic messaging service; and (D) interoperable video conferencing service.” 47 U.S.C. § 153(1).
1430

47 U.S.C. § 617(e)(1)(B); see also 47 C.F.R. § 14.20(c).

1431

47 U.S.C. § 618.

1432

S. Rep. No. 104-23 at 52 (1996) (discussing what ultimately became section 255 of the Act).

1433

S. Rep. No. 111–386, at 1 (2010); H.R. Rep. No. 111-563, at 19 (2010).

1434

A general canon of interpretation is that where two statutory provisions conflict, the specific governs the
general—but we need not and do not decide the question of whether the provisions enacted by the CVAA are more
specific here because we are persuaded by the legislative history of those provisions that, insofar as there is a
conflict, the provisions of the CVAA should be controlling in any case. See, e.g., Ohio Power Co. v. FERC, 744
F.2d 162, 167-68 & n.7 (D.C. Cir. 1984) (concluding that “assuming arguendo that section 20 and 23 [of the
agreement at issue] are in conflict, it remains unclear which section provides the more specific command,” and
ultimately finding FERC’s “examination of the apparently contradicting sections thorough and its interpretation
reconciling their terms entirely reasonable”).

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appropriate to apply those additional protections in the context of broadband Internet access service for
the reasons described above.1435 Thus, for example, outside the self-described scope of the CVAA,
providers of broadband Internet access services must ensure that network services and equipment do not
impair or impede accessibility pursuant to the sections 255/251(a)(2) framework.1436 In particular, we
find that these provisions and regulations are necessary for the protection of consumers and forbearance
would not be in the public interest.1437
475.
We reject the cursory or generalized arguments of some commenters that we need not
apply these protections, or that we might defer doing so, pending further proceedings. For the reasons
discussed above, with respect to broadband Internet access service the record here persuades us that the
application of these requirements is necessary for the protection of consumers under section 10(a)(2) and
that forbearance is not in the public interest under section 10(a)(3). Nor are we otherwise persuaded to
stay or waive our implementing rules based on this record. Commenters opposing the application of these
protections with respect to broadband Internet access service either with no limit on time, or specifically
in the near term, make general arguments about the associated burdens. However, they do not include a
meaningful analysis of why the section 10(a) criteria are met (or why relief otherwise should be granted)

1435

See, e.g., Detweiler v. Pena, 38 F.3d 591, 594 (D.C. Cir. 1994) (“‘[W]hen two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard
each as effective.’”) (quoting Morton v. Mancari, 417 U.S. 535, 551 (1974)) (alteration in original). We recognize
that the Commission previously has held that “[s]ection 2(a) of the CVAA exempts entities, such as Internet service
providers, from liability for violations of Section 716 when they are acting only to transmit covered services or to
provide an information location tool. Thus, service providers that merely provide access to an electronic messaging
service, such as a broadband platform that provides an end user with access to a web-based e-mail service, are
excluded from the accessibility requirements of Section 716.” Implementation of Sections 716 and 717 of the
Communications Act of 1934, as Enacted by the Twenty-First Century Communications and Video Accessibility Act
of 2010 et al., CG Docket No. 10-213 et al., Report and Order and Further Notice of Proposed Rulemaking, 26 FCC
Rcd 14557, 14576, para. 45 (2011). Our decision here is not at odds with Congress’ approach to such services under
the CVAA, however, because we also have found that “relative to Section 255, Section 716 requires a higher
standard of achievement for covered entities.” Implementation of Sections 716 and 717 of the Communications Act
of 1934, as Enacted by the Twenty-First Century Communications and Video Accessibility Act of 2010 et al., CG
Docket No. 10-213 et al., Notice of Proposed Rulemaking, 26 FCC Rcd 3133, 3136-37, para. 5 (2011). Thus, under
our decision here, broadband Internet access service will remain excluded from the “higher standard of
achievement” required by the CVAA to the extent provided by that law, and instead will be subject to the lower
standard imposed under section 255 in those cases where the CVAA does not apply.
1436

See 47 C.F.R. § 6.9. Because this section requires pass through of telecommunications in an accessible format,
and 47 C.F.R. § 14.20(c) requires pass through of ACS in an accessible format, the two sections work in tandem
with each other, and forbearance from sections 255 and 251(a)(2) would therefore result in a diminution of
accessibility.
1437

We recognize that section 716 provides that “[t]he requirements of this section shall not apply to any equipment
or services, including interconnected VoIP service, that are subject to the requirements of section 255 of this title on
the day before October 8, 2010. Such services and equipment shall remain subject to the requirements of section 255
of this title.” 47 U.S.C. § 617(f). We do not read that as requiring that section 716 must necessarily be mutually
exclusive with section 255, however. Had Congress wished to achieve that result, it easily instead could have stated
that “the requirements of this section shall not apply to any equipment or services . . . that are subject to the
requirements of section 255” (or vice versa) and left it at that. By also including the limiting language “that are
subject to the requirements of section 255 of this title on the day before October 8, 2010,” we believe the statute
reasonably is interpreted as leaving open the option that services that become subject to section 255 thereafter also
could be subject to both the requirements of section 255 and the requirements of the CVAA. Indeed, although
broadband Internet access previously was classified as an information service and thus not subject to section 255 on
October 8, 2010, at the time the CVAA was enacted the Commission had initiated the 2010 NOI to consider whether
to reclassify that service as a telecommunications service, which would, at that time, become subject to section 255
as a default matter.

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nor why the concerns they identify—even assuming arguendo that they were borne out by evidence
beyond that currently in the record—should outweigh the disability access concerns identified here.1438
476.
We also reject arguments that section 706 itself provides adequate protections such that
forbearance from the disability access provisions of sections 225, 255 and 251(a)(2) and associated
regulations is warranted.1439 While section 706 of the 1996 Act would continue to apply even if we
granted forbearance here, consistent with our conclusions in other sections, we find that these disability
access provisions provide a more certain foundation for evaluating providers’ conduct and pursuing
enforcement if warranted in relevant circumstances arising in the future.1440 Among other things, while
our interest in ensuring disability access often may have a nexus with the standards of sections 706(a) and
(b), the record does not reveal that the public interest in ensuring access for persons with disabilities is
limited just to the universe of concerns encompassed by section 706.
477.
In addition to the provisions discussed above, section 710 of the Act addresses hearing
aid compatibility.1441 Given the important additional protections for persons with disabilities enabled by
this provision,1442 we anticipate addressing the applicability of mobile wireless hearing aid compatibility
requirements to mobile broadband Internet access service devices in the pending rulemaking
proceeding.1443
1438

See, e.g., MediaFreedom Comments at 2; TIA Comments at 17. See also, e.g., Letter from COMPTEL, CCIA,
Engine and IFBA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 1-2 n.1 (filed Dec. 30, 2014)
(noting the possibility of deferral). Some commenters contend that the Commission should forbear from all of Title
II based on generalized arguments about the marketplace, such as past network investment or changes in
performance or price per megabit in the recent past. See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 10-11; Comcast
Dec. 24, 2014 Ex Parte Letter at 4-6; NCTA Dec. 23, 2014 Ex Parte Letter at 19-20. We are not persuaded that
those arguments justify a different outcome as to any of the disability access provisions or requirements at issue in
this section, both for the reasons discussed previously, see supra Section V.B.1, and because commenters do not
meaningfully explain how these arguments impact the section 10 analysis here, given that the need to protect
disability access is not self-evidently linked to such marketplace considerations. Nothing in the record suggests that
concerns about disability access are limited to broadband providers of a particular size, and we thus are not
persuaded that a different conclusion in our forbearance analysis should be reached in the case of small broadband
providers, for example. See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 11; AireBeam Jan. 30, 2015 Ex Parte Letter
at 2.
1439

See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 11; NCTA Jan. 14, 2015 Ex Parte Letter at 3-4.

1440

See, e.g., supra Section III.F.4. We also note, for example, that this approach obviates the need to determine
whether or to what extent these disability access provisions are more specific than section 706 of the 1996 Act in
relevant respects, and thus could be seen as exclusively governing over the provisions of section 706 of the 1996 Act
as to some set of disability access issues. Cf. Bloate v. U.S., 559 U.S. 196, 208 (2010) (“‘[g]eneral language of a
statutory provision, although broad enough to include it, will not be held to apply to a matter specifically dealt with
in another part of the same enactment’”) (citation omitted). The approach we take avoids this potential uncertainty,
and we thus need not and do not address this question.
1441

See generally 47 U.S.C. § 610.

1442

For reasons similar to those discussed in the text above regarding other disability access provisions, we do not
find it in the public interest to grant forbearance from section 710 of the Act, nor do we find such forbearance
otherwise warranted under the section 10(a) criteria. 47 U.S.C. § 160(a).
1443

See, e.g., Request For Updated Information and Comment On Wireless Hearing Aid Compatibility Regulations,
WT Docket Nos. 07-250, 10-254, Public Notice, 29 FCC Rcd 13969 (Wireless Telecom. Bureau, Consumer &
Gov’t Affairs Bureau 2014) (discussing pending proceeding and seeking updated comment). We note that the
Commission’s existing implementing rules do not immediately impose the Commission’s hearing aid compatibility
requirements implementing section 710 of the Act on mobile wireless broadband providers by virtue of the
classification decisions in this Order. We note, however, that certain obligations in the Commission’s rules
implementing section 255 addressing interference with hearing technologies and the effective wireless coupling to
hearing aids, see e.g., 47 C.F.R. §§ 6.3(a)(2)(viii), (ix); 6.5; 7.1(a)(2)(viii), (ix); 7.5, may be appropriately imposed
(continued….)

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Access to Poles, Ducts, Conduit and Rights-of-Way (Section 224)

478.
Consistent with the recommendations of certain broadband provider commenters,
because we find that the section 10(a) criteria are not met, we decline to forbear from applying section
224 and the Commission’s associated rules with respect to broadband Internet access service.1444 Section
224 of the Act governs the Commission’s regulation of pole attachments. The Commission has
recognized repeatedly the importance of pole attachments to the deployment of communications
networks, and we thus conclude that applying these provisions will help ensure just and reasonable rates
for broadband Internet access service by continuing pole access and thereby limiting the input costs that
broadband providers otherwise would need to incur.1445 Leveling the pole attachment playing field for
new entrants that offer solely broadband services also removes barriers to deployment and fosters
additional broadband competition.1446 For similar reasons we find that applying these provisions will
protect consumers and advance the public interest under sections 10(a)(2) and (a)(3).1447
479.
Further, in significant part, section 224 imposes obligations on utilities, as owners of
poles, ducts, conduits, or rights-of-way, to ensure that cable operators and telecommunications carriers
obtain access to poles on just, reasonable, and nondiscriminatory rates, terms and conditions.1448 The
definition of a utility, however, includes entities other than telecommunications carriers,1449 and pole
attachments themselves are not “telecommunications services.” Section 10 allows the Commission to
forbear from statutory requirements and implementing regulations as applied to “a telecommunications
(Continued from previous page)
on such providers by virtue of this Order, given our decision not to forbear from application of section 255 and its
implementing regulations.
1444

See, e.g., Comcast Dec. 24, 2014 Ex Parte Letter at 25 n.107; NCTA Dec. 23, 2014 Ex Parte Letter at 21. See
also, e.g., Letter from Marvin Ammori and Julie Samuels, to Marlene H. Dortch, Secretary, FCC, GN Docket No.
14-28 at 1 (filed Nov. 12, 2014) (“Title II forbearance should be implemented in such a way so as to encourage
continued deployment and investment in networks by for example preserving pole attachment rights.”); Letter from
Austin C. Schlick, Director, Communications Law, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at
3-4 (filed Dec. 30, 2014) (Google Dec. 30, 2014 Ex Parte Letter).
1445

See, e.g., Implementation of Section 224 of the Act, A National Broadband Plan for Our Future, WC Docket No.
07-245, GN Docket No. 09-51, Report and Order and Order on Reconsideration, 26 FCC Rcd 5240, 5241-43, paras.
1-6 (2011) (2011 Pole Attachment Order). See also, e.g., Google Dec. 30, 2014 Ex Parte Letter at 3-4; Vonage Jan.
7, 2015 Ex Parte Letter at 1.
1446

See, e.g., Google Dec. 30, 2014 Ex Parte Letter at 3-4; Letter from Stephen E. Coran, Counsel for WISPA, to
Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 13-14 (filed Feb. 3, 2015).
1447

Some commenters contend that the Commission should forbear from all of Title II based on generalized
arguments about the marketplace, such as past network investment or changes in performance or price per megabit
in the recent past. See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 10-11; Comcast Dec. 24, 2014 Ex Parte Letter at
4-6; NCTA Dec. 23, 2014 Ex Parte Letter at 19-20. We are not persuaded that those arguments justify a different
outcome regarding section 224 and our associated rules, both for the reasons discussed previously, see supra Section
V.B.1, and because commenters do not meaningfully explain how these arguments impact the section 10 analysis
here, given that the need for regulated access to access to poles, ducts, conduit, and rights-of-way is not selfevidently linked to such marketplace considerations. Nor does the record reveal that concerns about adequate access
to poles, ducts, conduit and rights-of-way are limited to broadband providers of a particular size, and we thus are not
persuaded that these concerns would differ in the case of small broadband providers, for example. See, e.g., ACA
Jan. 12, 2015 Ex Parte Letter at 11; AireBeam Jan. 30, 2015 Ex Parte Letter at 2.
1448

47 U.S.C. § 224(a)-(e).

1449

See 47 U.S.C. § 224(a)(1) (defining a utility as “any person who is a local exchange carrier or an electric, gas,
water, steam, or other public utility, and who owns or controls poles, ducts, conduits, or rights-of-way used, in
whole or in part, for any wire communications. . . . ”); see also 47 U.S.C. § 224(a)(5) (“For purposes of this section,
the term ‘telecommunications carrier’ (as defined in section 153 of this title) does not include any incumbent local
exchange carrier as defined in section 251(h) of this title.”).

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carrier or telecommunications service,” or class thereof, if the statutory criteria are satisfied.1450 To the
extent that section 224 imposes obligations on entities other than telecommunications carriers, it is not
within the Commission’s authority to forbear from this provision and our implementing rules under
section 10.
480.
Moreover, even if the Commission could forbear from the entirety of section 224
notwithstanding the concerns with such forbearance noted above, it is doubtful that this approach would
leave us with authority to regulate the rates for attachments used for broadband Internet access service. In
particular, such forbearance seemingly would eliminate any requirements governing pole owners’ rates
for access to poles by telecommunications carriers or cable operators. Such an outcome would not serve
the public interest.
481.
We also are not persuaded that we could forbear exclusively from the telecom rate
formula in section 224(e), and then adopt a lower rate—such as the cable rate—pursuant to section
224(b). In particular, applying the ‘specific governs the general’ canon of statutory interpretation, the
Supreme Court interpreted the rate formulas in sections 224(d) and (e) as controlling, within their selfdescribed scope, over the Commission’s general authority to ensure just and reasonable rates for pole
attachments under section 224(b).1451 We question whether forbearing from applying section 224(e)
would actually alter the scope of our authority under section 224(b), or if instead rates for carriers’
telecommunications service attachments would remain governed by the (now forborne-from) section
224(e), leaving a void as to regulation of rates for such attachments. Further, attempting to use an
approach like this to regulate pole rental rates more stringently to achieve lower rates, the Commission
seemingly would be using forbearance to increase regulation. Given the deregulatory purposes
underlying the adoption of section 10, we do not believe that the use of forbearance in that manner would
be in the public interest.1452
482.
Although we are not persuaded that forbearance would be appropriate to address these
concerns, we are committed to avoiding an outcome in which entities misinterpret today’s decision as an
excuse to increase pole attachment rates of cable operators providing broadband Internet access
service.1453 To be clear, it is not the Commission’s intent to see any increase in the rates for pole
attachments paid by cable operators that also provide broadband Internet access service, and we caution
utilities against relying on this decision to that end. This Order does not itself require any party to
1450

47 U.S.C. § 160(a) (“[T]he Commission shall forbear from applying any regulation or any provision of this
chapter to a telecommunications carrier or telecommunications service . . . .”).
1451

NCTA v. Gulf Power, 534 U.S. 327, 335-36 (2002).

1452

See, e.g., United States Telecom Association Petition For Forbearance Under 47 U.S.C. § 160(c) From
Enforcement of Certain Legacy Telecommunications Regulations, WC Docket No. 12-61, Order, 28 FCC Rcd 2605,
2608, para. 3 (2013).
1453

See, e.g., Letter from Thomas Cohen and Edward A. Yorkgitis, Jr., Counsel for ACA, to Marlene H. Dortch,
Secretary, FCC, GN Docket No. 14-28 at 2-3 (filed Jan. 20, 2015) (ACA Jan. 20, 2015 Ex Parte Letter); NCTA
Dec. 23, 2014 Ex Parte Letter at 21 n.107. By virtue of the 1996 Act revisions, section 224 of the Act now sets
forth two separate formulas to determine the maximum rates for pole attachments—one applies to pole attachments
used by providers of telecommunications services (the telecom rate formula), and the other to pole attachments used
“solely to provide cable service” (the cable rate formula). 47 U.S.C. §§ 224(d), (e). In recognition of these
differences, Congress provided that rates under the telecom rate formula would be phased in over a five-year period,
47 U.S.C. § 224(e)(4), although the Commission has sought to minimize the disparity in rates. See generally 2011
Pole Attachment Order. To the extent that commenters express concern about possible rate changes following our
reclassification of broadband Internet access under that statutory and regulatory framework, see ACA Jan. 20, 2015
Ex Parte Letter at 2-3; NCTA Dec. 23, 2014 Ex Parte Letter at 21 n.107, we are not persuaded on this record that
forbearance would be a viable way to address them, for the reasons discussed below. Nor do such arguments
persuade us not to reclassify broadband Internet access service, since in reclassifying that service we simply
acknowledge the reality of how it is being offered today. See supra Section IV.

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increase the pole attachment rates it charges attachers providing broadband Internet access service, and
we would consider such outcomes unacceptable as a policy matter.
483.
We note in this regard that in the 2011 Pole Attachment Order, the Commission
undertook comprehensive reform of pole attachment rules—including by revising the telecommunications
rate formula for pole attachments in a way that “generally will recover the same portion of pole costs as
the current cable rate.”1454 As NCTA, COMPTEL and tw telecom observed following that Order, the
Commission’s “expressed intent of providing rate parity between telecommunications providers and cable
operators by amending the telecommunications formula to produce rates comparable to the cable
formula—thereby removing the threat of potential rate increases associated with new services and
reducing the incentives for pole owners to dispute the legal classification of communications services—
will provide much-needed regulatory certainty that will permit broadband providers to extend their
networks to unserved communities while fairly compensating pole owners.”1455 However, these parties
also expressed concern that the particular illustration used by the Commission in the rule text could be
construed as suggesting that the new formula includes only instances where there are three and five
attaching entities, rather than providing the “corresponding cost adjustments scaled to other entity
counts.”1456 We are concerned by any potential undermining of the gains the Commission achieved by
revising the pole attachment rates paid by telecommunications carriers. We accordingly will be
monitoring marketplace developments following this Order and can and will promptly take further action
in that regard if warranted.
484.
To the extent that there is a potential for an increase in pole attachment rates for cable
operators that also provide broadband Internet access service, we are highly concerned about its effect on
the positive investment incentives that arise from new providers’ access to pole infrastructure. We are
encouraged by entry into the marketplace of parties that offer broadband Internet access service, and we
believe that providing these new parties with access to pole infrastructure under section 224 would
outweigh any hypothetical rise in pole attachment rates for some incumbent cable operators in some
circumstances1457 —particularly in light of our expressed intent to take prompt action if necessary to
address the application of the Commission’s pole rental rate formulas in a way that removes any doubt
concerning the advancement of the goals intended by our 2011 reforms. Moreover, subsumed within our
finding that today’s decision does not justify any increase in pole attachment rates is an emphatic
conclusion that no utility could impose any increase retroactively.1458
485.
We also reject arguments that section 706 itself provides adequate protections such that
forbearance from the pole access provisions of section 224 and related regulations is warranted.1459 While
section 706 of the 1996 Act would continue to apply even if we granted forbearance here, consistent with
our conclusions in other sections, we find that section 224 and our implementing regulations provide a
more certain foundation for evaluating providers’ conduct and pursuing enforcement if warranted in
relevant circumstances arising in the future.1460
1454

2011 Pole Attachment Order, 26 FCC Rcd at 5244, para. 8.

1455

Petition for Reconsideration or Clarification of the National Cable & Telecommunications Association,
COMPTEL and tw telecom Inc., WC Docket No. 07-245, GN Docket No. 09-51 at 2 (filed June 8, 2011),
http://apps.fcc.gov/ecfs/document/view?id=7021686399.
1456
1457

Id. at 6.
See, e.g., Google Dec. 30, 2014 Ex Parte Letter at 2-4.

1458

Letter from Samuel L. Feder, Counsel to Charter, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 1428, 10-127, 07-245 (filed Feb. 18, 2015).
1459

See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 11; NCTA Jan. 14, 2015 Ex Parte Letter at 3-4.

1460

See, e.g., supra Section III.F.4. We also note, for example, that this approach obviates the need to determine
whether or to what extent section 224’s pole access provisions are more specific than section 706 of the 1996 Act in
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Universal Service Provisions (Sections 254, 214(e))

486.
We find the statutory test is met to grant certain forbearance under section 10(a) from
applying sections 254(d), (g), and (k), as discussed below, but we otherwise will apply section 254,
section 214(e) and our implementing rules with respect to broadband Internet access service, as
recommended by a number of commenters.1461 Section 254, the statutory foundation of our universal
service programs, requires the Commission to promote universal service goals, including “[a]ccess to
advanced telecommunications and information services . . . in all regions of the Nation.”1462 Section
214(e) provides the framework for determining which carriers are eligible to participate in universal
service programs.1463 Even prior to the classification of broadband Internet access service adopted here,
the Commission already supported broadband services to schools, libraries, and health care providers and
supported broadband-capable networks in high-cost areas.1464 Broadband Internet access service was, and
is, a key focus of those universal service policies, and classification today simply provides another
statutory justification in support of these policies going forward. Under our broader section 10(a)(3)
public interest analysis, the historical focus of our universal service policies on advancing end-users’
access to broadband Internet access service persuades us to give much less weight to arguments that we
should proceed incrementally in this context. In particular, the Commission already has provided support
for deployment of broadband-capable networks and imposed associated public interest obligations
requiring the provision of broadband Internet access service. In connection with the Lifeline program, for
instance, the Commission has established the goal of “ensuring the availability of broadband service for
low-income Americans.”1465 We therefore conclude that these universal service policy-making provisions
of section 254, and the interrelated requirements of section 214(e), give us greater flexibility in pursuing
those policies, and outweighs any limited incremental effects (if any) on broadband providers in this
context.1466 Because forbearance would not be in the public interest under section 10(a)(3), we apply
(Continued from previous page)
relevant respects, and thus could be seen as exclusively governing over the provisions of section 706 of the 1996 Act
as to some set of pole access issues. Cf. Bloate v. U.S., 559 U.S. 196, 208 (2010) (“‘[g]eneral language of a
statutory provision, although broad enough to include it, will not be held to apply to a matter specifically dealt with
in another part of the same enactment’”) (citation omitted). The approach we take avoids this potential uncertainty,
and we thus need not and do not address this question.
1461

See, e.g., NMR Comments at 25-26; Public Knowledge et al. Comments at 95; Rural Broadband Policy Group
Comments at 8-9; Telecommunications for the Deaf and Hard of Hearing Comments at 13; Ammori Dec. 19, 2014
Ex Parte Letter at 5.
1462

47 U.S.C. § 254(b)(2).

1463

47 U.S.C. § 214(e). More specifically, an entity must be designated an eligible telecommunications carrier
(ETC) under section 214(e) in order to get high-cost or Lifeline support, but the same constraint does not apply with
respect to receipt of support under the E-rate or Rural Health Care programs. See 47 C.F.R. § 54.201(a).
1464

See, e.g., Modernizing the E-Rate Program for Schools and Libraries, WC Docket No. 13-184, Report and
Order and Further Notice of Proposed Rulemaking, 29 FCC Rcd 8870, 8895-95, paras. 67-75 (2014); Rural Health
Care Support Mechanism, WC Docket No. 02-60, Report and Order, 27 FCC Rcd 16678, 16700-01, 16704, 16715,
paras. 49, 59, 79-80 (2012); USF/ICC Transformation Order, 26 FCC Rcd at 17683-91, paras. 60-73.
1465

Lifeline and Link Up Reform and Modernization; Lifeline and Linkup; Federal-State Joint Board on Universal
Service; Advancing Broadband Availability Through Digital Literacy Training, WC Docket Nos. 12-23, 11-42, 03109, CC Docket No. 96-45, Report and Order and Further Notice of Proposed Rulemaking, 27 FCC Rcd 6656, 6673,
para. 33 (2012).
1466

We note that commenters opposing the application of section 254 as a whole (or those provisions of section 254
from which we do not forbear below) or arguing that such action could be deferred pending future proceedings,
appear to make only generalized, non-specific arguments, which we do not find sufficient to overcome our analysis
above. See, e.g., TIA Comments at 17; ADTRAN Reply at 17-18. See also, e.g., Letter from COMPTEL, CCIA,
Engine and IFBA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 1-2 n.1 (filed Dec. 30, 2014)
(noting the possibility of deferral). In addition, some commenters contend that the Commission should forbear from
(continued….)

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these provisions of section 254 and 214(e) and our implementing rules with respect to broadband Internet
access service.
487.
We also reject arguments that section 706 itself provides adequate protections such that
forbearance from the provisions of sections 254 and 214(e) discussed above is warranted.1467 While
section 706 of the 1996 Act would continue to apply even if we granted forbearance here, we find that
these provisions provide a more certain foundation for implementing our universal service policies and
enforcing our associated rules, consistent with our conclusions in other sections.1468 Among other things,
while our interest in ensuring universal service often may have a nexus with the standards of sections
706(a) and (b), the record does not reveal that the public interest in ensuring universal access is limited
just to the universe of concerns encompassed by section 706.
488.
Notwithstanding the foregoing, for now we do forbear in part from the first sentence of
section 254(d) and our associated rules insofar as they would immediately require new universal service
contributions associated with broadband Internet access service. The first sentence of section 254(d)
authorizes the Commission to impose universal service contributions requirements on
telecommunications carriers—and, indeed, goes even further to require “[e]very telecommunications
carrier that provides interstate telecommunications services” to contribute.1469 Under that provision and
our implementing rules, providers are required to make federal universal service support contributions for
interstate telecommunications services, which now would include broadband Internet access service by
virtue of the classification decision in this order.1470
489.
Consistent with our analysis of TRS contributions above, we note that on one hand,
newly applying universal service contribution requirements on broadband Internet access service
(Continued from previous page)
all of Title II based on generalized arguments about the marketplace, such as past network investment or changes in
performance or price per megabit in the recent past. See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 10-11; Comcast
Dec. 24, 2014 Ex Parte Letter at 4-6; NCTA Dec. 23, 2014 Ex Parte Letter at 19-20. We are not persuaded that
those arguments justify a different outcome regarding section 254, both for the reasons discussed previously, see
supra Section V.B.1, and because commenters do not meaningfully explain how these arguments impact the section
10 analysis here, given that, even taken at face value, arguments based on such marketplace considerations do not
purport to sufficiently address the policy concerns underlying section 254 and our universal service programs.
Nothing in the record suggests that we should tailor our advancement of universal service policies to broadband
providers of a particular size, and we thus are not persuaded that a different conclusion in our forbearance analysis
should be reached in the case of small broadband providers, for example. See, e.g., ACA Jan. 12, 2015 Ex Parte
Letter at 11; AireBeam Jan. 30, 2015 Ex Parte Letter at 2.
1467

See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 11; NCTA Jan. 14, 2015 Ex Parte Letter at 3-4.

1468

See, e.g., supra Section III.F.4. See also, e.g., Connect America Fund et al., WC Docket No. 10-90 et al., Notice
of Proposed Rulemaking, 26 FCC Rcd 4554, 4579, para. 67 (2011) (seeking comment on whether a universal
service mechanism based exclusively on section 706 of the 1996 Act would raise issues under federal appropriations
laws). We also note, for example, that this approach obviates the need to determine whether or to what extent these
universal service provisions are more specific than section 706 of the 1996 Act in relevant respects, and thus could
be seen as exclusively governing over the provisions of section 706 of the 1996 Act as to some set of universal
issues. Cf. Bloate v. U.S., 559 U.S. 196, 208 (2010) (“‘[g]eneral language of a statutory provision, although broad
enough to include it, will not be held to apply to a matter specifically dealt with in another part of the same
enactment’”) (citation omitted). The approach we take avoids this potential uncertainty, and we thus need not and
do not address this question.
1469

47 U.S.C. § 254(d) (“Every telecommunications carrier that provides interstate telecommunications services
shall contribute, on an equitable and nondiscriminatory basis, to the specific, predictable, and sufficient mechanisms
established by the Commission to preserve and advance universal service.”). In implementing that statutory
provision, the Commission concluded that federal contributions would be based on end-user telecommunications
revenues. 47 C.F.R. § 54.706(c).
1470

Id.; 47 C.F.R. §§ 54.706-54.713.

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potentially could spread the base of contributions to the universal service fund, providing at least some
benefit to customers of other services that contribute, and potentially also to the stability of the universal
service fund through the broadening of the contribution base. We note, however, that the Commission
has sought comment on a wide range of issues regarding how contributions should be assessed, including
whether to continue to assess contributions based on revenues or to adopt alternative methodologies for
determining contribution obligations.1471 We therefore conclude that limited forbearance is warranted at
the present time in order to allow the Commission to consider the issues presented based on a full record
in that docket.1472
490.
As reiterated in our discussion of TRS contributions above, courts have recognized when
exercising its section 10 forbearance authority “[g]uided by section 706,” the Commission permissibly
may “decide[] to balance the future benefits” of encouraging broadband deployment “against [the] short
term impact” from a grant of forbearance.1473 Our decision, guided by section 706, to tailor the
regulations applied to broadband Internet access service thus tips the balance in favor of the finding that
applying new universal service fund contribution requirements at this time is not necessary to ensure just
and reasonable rates and practices or for the protection of consumers under sections 10(a)(1) and (a)(2),
and that forbearance is in the public interest under section 10(a)(3) while the Commission completes its
pending rulemaking regarding contributions reform.1474 The competing considerations here make this a
closer call under our section 10(a) analysis, however, and thus as in the TRS contribution context, we
limit our action only to forbearing from applying the first sentence of section 254(d) and our
implementing rules insofar as they would immediately require new universal service contributions for
broadband Internet access services sold to end users but not insofar as they authorize the Commission to
require such contributions in a rulemaking in the future.1475 Thus, while broadband Internet access

1471

Universal Service Contribution Methodology; A National Broadband Plan For Our Future, WC Docket No. 06122, GN Docket No. 09-51, Further Notice of Proposed Rulemaking, 27 FCC Rcd 5357 (2012). Moreover, the
Commission has referred the question of how the Commission should modify the universal service contribution
methodology to the Federal-State Joint Board on Universal Service (Joint Board) and requested a recommended
decision by April 7, 2015. Federal State Joint Board on Universal Service; Universal Service Contribution
Methodology; A National Broadband Plan For Our Future, WC Docket Nos. 96-45, 06-122, GN Docket No. 09-51,
Order, 29 FCC Rcd 9784 (2014). We recognize that a short extension of that deadline for the Joint Board to make
its recommendation to the Commission may be necessary in light of the action we take today. Our action in this
Order thus will not “short circuit” the rulemaking concerning contributions issues as some commenters fear. NTCA
Jan. 8, 2015 Ex Parte Letter at 2; see also, e.g., Letter from Andrew M. Brown, Counsel, Ad Hoc, to Marlene H.
Dortch, Secretary, FCC, GN Docket No. 14-28, at 3 (filed Jan. 30, 2015).
1472

As noted below, we do not forbear from the mandatory obligation of carriers that have chosen voluntarily to
offer broadband as a Title II service to contribute to the federal universal service fund. Because we do nothing today
to disturb the status quo with respect to current contributions obligations for the reasons explained above, and there
will be a future opportunity to consider these issues in the contributions docket, we find that certain arguments
raised in the record today are better taken up in that proceeding. See, e.g., Letter from Michael R. Romano, Senior
Vice President—Policy, NTCA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 3 (filed Jan. 8,
2015) (NTCA Jan. 8, 2015 Ex Parte Letter); Letter from Michael R. Romano, Senior Vice President—Policy,
NTCA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 3 (filed Jan. 13, 2015) (NTCA Jan. 13,
2015 Ex Parte Letter);COMPTEL Comments at 22-23.
1473

EarthLink, 462 F.3d at 9.

1474

While some commenters cite regulatory parity as a reason not to forbear from universal service contribution
requirements, they do not explain how such concerns are implicated insofar as every provider’s broadband Internet
access service is subject to this same forbearance from universal service contribution requirements. See, e.g.,
COMPTEL Comments at 22-23. In any event, those arguments are better addressed in the contributions rulemaking
docket based on the full record developed therein.
1475

See supra para.470. See also infra paras.495-496; Section V.C.2.a.

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services will not be subject to new universal service contributions at this time,1476 our action today is not
intended to prejudge or limit how the Commission may proceed in the future.1477
491.
Nothing in our forbearance with respect to the first sentence of section 254(d) for
broadband Internet access service is intended to encompass, however, situations where incumbent local
exchange carriers or other common carriers voluntarily choose to offer Internet transmission services as
telecommunications services subject to the full scope of Title II requirements for such services. As a
result, such providers remain subject to the mandatory contribution obligations that arise under section
254(d) and the Commission’s rules by virtue of their elective provision of such services until such time as
the Commission further addresses contributions reform in the pending proceeding.
492.
We also forbear from applying sections 254(g) and (k) and our associated rules. Section
254(g) requires “that the rates charged by providers of interexchange telecommunications services to
subscribers in rural and high cost areas shall be no higher than the rates charged by each such provider to
its subscribers in urban areas.”1478 Section 254(k) prohibits the use of revenues from a non-competitive
service to subsidize a service that is subject to competition.1479 Commenters’ arguments to apply
provisions of section 254 appear focused on the provisions dealt with above—i.e., provisions providing
for support of broadband networks or services or addressing universal service contributions—and do not
appear to focus at all on why we should not forbear from applying the requirements of sections 254(g)
and (k) and our implementing rules. In particular, consistent with the more detailed discussion in our
analysis below, we are not persuaded that applying these provisions is necessary for purposes of sections
10(a)(1) and (a)(2), particularly given the availability of the core broadband Internet access service
requirements.1480 Likewise, under the tailored regulatory approach we find warranted here, informed by
our responsibilities under section 706, we conclude that forbearance from enforcing sections 254(g) and
(k) is in the public interest under section 10(a)(3).1481 We thus forbear from applying these provisions
insofar as they would be newly triggered by the classification of broadband Internet access service in this
Order. Nothing in our forbearance with respect to section 254(k) for broadband Internet access service is
intended to encompass, however, situations where incumbent local exchange carriers or other common
1476

While a recent court case, seemingly in dicta, suggested that forbearance is informal rulemaking, the
Commission has not expressly resolved that question. Compare Verizon v. FCC, 770 F.3d 961, 966-67 (D.C. Cir.
2014) with, e.g., Petition To Establish Procedural Requirements To Govern Proceedings For Forbearance Under
Section 10 Of The Communications Act Of 1934, As Amended, WC Docket No. 07-267, Report and Order, 24 FCC
Rcd 9543, 9554, para. 19 n.72, para. 20 (2009). We need not and do not address that broader question here because
in this case the Commission has, in fact, proceeded via rulemaking.
1477

Because our action today precludes for the time being federal universal service contribution assessments on
broadband Internet access services that are not currently assessed, we conclude that any state requirements to
contribute to state universal service support mechanisms that might be imposed on such broadband Internet access
services would be inconsistent with federal policy and therefore are preempted by section 254(f)—at least until such
time that the Commission rules on whether to require federal universal service contributions by providers of
broadband Internet access service. 47 U.S.C. § 254(f) (“A State may adopt regulations not inconsistent with the
Commission's rules to preserve and advance universal service.”). We note that we are not aware of any current state
contribution obligation for broadband Internet access service; our understanding is that broadband providers that
voluntarily offer Internet transmission as a Title II service treat 100 percent of those revenues as interstate. We
recognize that section 254 expressly contemplates that states will take action to preserve and advance universal
service, and our actions in this regard will benefit from further deliberation. See 47 U.S.C. §§ 254(b)(5), 254(f);
Letter from James Ramsey, General Counsel, NARUC, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 1428, at 1-2 (filed Jan. 30, 2015).
1478

47 U.S.C. § 254(g).

1479

47 U.S.C. § 254(k).

1480

See infra paras. 495-496; Section V.C.2.a.

1481

See infra paras. 495-496; Section V.C.2.a.

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carriers voluntarily choose to offer Internet transmission services as telecommunications services subject
to the full scope of Title II requirements such services. As a result, such providers remain subject to the
obligations that arise under section 254(k) and the Commission’s rules by virtue of their elective
provision of such services.1482
2.

Broad Forbearance From 27 Title II Provisions For Broadband Internet
Access Service

493.
Beyond those core broadband Internet access service requirements we grant extensive
forbearance as permitted by our authority under section 10 of the Act based on our predictive judgment
regarding the adequacy of other protections where needed, coupled with the role of section 706 of the
1996 Act and our desire to tailor the requirements that should apply here, likewise persuade us that this
forbearance is in the public interest. The analyses and forbearance decisions regarding broadband
Internet access service reflect the broad support in the record for expansive forbearance.1483 With respect
to proposals to retain particular statutory provisions or requirements, we are not persuaded by the record
here that forbearance is not justified for the reasons discussed below.

1482

See, e.g., Wireline Broadband Classification Order, 20 FCC Rcd at 14927-29, paras. 139-44 (discussing the
application of section 254(k) and related cost-allocation rules). For example, if a rate-of-return incumbent LEC (or
other provider) voluntarily offers Internet transmission outside the forbearance framework adopted in this Order, it
remains subject to the pre-existing Title II rights and obligations, including those from which we forbear in this
Order.
1483

See, e.g., AARP Comments at 42 (“Other than Sections 201, 202, and 208, the Commission should forbear from
other Title II provisions as it reclassifies. The reclassification will resolve the problems identified by the D.C.
Circuit, and allow the Commission to reestablish certainty regarding edge providers’ ability to access their users and
customers, and consumers’ ability to access the legal content and services of their choice.”); Consumer Watchdog
Comments at 5 (“Because the Communications Act was approved before the existence of the Internet, some
provisions of Title II are no longer applicable. The Commission can easily ‘forbear’ from implementing those
provisions that are no longer relevant.”); Consumers Union Comments at 11 (“The Commission can narrowly target
this framework to best suit the particular needs of broadband service using its forbearance power under Section 10
of the Communications Act. . . . [It thus can] maintain[] a light regulatory touch appropriate for broadband.”); EFF
Comments at 16-17 (“[R]ules regarding such things as ‘tariff filing, price regulation, and other features of monopoly
telephone regulation could be taken off the table from the start. Ultimately, the end result would most likely be
‘Title II light,’ not the burdensome regulatory structure carriers decry.’”); WGAW Comments at 31 (“In the case of
broadband Internet access providers, the Commission need not impose the whole gamut of Title II authority.
Instead, it can employ a light regulatory touch by tailoring rules under Title II to the specific characteristics of
Internet distribution.”); Sidecar Technologies Reply at 6 (“[T]he FCC should not assert outdated, unneeded
authorities found in Title II and should immediately forbear from much of Title II of the Act. Specifically, we
encourage the FCC not to forbear from sections 201, 202, and 208 . . . . ”); Vonage Reply at 32 (“Rather than debate
each individual section of Title II in its forbearance analysis, the Commission could limit its Title II authority to
those provisions necessary to adopt and enforce Open Internet rules and forbear from applying all other provisions
and rules under Title II that do not bear on the Open Internet rules originally codified in 2010”); Letter from
Markham C. Erickson, Counsel for Netflix, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 1-2
(filed Dec. 5, 2014) (“To generate open Internet rules, the Commission can and should forbear from the vast
majority of Title II provisions.”); Internet Association Jan. 6, 2015 Ex Parte Letter at 2 (“Most of the provisions of
Title II, including regulating retail rates, do not appear necessary to further any of these [section 10] goals in the
Internet context.”); Letter from Barbara van Schewick, Professor of Law and (by courtesy) Electrical Engineering,
Stanford Law School, et al., to Hon. Tom Wheeler, Chairman, FCC, et al., GN Docket No. 14-28, Attach. at 7 (filed
Feb. 2, 2015) (“[W]e would expect and encourage the FCC to regulate with a light touch under Title II through
application of its forbearance authority.”); Letter from Hon. Catherine Sandoval, Commissioner, California Public
Utilities Commission, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, Attach. 4 at 17 (filed Feb. 4,
2015) (“[R]ecommend[ing] that the FCC adopt rules to protect and promote the Open Internet consistent with both
Section 706 of the Telecommunications Act and Title II of the Communications Act with forbearance and a light
regulatory touch.”).

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494.
As a threshold matter, we reject arguments from certain commenters that include bare
assertions that we should not forbear as to particular provisions or regulations without any meaningful
supporting analysis or discussion under the section 10(a) framework.1484 To the extent that these
commenters argue for a narrower result than the forbearance we grant here, such conclusory arguments do
not undercut our finding that the section 10(a) criteria are met as to the forbearance granted here with
respect to broadband Internet access service. For similar reasons we reject arguments that the
Commission should “exempt from forbearance… Section 228… provid[ing] customers with protections
from abusive practices by pay-per-call service providers” insofar as they do not explain how such a
provision meaningfully would apply in the context of broadband Internet access service or why the
section 10(a) criteria are not met in that context.1485 As a result, these arguments do not call into question
our section 10(a) findings below in the context of the broadband Internet access service. With respect to
proposals to retain other statutory provisions, we conclude that commenters fail to demonstrate at this
time that other, applicable requirements or protections are inadequate, for the reasons discussed below.
495.
For each of the remaining statutory and regulatory obligations triggered by our
classification decision, the realities of the near-term past under the prior “information service”
classification inform our section 10(a) analysis. Although that practical baseline is not itself dispositive
of the appropriate regulatory treatment of broadband Internet access service, the record reveals numerous
concerns about the burdens—or, at a minimum, regulatory uncertainty—that would be fostered by a
sudden, substantial expansion of the actual or potential regulatory requirements and obligations relative to
the status quo from the near-term past.1486 It is within the agency’s discretion to proceed
incrementally,1487 and we find that adopting an incremental approach here—by virtue of the forbearance
1484

See, e.g., i2 Coalition Comments at 40 (asserting simply that “references to §§ 201, 202, 203, 204, 205, 206,
208, 209, 211, 215, 218, 219, 220, 251 and 252 should be added” to the authority provision of the codified open
Internet rules); Tumblr Reply at 9-10 (“We propose, with significant deference to the FCC’s expertise in
telecommunications law, that the FCC could arguably forbear from all provisions of Title II except for the following
fifteen sections: Sections 201, 202, and 208 (guaranteeing net neutrality), 206, 207, 209, and 216 (holding
broadband providers accountable for violations), 222 (protecting privacy), 251(a) and 256 (promoting
interconnection), and 214(e), 225, 254, 255, and 257 (promoting access to the network). . . . [A] small and limited
amount of government regulation is necessary to promote and protect a competitive and lightly regulated
marketplace.”); Letter from John M. Simpson, Privacy Project Director, Consumer Watchdog, to Marlene H.
Dortch, Secretary, FCC, GN Docket No. 14-28, at 2 (filed Jan. 26, 2015) (listing a number of statutory provisions
and simply noting the title of the provision).
1485

Rural Broadband Policy Group Comments at 8-9.

1486

See, e.g., CTIA Comments at 47 (citing concerns about “prescriptive rate regulation, tariffing requirements,
depreciation mandates, expansive entry and exit regulation, resale and interconnection obligations, a host of
reporting requirements”); CenturyLink Comments at 37-40 (identifying various provisions that it contends only
make sense as applied to voice service); Charter Comments at 13 (arguing that application of Title II could “creat[e]
a prolonged period of legal uncertainty”); Technology Policy Institute Comments at 30 (application of Title II
“would signify a sharp departure from the status quo”); WISPA Reply at 23-24 (arguing that particular requirements
would be burdensome and that application of Title II potentially could lead to “prolonged uncertainty”). We are not
persuaded by arguments that a tailored regulatory approach like that adopted here inherently would be inferior to the
adoption of a more regulatory approach in this Order. See, e.g., Full Service Network/TruConnect Feb. 3, 2015 Ex
Parte Letter at 22-29. Rather, we base our decision to adopt such a tailored approach based both on our own
analysis of the overall record regarding investment incentives (which can involve multifaceted considerations), see
supra Section IV.C.5, and the wisdom we see in exercising our discretion to proceed incrementally, as discussed in
greater detail below.
1487

See, e.g., Massachusetts v. EPA, 549 U.S. 497, 524 (2007) (“Agencies, like legislatures, do not generally resolve
massive problems in one fell regulatory swoop. . . . They instead whittle away at them over time, refining their
preferred approach as circumstances change and as they develop a more nuanced understanding of how best to
proceed.”) (citations omitted). While we believe that the tailored regulatory framework we adopt today strikes the
right balance, we note that the D.C. Circuit has recognized the Commission’s authority to revisit its decision should
that prove not to be the case. EarthLink, 462 F.3d at 12. See also id. (“‘[A]n agency’s predictive judgments about
(continued….)

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granted here—guards against any unanticipated and undesired detrimental effects on broadband
deployment that could arise.1488 We note in this regard that when exercising its section 10 forbearance
authority “[g]uided by section 706,” the Commission permissibly may “decide[] to balance the future
benefits” of encouraging broadband deployment “against [the] short term impact” from a grant of
forbearance.1489 Under the section 10(a) analysis, we are particularly persuaded to give greater weight at
this time to the likely benefits of proceeding incrementally given the speculative or otherwise limited
nature of the arguments in the current record regarding the possible near-term harms from forbearance of
the scope adopted here.1490
496.
We further conclude that our analytical approach as to all the provisions and regulations
from which we forbear in this Order is consistent with section 10(a).1491 Under section 10(a)(1), we
consider here whether particular provisions and regulations are “necessary” to ensure “just and
reasonable” conduct by broadband Internet access service providers.1492 Interpreting those ambiguous
terms,1493 we conclude that we reasonably can account for policy trade-offs that can arise under particular
regulatory approaches.1494 For one, we find it reasonable in the broadband Internet access service context
for our interpretation and application of section 10(a)(1) to be informed by section 706 of the 1996
Act.1495 As discussed above,1496 section 706 of the 1996 Act “explicitly directs the FCC to ‘utiliz[e]’
(Continued from previous page)
areas that are within the agency’s field of discretion and expertise are entitled to particularly deferential review, as
long as they are reasonable,’” but the agency necessarily must have the ability to “reassess[] the situation if its
predictions are not borne out.”) (citations omitted).
1488

See, e.g., FCC v. Fox Television Stations, 556 U.S. 502, 522 (2009) (“Nothing prohibits federal agencies from
moving in an incremental manner.”); Nat’l Ass’n of Broadcasters v. FCC, 740 F.2d 1190, 1207 (D.C. Cir. 1984)
(“In classifying economic activity, agencies . . . need not deal in one fell swoop with the entire breadth of a novel
development; instead, ‘reform may take place one step at a time, addressing itself to the phase of the problem which
seems most acute to the [regulatory] mind.’”) (citation omitted).
1489

EarthLink, 462 F.3d at 9.

1490

These are discussed in greater detail in the context of the specific provisions or regulations below.

1491

We thus reject claims to the contrary. See generally Pai Dissent at 57-64; O’Rielly Dissent at 14.

1492

47 U.S.C. § 160(a)(1).

1493

See, e.g., Cellco Partnership v. FCC, 357 F.3d 88 (D.C. Cir. 2004) (in a decision addressing section 11 of the
Act, recognizing that the term “necessary” is ambiguous); Cellular Telecomms. & Internet Ass’n v. FCC, 330 F.3d
502, 512-13 (D.C. Cir. 2003) (under Chevron step two, deferring to the Commission’s reasonable interpretation of
the term “necessary” in section 10(a)(2)); Capital Network System, Inc., v. FCC, 28 F.3d 201, 204 (D.C. Cir. 1994)
(with respect to section 201(b), holding that “[b]ecause ‘just,’ ‘unjust,’ ‘reasonable,’ and ‘unreasonable’ are
ambiguous statutory terms, this court owes substantial deference to the interpretation the Commission accords
them”).
1494

While the specific balancing at issue in EarthLink v. FCC, 462 F.3d at 8-9, may have involved trade-offs
regarding competition, we nonetheless believe the view expressed in that decision accords with our conclusion here
that we permissibly can interpret and apply all the section 10(a) criteria to also reflect the competing policy concerns
here. As the D.C. Circuit also has observed, within the statutory framework that Congress established, the
Commission “possesses significant, albeit not unfettered, authority and discretion to settle on the best regulatory or
deregulatory approach to broadband.” Ad Hoc Telecommunications Users Committee v. FCC, 572 F.3d 903, 906-07
(D.C. Cir. 2009).
1495

Given the characteristics specific to broadband Internet access service that we find on the record here—
including, among other things, protections from the newly-adopted open Internet rules and the overlay of section
706—we limit our forbearance from the relevant provisions and regulations to the context of broadband Internet
access service. Outside that context, they will continue to apply as they have previously, unaffected by this Order.
We thus reject claims that the actions or analysis here effectively treat forborne-from provisions or regulations as
surplusage or that we are somehow ignoring significant portions of the Act. See Pai Dissent at 61, 64; O’Rielly
Dissent at 14-15.

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forbearance to ‘encourage the deployment on a reasonable and timely basis of advanced
telecommunications capability to all Americans,’”1497 and our recent negative section 706(b)
determination triggers a duty under section 706 for the Commission to “take immediate action to
accelerate deployment.”1498 As discussed in greater detail below,1499 a tailored regulatory approach avoids
disincentives for broadband deployment, which we weigh in considering what outcomes are just and
reasonable—and whether the forborne-from provisions are necessary to ensure just and reasonable
conduct—under our section 10(a)(1) analyses in this item. Furthermore, our forbearance in this Order,
informed by recent experience and the record in this proceeding, reflects the recognition that, beyond the
specific bright-line rules adopted above,1500 particular conduct by a broadband Internet access service
provider can have mixed consequences, rendering case-by-case evaluation superior to bright-line rules.1501
Consequently, based on those considerations, it is our predictive judgment that, outside the bright line
rules applied under this Order, just and reasonable conduct by broadband providers is better ensured
under section10(a)(1) by the case-by-case regulatory approach we adopt—which enables us to account for
the countervailing policy implications of given conduct—rather than any of the more bright-line
requirements that would have flowed from the provisions and regulations from which we forbear.1502
These same considerations underlie our section 10(a)(2) analyses, as well, since advancing broadband
deployment and ensuring appropriately nuanced evaluations of the consequences of broadband provider
conduct better protects consumers.1503 Likewise, these same policy considerations are central to the
conclusion that the forbearance granted in this Order, against the backdrop of the protections that remain,
best advance the public interest under section 10(a)(3).1504
a.

Tariffing (Sections 203, 204)

497.
We find the section 10(a) criteria met and forbear from applying section 203 of the Act
insofar as it newly applies to providers by virtue of our classification of broadband Internet access
service. That provision requires common carriers to file a schedule of rates and charges for interstate
common carrier services.1505 As a threshold matter, we find broad support in the record for expansive
forbearance, as discussed above.1506 Moreover, as advocated by some commenters,1507 it is our predictive
(Continued from previous page)
1496
See supra Section V.A.
1497

EarthLink v. FCC, 462 F.3d at 8-9 (alteration in original).

1498

2015 Broadband Progress Report at para. 12.

1499

See infra Section V.C.2.a.

1500

See supra Section III.C.I; see also supra Section III.C.3.

1501

See generally supra Sections III.C.2, III.D.2, III.E.

1502

As explained above, we conclude that while competition can be a sufficient basis to grant forbearance, it is not
inherently necessary in order to find section 10 satisfied. See supra Section V.A. Given our assessment of the
advantages of the regulatory framework applied under this Order, we also reject suggestions that, where the
Commission does not rely on sufficient competition to justify forbearance, alternative ex ante regulations would
always be necessary to ensure just and reasonable conduct and otherwise provide a basis for finding the section
10(a) criteria to be met. See Pai Dissent at 57-65. Further, while the Final Regulatory Flexibility Analysis estimates
a large possible universe of broadband Internet access service providers, we do not find a basis to conclude that they
all—or a sufficiently significant number of them—are likely to be simultaneously subject to complaints to render the
case-by-case approach unworkable or inferior to additional bright line rules, and thus reject concerns to the contrary.
See Pai Dissent at 63.
1503

47 U.S.C. § 160(a)(2).

1504

47 U.S.C. § 160(a)(3).

1505

47 U.S.C. § 203.

1506

See supra para. 493. See also, e.g., CDT Feb. 4, 2015 Ex Parte Letter at 3 (“There is no need to apply the
tariffing requirements in Sections 203 and 204 to broadband service providers . . . .”).

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judgment that other protections that remain in place are adequate to guard against unjust and unreasonable
and unjustly and unreasonably discriminatory rates and practices in accordance with section 10(a)(1) and
to protect consumers under section 10(a)(2). We likewise conclude that those other protections reflect the
appropriate calibration of regulation of broadband Internet access service at this time, such that
forbearance is in the public interest under section 10(a)(3).
498.
As discussed below, sections 201 and 202 of the Act and our open Internet rules are
designed to preserve and protect Internet openness, prohibiting unjust and unreasonable and unjustly or
unreasonably discriminatory conduct by providers of broadband Internet access service for or in
connection with broadband Internet access service and protecting the retail mass market customers of
broadband Internet access service.1508 In particular, under our open Internet rules and the application of
sections 201 and 202, we establish both ex ante legal requirements and a framework for case-by-case
evaluations governing broadband providers’ actions. In calibrating the legal framework in that manner,
we consider, among other things, the operation of the marketplace in conjunction with open Internet
protections.1509 It is our predictive judgment that these protections will be adequate to protect the interests
of consumers—including the interest in just, reasonable, and nondiscriminatory conduct—that might
otherwise be threatened by the actions of broadband providers. Importantly, broadband providers also are
subject to complaints and Commission enforcement in the event that they violate sections 201 or 202 of
the Act, the open Internet rules, or other elements of the core broadband Internet access requirements.1510
We thus find on the record here that section 203’s requirements are not necessary to ensure just and
reasonable and not unjustly or unreasonably discriminatory rates and practices under section 10(a)(1) nor
for the protection of consumers under 10(a)(2).
499.
The predictive judgment underlying our section 10 analysis is informed by recent
experience. Historically, tariffing requirements were not applied to broadband Internet access service
under our prior “information service” classification.1511 This provides us a practical reference point as
part of our overall evaluation of the types of concerns that are likely to arise in this context, underlying
our predictive judgment regarding the sufficiency of the rules and requirements that remain.1512
Consequently, providers will not be subject to ex ante rate regulation nor any requirement of advanced
Commission approval of rates and practices as otherwise would have been imposed under section 203.
500.
We also find that the forbearance for broadband Internet access service satisfies sections
10(a)(1) and (a)(2) and is consistent with the public interest under section 10(a)(3) in light of the
objectives of section 706. In addition to our specific conclusions above,1513 we find more broadly that
(Continued from previous page)
1507
See, e.g., Vonage Reply at 32 (“Other than the lack of meaningful Open Internet protections, the status quo for
regulating the provision of broadband internet access remains suitable and need not be disturbed.”); AOL July 21,
2014 Ex Parte Letter at 2 (“The FCC would have the authority to forbear totally from Title II rules, so long as the
continued existence of effective Section 706 rules makes Title II unnecessary to protect consumers.”).
1508

See supra Section III.

1509

See, e.g., supra Sections III.B.2.a, III.C.2, III.D.2.

1510

See supra Section III.E. See also supra paras. 495-496.

1511

See generally Wireless Broadband Classification Order, 22 FCC Rcd 5901; BPL-Enabled Broadband Order,
21 FCC Rcd 13281; Wireline Broadband Classification Order, 20 FCC Rcd 14853; Cable Modem Declaratory
Ruling, 17 FCC Rcd 4798.
1512

See supra Section III.B.2. See also, e.g., CDT Comments at 15 (“Broadband providers have not been subject to
the provisions of Title II, so there is ample real world experience with how the broadband marketplace functions
without, for example, subscriber price regulation and tariff-filing requirements. The Commission could reasonably
conclude that actual experience demonstrates that the enforcement of such requirements against broadband providers
is ‘not necessary’ to ensure reasonable charges and practices or to protect consumers.”).
1513

In addition to the analysis of sections 10(a)(1) and (a)(2) factors above, see also supra paras. 495-496.

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forbearing from section 203 is consistent with the overall approach that we conclude strikes the right
regulatory balance for broadband Internet access service at this time. In particular, given the overlay of
section 706 of the 1996 Act, we conclude that the better approach at this time is to focus on applying the
core broadband Internet access service requirements rather than seeking to apply the additional provisions
and regulations triggered by the classification of broadband Internet access service from which we
forbear. As explained above, section 706 of the 1996 Act “explicitly directs the FCC to ‘utiliz[e]’
forbearance to ‘encourage the deployment on a reasonable and timely basis of advanced
telecommunications capability to all Americans.’”1514 The D. C. Circuit has further held that the
Commission “possesses significant, albeit not unfettered, authority and discretion to settle on the best
regulatory or deregulatory approach to broadband.”1515 We find that the scope of forbearance adopted in
this order strikes the right balance at this time between, on the one hand, providing the regulatory
protections clearly required by the evidence and our analysis to, among other things, guard the virtuous
cycle of Internet innovation and investment and, on the other hand, avoiding additional regulations that do
not appear required at this time and that risk needlessly detracting from providers’ broadband
investments.
501.
Additionally, section 10(b) requires the Commission, as part of its public interest
analysis, to analyze the impact forbearance would have on competitive market conditions. Although there
is some evidence of competition for broadband Internet access service, it appears to be limited in key
respects, and the record also does not provide a strong basis for concluding that the forbearance granted in
this Order is likely to directly impact the competitiveness of the marketplace for broadband Internet
access services.1516 We note that the forbearance we grant is part of an overall regulatory approach
designed to promote infrastructure investment in significant part by preserving and promoting innovation
and competition at the edge of the network.1517 Thus, even if the grant of forbearance does not directly
promote competitive market conditions, it does so indirectly by enabling us to strike the right balance at
this time in our overall regulatory approach. Our regulatory approach, viewed broadly, thus does advance
competition in important ways. Ultimately, however, while we consider the section 10(b) criteria in our
section 10(a)(3) public interest analysis, our public interest determination rests on other grounds. In
particular, under the entirety of our section 10(a)(3) analysis, as discussed above, we conclude that the
public interest supports the forbearance adopted in this Order.1518
502.
We thus are not persuaded by other commenters arguing that the Commission’s ability to
forbear from section 203 depends on findings of sufficient competition.1519 As explained above,
persuasive evidence of competition is not the sole possible grounds for granting forbearance.1520 As also
explained above, we conclude at this time that the Open Internet rules and other elements of the core
broadband Internet access service requirements meet our identified needs in this specific context. The
Commission also has recognized previously that tariffing imposes administrative costs.1521 We also
1514

EarthLink v. FCC, 462 F.3d at 8-9.

1515

Ad Hoc Telecommunications Users Committee v. FCC, 572 F.3d 903, 906-07 (D.C. Cir. 2009) (Ad Hoc).

1516

See supra Section III.B.2.

1517

See supra Section III.B.1.

1518

These same section 10(b) findings likewise apply in the case of our other section 10(a)(3) public interest
evaluations with respect to broadband Internet access service, and should be understood as incorporated there.
1519

See, e.g., Letter from Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal & Economic Public
Policy Studies, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, Attach. 2, Phoenix Center Bulletin
No. 36, Tariffing Internet Termination: Pricing Implications of Classifying Broadband as Title II
Telecommunications Service at 14-16 (filed Oct. 31, 2014) (Phoenix Center Oct. 31, 2014 Ex Parte Letter).
1520

See supra Section V.A.

1521

Wireless Forbearance Order, 9 FCC Rcd at 1478-79, para. 175.

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consider our objective of striking the right balance of a regulatory and deregulatory approach, consistent
with section 706 of the 1996 Act.1522 Collectively, these persuade us not to depart from the section 10(a)
analysis above, irrespective of the state of competition.
503.
Nor are we persuaded by commenters’ specific arguments that tariffs filed under section
203 provide “the necessary information to distinguish between providers” and thus should not be subject
to forbearance for broadband Internet access service.1523 As certain of these commenters themselves note,
such objectives might be met in other ways.1524 To the extent that disclosures regarding relevant
broadband provider practices are needed, our Open Internet transparency rule is designed to serve those
ends.1525 Commenters do not meaningfully explain why the transparency rule is inadequate, and thus their
arguments do not persuade us to depart from our section 10(a) findings above in the case of section 203.
504.
We likewise reject the proposals of other commenters that we structure our forbearance
from section 203 to permissively, rather than mandatorily, detariff broadband Internet access service.1526
As a threshold matter, we note that, as discussed above,1527 our forbearance with respect to broadband
Internet access services does not encompass incumbent local exchange carriers or other common carriers
that offer Internet transmission services as telecommunications services subject to the full range of Title II
requirements under the pre-existing legal framework, which does provide for permissive detariffing.1528
Under the framework adopted in this Order, however, we are not persuaded that our open Internet rules
provide for readily administrable evaluation of the justness and reasonableness of tariff filings. Nor does
the record reveal that we can rely on competitive constraints to help ensure the justness and
reasonableness of tariff filings. Furthermore, as the Commission previously has recognized, permitting
voluntary tariff filings can raise a number of public interest concerns, and consistent with those findings,
we mandatorily detariff broadband Internet access service for purposes of the regulatory framework
adopted in this Order.1529
1522

See supra para.500. Indeed, even when forbearing from section 203 in the CMRS context, the Commission not
only relied in part on the presence of competition, but also that continued application of sections 201, 202, and 208
“provide[s] an important protection in the event there is a market failure,” and “tariffing imposes administrative
costs and can themselves be a barrier to competition in some circumstances.” Wireless Forbearance Order, 9 FCC
Rcd at 1478-79, para. 175. Those are in accord with key elements of our conclusions here.
1523

Public Knowledge Comments at 85.

1524

See id. at 94; see also, e.g., Ammori Dec. 19, 2014 Ex Parte Letter at 7 (“[Tariffing] is not needed to ensure
nondiscrimination or reasonable practices as the open Internet rules and complaints (regarding edge providers) and
limited competition (regarding consumers) should cover it.”).
1525

See, e.g., 2010 Open Internet Order, 25 FCC Rcd at 17936-37, para. 53; supra Section III.C.3.

1526

NTCA Comments at 13 n.29 (citing Wireline Broadband Classification Order, 20 FCC Rcd at 14900-03, paras.
89-95); Letter from Michael R. Romano, Senior Vice President-Policy, NTCA, to Marlene H. Dortch, Secretary,
FCC, GN Docket No. 14-28, at 2-3 (filed Nov. 19, 2014) (NTCA Nov. 19, 2014 Ex Parte Letter).
1527

See supra para. 460.

1528

Wireline Broadband Classification Order, 20 FCC Rcd at 14900-03, paras. 89-95. Cf. NTCA Nov. 19, 2014 Ex
Parte Letter at 3 n.3 (arguing for an approach that would enable “RLECs [to] continue to have the option of offering
broadband transmission services under tariff, as they do today”).
1529

See, e.g., Wireless Forbearance Order, 9 FCC Rcd at 1479-80, paras. 178-79; Qwest Petition for Forbearance
Under 47 U.S.C. § 160(c) from Title II and Computer Inquiry Rules with Respect to Broadband Services, WC
Docket No. 06-125, Memorandum Opinion and Order, 23 FCC Rcd 12260, 12291-92, para. 64 (2008) (Qwest
Enterprise Broadband Forbearance Order); Petition of the Embarq Local Operating Companies for Forbearance
Under 47 U.S.C. § 160(c) from Application of Computer Inquiry & Certain Title II Common-Carriage Requirements
et al., WC Docket No. 06-147, Memorandum Opinion and Order, 22 FCC Rcd 19478, 19507-08, para. 59 (2007),
aff’d sub nom. Ad Hoc Telecomms. Users Committee v. FCC, 572 F.3d 903 (D.C. Cir. 2009) (Ad Hoc v. FCC);
Petition of AT&T Inc. for Forbearance Under 47 U.S.C. § 160(c) from Title II and Computer Inquiry Rules with
(continued….)

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505.
Some commenters also advocate that the Commission retain section 204.1530 Section 204
provides for Commission investigation of a carrier’s rates and practices newly filed with the Commission,
and to order refunds, if warranted.1531 For the reasons described above, however, we forbear from
sections 203’s tariffing requirements for broadband Internet access service, and adopt mandatory
detariffing. Given that decision, commenters do not indicate what purpose section 204 still would serve,
and we thus do not depart in this context from our overarching section 10(a) forbearance analysis above.
b.

Enforcement-Related Provisions (Sections 205, 212)

506.
We find forbearance from applying certain enforcement-related provisions of Title II
beyond the core Title II enforcement authority discussed above warranted under section 10(a), and we
reject arguments to the contrary.1532 Section 205 provides for Commission investigation of existing rates
and practices and to prescribe rates and practices if it determines that the carrier’s rates or practices do not
comply with the Communications Act.1533 The Commission previously has forborne from enforcing
section 205 where it sought to adopt a tailored, limited regulatory environment and where,
notwithstanding that forbearance, given the continued application of sections 201 and 202 and other
complaint processes.1534 For similar reasons here, we find at this time that the core Title II enforcement
authority, along with the ability to pursue claims in court, as discussed below, provide adequate
enforcement options and the statutory forbearance test is met for section 205. Consistent with our
analysis above, it thus is our predictive judgment that these provisions are not necessary to ensure just,
reasonable and nondiscriminatory conduct by providers of broadband Internet access service or to protect
consumers under sections 10(a)(1) and (a)(2).1535 In addition, as above, under the tailored regulatory
approach we find warranted here, informed by our responsibilities under section 706, we conclude that
forbearance is in the public interest under section 10(a)(3).1536 We thus reject claims that forbearance
from section 205, insofar as it is triggered by our classification of broadband Internet access service, is
not warranted.1537
507.
We also forbear from applying section 212 to the extent that it newly applies by virtue of
our classification of broadband Internet access service. Section 212 empowers the Commission to
monitor interlocking directorates, i.e., the involvement of directors or officers holding such positions in
more than one common carrier.1538 In the CMRS context, the Commission granted forbearance from
section 212 on the grounds that forbearance would reduce regulatory burdens without adversely affecting
(Continued from previous page)
Respect to Its Broadband Services et al., WC Docket No. 06-125, Memorandum Opinion and Order, 22 FCC Rcd
18705 18737-38, para. 67 (2007) (AT&T Enterprise Broadband Forbearance Order), aff’d sub nom. Ad Hoc v.
FCC, 572 F.3d 903).
1530

See, e.g., Public Knowledge Comments at 92-94.

1531

47 U.S.C. § 204.

1532

Public Knowledge Comments at 92-94.

1533

47 U.S.C. § 205.

1534

Wireless Forbearance Order, 9 FCC Rcd at 1479, para. 176.

1535

See supra paras. 495-496; Section V.C.2.a.

1536

See supra paras. 495-496; Section V.C.2.a.

1537

Public Knowledge Comments at 93. Although Public Knowledge et al. cite marketplace differences between
CMRS and broadband Internet access service, they do not explain why those differences necessitate a narrower
forbearance decision in this context—particularly since we do not rely on the state of competition as a rationale for
our forbearance decision—whether as to section 205, or as to the other provisions discussed there (sections 204,
211, 212). Id. at 93-94.
1538

47 U.S.C. § 212.

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rates in the CMRS market.1539 The Commission noted that section 212 was originally placed in the
Communications Act to prevent interlocking officers from engaging in anticompetitive practices, such as
price fixing. The Commission found, however, that protections of section 201(b),1540 221,1541 and antitrust
laws1542 were sufficient to protect consumers against the potential harms from interlocking directorates.
Forbearance also reduced an unnecessary regulatory cost imposed on carriers. The Commission later
extended this forbearance to dominant carriers and carriers not yet found to be non-dominant, repealing
part 62 of its rules and granting forbearance from the provisions of section 212.1543 Commenters have not
explained why we should not find the protections of section 201(b) and antitrust law adequate here, as
well.1544 It likewise is our predictive judgment that other protections will adequately ensure just,
reasonable, and nondiscriminatory conduct by providers of broadband Internet access service and protect
consumers here, and thus conclude that the application of section 212 is not necessary for purposes of
sections 10(a)(1) or (a)(2).1545 Moreover, as above, under the tailored regulatory approach we find
warranted here, informed by our responsibilities under section 706, we conclude that forbearance is in the
public interest under section 10(a)(3).1546
c.

Information Collection and Reporting Provisions (Sections 211, 213,
215, 218-20)

508.
In addition, although some commenters advocate that the Commission retain provisions
of the Act that provide “discretionary powers to compel production of useful information or the filing of
regular reports,” we find the section 10(a) factors met and grant forbearance.1547 However, the cited
provisions principally are used by the Commission to implement its traditional rate-making authority over
common carriers.1548 Here, we do not apply tariffing requirements or ex ante rate regulation of broadband
1539

See Wireless Forbearance Order, 9 FCC Rcd at 1485, paras. 195–97.

1540

See id. at 1485, paras. 197 n.389.

1541

The Commission noted that section 221 provided protections against interlocking directorates, but section 221(a)
was repealed in the Telecommunications Act of 1996. This section gave the Commission the power to review
proposed consolidations and mergers of telephone companies. While section 221(a) allowed the Commission to
bolster its analysis to forbear from section 212 in the Wireless Forbearance Order, the protections against
interlocking directorates provided by section 201(b) and 15 U.S.C. § 19 provide sufficient protection to forbear from
section 212 for broadband Internet access services.
1542

See Wireless Forbearance Order, 9 FCC Rcd at 1485, paras. 197 n.390 (citing the Clayton Act’s protections
governing interlocking directorates).
1543

See generally 1998 Biennial Regulatory Review—Repeal of Part 62 of the Commission’s Rules, CC Docket No.
98-195, Report and Order, 14 FCC Rcd 16530 (1999).
1544

Public Knowledge asserts that forbearance will not promote competition, Public Knowledge Comments at 93,
but that does not resolve the section 10(a) analysis. See supra Section V.A (discussing the role of competition in the
section 10(a) forbearance analysis).
1545

See supra paras. 495-496; Section V.C.2.a.

1546

See supra paras. 495-496; Section V.C.2.a.

1547

Public Knowledge Comments at 91-92 (discussing 47 U.S.C. §§ 211, 213, 215, 218-20).

1548

Specifically, section 211 allows the Commission to require common carriers to file contracts section; 213
authorizes the Commission to make a valuation of all or of any part of the property owned or used by any carrier;
section 215 gives the Commission the authority to examine carrier activities and transactions likely to limit the
carrier’s ability to render adequate service to the public, or to affect rates; section 218 authorizes the Commission to
inquire into the management of the business of the carrier; section 219, inter alia, authorizes the Commission to
require annual financial and other reports from carriers; and section 220 gives the Commission the discretion to
prescribe the forms of accounts, records, and memoranda to be kept by carriers and also includes depreciation
prescription provisions. 47 U.S.C. §§ 211, 213, 215, 218-20. We note that certain of these requirements might not,
by their terms, apply to the broadband subscriber Internet service. For example, aspects of section 215 and 220
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Internet access service of the sort for which these requirements would be needed. Indeed, we cannot and
do not envision adopting such requirements in the future. Thus, we do not find it necessary or in the
public interest to apply these provisions simply in anticipation of such an exceedingly unlikely scenario.
Moreover, as particularly relevant here, section 706 of the 1996 Act, along with other statutory
provisions, give the Commission authority to collect necessary information.1549 We recognize that the
Commission generally did not forbear from these requirements in the CMRS context, noting the minimal
regulatory burdens they imposed on such providers, and observing that reservation of this Commission
authority would allow further consideration of possible information collection requirements, given that
“the cellular market is not yet fully competitive.”1550 As explained above, in this context, however, we
find forbearance to be the more prudent course, and therefore in the public interest under section 10(a)(3),
given both our intention of tailoring the regulations applicable to broadband Internet access service given
our responsibility under section 706 to encourage deployment.1551 Because we also do not find the
information collection and reporting provisions raised by commenters to be necessary at this time within
the meaning of sections 10(a)(1) and (a)(2), we forbear from applying these provisions insofar as they
otherwise newly would apply by virtue of our classification of broadband Internet access service.1552
d.

Discontinuance, Transfer of Control, and Network Reliability
Approval (Section 214)1553

509.
We also find section 10(a) met for purposes of forbearing from applying section 214
discontinuance approval requirements.1554 We reject the arguments of some commenters that we should
not forbear, which focus in particular on concerns about discontinuances in rural areas or areas with only
one provider.1555 As a threshold matter, our universal service rules are designed to advance the
(Continued from previous page)
appear specific to telephone service. Because we find forbearance warranted under the section 10 criteria, we need
not resolve the possible application of these provisions more precisely.
1549

See, e.g., Modernizing the Form 477 Data Program, WC Docket No. 11-10, Report and Order, 28 FCC Rcd
9887, 9925, para. 88 (2013) (citing as authority for the Form 477 data collection, among other things, sections 201
and 403 of the Act and section 706 of the 1996 Act); Special Access for Price Cap Local Exchange Carriers; AT&T
Corporation Petition for Rulemaking to Reform Regulation of Incumbent Local Exchange Carrier Rates for
Interstate Special Access Services, WC Docket No. 05-25, RM-10593, Report and Order and Further Notice of
Proposed Rulemaking, 27 FCC Rcd 16318, 16338-39, para. 50 (2012) (citing as authority for the special access data
collection, among other things, sections 201 and 202 of the Act and section 706 of the 1996 Act).
1550

Wireless Forbearance Order, 9 FCC Rcd at 1484-85, paras. 193-94.

1551

See supra paras. 495-496; Section V.C.2.a.

1552

See supra paras. 495-496; Section V.C.2.a.

1553

Unless otherwise indicated, for convenience, this item uses “discontinuance,” to also include reduction or
impairment of service under section 214.
1554

In pertinent part, section 214 requires that certain carriers submit applications to the Commission for the
discontinuance, reduction, or impairment of existing services and associated procedural measures. See 47 U.S.C.
§ 214(a)-(c).
1555

See, e.g., COMPTEL Comments at 22-23 (“Retaining the provisions in [section 214(a)] that require Commission
approval prior to discontinuance of service would afford protections for consumers threatened with the loss of
Internet access service”); Public Knowledge Comments at 90-91 (“The Commission should not eliminate its
jurisdiction over termination of operations in markets where a single provider may be the only point of access to the
internet. As recognized by Congress, the Commission’s oversight here is necessary to protect consumers from
service interruption and termination. Consumers, businesses, public safety entities and government agencies rely on
telecommunications services for an ever-increasing number of critical functions.”); Rural Broadband Policy Group
Comments at 8-9 (encouraging the Commission to “exempt from forbearance . . . Section 214 . . . ensur[ing] that an
Internet Service Provider does not discontinue services to rural areas without first obtaining approval from the
Commission, a requirement for Universal Service Fund recipients. This is of grave importance to rural communities
since USF plays a major role in ensuring telecommunications services reach rural areas.”).

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deployment of broadband networks, including in rural and high-cost areas.1556 Notably, this includes
certain public interest obligations on the part of high-cost universal service support recipients to offer
broadband Internet access service.1557 Consequently, these provide important protections, especially in
rural areas or areas that might only have one provider. Further, the conduct standards in our open Internet
rules provide important protections against reduction or impairment of broadband Internet access service
short of the complete cessation of providing that service. Thus, while we agree with commenters
regarding the importance of broadband Internet access service, including in rural areas or areas served by
only one provider, the generalized arguments of those commenters do not explain why the protections
described above, in conjunction with the core broadband Internet access service requirements more
broadly, are not likely to be sufficient to guard against unjust or unreasonable conduct by providers of
broadband Internet access service or to protect consumers.
510.
Moreover, the Commission has recognized in the past that section 214 discontinuance
requirements impose some costs, although the significance of those costs is greater where (unlike here)
the marketplace for the relevant service is competitive.1558 Further, as discussed above, we find the most
prudent regulatory approach at this time is to proceed incrementally when adding regulations beyond
what had been the prior status quo.1559 Given those considerations, and against the backdrop of other
protections here, as discussed above, commenters have not persuaded us that applying section 214
discontinuance requirements with respect to broadband Internet access service is necessary within the
meaning of sections 10(a)(1) and (a)(2) or that forbearance would not be in the public interest under
section 10(a)(3).1560 We thus forbear from applying section 214 discontinuance requirements to the extent
that they would be triggered by our classification of broadband Internet access service here.
511.
We also reject arguments against forbearance from applying section 214 to enable the
Commission to engage in merger review.1561 As these commenters recognize, prior to this Order the
Commission already has commonly reviewed acquisitions of or mergers among entities that provide
broadband services.1562 Although these comments speculate about a future time when communications

1556

See, e.g., Connect America Fund et al., WC Docket No. 10-90 et al., Report and Order, FCC 14-190, paras. 2728 (rel. Dec. 18, 2014).
1557

See, e.g., id., FCC 14-190, paras. 13-29; Modernizing the E-rate Program for Schools and Libraries; Connect
America Fund, WC Docket Nos. 13-184, 10-90, Second Report and Order and Order on Reconsideration, FCC 14189, paras. 60-76 (rel. Dec. 19, 2014).
1558

See, e.g., Wireless Forbearance Order, 9 FCC Rcd at 1481, para. 182.

1559

See supra paras. 495-496; Section V.C.2.a. The overlay of section 706 of the 1996 Act here, including how it
informs our decision to proceed incrementally, distinguishes this from the Commission’s prior evaluation of relief
from Title II for CMRS. See infra Section V.D. Consequently, although we look to the precedent from the CMRS
context—as we do other forbearance precedent—to the extent that it is instructive, the mere fact that we declined to
forbear from applying a provision in the CMRS context does not demonstrate that we should continue to apply it
here as some suggest. See, e.g., Letter from Matthew F. Wood, Policy Director, Free Press, to Marlene H. Dortch,
Secretary, FCC, GN Docket No. 14-28, at 1 n.1 (filed Nov. 21, 2014) (Free Press Nov. 21, 2014 Ex Parte Letter)
(citing Free Press Comments, GN Docket No. 10-127, at 72 (filed July 15, 2010) (citing prior decisions in the
CMRS voice service context as a reason to reach the same conclusions in the broadband context regarding the
application of sections 214, 251, and 256 of the Act)).
1560

See supra paras. 495-496; Section V.C.2.a.

1561

See, e.g., Free Press Nov. 21, 2014 Ex Parte Letter at 1 n.3 (filed Nov. 21, 2014) (citing Free Press Comments,
GN Docket No. 10-127, at 70-71 (filed July 15, 2010) (advocating that the Commission not forbear from applying
section 214 insofar as it requires Commission approval of transfers of control)).
1562

Id. For example, the Commission reviews all applications for transfer or assignment of a wireless license,
including licenses used to provide broadband services, pursuant to Section 310(d) of the Act to determine whether
the applicants have demonstrated that the proposed transfer or assignment will serve the public interest,
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services have evolved in such a way that the Commission would lack some other basis for its review, the
record here does not demonstrate that it is sufficiently imminent to warrant deviating from our section 10
analysis regarding section 214 above. Notably, today we apply the core broadband Internet access service
requirements that provide important constraints on broadband providers’ conduct and protections for
consumers. Thus, similar to our analysis above, it is our predictive judgment that other protections will
be sufficient to ensure just, reasonable, and nondiscriminatory conduct by providers of broadband Internet
access service and to protect consumers for purposes of sections 10(a)(1) and (a)(2).1563 Given our
objective to proceed in a tailored manner, we likewise find it in the public interest to forbear from
applying section 214 with respect to broadband Internet access service insofar as that provision would
require Commission approval of transfers of control involving that service.1564
512.
We also grant forbearance with respect to section 214(d), under which the Commission
may require a common carrier “to provide itself with adequate facilities for the expeditious and efficient
performance of its service.”1565 The duty to maintain “adequate facilities” includes “undertak[ing]
improvements in facilities and expansion of services to meet public demand.”1566 In practice, we expect
that the exercise of this duty here would overlap significantly with the sorts of behaviors we would expect
providers to have marketplace incentives to engage in voluntarily as part of the “virtuous cycle.” 1567
Beyond that, comments contending that the Commission should not forbear as to that provision do not
explain why the core broadband Internet access service requirements do not provide adequate protection
at this time. Thus, as under our analysis above, it is our predictive judgment that other protections will be
sufficient to ensure just, reasonable, and nondiscriminatory conduct by providers of broadband Internet
access service and to protect consumers for purposes of sections 10(a)(1) and (a)(2).1568 Likewise,
informed by section 706 we have an objective of tailoring the regulatory approach here, and thus find
forbearance warranted under section 10(a)(3) insofar as section 214(d) would apply by virtue of our
classification of broadband Internet access service.1569
e.

Interconnection and Market-opening Provisions (Sections 251, 252,
256)

513.
At this time, we conclude that the availability of other protections adequately address
commenters’ concerns about forbearance from the interconnection1570 provisions under the section

(Continued from previous page)
convenience, and necessity. As this review is not triggered by reclassification, nothing in this Order limits or
otherwise affects our review under Section 310.
1563

See supra paras. 495-496; Section V.C.2.a.

1564

See supra paras. 495-496; Section V.C.2.a.

1565

47 U.S.C. § 214(d). See Free Press Nov. 21, 2014 Ex Parte Letter at 1 n.3 (citing Free Press Comments, GN
Docket No. 10-127at 71-72 (filed July 15, 2010) (advocating that he Commission not forbear from applying section
214(d))).
1566

RCA Communications, Memorandum Opinion and Order, 44 FCC 613, 618 (1956).

1567

Thus, even if our open Internet rules do not directly address this issue, by helping promote the virtuous cycle
more generally, they also will help ensure that broadband providers have marketplace incentives to behave in this
manner.
1568

See supra paras. 495-496; Section V.C.2.a.

1569

See supra paras. 495-496; Section V.C.2.a.

1570

Although commenters appear to use the term “interconnection” to mean a potentially wide range of different
things, for purposes of this section we use that term solely in the manner it is used and defined for purpose of these
provisions. 47 U.S.C. §§ 251, 252, 256. See also 47 C.F.R. § 51.5 (defining “interconnection” for purposes of the
Commission’s implementation of the section 251/252 framework).

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251/252 framework1571 and under section 256.1572 We thus forbear from applying those provisions to the
extent that they are triggered by the classification of broadband Internet access service in this Order. The
Commission retains authority under sections 201, 202 and the open Internet rules to address
interconnection issues should they arise, including through evaluating whether broadband providers’
conduct is just and reasonable on a case-by-case basis. 1573 We therefore conclude that these remaining
legal protections that apply with respect to providers of broadband Internet access service will enable us
to act if needed to ensure that a broadband provider does not unreasonably refuse to provide service or
interconnect.1574 Further, we find that applying the legal structure adopted in this Order better enables us
1571

As discussed above, however, we do not forbear from applying section 251(a)(2) with respect to broadband
Internet access service, and that provision thus is outside the scope of the discussion here. See supra Section V.C.1.
1572

See, e.g., COMPTEL Comments at 22-23; Mozilla Comments at 13; Public Knowledge Comments at 85, 88-90;
Rural Broadband Policy Group Comments at 8-9; Tumblr Reply at 9-10; Letter from Blake E. Reid, Counsel for
TDI, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 3 (filed Nov. 17, 2014); Full Service
Network/TrueConnect Feb. 3, 2015 Ex Parte Letter at 17. Section 251 of the Act sets forth interconnection
obligations (along with other requirements designed to promote competition). 47 U.S.C. § 251. Section 252
establishes certain procedures for negotiating, arbitrating, and approving interconnection agreements implementing
the requirements of section 251. 47 U.S.C. § 252. As a result of the forbearance granted from section 251 below,
section 252 thus is inapplicable, insofar it is simply a tool for implementing the section 251 obligations. Although
we do not forbear from applying section 251(a)(2) with respect to broadband Internet access service, we note that
the Commission previously has held that the procedures of section 252 are not applicable in matters simply
involving section 251(a). See, e.g., CoreComm Communications, Inc., and Z-Tel Communications, Inc. v. SBC
Communications, Inc. et al., File No. EB-01-MD-017, Order on Reconsideration, 19 FCC Rcd 8447, 8454-55, para.
18 (2004) (vacated on other grounds) (asserting that “[n]either the general interconnection obligation of section
251(a) nor the interconnection obligation arising under section 332 is implemented through the negotiation and
arbitration scheme of section 252”); Qwest Communications International Inc. Petition for Declaratory Ruling on
the Scope of the Duty to File and Obtain Prior Approval of Negotiated Contractual Arrangements under Section
252(a)(1), WC Docket No. 02-89, Memorandum Opinion and Order, 17 FCC Rcd 19337, 19341, n.26 (2002)
(stating that “only those agreements that contain an ongoing obligation relating to section 251(b) or (c) must be
filed” with the state commission pursuant to section 252(a)(1)”). To the extent that the Commission nonetheless
could be seen as newly applying section 252 with respect to broadband Internet access service as a result of our
classification decision here, we find the section 10 criteria met to grant forbearance from that provision for the same
reasons discussed with respect to section 251 in the text above. Section 256 promotes coordinated public
telecommunications network planning and interconnectivity and allows Commission oversight of such activities. 47
U.S.C. § 256.
1573

47 U.S.C. § 201; supra Sections III.C.2, III.D.2. Indeed, one commenter, while asking that the Commission
decline to forbear from sections 251(a) and 256, concedes that other provisions might meet the Commission’s needs
in this context. Mozilla Comments at 13 (advocating that “the Commission should strongly consider retaining
section 251(a) and 256, in order to provide an unassailable legal basis for oversight of interconnection and peering
practices, even though these sections may not be strictly necessary so long as sections 201 and 202 are effective”).
See also, e.g., CDT Feb. 4, 2015 Ex Parte Letter at 5 (“The propriety of forbearance from interconnection
obligations in Section 251 turns on whether the Commission can rely on Section 201 and 202 to ensure that
interconnection agreements and practices are consistent with an open Internet.”).
1574

See 47 U.S.C. § 201; Access Charge Reform, Reform of Access Charges Imposed by Competitive Local
Exchange Carriers, CC Docket No. 96-262, Eighth Report and Order and Fifth Order on Reconsideration, 19 FCC
Rcd 9108, 9137-38, paras. 59-61 (2004); People’s Telephone Cooperative v. Southwestern Bell Tel. Co., et al.,
Memorandum Opinion and Order, 62 FCC 2d 113, 116, para. 7 (1976); Bell System Tariff Offerings of Local
Distribution Facilities For Use By Other Common Carriers; and Letter of Chief, Common Carrier Bureau, Dated
October 19, 1973, to Laurence E. Harris, Vice President, MCI Telecommunications Corp., Decision, 46 FCC 2d
413, 418-19, paras. 7-8 (1974); see also supra Section III.D.2. Our finding of significant overlap between the
authority retained by the Commission under section 201 and the interconnection requirements of section 251 is
reinforced by Congress’ inclusion of section 251(g) and (i), which, notwithstanding the requirements of section 251,
preserve the Commission’s pre-1996 Act interconnection requirements as well as its ongoing authority under section
201. See 47 U.S.C. § 251(g), (i).

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to achieve a tailored framework than requiring compliance with interconnection under section 251, in that
the application of that framework leaves more to the Commission’s discretion, rather than being subject to
mandatory regulation under section 251.1575 Because we retain our authority to apply and enforce these
other protections, we reject commenters’ suggestion that the section 10(a) forbearance criteria are not met
as to sections 251 and 256.1576 Rather, consistent with our analysis for other provisions, we find that other
protections render application of these provisions unnecessary for purposes of sections 10(a)(1) and (a)(2)
and the forbearance reflects our tailored regulatory approach, informed by section 706, and thus is in the
public interest under section 10(a)(3).1577
514.
We also reject arguments suggesting that we should not forbear from applying sections
251(b) and (c) with respect to broadband Internet access service.1578 For example, sections 251(b)(1), (4),
and (5) impose obligations on LECs regarding resale, access to rights-of-way, and reciprocal
compensation.1579 Section 251(c) subjects incumbent LECs to unbundling, resale, collocation, and other
competition policy obligations.1580 While we recognize the important competition policy goals that
spurred Congress’ adoption of these requirements in the 1996 Act, we are persuaded to forbear from
applying these provisions under the circumstances here. In particular, we find the interests of customers
of customers of broadband Internet access service, under section 10(a)(1) and (a)(2), and the public
interest more generally, under section 10(a)(3) is best served by an overall regulatory framework that
1575

47 U.S.C. 251(c)(2); see Implementation of the Local Competition Provisions in the Telecommunications Act of
1996; Interconnection between Local Exchange Carriers and Commercial Mobile Radio Service Providers, CC
Docket Nos. 96-98, 95-185, First Report and Order, 11 FCC Rcd 15499, 15594, para. 184 (1996) (Local
Competition Order) (finding that section 251(c)(2) requires that an incumbent must provide interconnection for
purposes of transmitting and routing telephone exchange traffic or exchange access traffic or both). Because we
forbear from this requirement, we need not, and do not, resolve whether broadband Internet access service could
constitute “telephone exchange service” or “exchange access,” nor whether any particular non-broadband provider
seeking to interconnect and exchange traffic with the broadband provider is a carrier.
1576

This is particularly true as to section 256, which does not provide the Commission any additional authority that
it does not otherwise have. 47 U.S.C. § 256(c); Comcast v. FCC, 600 F.3d 642, 659 (D.C. Cir. 2010).
1577

See, e.g., supra paras. 495-496; Section V.C.2.a.

1578

Free Press Nov. 21, 2014 Ex Parte Letter at 1 n.1 (citing Free Press Comments, GN Docket No. 10-127, at 7274 (filed July 15, 2010)); Full Service Network/TruConnect Feb. 3, 2015 Ex Parte Letter at 17-19; Letter from Earl
Comstock, Counsel for Full Service Network and TruConnect, to Marlene H. Dortch, Secretary, FCC, GN Docket
No. 14-28, at 1-5 (filed Feb. 10, 2015) (summarizing meeting with Commissioner Clyburn’s office).
1579

47 U.S.C. §§ 251(b)(1) (resale); 251(b)(4) (access to rights-of-way); 251(b)(5) (reciprocal compensation). In
addition, sections 251(b)(2) and (b)(3) deal with telephone numbering issues, but commenters do not explain how
the use of telephone numbers bears on the provision of broadband Internet access service. 47 U.S.C. §§ 251(b)(2),
(b)(3).
1580

47 U.S.C. §§ 251(c)(1) (duty to negotiate in good faith); 251(c)(3) (unbundling); 251(c)(4) (resale); 251(c)(5)
(notice of network changes); 251(c)(6) (collocation). We note that the Commission has determined that section
251(c) has been fully implemented throughout the United States. See Petition of Qwest Corporation for
Forbearance Pursuant to 47 U.S.C. § 160(c) in the Omaha Metropolitan Statistical Area, WC Docket No. 04-223,
Memorandum Opinion and Order, 20 FCC Rcd 19415, 19440–42, paras. 53–56 (2005) (Qwest Omaha Forbearance
Order), aff’d, Qwest Corp. v. FCC, 482 F.3d 471 (D.C. Cir. 2007). We reject claims that section 251(c) has not
been fully implemented “[b]ecause the Commission has never applied section 251(c) to the provision of broadband
Internet access service” as at odds with that precedent. See, e.g., Full Service Network/TruConnect Feb. 3, 2015 Ex
Parte Letter at 28-29. The Commission has adopted rules implementing section 251(c), and the fact that the manner
in which those rules apply might vary with the classification of a particular service (or changes in that classification)
does not alter that fact. See, e.g., Qwest Corp. v. FCC, 482 F.3d at 477 (affirming the Commission’s interpretation
“that § 251(c) had been fully implemented ‘because the Commission has issued rules implementing section 251(c)
and those rules have gone into effect’”) (citation omitted). Therefore, the prohibition in section 10(d) of the Act
against forbearing from section 251(c) prior to such a determination is not applicable.

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includes forbearance from these provisions, which balances the need for appropriate Commission
oversight with the goal of tailoring its regulatory requirements.1581 The Commission previously has
sought to balance the advancement of competition policy with the duty to encourage advanced services
deployment pursuant to section 706.1582 Moreover, to the extent that entities otherwise are LECs or
incumbent LECs, the forbearance granted in this decision does not eliminate any previously-applicable
requirements of sections 251(b) and (c) and our implementing rules.1583 In addition, the Commission
retains authority to address unjust or unreasonable conduct through its section 201 and 202 authority.
Thus, we do not find the competition policy requirements of sections 251 and 259 and the implementing
rules necessary within the meaning of section 10(a)(1) or (2), and conclude that forbearance would be in
the public interest under section 10(a)(3). As a result, we forbear from those requirements in the context
of broadband Internet access service to the extent that those provisions newly apply by virtue of our
classification of that service here.
f.

Subscriber Changes (Section 258)

515.
We also are persuaded, under the section 10(a) framework, to forbear from applying
section 258’s prohibition on unauthorized carrier changes, and we reject suggestions to the contrary by
some commenters.1584 In the voice service context, that provision, and the Commission’s implementing
1581

See supra paras. 495-496; Section V.C.2.a.

1582

See, e.g., Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers;
Implementation of the Local Competition Provisions of the Telecommunications Act of 1996; Deployment of
Wireline Services Offering Advanced Telecommunications Capability, CC Docket Nos. 01-338, 96-98, 98-147,
Report and Order and Order on Remand and Further Notice of Proposed Rulemaking, 18 FCC Rcd 16978, 1714154, paras. 272-97 (2003) (Triennial Review Order), aff'd in part, remanded in part, vacated in part, United States
Telecom Association v. FCC, 359 F.3d 554, 564-93 (D.C. Cir. 2004) (USTA II) (considering the objectives of
section 706, the Commission imposed only limited unbundling obligations on incumbent LECs’ mass market nextgeneration broadband loop architectures); Review of the Section 251 Unbundling Obligations of Incumbent Local
Exchange Carriers; Implementation of the Local Competition Provisions of the Telecommunications Act of 1996;
Deployment of Wireline Services Offering Advanced Telecommunications Capability, CC Docket Nos. 01-338, 9698, 98-147, Order on Reconsideration, 19 FCC Rcd 15856, 15859-61, paras. 7-9 (2004) (MDU Reconsideration
Order) (determining that the same section 706 considerations justified extending the Triennial Review Order’s
FTTH unbundling relief to encompass FTTH loops serving predominantly residential multiple dwelling units
(MDUs)); Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers;
Implementation of the Local Competition Provisions of the Telecommunications Act of 1996; Deployment of
Wireline Services Offering Advanced Telecommunications Capability, CC Docket Nos. 01-338, 96-98, 98-147,
Order on Reconsideration, 19 FCC Rcd 20293, 20297-303 paras. 9-19 (2004) (FTTC Reconsideration Order)
(finding that the FTTH analysis applied to FTTC loops, as well, and granting the same unbundling relief to FTTC as
applied to FTTH); Petition for Forbearance of the Verizon Telephone Companies Pursuant to 47 U.S.C. § 160(c);
SBC Communications Inc.’s Petition for Forbearance Under 47 U.S.C. § 160(c); Qwest Communications
International Inc. Petition for Forbearance Under 47 U.S.C. § 160(c); BellSouth Telecommunications, Inc. Petition
for Forbearance Under 47 U.S.C. § 160(c), WC Docket Nos. 01-338, 03-235, 03-260, 04-48, Memorandum
Opinion and Order, 19 FCC Rcd 21496, 21512, para. 34 (2004) (Broadband 271 Forbearance Order) (analyzing the
public interest of relieving BOCs of unbundling obligations under section 271 under the umbrella of section 706);
Wireline Broadband Classification Order, 20 FCC Rcd at 14894-98, paras. 77-85 (stating that in assessing the
alternate regulatory frameworks for wireline broadband Internet access services, the Commission must ensure that
the balance struck provides adequate incentives for infrastructure investment, in accordance with section 706’s
Congressional objectives). Our overall analysis of the record on investment incentives—including evidence and
arguments regarding more extensive or less extensive regulation than the tailored approach adopted here—is
discussed in greater detail above. See supra Section IV.C.5.
1583

As discussed below, see infra Section V.D., we evaluate forbearance assuming arguendo that provisions apply.

1584

See, e.g., Public Knowledge Comments at 85. We evaluate forbearance from section 258 by assuming arguendo
that it applies. See infra Section V.D. Because we conclude that forbearance is warranted even with that
assumption, we need not, and do not, decide whether broadband Internet access service is “telephone exchange
service” or “telephone toll service” within the meaning of section 258(a).

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rules, provide important protections given the ability of a new provider to effectuate a carrier change not
only without the consent of the customer but also without direct involvement of the customer’s existing
carrier.1585 While unauthorized carrier change problems theoretically might arise even outside such a
context, the record here does not reveal whether or how, in practice, unauthorized changes in broadband
Internet access service providers could occur. As a result, on this record we are not persuaded what
objective would be served by application of this provision at all, particularly given the protections
provided by the core broadband Internet access service requirements. As under our analysis of other
provisions, we conclude that application of section 258 is not necessary for purposes of sections 10(a)(1)
and (a)(2) and that forbearance is in the public interest.1586 Therefore, insofar as our classification of
broadband Internet access service would newly give rise to the application of section 258, we forbear
from applying section 258 to that service.
g.

Other Title II Provisions

516.
Beyond the provisions already addressed above, we also forbear from applying those
additional Title II provisions that could give rise to new requirements by virtue of our classification of
broadband Internet access service to the extent of our section 10 authority. We find it notable that no
commenters raised significant concerns about forbearing from these requirements, which reinforces our
analysis below.1587
517.
For one, we conclude the three-party statutory test under section 10(a) is met to forbear
from applying certain provisions concerning BOCs in sections 271-276 of the Act to the extent that they
would impose new requirements arising from the classification of broadband Internet access service in
this Order. Sections 271, 272, 274, and 275 establish requirements and safeguards regarding the
provision of interLATA services, electronic publishing, and alarm monitoring services by the Bell
Operating Companies (BOCs) and their affiliates.1588 Section 273 addresses the manufacturing, provision,
and procurement of telecommunications equipment and customer premises equipment (CPE) by the
BOCs and their affiliates, the establishment and implementation of technical standards for
telecommunications equipment and CPE, and joint network planning and design, among other matters.1589
Section 276 addresses the provision of “payphone service,” and in particular establishes
nondiscrimination standards applicable to BOC provision of payphone service.1590
518.
With one exception (discussed below), we conclude that the application of any newlytriggered provisions of sections 271 through 276 to broadband Internet access service is not necessary
within the meaning of section 10(a)(1) or (2), and that forbearance from these requirements is consistent
1585

See, e.g., Implementation of the Subscriber Carrier Selection Changes Provisions of the Telecommunications
Act of 1996; Policies and Rules Concerning Unauthorized Changes of Consumers Long Distance Carriers, CC
Docket No. 94-129, Second Report and Order and Further Notice Of Proposed Rulemaking, 14 FCC Rcd 1508,
1517-18, para. 12 (1998); Implementation of the Subscriber Carrier Selection Changes Provisions of the
Telecommunications Act of 1996; Policies and Rules Concerning Unauthorized Changes of Consumers Long
Distance Carriers, CC Docket No. 94-129, Further Notice Of Proposed Rulemaking and Memorandum Opinion and
Order on Reconsideration, 12 FCC Rcd 10674, 10678, para. 4 (1997).
1586

See supra paras. 495-496; Section V.C.2.a.

1587

See supra para. 494.

1588

47 U.S.C. §§ 271-72, 274-75. The Commission has determined that section 271 has been fully implemented
throughout the United States. Petition for Forbearance of the Verizon Telephone Companies Pursuant to 47 U.S.C.
§ 160(c), WC Docket No. 01-338, Memorandum Opinion and Order, 19 FCC Rcd 21496, 21503,para. 15 (2004)
(Section 271 Broadband Forbearance Order), aff'd sub nom. EarthLink, Inc. v. FCC, 462 F.3d 1.(D.C. Cir. 2006).
Therefore, the prohibition in section 10(d) of the Act against forbearing from section 271 prior to such a
determination is not applicable.
1589

47 U.S.C. § 273.

1590

47 U.S.C. § 276(a).

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with the public interest under section 10(a)(3). Many of the provisions in these sections have no current
effect.1591 Other provisions in these sections impose continuing obligations that are at most tangentially
related to the provision of broadband Internet access service.1592 Forbearance from any application of
these provisions with respect to broadband Internet access service insofar as they are newly triggered by
our classification of that service will not meaningfully affect the charges, practices, classifications, or
regulations for or in connection with that service, consumer protection, or the public interest.1593
519.
Forbearance for certain other provisions not meaningfully addressed by commenters also
flows from our analysis of certain provisions that commenters did raise or that are discussed in greater
detail elsewhere. First, as described elsewhere, we forbear from all ex ante rate regulations, tariffing and
related recordkeeping and reporting requirements insofar as they would arise from our classification of
broadband Internet access service.1594 Second, we likewise forbear from unbundling and network access
requirements that would newly apply based on the classification decision in this Order.1595 It is our
predictive judgment that other protections—notably the core broadband Internet access service
1591

See, e.g., 47 U.S.C. § 271(d)(1)-(4) (setting forth procedural requirements regarding BOC applications for
authorization to provide in-region, interLATA services); 47 U.S.C. § 274(g)(2) (specifying that the provisions of
section 274 shall not apply to conduct occurring more than four years after the enactment of the 1996 Act); 47
U.S.C. § 274(a) (prohibiting BOC entry into the provision of alarm monitoring services for five years from the
enactment of the 1996 Act); compare 47 U.S.C. § 272(f) (providing for the sunset of the provisions of section 272,
other than section 272(e), absent a Commission rule or order extending the period in which those provisions remain
in effect) with Sunset of the BOC Separate Affiliate and Related Requirements; 2000 Biennial Regulatory Review
Separate Affiliate Requirements of Section 64.1903 of the Commission's Rules; Petition of AT&T Inc. for
Forbearance Under 47 U.S.C. § 160(c) with Regard to Certain Dominant Carrier Regulations for In-Region,
Interexchange Services, WC Docket Nos. 02-112, 06-120, CC Docket No. 00-175, Report and Order and
Memorandum Opinion and Order, 22 FCC Rcd 16440, 16479-83 , paras. 79–86 (2007) (Section 272 Sunset Order)
(declining to extend the section 272 safeguards with regard to interLATA telecommunications services); Request for
Extension of the Sunset Date of the Structural, Nondiscrimination, and Other Behavioral Safeguards Governing Bell
Operating Company Provision of In-Region, InterLATA Information Services, CC Docket No. 96-149, Order, 15
FCC Rcd 3267 (2000) (Information Services Sunset Order) (denying request to extend the section 272 safeguards
with regard to interLATA information services).
1592

See, e.g., 47 U.S.C. § 273(c) (requiring each BOC to “maintain and file with the Commission full and complete
information with respect to the protocols and technical requirements for connection with and use of its telephone
exchange service facilities”); 47 U.S.C. § 273(d)(3) (setting forth procedures for establishing industry-wide
standards for telecommunications equipment and CPE).
1593

See also supra paras. 495-496; Section V.C.2.a. Consistent with our general approach to forbearance here,
which seeks to address new requirements that could be triggered by our classification of broadband Internet access
service, we do not forbear with respect to provisions to the extent that they already applied prior to this Order. For
example, section 271(c) establishes substantive standards that a BOC was required to meet in order to obtain
authorization to provide interLATA services in an in-region state, and which it and must continue to meet in order to
retain that authorization. 47 U.S.C. § 271(c); see 47 U.S.C. § 271(d)(6) (authorizing various Commission actions in
the event the Commission determines that a BOC has ceased to meet the conditions for authorization to provide inregion, interLATA services). In addition, section 271(c)(2)(B)(iii), requires that a BOC provide nondiscriminatory
access to poles, ducts, conduits, and rights-of-way in accordance with the requirements of section 224 of the Act,
does not depend upon the classification of BOCs’ broadband Internet access service. In combination with section
271(d)(6), this provision provides the Commission with an additional mechanism to enforce section 224 against the
BOCs. We also do not forbear from section 271(d)(6) to the extent that it provides for enforcement of the provisions
we do not forbear from here. In addition, while the BOC-specific provisions of section 276 theoretically could be
newly implicated insofar as the reclassification of broadband Internet access service might result in some entities
newly being treated as a BOC, the bulk of section 276 appears independent of the classification of broadband
Internet access service and we thus do not forbear as to those provisions.
1594

See supra Sections V.C.2.a, V.C.2.c., V.C.3.

1595

See supra Section V.C.2.e.

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requirements—will be adequate to ensure just, reasonable, and nondiscriminatory conduct by providers of
broadband Internet access service and to protect consumers for purposes of sections 10(a)(1) and
(a)(2).1596 Further, informed by our responsibilities under section 706, we adopt an incremental regulatory
approach that we find strikes the appropriate public interest balance under section 10(a)(3).1597 For these
same reasons, we forbear from section 221’s property records classification and valuation provisions,1598
which would be used in the sort of ex ante rate regulation that we do not find warranted for broadband
Internet access service. Likewise, just as we forbear from broader unbundling obligations, that same
analysis persuades us to forbear from applying section 259’s infrastructure sharing and notification
requirements.1599
520.
We also grant forbearance from other miscellaneous provisions to the extent that they
would newly apply as a result of our classification insofar as they do not appear necessary or even
relevant for broadband Internet access service of broadband Internet access service. For one, section 226,
the Telephone Operator Consumer Services Improvement Act (“TOCSIA”),1600 protects consumers
making interstate operator services calls from pay telephones, and other public telephones, against
unreasonably high rates and anti-competitive practices.1601 Section 227(c)(3) provides for carriers to have
certain notification obligations as it relates to the requirements of the Telephone Consumer Protection Act
(TCPA),1602 and section 227(e) restricts the provision of inaccurate caller identification information
associated with any telecommunications service.1603 Section 228 regulates the offering of pay-per-call
services and requires carriers, inter alia, to maintain lists of information providers to whom they assign a
telephone number, to provide a short description of the services the information providers offer, and a
statement of the cost per minute or the total cost for each service.1604 Section 260 regulates local
exchange carrier practices with respect to the provision of telemessaging services.1605 It is not clear how
these provisions would be relevant to broadband Internet access service, and commenters to not provide
meaningful arguments in that regard. Thus, for that reason, as well as the continued availability of the
core broadband Internet access service requirements, we find enforcement of these provisions, to the
extent they would newly apply by virtue of our classification of broadband Internet access service, is not
1596

See supra paras. 495-496; Section V.C.2.a.

1597

See supra paras. 495-496; Section V.C.2.a.

1598

47 U.S.C. § 221.

1599

See 47 U.S.C. § 259.

1600

47 U.S.C. § 226.

1601

S. Rep. No. 439, 101st Cong., 2d Sess. at 1 (1990). “Operator services” include collect or person-to-person calls,
calls billed to a third number, and calls billed to a calling card or credit card. These services may be provided by an
automated device as well as by a live operator. Id.
1602

47 U.S.C. § 227(c)(3)(B), (C), (L). Because we are forbearing from these substantive requirements, we note
that, as a consequence, there will not be a private right of action granted under section 227(c)(5) based on alleged
violations of those forborne-from requirements in the context of broadband Internet access service. We note that
while the universe of “calls” covered by section 227(b)(1)(A)(iii) is prerecorded or autodialed calls to “a paging
service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any
service for which the called party is charged for the call” even with the reclassification of mobile BIAS we do not
interpret there to be any new or expanded restrictions arising from that provision because the relevant calls also
would need to be specifically to a “telephone number” assigned to the relevant service. 47 U.S.C. §
227(b)(1)(A)(iii). As a result, there also would not be any private right of action under section 227(b)(3) that is
newly triggered by the decisions in this Order. 47 U.S.C. § 227(b)(3).
1603

47 U.S.C. § 227(e).

1604

47 U.S.C. § 228.

1605

47 U.S.C. § 260.

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necessary to ensure that the charges, practices, classifications, or regulations by, for, or in connection with
broadband providers are just and reasonable and are not unjustly or unreasonably discriminatory under
section 10(a)(1).1606 Enforcement also is not necessary for the protection of consumers under section
10(a)(2), and forbearance from applying these provisions is consistent with the public interest under
section 10(a)(3), particularly given our conclusion, informed by section 706, that it is appropriate to
proceed incrementally here.1607
521.
We also note that the provisions of section 276 underlying the Commission’s regulation
of inmate calling services (ICS) and the ICS rules themselves do not appear to vary depending on whether
broadband Internet access service is an “information service” or “telecommunications service.”1608 We
note, however, that The D.C. Prisoners’ Legal Services Project, Inc., et al. (the ICS Petitioners) express
concern that forbearance under this order could be misconstrued as a limitation on the Commission’s
authority with respect to any advanced ICS services (such as video visitation) that may replace or
supplement traditional ICS telephone calls.1609 It is not our intent to limit in any way the Commission’s
ability to address ICS, particularly given the Commission’s finding in 2013 that the ICS market “is failing
to protect the inmates and families who pay [ICS] charges.”1610 We therefore find that forbearance would
fail to meet the statutory test of section 10 of the Act, in that the protections of section 276 remain
necessary to protect consumers and serve the public interest. Accordingly, out of an abundance of caution
we make clear that we are not forbearing from applying section 276 to the extent applicable to ICS, as
well as the ICS rules.
h.

Truth-in-Billing Rules

522.
We also find the section 10(a) criteria met and forbear from applying our truth-in-billing
rules insofar as they are triggered by our classification of broadband Internet access service here.1611 The
core broadband Internet access requirements, including the requirement of just and reasonable conduct
under section 201(b), will provide important protections in this context even without specific rules.1612
Moreover, even advocates of such protections observe that this “may require further examination by the
Commission,” and do not actually propose that the current truth-in-billing rules immediately apply in
practice, instead recommending that the Commission “temporarily stay these rules [and] implement

1606

47 U.S.C. § 160(a)(1). See supra paras. 495-496; Section V.C.2.a.

1607

47 U.S.C. §§ 160(a)(2), (a)(3). See supra paras. 495-496; Section V.C.2.a.

1608

See, e.g., Rates for Interstate Inmate Calling Services, WC Docket No. 12-375, Report and Order and Further
Notice of Proposed Rulemaking, 28 FCC Rcd 14107, 14115, para. 14 (2013) (ICS Order) (“[S]ection 276 directs the
Commission to ‘establish a per call compensation plan to ensure that all payphone service providers’—which the
statute defines to include providers of ICS—‘are fairly compensated for each and every completed intrastate and
interstate call.’ . . . Section 276 makes no mention of the technology used to provide payphone service and makes no
reference to ‘common carrier’ or ‘telecommunications service’ definitions.”) (internal citations omitted) et seq. pets.
for stay granted in part sub nom. Securus Techs. v. FCC, No. 13-1280 (D.C. Cir. Jan. 13, 2014); 47 C.F.R. §§
64.6000.
1609

See generally Comments from Deborah M. Golden, D.C. Prisoners’ Legal Services Project, Inc., to Marlene H.
Dortch, Secretary, FCC, GN Docket No. 14-28 (filed Feb. 18, 2015).
1610

See ICS Order, 28 FCC Rcd at 14109-10, para. 3.

1611

See, e.g., Public Knowledge Dec. 19, 2014 Ex Parte Letter at 21 & n.97.

1612

The Commission has previously noted the availability of section 201(b)’s protections outside the scope of the
truth-in-billing rules. See, e.g., Empowering Consumers To Prevent and Detect Billing For Unauthorized Charges
(“Cramming”); Consumer Information and Disclosure; Truth-in-Billing and Billing Format, CG Docket Nos. 11116, 09-158; CC Docket No. 98-170, Report and Order and Further Notice of Proposed Rulemaking, 27 FCC Rcd
4436, 4455, para. 47 (2012) (“remind[ing] CMRS carriers that,” in addition to “those Truth-in-Billing rules that
already apply to them” they “remain subject to section 201(b), . . .and to the Commission's enforcement authority”).

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interim provisions.”1613 They do not explain what such interim provisions should be, however, and as we
explain below we are not persuaded that a stay or time-limited forbearance provides advantages relative
to the approach we adopt here.1614 Consequently, as in our analysis above, we are not persuaded that our
truth-in-billing rules are necessary for purposes of sections 10(a)(1) and (a)(2), particularly given the
availability of the core broadband Internet access service requirements.1615 Likewise, as above, under the
tailored regulatory approach we find warranted here, informed by our responsibilities under section 706,
we conclude that forbearance is in the public interest under section 10(a)(3).1616
i.

Roaming-Related Provisions and Regulations

523.
We find section 10(a) met for purposes of granting certain conditional forbearance from
roaming regulations. We recognize that the reclassification decisions elsewhere in this Order potentially
alter the scope of an MBIAS provider’s roaming obligations. The Commission has previously established
two different regimes to govern the roaming obligations of commercial mobile providers. The first
regime, established in 2007 pursuant to authority under sections 201 and 202 of the Act, imposes
obligations to provide automatic roaming on CMRS carriers that “offer real-time, two-way switched voice
or data service that is interconnected with the public switched network and utilizes an in-network
switching facility.”1617 Such carriers were required, on reasonable request, to provide automatic roaming
on reasonable and not unreasonably discriminatory terms and conditions.1618
524.
Because this regime did not extend to data services that were not at that time classified as
CMRS,1619 the Commission adopted another roaming regime in 2011 under its Title III authority,
applicable to “commercial mobile data services,” which were defined to include all those commercial
mobile services that are not interconnected with the public switched network, including (under the
definition of “public switched network” applicable at that time) MBIAS.1620 Under this data roaming
provision, covered service providers were required to offer roaming arrangements to other such providers
on commercially reasonable terms and conditions, subject to certain specified limits.1621
525.
Our determination herein to reclassify MBIAS as CMRS potentially affects the roaming
obligations of MBIAS providers in two ways. First, absent any action by the Commission to preserve
data roaming obligations, the determination that MBIAS is an interconnected service would result in
providers of MBIAS no longer being subject to the data roaming rule, which as noted above, applies only
to non-interconnected services. Second, the determination that MBIAS is CMRS potentially subjects
MBIAS providers to the terms of the CMRS roaming rules.
526.
We decide to retain for MBIAS, at this time, the roaming obligations that applied prior to
reclassification of that service, consistent with our intent to proceed incrementally with regard to
1613

Public Knowledge Dec. 19, 2014 Ex Parte Letter at 21.

1614

See infra Section V.D.

1615

See supra paras. 495-496; Section V.C.2.a.

1616

See supra paras. 495-496; Section V.C.2.a.

1617

See 47 C.F.R. § 20.12(a)(2), (d).

1618

See 47 C.F.R. § 20.12(d).

1619

See Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers, WT Docket No.
05-265, Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 15817, 15837-38, para. 56
(2007).
1620

See Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other
Providers of Mobile Data Services, WT Docket No. 05-265, Second Report and Order, 26 FCC Rcd 5411, 5411-12,
paras. 1, 2 (2011); 47 C.F.R. §§ 20.3, 20.12(a)(3), 20.12(d).
1621

See 47 C.F.R. § 20.12(e).

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regulatory changes for MBIAS, and in the absence of significant comment in the instant record regarding
the specific roaming requirements that should apply to MBIAS after reclassification. We therefore
forbear from the application of the CMRS roaming rule, section 20.12(d), to MBIAS providers,
conditioned on such providers continuing to be subject to the obligations, process, and remedies under the
data roaming rule codified in section 20.12(e). That condition, coupled with the core broadband Internet
access service requirements that remain, persuade us that the forborne-from rules are not necessary at this
time for purposes of sections 10(a)(1) and (a)(2) and that such conditional forbearance is in the public
interest under section 10(a)(3).1622 We commit, however, to commence in the near term a separate
proceeding to revisit the data roaming obligations of MBIAS providers in light of our reclassification
decisions today. Such a proceeding will permit us to make an informed decision, based on a complete
and focused record, on the proper scope of MBIAS providers’ roaming obligations after reclassification.
Pending the outcome of that reexamination, MBIAS providers covered by our conditional forbearance
continue to be subject to the obligations under the data roaming rule, and we will take any action
necessary to enforce those obligations. To ensure, however, that providers have certainty regarding their
roaming obligations pending the outcome of the roaming proceeding, we further provide that
determinations adopted in that proceeding will apply only prospectively, i.e. only to conduct occurring
after the effective date of any rule changes. The data roaming rule, rather than the automatic roaming rule
or Title II, will govern conduct prior to any such changes.
j.

Terminal Equipment Rules

527.
We also determine under section 10(a) to forbear from applying certain terminal
equipment rules to the extent that they would newly apply by virtue of the classification of broadband
Internet access service.1623 Notably, our open Internet rules themselves prevent broadband Internet access
service providers from restricting the use of non-harmful devices,1624 subject to reasonable network
management.1625 Consequently, as in our analysis above, we are not persuaded that the application of
terminal equipment rules, insofar as they would newly apply to broadband Internet access service
providers by virtue of our classification decision here, are necessary for purposes of sections 10(a)(1) and
(a)(2), particularly given the availability of the core broadband Internet access service requirements, and
in particular our bright-line rules.1626 Likewise, as above, under the tailored regulatory approach we find
warranted here, informed by our responsibilities under section 706, we conclude that forbearance is in the
public interest under section 10(a)(3).1627
3.

Other Provisions and Regulations

528.
Having discussed in detail here and above the analyses that persuade us to grant broad
forbearance from Title II provisions to the extent of our section 10 authority, we conclude that the same
analysis justifies forbearance from other provisions and regulations insofar as they would be triggered by
1622

See supra paras. 495-496; Section V.C.2.a.

1623

Full Service Network/TruConnect Feb. 3, 2015 Ex Parte Letter at 21. While Full Service Network/TruConnect
refer generally to our “Part 68” rules, that Part also includes our hearing aid compatibility rules, and as described
above, the Commission’s existing hearing aid compatibility rules do not immediately impose new hearing aid
compatibility requirements on mobile wireless broadband providers by virtue of the classification decisions in this
Order, and we do not forbear from applying those rules or section 710 of the Act. See supra Section V.C.1.b.
Section 710 of the Act and our hearing aid compatibility rules thus are not encompassed by the discussion here.
1624

See supra Section III.C.1.

1625

See supra Section III.D.4. Insofar as any Part 68 rules subject to forbearance here also permitted carriers to take
steps to protect their networks, we expect that such steps also would constitute reasonable network management
under our open Internet rules.
1626

See supra paras. 495-496; Section V.C.2.a.

1627

See supra paras. 495-496; Section V.C.2.a.

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the classification of broadband Internet access service in this Order. In particular, beyond the Title II
provisions and certain implementing rules discussed above, the classification of broadband Internet access
service could give rise to obligations related to broadband providers’ provision of that service under Title
III, Title VI and Commission rules.


First, certain provisions of Titles III and VI1628 and Commission rules1629 associated with those Titles
or the provisions of Title II from which we forbear may apply by their terms to providers classified in
particular ways.1630 As to this first category of requirements, and except as to the core broadband
Internet access service requirements, we forbear from any such provisions and regulations to the full
extent of our authority under section 10, but only insofar as a broadband provider falls within those
categories or provider classifications by virtue of its provision of broadband Internet access service,
but not insofar as those entities fall within those categories of classifications by virtue of other
services they provide.



Second, certain provisions of Titles III and VI and Commission rules associated with those Titles or
the provisions of Title II from which we forbear may apply by their terms to services classified in
particular ways.1631 Regarding this second category of requirements (to the extent not already covered
by the first category, above), and except as to the core broadband Internet access service
requirements, we forbear from any such provisions and regulations to the full extent of our authority
under section 10 specifically with respect to broadband Internet access service, but do not forbear
from these requirements as to any other services (if any) that broadband providers offer that are
subject to these requirements.

1628

The Commission has forborne from provision of Title II and from Commission rules on many instances in the
past. However, nothing in the language of section 10 categorically limits the scope of Commission forbearance only
to the provisions of Title II, see generally 47 U.S.C. § 160, and although it has been less common for the
Commission to forbear from provisions of Title III and VI, it has done so at times. See, e.g., FCBA Forbearance
Order, 13 FCC Rcd 6293 (granting certain forbearance from section 310(d) under section 10 of the Act); Petition for
Declaratory Ruling to Clarify 47 U.S.C. § 572 in the Context of Transactions Between Competitive Local Exchange
Carriers and Cable Operators; Conditional Petition for Forbearance From Section 652 of the Communications Act
for Transactions Between Competitive Local Exchange Carriers and Cable Operators, 27 FCC Rcd 11532 (2012)
(granting certain forbearance from section 652 under section 10 of the Act).
1629

For clarity, we note that by “rules” we mean both codified and uncodified rules. In addition, by “associated”
Commission rules, we mean rules implementing requirements or substantive Commission jurisdiction under
provisions in Title II, III, and/or VI of the Act from which we forbear.
1630

The Order’s classification of broadband Internet access service could trigger requirements that apply by their
terms to “common carriers,” “telecommunications carriers,” “providers” of common carrier or telecommunications
services, or “providers” of CMRS or commercial mobile services. Similarly, other provisions of the Act and
Commission rules may impose requirements on entities predicated on the entities’ classification as a “common
carrier,” “telecommunications carrier,” “provider” of common carrier or telecommunications service, or “provider”
of CMRS or commercial mobile service without being framed in those terms. As illustrative examples, see, e.g., 47
C.F.R. § 61.3(ss) (defining a “tariff” as “[s]chedules of rates and regulations filed by common carriers”); 47 C.F.R. §
64.2101 (“covered provider” defined to include, for example, “a local exchange carrier as defined in § 64.4001(e),
an interexchange carrier as defined in § 64.4001(d), a provider of commercial mobile radio service as defined in §
20.3 of this chapter . . .”).
1631

The classification of broadband Internet access service as a telecommunications service and, in the mobile
context, also CMRS service under the Communications Act, thus could trigger any requirements that apply by their
terms to “common carrier services,” “telecommunications services,” or “CMRS” or “commercial mobile” services.
Similarly, other provisions of the Act and Commission rules may impose requirements on services predicated on a
service’s classification as a “common carrier service,” “telecommunications service,” “CMRS” or “commercial
mobile” service without being framed in those terms. As an illustrative example, see, e.g., 47 C.F.R. § 64.708(i)
(“operator services” are defined as certain interstate telecommunications services).

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

Third, while commenters do not appear to have identified such rules, there potentially could be other
Commission rules for which our underlying authority derives from provisions of the Act all of which
we forbear from under the first two categories of requirements identified above, or under our Title II
forbearance discussed above, but which are not already subject to that identified scope of forbearance.
To the extent not already identified in the first two categories of requirements above, and except as to
the core broadband Internet access service requirements, we forbear to the full extent of our authority
under section 10 from rules based entirely on our authority under provisions we forbear from under
the first and second categories above (or for which the forborne-from provisions provide essential
authority) insofar as the rules newly apply as a result of the classification of broadband Internet
access service.



Fourth, we include within the scope of our broad forbearance for broadband Internet access service
any pre-existing rules with the primary focus of implementing the requirements and substantive
Commission jurisdiction in sections 201 and/or 202, including forbearing from pre-existing pricing,
accounting, billing and recordkeeping rules.1632 As with the rules identified under the first and
second categories above, we do not forbear insofar as a provider is subject to these rules by virtue of
some other service it provides.



Fifth, the classification of broadband Internet access service as a telecommunications service could
trigger certain contributions to support mechanisms or fee payment requirements under the Act and
Commission rules, including some beyond those encompassed by the categories above.1633 Insofar as
any provisions or regulations not already covered above would immediately require the payment of
contributions or fees by virtue of the classification of broadband Internet access service (rather than
merely providing Commission authority to assess such contributions or fees) they are included within
the scope of our forbearance. As under the first and second categories above, we do not forbear
insofar as a provider is subject to these contribution or fee payments by virtue of some other service it
provides.

Just as we found in our analysis of Title II provisions,1634 it is our predictive judgment that other
protections—notably the core broadband Internet access service requirements—will be adequate to ensure
just, reasonable, and nondiscriminatory conduct by providers of broadband Internet access service and to
protect consumers for purposes of sections 10(a)(1) and (a)(2). Further, informed by our responsibilities
under section 706, we adopt an incremental regulatory approach that we find strikes the appropriate
public interest balance under section 10(a)(3). These collectively persuade us that forbearance for the
additional categories of provisions and regulations above is justified to the extent of our section 10
authority.
529.
We further make clear that our approach to forbearance in this Order, which excludes
certain categories of provisions and regulations, effectively addresses the concerns of a number of
commenters regarding the scope of our forbearance.1635 First, we forbear here only to the extent of our
authority under section 10 of the Act. Section 10 provides that “the Commission shall forbear from
applying any regulation or any provision of this chapter to a telecommunications carrier or
1632

This forbearance would not include rules implementing our substantive jurisdiction under provisions of the Act
from which we do not forbear that merely cite or rely on sections 201 or 202 in some incidental way, such as by, for
example, relying on the rulemaking authority provided in section 201(b). Consistent with our discussions above,
this category also does not include our open Internet rules.
1633

See, e.g., 47 C.F.R. Part 1, Subpart G (filing fees, regulatory fees).

1634

See generally supra Section V.C.2; see also, e.g., supra paras. 495-496; Section V.C.2.a.

1635

To the extent that any questions arise as to specific provisions or regulations in the future, we can address those
as needed at that time. We note in this regard that the Commission cannot impose a penalty for conduct in the
absence of “fair notice of what is prohibited.” FCC v. Fox Television Stations, 132 S. Ct. 2307, 2317 (2012).

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telecommunications service, or class of telecommunications carriers or telecommunications services” if
certain conditions are met.1636 Certain provisions or regulations do not fall within the categories of
provisions of the Act or Commission regulations encompassed by that language because they are not
applied to telecommunications carriers or telecommunications services, and we consequently do not
forbear as to those provisions or regulations.1637
530.
Second, we do not forbear from provisions or regulations that are not newly triggered by
the classification of broadband Internet access service. The 2014 Open Internet NPRM sought comment
on possible forbearance premised on addressing the consequences that flowed from any classification
decisions it might adopt.1638 Although some commenters include sweeping requests that we forbear from
all of Title II or the like, in practice, they, too, appear focused on the consequences of classification
decisions.1639 Nor do we find on the record here that the section 10 criteria met with respect to such
forbearance, and in particular do not find it in the public interest, in the context of this item, to forbear
with respect to requirements that already applied to broadband Internet access service and providers of
that service prior to this Order. Rather, broadband providers remain free to seek relief from such
provisions or regulations through appropriate filings with the Commissions.1640
531.
A number of commenters’ arguments are addressed on one or more of these grounds.1641
For example, as to the first set of exclusions, we note that section 257 imposes certain obligations on the
Commission without creating enforceable obligations that the Commission would apply to
telecommunications carriers or telecommunications services,1642 so we do not forbear from applying those
provisions.1643 For the same reasons, we do not forbear with respect to provisions insofar as they merely
reserve state authority.1644

1636

47 U.S.C. § 160.

1637

See, e.g., Forbearance from Applying Provisions of the Communications Act To Wireless Telecommunications
Carriers, WT Docket No. 98-100, First Report and Order, 15 FCC Rcd 17414, 17427, para. 28 (2000) (holding that
“the three-prong [section 10] forbearance test is inapplicable to UTC’s request because the Commission lacks
forbearance authority over non-common carriers such as UTC,” where UTC had sought modification of
Commission rules “to allow private microwave licensees to act as providers to other carriers”); FCBA Forbearance
Order, 13 FCC Rcd at 6299, para. 9 (“licensees governed by these rule parts who do not meet the definition of
‘telecommunications carrier’ (e.g., public safety and private microwave licensees) are beyond the scope of our
section 10 forbearance authority, and therefore are not subject to the revised procedures established by this Order”).
1638

See, e.g., 2014 Open Internet NPRM, 29 FCC Rcd at 5612-13, 5615-16 paras. 148, 153.

1639

See, e.g., NCTA Jan. 15, 2015 Ex Parte Letter at 3 (arguing against “applying Title II to increase regulatory
burdens on broadband providers”); Comcast Dec. 24, 2014 Ex Parte Letter at 13 (arguing that if the Commission
reclassifies broadband Internet access service, “it should mitigate the associated” effect “as much as possible by
coupling Title II reclassification with broad forbearance from all Title II restrictions and obligations”).
1640

See, e.g., 47 C.F.R. §§ 1.3, 1.53-1.59, 1.401.

1641

In addition to those discussed below, these considerations explain, for example, why we do not grant
forbearance with respect to sections 303(b), 303(r) and 316, upon which we rely for authority for our open Internet
rules. See supra Section III.F.3.
1642

47 U.S.C. § 257.

1643

See, e.g., Public Knowledge Comments at 95.

1644

See, e.g., NARUC Comments at 14-15 (discussing, for example, state authority to perform ETC designations in
section 214(e)(2) and reservations of certain state authority under section 253); Massachusetts DTE Comments at 8
n.4 (incorporating by reference Massachusetts DTE Reply, GN Docket No. 10-127 (filed Apr. 12, 2010) (also
discussing, for example, reservation of state pole attachment authority under section 224(c) and the reservation of
state authority in section 261)).

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532.
We further note, for example, that the immunity from liability in section 230(c) applies to
providers or users of an “interactive computer service,” and its application does not vary based on the
classification of broadband Internet access service here.1645 Consequently, it is not covered by the scope
of forbearance in this order.1646 We also note that the restrictions on obscene and illicit content in sections
223 and 231(to the extent enforced)1647—as well as the associated limitations on liability—in many cases,
do not vary with the classification decisions in this Order, and thus likewise are not encompassed by the
forbearance in this Order.1648 To the extent that certain of these provisions would benefit broadband
providers and could instead be viewed as provisions that are newly applied to broadband providers by
virtue of the classification decisions in this Order, it would better promote broadband deployment, and
thus better serve the public interest, if we continue to apply those provisions.1649 We thus find that such
forbearance would not be in the public interest under section 10(a)(3).1650
533.
Some commenters also advocate that the Commission not forbear from applying “the
provisions of the Communications Assistan[ce] for Law Enforcement Act under Section 229.”1651
1645

47 U.S.C. § 230(c).

1646

See, e.g., NCTA Dec. 23, 2014 Ex Parte Letter at 21 (arguing that the Commission should not forbear with
respect to “immunity from publisher-related liability” under section 230, which “has nothing to do with commoncarrier regulation”).
1647

We note that many of the relevant provisions in these sections stem from the Child Online Protection Act
(COPA), which federal courts have enjoined from being enforced. COPA amended the Communications Act by
adding sections 230(d) and 231 and amending parts of sections 223(h)(2) and 230(d)–(f). See Child Online
Protection Act, Pub. L. No. 105-277, §§ 1401–05, 112 Stat. 2681-736–2681-741 (1998). After COPA reached the
Supreme Court twice, a federal court held that COPA is unconstitutional and placed a permanent injunction against
its enforcement. The decision was affirmed on appeal, and petition for writ of certiorari has been denied. See ACLU
v. Reno, 31 F. Supp.2d 473 (E.D. Pa. 1999) (enjoining the enforcement of the Act), aff’d, 217 F.3d 162 (3rd Cir.
2000), vacated and remanded, Ashcroft v. ACLU, 535 U.S. 564 (2002) (finding that the Act’s reference to
contemporary community standards on its own does not render it unconstitutional and the 3rd Circuit must consider
additional matters), aff’d, ACLU v. Ashcroft, 322 F.3d 240 (3rd Cir. 2003), aff’d and remanded, Ashcroft v. ACLU,
542 U.S. 656 (2004) (instructing that the district court should update the factual record and take into account current,
applicable technologies); ACLU v. Gonzales, 478 F. Supp.2d 775 (E.D. Pa 2007) (entering a permanent injunction
against enforcement of the Act after holding that it is facially unconstitutional), aff’d, ACLU v. Mukasey, 534 F.3d
181 (3rd Cir. 2008), cert. denied, 129 S. Ct. 1032 (2009). The Communications Decency Act (CDA) (Pub. L. No.
104-104, §§ 501–02, 110 Stat. 56, 133–36), which amended section 223 of the Communications Act, has also been
overturned in part, by the Supreme Court. See Reno v. ACLU, 521 U.S. 844 (1997). However, the constitutionally
offensive parts of the CDA were amended by the PROTECT Act, which is still good law. See Prosecutorial
Remedies and Tools against the Exploitation of Children Today (PROTECT) Act, Pub. L. No. 108-21, § 603, 117
Stat. 650, 687 (2003).
1648

47 U.S.C. §§ 223, 231. As a narrow exception to this general conclusion, section 223(c)(1) conceivably could
be newly applied to broadband providers by virtue of the classification decisions in this Order. 47 U.S.C. §
223(c)(1). No commenter meaningfully argues that the Commission should apply this provision to broadband
providers, and that fact, coupled with the other protections that remain, persuade us that, insofar as the Commission
would apply this provision, such application is not necessary for purposes of sections 10(a)(1) and (a)(2). Likewise,
consistent with the tailored regulatory approach adopted in this Order, we find it in the public interest under section
10(a)(3) to forbear insofar as the Commission otherwise would newly apply that provision to a broadband provider
as a result of this Order.
1649

As examples of such provisions in Title II, see, e.g., 47 U.S.C. § 223 (provisions limiting or establishing
defenses for liability under that section), 47 U.S.C. § 231(provisions limiting or establishing defenses for liability
under that section), 47 U.S.C. § 253 (authorizing preemption of state or local requirements restricting the provision
of telecommunications services).
1650

47 U.S.C. § 160(a)(3).

1651

COMPTEL Comments at 22-23.

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Section 229(a)–(d) direct the Commission to adopt rules implementing the requirements of CALEA and
authorize the Commission to investigate and enforce those rules.1652 Section 229(e) enables providers to
recover certain costs of CALEA compliance.1653 Section 229 is not, by its terms, limited to
“telecommunications services” as defined by the Communication Act, and CALEA obligations already
apply to broadband Internet access service.1654 Thus, in carrying out section 229, the Commission’s role
already extended to broadband Internet service, and all telecommunications carriers subject to CALEA
are already required to comply with all Commission rules adopted pursuant to section 229.1655 Declining
to forbear from applying section 229 and our associated rules is consistent with the overall approach,
discussed above, of focusing on addressing newly-arising requirements flowing from our classification
decision, and thus is in the public interest. Given that CALEA’s statutory obligations will apply
regardless of any forbearance granted by the Commission under the Communications Act,1656 and given
the lack of any substantial argument in the record in favor of forbearance from section 229, we conclude
that maintaining the Commission’s existing rulemaking and oversight role as established by section 229
better advances the public interest. As services and technologies evolve over time, CALEA
implementation will need to evolve as well. Section 229 establishes a rulemaking and oversight role for
the Commission that helps enable those future changes. If we were to forbear from section 229 (assuming
arguendo that we could find the forbearance standard to be satisfied), we thus would frustrate the ability
of CALEA implementation to evolve with technology, an outcome that we find fundamentally
inconsistent with the continued applicability of CALEA itself and therefore with the public interest.
534.
We also do not forbear from certain rules governing the wireless licensing process. First,
our rules require applicants for licenses under our flexible use rules to designate the regulatory status of
proposed services (i.e., common carrier, non-common carrier, or both) in the initial license application,
and make subsequent amendment to the designation, as necessary.1657 With regard to these rules, we find
that forbearance of the regulatory status designation would result in inaccurate license information and
therefore is not warranted. In particular, we conclude that such forbearance would be contrary to the
public interest under section 10(a)(3).
535.
Second, sections 1.933 and 1.939 of our rules, 47 C.F.R. §§ 1.933, 1.939, implementing
sections 309(b) and (d)(1) of the Act, 47 U.S.C. § 309(b), (d)(1), set out processes for license applications
for authorization, major modification, major amendment, substantial assignment, or transfer.
Applications that involve, in whole or in part, licenses to be used for “Wireless Telecommunications
Services,” as defined in section 1.907 of our rules, are subject to a public notice process providing
opportunity for petitions to deny, but applications that involve only “Private Wireless Services,” as
defined in section 1.907 of our rules are not subject to that process.
1652

47 U.S.C. § 229(a)-(d).

1653

47 U.S.C. § 229(e).

1654

See generally Communications Assistance for Law Enforcement Act and Broadband Access and Services, First
Report and Order and Further Notice of Proposed Rulemaking, 20 FCC Rcd 14989 (2005).
1655

See Communications Assistance for Law Enforcement Act, ET Docket No. 04-295, RM-10865, Second Report
and Order and Memorandum Opinion and Order, 21 FCC Rcd 5360, 5394-95, para. 75 (2006) (2006 CALEA
Order); see also Communications Assistance for Law Enforcement Act, CC Docket No. 97-213, Report and Order,
14 FCC Rcd 4151, 4159, para. 20 (1999) (“[W]e find that the regulations we prescribe herein apply to all
telecommunications carriers as that term is defined in section 102(8) of CALEA.”). While the Commission
previously has suggested that section 229(b) applies only to common carriers under the Communications Act, see
2006 CALEA Order, 21 FCC Rcd at 5389, para. 66, the Commission has consistently applied CALEA’s definition to
all of its CALEA rules.
1656

Under section 10, the Commission can forbear from applying certain provisions of the Communications Act
when the relevant section 10(a) criteria are met, but CALEA is not itself part of the Communications Act.
1657

See 47 C.F.R. §§ 22.1110, 27.10.

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536.
With regard to these rules, we find that reclassification is unlikely to trigger a different
process under these rules, for two reasons. We note that mobile BIAS today is being provided using
licenses that are governed under our flexible use rules (i.e., under Parts 20, 22, 24, 26, and 27) and that
are being used as well to provide services, such as mobile voice, already provided as CMRS.1658 Thus,
these applications have been subject to these provisions because they have also been used to provide
CMRS services. To the extent applicants seek licenses for reclassified service under other parts, such as
Part 101, or are otherwise not covered by the above reasoning, we find that forbearance from these
procedures is not warranted, as the public notice process requirements are important to ensure that
common carrier licensing serves the public interest. Accordingly, we do not find forbearance from
applying these rules in the public interest under section 10(a)(3), and thus we do not forbear from
application of section 309(b) and (d)(1) of the Act, or from rules 1.931, 1.933, 1.939, 22.1110, and 27.10.
D.

Potential Objections to Our General Approach to Forbearance For Broadband
Internet Access Service

537.
While we address above specific arguments against forbearance as to particular
provisions or requirements, we note that we also reject certain overarching concerns about our
forbearance decision here. For one, we grant substantial forbearance in this item, rather than deferring
such forbearance decisions to future proceedings.1659 We are able to conclude on this record that the
section 10(a) criteria are met with respect to the forbearance we grant, and taking such action here enables
us to strike the right regulatory and deregulatory balance regarding broadband Internet access service, as
discussed above. Under these circumstances we reject arguments that we should defer forbearance to
future proceedings.1660 Likewise, given our finding that the section 10(a) criteria are met for the
forbearance adopted here, we reject generalized arguments that the scope of forbearance here should be
the same as that historically granted in the CMRS context.1661 We conclude that such overarching claims
do not address distinguishing factors here, including our decision that it is in the public interest to proceed
incrementally given the regulatory experience of the near-term past coupled with the Commission’s
responsibilities under section 706 of the 1996 Act, as discussed above.1662 Further, because we grant
substantial forbearance in this Order rather than deferring those issues to a future proceeding, we also
reject concerns that the process of obtaining forbearance will be burdensome or uncertain, insofar as they
are based on a presumption that such relief only would be granted via subsequent proceedings.1663

1658

See 47 C.F.R. § 1.907.

1659

See, e.g., EFF Comments at 16-17 (The Commission’s “forbearance analysis should specifically address all
relevant Title II obligations, so as to avoid an explosion of forbearance petitions.”).
1660

See, e.g., Public Knowledge et al. Comments at 95-97; Vimeo Reply at 15 n.46. Bare assertions that the record
here is inadequate to justify forbearance from certain provisions from which we forbear above similarly are too
conclusory to warrant deferring a decision to a future proceeding. See, e.g., Letter from Mark Cooper, Director of
Research, Consumer Federation of America, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1-2
(filed Jan. 7, 2015).
1661

See, e.g., Letter from Harold Feld, et al., Public Knowledge, to Marlene H. Dortch, Secretary, FCC, GN Docket
No. 14-28, at 20-21 (filed Dec. 19, 2014) (Public Knowledge Dec. 19, 2014 Ex Parte Letter).
1662

See generally supra paras. 495-496; Section V.C.2.a.

1663

See, e.g., ITIF Comments at 11; Mercatus Center Reply at 12; NetCompetition Reply at 3. The posture here is
distinguishable from the circumstances underlying the Brand X case, where a court had classified cable modem
service as a telecommunications service without simultaneous forbearance of the sort we adopt here, and thus we
reject arguments seeking to rely on court filings there. See, e.g., Cox Reply at 10 & n.36 (quoting Petition for a Writ
of Certiorari by U.S. Dept. of Justice and FCC, FCC v. Brand X Internet Servs., No. 04-281, at 25-26 (Aug. 27,
2004) (among other things, stating “[f]orbearance proceedings would be time-consuming and hotly contested . . .
”).)); Comcast Reply at 14-15 (similar).

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538.
Nor are we persuaded by arguments that the adoption of interim rules or the stay of all
but certain rules should be used in lieu of forbearance, since those arguments do not explain in
meaningful detail what specific interim rules would be adopted or the scope of what rules would be
excluded from any stay, nor how, absent forbearance, interim rules or a stay by the Commission could
address requirements imposed by the Act, rather than merely by Commission regulation.1664 To the
extent that commenters’ arguments instead advocate that forbearance should be interim or timelimited,1665 under today’s approach, we retain adequate authority to modify our regulatory approach in the
future, should circumstances warrant. We thus are not persuaded that there is any material, incremental
advantage or benefit to adopting forbearance on an interim or time-limited basis.
539.
We also reject claims that the Commission cannot grant forbearance here because it did
not provide adequate notice and an opportunity for comment.1666 We need not and do not address here
whether forbearance is, in all cases, informal rulemaking, because in this instance we have, in fact,
proceeded via rulemaking and provided sufficient notice and an opportunity to comment in that regard.1667
Section 553(b) and (c) of the APA requires agencies to give public notice of a proposed rulemaking that
includes “either the terms or substance of the proposed rule or a description of the subjects and issues
involved” and to give interested parties an opportunity to submit comments on the proposal.1668 The
notice “need not specify every precise proposal which [the agency] may ultimately adopt as a rule”; it
need only “be sufficient to fairly apprise interested parties of the issues involved.”1669 Moreover, the
APA’s notice requirements are satisfied where the final rule is a “logical outgrowth” of the actions
proposed.1670 As long as parties should have anticipated that the rule ultimately adopted was possible, it
is considered a “logical outgrowth” of the original proposal, and there is no violation of the APA’s notice
requirements.1671

1664

See, e.g., Public Knowledge Comments at 95-97; Public Knowledge Dec. 19, 2014 Ex Parte Letter at 21-22;
Letter from Marvin Ammori to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 5 (filed Dec. 19,
2014) (Ammori Dec. 19, 2014 Ex Parte Letter).
1665

See, e.g., Public Knowledge Dec. 19, 2014 Ex Parte Letter at 22.

1666

See, e.g., Letter from Daniel Berninger, founder, VCXC, et al., to Marlene H. Dortch, Secretary, FCC, GN
Docket No. 14-28, at 5 (filed Jan. 22, 2015); Full Service Network/TruConnect Feb. 3, 2015 Ex Parte Letter at 6-11.
As discussed above, we also reject other asserted APA violations. See supra Section V.A.
1667

As noted above, a recent court case, seemingly in dicta, suggested that forbearance is informal rulemaking,
while the Commission has not expressly resolved that question. Compare Verizon v. FCC, 770 F.3d 961, 966-67
(D.C. Cir. 2014) with, e.g., Petition To Establish Procedural Requirements To Govern Proceedings For
Forbearance Under Section 10 Of The Communications Act Of 1934, As Amended, WC Docket No. 07-267, Report
and Order, 24 FCC Rcd 9543, 9554, para. 19 n.72, para. 20 (2009). We need not and do not address that broader
question here.
1668

5 U.S.C. §§ 553(b)-(c).

1669

Nuvio Corp. v. FCC, 473 F.3d 302, 310 (D.C. Cir. 2006) (citing Action for Children’s Television v. FCC, 564
F.2d 458, 470 (D.C. Cir. 1977) (internal quotation marks and citations omitted)).
1670

See PSC of DC v. FCC, 906 F.2d 713, 717 (D.C. Cir. 1990).

1671

See Northeast Maryland Waste Disposal Authority v. EPA, 358 F.3d 936, 951-52 (D.C. Cir. 2004) (discussing
APA notice requirements and the “logical outgrowth” test). The Commission has acknowledged this standard in the
past, even if using slightly different wording to the same effect. See, e.g., Rural Call Completion, WC Docket No.
13-39, Order on Reconsideration, 29 FCC Rcd 14026, 14036, para. 26 (2014) (“As long as parties could have
anticipated that the rule ultimately adopted was possible, it is considered a ‘logical outgrowth’ of the original
proposal, and there is no violation of the APA’s notice requirements.”).

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540.
Those notice standards are satisfied with respect to the forbearance adopted here. The
2014 Open Internet NPRM observed:
If the Commission were to reclassify broadband Internet access service as described above or
classify a separate broadband service provided to edge providers as a “telecommunications
service,” such a service would then be subject to all of the requirements of the Act and
Commission rules that would flow from the classification of a service as a telecommunications
service or a common carrier service.1672
Citing section 10 of the Act, the Commission then sought comment “on the extent to which forbearance
from certain provisions of the Act or our rules would be justified” should the Commission adopt such an
approach “in order to strike the right balance between minimizing the regulatory burden on providers and
ensuring that the public interest is served.”1673 “For mobile broadband services,” the Commission also
sought “comment on the extent to which forbearance should apply, if the Commission were to classify
mobile broadband Internet access service as a CMRS service subject to Title II.”1674 Collectively, the
Commission thus provided notice of possible forbearance as to any provision of the Act or Commission
rules triggered by the classification of broadband Internet access service of the sort we adopt in this
Order.1675 The forbearance we grant here from applying certain provisions and regulations newly
triggered by our classification decisions in order to strike the right regulatory balance for broadband
Internet access services consistent with the objective of preserving and protecting Internet openness is
squarely within that scope of notice provided by the 2014 Open Internet NPRM.
541.
We also view as misguided complaints about the potential for our forbearance decisions
to be challenged in court or reversed in the future by the Commission.1676 Having concluded that
broadband Internet access service is a telecommunications service,1677 certain legal consequences under
the Act flow from that by default. We grant in this order the substantial forbearance from those provision
and other Commission regulations to the extent that we find warranted at this time under the section 10

1672

2014 Open Internet NPRM, 29 FCC Rcd at 5615-16, para. 153.

1673

Id. The Commission further sought comment on “which provisions should be exempt from forbearance and
which should receive it” based on whether such action would “protect and promote Internet openness.” Id. at 5616,
para. 154. These are the factors that the Commission did, in fact, use in evaluating the section 10(a) criteria and
deciding whether and how much forbearance to grant here. See generally supra Sections V.A-C. We thus disagree
with the dissent’s suggestion that the notice provided by the Commission was inadequate in this regard. See Pai
Dissent at 27-28.
1674

Id. at 5616, para. 155.

1675

See also, e.g., id. at 5612-13, para. 148 (“For either of these [classification] possibilities, we seek comment on
whether and how the Commission should exercise its authority under section 10 (or section 332(c)(1) for mobile
services) to forbear from specific obligations under the Act and Commission rules that would flow from the
classification of a service as telecommunications service.”). Within that scope, the Commission also sought more
detailed comment on specific aspects of the possible forbearance it might adopt, discussing similar questions raised
in the 2010 Broadband Classification NOI, particular statutory provisions from which the Commission might not
forbear, and particular approaches the Commission might use to evaluating forbearance. Id. at 5616, para. 154.
Moreover, as discussed in the preceding sections above, the 2014 Open Internet NPRM yielded a robust record
regarding forbearance.
1676

See, e.g., AT&T Comments at 67; Cox Comments at 35-36; Ericsson Comments at 11- 12; Comcast Reply at
14-17; Cox Reply at 10-11.
1677

See supra Section IV.

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framework. We thereby provide broadband providers significant regulatory certainty.1678 We thus are not
persuaded to alter our approach to forbearance based on these arguments.
542.
We recognize that in our approach to forbearance for broadband Internet access service
above, we are not first exhaustively determining provision-by-provision and regulation-by-regulation
whether and how particular provisions and rules apply to this service. The Commission has broad
discretion whether to issue a declaratory ruling, which is what would be entailed by such an
undertaking.1679 We exercise our discretion not to do so here, except to the limited extent necessary to
address arguments in the record regarding specific requirements.1680 For one, the Commission need not
resolve whether or how a provision or regulation applies before evaluating the section 10(a) criteria—
rather, it can conduct that evaluation and, if warranted, grant forbearance within the scope of its section
10 authority assuming arguendo that the provisions or regulations apply.1681 In addition, as discussed in
greater detail above, the Commission is proceeding incrementally here.1682 As the D.C. Circuit has
recognized, within the statutory framework that Congress established, the Commission “possesses
significant, albeit not unfettered, authority and discretion to settle on the best regulatory or deregulatory
approach to broadband.”1683 Thus, to achieve the balance of regulatory and deregulatory policies adopted
here for broadband Internet access service, we need not—and thus do not—first resolve potentially
complex and/or disputed interpretations and applications of the Act and Commission rules that could
create precedent with unanticipated consequences for other services beyond the scope of this proceeding,
and which would not alter the ultimate regulatory outcome in this Order in any event.1684
1678

Perfect regulatory certainty would not be feasible under any classification. For example, even just as to rules
adopted under section 706 of the 1996 Act parties theoretically could raise judicial challenges as to the adequacy of
the Commission’s rules in meeting the objectives of section 706 and a future Commission likewise might elect to
modify those rules.
1679

See Yale Broadcasting Co. v. FCC, 478 F.2d 594, 602 (D.C. Cir. 1973); 5 U.S.C. § 554(e); 47 C.F.R. § 1.2(a).

1680

See, e.g., Vonage Reply at 32 (“Rather than debate each individual section of Title II in its forbearance analysis,
the Commission could limit its Title II authority to those provisions necessary to adopt and enforce Open Internet
rules and forbear from applying all other provisions and rules under Title II that do not bear on the Open Internet
rules originally codified in 2010.”).
1681

See, e.g., AT&T v. FCC, 452 F.3d 830, 836-37 (D.C. Cir. 2006) (“the Commission may not refuse to consider a
petition’s merits solely because the petition seeks forbearance from uncertain or hypothetical regulatory
obligations”); Broadband Classification NOI, 25 FCC Rcd at 7896, para. 70 n.187 (“Section 10 allows the
Commission to consider forbearance from requirements that do not currently apply or may not apply even in the
absence of forbearance.”); Feature Group IP Petition for Forbearance From Section 251(g) of the Communications
Act and Sections 51.701(b)(1) and 69.5(b) of the Commission's Rules, WC Docket No. 07-256, Order on
Reconsideration, 25 FCC Rcd 8867, 8874, para. 12 & n.43 (2010) (rejecting arguments that the Commission should
have clarified whether certain requirements applied before addressing a forbearance request, and further rejecting
the claim that this approach was in consistent with AT&T v. FCC, explaining instead that “[i]n AT&T v. FCC, the
Court of Appeals for the District of Columbia Circuit faulted the Commission for failing to conduct the statutory
analysis required by section 10 of the Act,” while “[h]ere, by contrast, the Commission conducted the requisite
analysis and concluded that the statutory forbearance criteria were not met”); Feature Group IP Petition for
Forbearance From Section 251(g) of the Communications Act and Sections 51.701(b)(1) and 69.5(b) of the
Commission’s Rules, WC Docket No. 07-256, Memorandum Opinion and Order, 24 FCC Rcd 1571, 1574, para. 6
(2009) (“For the purposes of conducting our analysis of this petition, we assume, arguendo, that the foundation of
Feature Group IP’s petition is valid. That is, we assume that section 251(g), the exception clause in section
51.701(b)(1), and section 69.5(b) of the Commission’s rules apply to voice-embedded Internet communications,
with the effect that at least in some circumstances, LECs may receive access charges.”).
1682

See supra paras. 495-496; Section V.C.2.a.

1683

Ad Hoc, 572 F.3d at 906-07.

1684

As noted earlier in this paragraph, we assume arguendo that these provisions apply and nonetheless find
forbearance warranted as discussed above.

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VI.

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CONSTITUTIONAL CONSIDERATIONS

543.
The actions we take today are fully consistent with the Constitution. Some commenters
contend that the open Internet rules burden broadband providers’ First Amendment rights and effect
uncompensated takings of private property under the Fifth Amendment. We examine these arguments
below and find them unfounded.
A.

First Amendment
1.

Free Speech Rights

544.
The rules we adopt today do not curtail broadband providers’ free speech rights. When
engaged in broadband Internet access services, broadband providers are not speakers, but rather serve as
conduits for the speech of others. The manner in which broadband providers operate their networks does
not rise to the level of speech protected by the First Amendment. As telecommunications services,
broadband Internet access services, by definition, involve transmission of network users’ speech without
change in form or content, so open Internet rules do not implicate providers’ free speech rights. And even
if broadband providers were considered speakers with respect to these services, the rules we adopt today
are tailored to an important government interest—protecting and promoting the open Internet and the
virtuous cycle of broadband deployment—so as to ensure they would survive intermediate scrutiny.
545.
This is not to say that we are indifferent to matters of free speech on the Internet. To the
contrary, our rules serve First Amendment interests of the highest order, promoting “the widest possible
dissemination of information from diverse and antagonistic sources” and “assuring that the public has
access to a multiplicity of information sources” by preserving an open Internet.1685 We merely
acknowledge that the free speech interests we advance today do not inhere in broadband providers with
respect to their provision of broadband Internet access services.
546.
Some commenters contend that because broadband providers distribute their own and
third-party content to customers, rules that govern the transmission of Internet content over broadband
networks violate their free speech rights.1686 CenturyLink and others compare the operation of broadband
Internet access service to “requiring a cable operator to carry all broadcast stations,” and contend that the
rules adopted today “displace access service providers’ editorial control over their networks” which
would otherwise constitute protected speech under the First Amendment.1687 Other commenters respond
that broadband providers are not engaged in speech when providing broadband Internet access services,
so they are not entitled to First Amendment protections in their operation of these services.1688 Consistent
with our determination in the 2010 Open Internet Order,1689 we find that when broadband providers offer
broadband Internet access services, they act as conduits for the speech of others, not as speakers
themselves.
547.
Claiming free speech protections under the First Amendment necessarily involves
demonstrating status as a speaker—absent speech, such rights do not attach. In determining the limits of
the First Amendment’s protections for courses of conduct, the Supreme Court has “extended First

1685

Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 663 (1994) (Turner I).

1686

CenturyLink Comments at 61–64; Verizon Comments at 67; Free State Reply at 20.

1687

CenturyLink Comments at 63–64; see also Verizon Comments at 67. CenturyLink also argues that broadband
Internet access service is comparable to requiring a “parade organizer to admit all applicants on a lottery basis” and
“a newspaper to carry replies to its editorials.” CenturyLink Comments at 64.
1688

CDT Comments at 28–30; Barbara Cherry Reply at 21.

1689

2010 Open Internet Order, 25 FCC Rcd at 17982, para. 141.

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Amendment protections only to conduct that is inherently expressive.”1690 To determine whether an
actor’s conduct possesses “sufficient communicative elements to bring the First Amendment into play,”
the Supreme Court has asked whether “[a]n intent to convey a particularized message was present and
[whether] the likelihood was great that the message would be understood by those who viewed it.”1691
548.
Broadband providers’ conduct with respect to broadband Internet access services does
not satisfy this test, and analogies to other forms of media are unavailing. CenturyLink and others
compare their provision of broadband service to the operation of a cable television system, and point out
that the Supreme Court has determined that cable programmers and cable operators engage in editorial
discretion protected by the First Amendment.1692 As a factual matter, broadband Internet access services
are nothing like the cable service at issue in Turner I. In finding that cable programmers and cable
operators are entitled to First Amendment protection, the Turner I court began with the uncontested
assertion that “cable programmers and operators engage in and transmit speech, and they are entitled to
the protection of the speech and press provisions of the First Amendment.”1693 The court went on to
explain that “cable programmers and operators ‘see[k] to communicate messages on a wide variety of
topics and in a wide variety of formats’” through “original programming or by exercising editorial
discretion over which stations or programs to include in its repertoire.”1694 Cable operators thus engage in
protected speech when they both engage in and transmit speech with the intent to convey a message
either through their own programming directly or through contracting with other programmers for
placement in a cable package.
549.
Broadband providers, however, display no such intent to convey a message in their
provision of broadband Internet access services—they do not engage in speech themselves but serve as a
conduit for the speech of others. The record reflects that broadband providers exercise little control over
the content which users access on the Internet.1695 Broadband providers represent that their services allow
Internet end users to access all or substantially all content on the Internet, without alteration, blocking, or
editorial intervention.1696 End users, in turn, expect that they can obtain access to all content available on
the Internet, without the editorial intervention of their broadband provider.1697 While these characteristics
certainly involve transmission of others’ speech, the accessed speech is not edited or controlled by the
1690

Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 66 (2006); see also United States v.
O’Brien, 391 U.S. 367, 376 (1968) (“We cannot accept the view that an apparently limitless variety of conduct can
be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.”).
1691

Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974) (per
curiam)).
1692

CenturyLink Comments at 62–64; Verizon Comments at 67.

1693

Turner I, 512 U.S. at 636.

1694

Id. at 636 (alteration in original) (citation omitted). Likewise, while a newspaper publisher chooses which
material to publish, broadband providers facilitate access to all or substantially all Internet endpoints. See Miami
Herald Publishing Co. v. Tornillo, 418 U.S. 241, 257 (1974) (“A newspaper is more than a passive receptacle or
conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made
as to limitations on the size and content of the paper, . . . constitute the exercise of editorial control and judgment.”
(quoting New York Times v. Sullivan, 376 U.S. 254, 279 (1964)). In contrast, broadband Internet access services
more closely resemble the “conduit for news, comment, and advertising” from which the Court distinguishes
newspaper publishing. See id. at 258.
1695

Verizon Comments at 3; CenturyLink Comments at 15; Charter Comments at 31.

1696

See, e.g., Verizon Comments at 2 (“Verizon has committed to its customers to provide them Internet access that
let them go where they want and do what they want online, using their choice of compatible applications and
devices. Other broadband providers have similarly committed to supporting the open Internet.”).
1697

See, e.g., CTIA Comments at 28 (“Mobile broadband customers fully expect access to all lawful content and
applications, and providers have strong incentives to meet these expectations. . . .”).

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broadband provider but is directed by the end user.1698 In providing these services, then, broadband
providers serve as mere conduits for the messages of others, not as agents exercising editorial discretion
subject to First Amendment protections.1699
550.
Moreover, broadband is not subject to the same limited carriage decisions that
characterize cable systems—the Internet was designed as a decentralized “network of networks” which is
capable of delivering an unlimited variety of content, as chosen by the end user. In contrast, the Turner I
court emphasized that the rules under consideration in that case regulated cable speech by “reduc[ing] the
number of channels over which cable operators exercise unfettered control” and “render[ing] it more
difficult for cable programmers to compete for carriage on the limited channels remaining.”1700 Neither of
these deprivations of editorial discretion translates to the Internet as a content platform. The arrival of
one speaker to the network does not reduce access to competing speakers; nor are broadband providers
limited by our rules in the direct exercise of their free speech rights. Lacking the exercise of editorial
control and an intent to convey a particularized message, we find that our rules regulate the unexpressive
transmission of others’ speech over broadband Internet access services, not the speech of broadband
providers. As our rules merely affect what broadband providers “must do . . . not what they may or may
not say,” the provision of broadband Internet access services falls outside the protections of the First
Amendment outlined by the court in Turner I.1701
551.
Our conclusion that broadband Internet access service providers act as conduits rather
than speakers holds true regardless of how they are classified under the Act.1702 But we think this is
particularly evident given our classification of broadband Internet access services as telecommunications
services subject to Title II. The Act defines “telecommunications” as the “transmission, between or
among points specified by the user, of information of the user’s choosing, without change in the form or
content of the information as sent and received.”1703 The Act also provides for common carrier treatment
1698

To be sure, broadband providers engage in some reasonable network management designed to protect their
networks from malicious content and to relieve congestion, but these practices bear little resemblance to the editorial
discretion exercised by cable operators in choosing programming for their systems. In the same way, broadband
providers do not operate their networks in ways that are analogous to parade organizers or “modern day printing
presses” as Verizon contends. Verizon Comments at 67. Comparisons to the “right of reply” statutes at issue in
Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 257 (1974) are similarly misplaced. There, Florida’s “right of
reply” law unconstitutionally burdened the paper’s “exercise of editorial control and judgment,” made all the more
salient by the requirement that political candidates receive “equal space” in a fairly limited medium. Id. at 243.
Broadband Internet access services are not similarly limited—access to one edge provider does not displace another.
1699

See Stuart Minor Benjamin, Transmitting, Editing, and Communicating: Determining What “The Freedom Of
Speech” Encompasses, 60 Duke L.J. 1673, 1685 (2011) (describing how the transportation of First Amendmentprotected materials “from one user to another” does not transform the delivery company into a speaker for First
Amendment purposes).
1700

Turner I, 512 U.S. at 637.

1701

Rumsfeld v. Forum for Academic & Institutional Rights, Inc. 547 U.S. 47, 64 (2006) (FAIR). We further
conclude that broadband providers’ conduct is not sufficiently expressive to warrant First Amendment protection, as
the provision of broadband Internet access services is not “inherently expressive,” but would require significant
explanatory speech to acquire any characteristics of speech. See id. at 65-66. We recognize that in two cases,
federal district courts have concluded that the provision of broadband service is “speech” protected by the First
Amendment. In Itasca, the district court reasoned that broadband providers were analogous to cable and satellite
television companies, which are protected by the First Amendment. Ill. Bell Tel. Co. v. Vill. Of Itasca, 503 F. Supp.
2d 928, 947–49 (N.D. Ill 2007). And in Broward County, the district court determined that the transmission
function provided by broadband service could not be separated from the content of the speech being transmitted.
Comcast Cablevision of Broward Cnty., Inc. v. Broward Cnty., 124 F. Supp. 2d 685, 691–92 (S.D. Fla. 2000). For
the reasons stated, we disagree with the reasoning of those decisions.
1702

See 2010 Open Internet Order, 25 FCC Rcd at 17982, para. 141.

1703

47 U.S.C. § 153(43).

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of any provider to the extent it is engaged in providing telecommunications services.1704 In the
communications context, common carriage requires that end users “communicate or transmit intelligence
of their own design and choosing.”1705 In Section IV, we have found that broadband Internet access
services fall within the definitions of “telecommunications” and “telecommunications services” subject to
Title II common carrier regulation.1706 By definition, then, the provision of telecommunications service
does not involve the exercise of editorial control or judgment.1707
552.
We also take note that, in other contexts, broadband providers have claimed immunity
from copyright violations and other liability for material distributed on their networks because they lack
control over what end users transmit and receive.1708 Broadband providers are not subject to subpoena in
a copyright infringement case because as a provider it “act[s] as a mere conduit for the transmission of
information sent by others.”1709 Acknowledging the unexpressive nature of their transmission function,
Congress has also exempted broadband providers from defamation liability arising from content provided
by other information content providers on the Internet.1710 Given the technical characteristics of
broadband as a medium and the representations of broadband providers with respect to their services, we
find it implausible that broadband providers could be understood to being conveying a particularized
message in the provision of broadband Internet access service.
1704

47 U.S.C. § 153(44).

1705

Midwest Video II, 440 U.S. at 701 (“A common-carrier service in the communications context is one that ‘makes
a public offering to provide, for hire, facilities by wire or radio whereby all members of the public who choose to
employ such facilities may communicate or transmit intelligence of their own design and choosing . . . .’”) (quoting
Industrial Relocation Service, 5 FCC 2d 197, 202, para. 19 (1966)); see also NARUC v. FCC, 533 F.2d 601, 609
(D.C. Cir. 1976) (NARUC II).
1706

See supra Section IV.

1707

We also note that the requirement under Computer II that facilities-based providers of “enhanced services”
separate out and offer on a common carrier basis the “basic service” transmission component underlying their
enhanced services, a requirement reflected in the 1996 Act’s distinction between “telecommunications services” and
“information services” was never held to raise First Amendment concerns. See Turner I, 512 U.S. at 684 (assuming
that Congress could have imposed common carrier obligations on cable operators without raising First Amendment
concerns) (O’Connor, J., dissenting). The Supreme Court has acknowledged the distinction between common
carriers and entities with robust First Amendment rights in numerous contexts. See, e.g., FCC v. League of Women
Voters, 468 U.S. 364, 378 (1984) (“Unlike common carriers, broadcasters are ‘entitled under the First Amendment
to exercise the widest journalistic freedom consistent with their public [duties].”); Denver Area Educ. Telecoms.
Consortium v. FCC, 518 U.S. 727, 739 (1996) (plurality opinion) (distinguishing between common carriers’ and
editors’ rights under the First Amendment); Midwest Video II, 440 at 709 n.19 (1979) (ruling on other grounds, but
acknowledging that First Amendment issues implicated in compelling cable operators to provide common carriage
of public-originated transmissions are “not frivolous”).
1708

See 17 U.S.C. § 512(a) (a “service provider shall not be liable . . . for infringement of copyright by reason of the
provider’s transmitting, routing, or providing connections for” material distributed by others on its network); see
also Verizon Online Terms of Service 12(5),
http://www.verizon.com/idc/groups/public/documents/adacct/verizon_internet_tos_121614.pdf (“Verizon assumes
no responsibility for the accuracy, integrity, quality completeness, usefulness or value of any Content, advice or
opinions contained in any emails, message boards, chat rooms or community services, Verizon Web Sites or in any
other public services or social networks, and that Verizon does not endorse any advice or opinion contained therein,
whether or not Verizon provides such service(s). Verizon does not monitor or control such services, although we
reserve the right to do so.”) (last visited Feb. 2, 2015).
1709

Recording Indus. Ass’n of Am. v. Verizon Internet Servs., Inc., 351 F.3d 1229, 1237 (D.C. Cir. 2003); see also
Charter Communications, Inc., 393 F.3d 771, 777 (8th Cir. 2005) (no subpoena because broadband provider is
“limited to acting as a conduit”).
1710

47 U.S.C. § 230(c)(1) (“[N]o provider or user of an interactive computer service shall be treated as the publisher
or speaker of any information provided by another information content provider.”).

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553.
Even if open Internet rules were construed to implicate broadband providers’ rights as
speakers, our rules would not violate the First Amendment because they would be considered contentneutral regulations which easily satisfy intermediate scrutiny. In determining whether a regulation is
content-based or content-neutral, the “principal inquiry . . . is whether the government adopted a
regulation of speech because of [agreement or] disagreement with the message it conveys.”1711 The open
Internet rules adopted today apply independent of content or viewpoint. Instead, they are triggered by a
broadband provider offering broadband Internet access services. The rules are structured to operate in
such a way that no speaker’s message is either favored or disfavored, i.e. content neutral.
554.
A content-neutral regulation will survive intermediate scrutiny if “it furthers an important
or substantial government interest . . . unrelated to the suppression of free expression,” and if “the means
chosen” to achieve that interest “do not burden substantially more speech than is necessary.”1712 The
government interests underlying this Order are clear and numerous. Congress has expressly tasked the
Commission with “encourag[ing] the deployment on a reasonable and timely basis of advanced
telecommunications capability to all Americans,”1713 and has elsewhere explained that it is the policy of
the United States to “promote the continued development of the Internet and other interactive computer
services and other interactive media.”1714 Additionally, the Verizon court accepted the Commission’s
finding that “Internet openness fosters the edge-provider innovation that drives [the] ‘virtuous cycle.’”1715
As discussed above, this Order pursues these government interests by preserving an open Internet to
encourage competition and remove impediments to infrastructure investment, while enabling consumer
choice, end-user control, free expression, and the freedom to innovate without permission.
555.
Indeed, rather than burdening free speech, the rules we adopt today ensure that the
Internet promotes speech by ensuring a level playing field for a wide variety of speakers who might
otherwise be disadvantaged. As Turner I affirmed “assuring that the public has access to a multiplicity of
information sources is a governmental purpose of the highest order, for it promotes values central to the
First Amendment.”1716 Based on clear legislative interest in furthering broadband deployment and the
paramount government interest in assuring that the public has access to a multiplicity of information
sources, these interests clearly qualify as substantial under intermediate scrutiny.
556.
Additionally, the rules here are sufficiently tailored to accomplish these government
interests. The effect on speech imposed by these rules is minimal. The rules do not “burden substantially
more speech than necessary” because they do not burden any identifiable speech—the rules we adopt
today apply only to broadband providers’ conduct with regard to their broadband Internet access services.
Providers remain free to engage in the full panoply of protected speech afforded to any other speaker.
They are free to offer “edited” services and engage in expressive conduct through the provision of other
data services, as well.
557.
Verizon also contends that the open Internet rules are impermissible under Citizens
United because they result in differential treatment of providers of broadband service and other connected

1711

Turner I, 512 U.S. at 642 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).

1712

Id. at 662 (internal quotation marks omitted).

1713

47 U.S.C. § 1302(a).

1714

47 U.S.C. § 230(b)(1).

1715

Verizon, 740 F.3d at 644.

1716

Turner I, 512 U.S. at 663. The Turner I Court continued: “Indeed, it has long been a basic tenet of national
communications policy that the widest possible dissemination of information from diverse and antagonistic sources
is essential to the welfare of the public.” Id. (internal quotation marks omitted). See also FCC v. Nat’l Citizens
Comm. for Broad., 436 U.S. 775, 795 (1978) (NCCB) (quoting Associated Press v. United States, 326 U.S. 1, 20
(1945)).

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IP services.1717 Our rules governing the practices of broadband providers differ markedly from the
statutory restrictions on political speech at issue in Citizens United. Our rules do not impact core political
speech, where the “First Amendment has its fullest and most urgent application.”1718 By contrast, the
open Internet rules apply only to the provision of broadband services in a commercial context, so reliance
on the strict scrutiny standards applied in Citizens United is inapt.1719 As described above, intermediate
scrutiny under Turner I would be the controlling standard of review if broadband providers were found to
be speakers.1720 If a court were to find differential treatment under our rules, though, they would be
justified under Turner I because speaker-based distinctions can be deemed permissible so long as they are
“‘justified by some special characteristic of’ the particular medium being regulated.’”1721 The ability and
incentive of broadband providers to impose artificial scarcity and pick winners and losers in the provision
of their last-mile broadband services is just such a special characteristic justifying differential
treatment.1722
558.
In sum, the rules we adopt today do not unconstitutionally burden any of the First
Amendment rights held by broadband providers. Broadband providers are conduits, not speakers, with
respect to broadband Internet access services. Even if they were engaged in speech with respect to these
services, the rules we adopt today are tailored to the important government interest in maintaining an
open Internet as a platform for expression, among other things.
2.

Compelled Disclosure

559.
The disclosure requirements adopted as a part of our transparency rule also fall well
within the confines of the First Amendment. As explained above, these required disclosures serve
important government purposes, ensuring that end users and edge providers have accurate and accessible
information about broadband providers’ services. This information is central both to preventing
consumer deception and to the operation of the virtuous cycle of innovation, consumer demand, and
broadband deployment.
560.
CenturyLink contends that the disclosure requirements under the transparency rule
violate the First Amendment by compelling speech without a reasonable basis.1723 They argue that the
Commission has not established a potential problem which these disclosures are necessary to remedy and
that this is fatal to the rules under the First Amendment. This argument misapprehends both the factual
justification for the transparency rules and the constitutional legal standard against which any disclosure
requirements would be evaluated by the courts.

1717

Verizon Comments at 67.

1718

Citizens United v. Fed. Elec. Comm’n, 558 U.S. 310, 339 (2010) (quoting Eu v. San Francisco County
Democratic Central Comm., 489 U.S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272
(1971))) (internal quotation marks omitted).
1719

See Time Warner Cable, Inc. v. FCC, 729 F.3d 137, 159-60 (2d Cir. 2013) (“In the absence of clearer direction
from the Supreme Court, we will not ourselves assume that Citizens United implicitly reversed Turner I to compel
strict scrutiny of all speaker-based preferences, even outside the political speech context.”).
1720

See supra para. 548.

1721

Turner I, 512 U.S. at 660–61 (quoting Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S.
575, 585 (1983)).
1722

See Verizon, 740 F.3d at 646 (finding that “[t]he Commission also convincingly detailed how broadband
providers’ position in the market gives them the economic power to restrict edge-provider traffic and charge for the
services they furnish edge providers”); cf. BellSouth Corp. v. FCC, 144 F.3d 58, 69 (1998) (applying intermediate
scrutiny to differential treatment of Bell Operating Companies under 47 U.S.C. § 274 with regard to electronic
publishing owing to special characteristics).
1723

CenturyLink Comments at 59–61.

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561.
The Supreme Court has made plain in Zauderer v. Office of Disciplinary Counsel of
Supreme Court of Ohio that the government has broad discretion in requiring the disclosure of
information to prevent consumer deception and ensure complete information in the marketplace.1724
Under Zauderer’s rational basis test, mandatory factual disclosures will be sustained “as long as
disclosure requirements are reasonably related to the State’s interest in preventing deception to
consumers.”1725 As the Court observed, “the First Amendment interests implicated by disclosure
requirements are substantially weaker than those at stake when speech is actually suppressed;”1726 the
speaker’s interest is “minimal.”1727 The D.C. Circuit recently reaffirmed these principles in American
Meat Institute v. United States Department of Agriculture, an en banc decision in which the Court joined
the First and Second Circuit Courts of Appeals in recognizing that other government interests beyond
preventing consumer deception may be invoked to sustain a disclosure mandate under Zauderer.1728
562.
The transparency rule clearly passes muster under these precedents. Preventing
consumer deception in the broadband Internet access services market lies at the heart of the transparency
rule we adopt today. The Commission has found that broadband providers have the incentive and ability
to engage in harmful practices, as discussed above in Section III.B.2.1729 In the 2010 Open Internet
Order, we found that “disclosure ensures that end users can make informed choices regarding the
purchase and use of broadband service.”1730 Since the original transparency rule was promulgated, the
Commission has received hundreds of complaints regarding advertised rates, slow or congested services,
data caps, and other potentially deceptive practices.1731 Similarly, the enhancements to the transparency
rule which we adopt today are designed to prevent confusion to all consumers of the broadband providers’
services—end-users and edge providers alike. Tailored disclosures promise to provide a metric against
which these customers can judge whether their broadband connections satisfy the speeds, bandwidth, and
other terms advertised by broadband providers.
563.
Further buttressing these disclosure requirements are numerous other government
interests permitted under American Meat Institute. As acknowledged by the D.C. Circuit in Verizon,
broadband providers have both the economic incentive and the technical ability to interfere with thirdparty edge providers’ services by imposing discriminatory restrictions on access and priority.1732 The
1724

Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985) (Zauderer).
CenturyLink’s reliance on Riley v. National Federation of the Blind of North Carolina, Inc. for analyzing the
constitutionality of the transparency rule is inapt. That case concerned mandatory disclosure of the percentage of
charitable contributions used toward charity, but the transparency rule requires disclosure of purely commercial
terms pertaining to the provision of broadband services. See Riley v. National Federation of the Blind of North
Carolina, Inc., 487 U.S. 781, 796 n.9 (1988) (“Purely commercial speech is more susceptible to compelled
disclosure requirements.”).
1725

Zauderer, 471 U.S. at 651.

1726

Id. at 652 n.14.

1727

Id. at 651.

1728

American Meat Institute v. US Dept. of Agriculture, 760 F.3d 18, 22 (D.C. Cir. 2014) (“All told, Zauderer’s
characterization of the speaker’s interest in opposing forced disclosure of [factual] information as ‘minimal’ seems
inherently applicable beyond the problem of deception, as other circuits have found.”) (citing N.Y. State Rest. Ass’n
v. N.Y. City Bd. Of Health, 556 F.3d 114, 133 (2d Cir. 2009); Pharm. Care Mgmt. Ass’n v. Rowe, 429 F.3d 294, 310
(1st Cir. 2005) (Torruella, J.); id. at 316 (Boudin, C.J. & Dyk, J.); id. at 297–98 (per curiam) (explaining that the
opinion of the Chief Judge Boudin and Judge Dyk is controlling on the First Amendment issue); Nat’l Elec. Mafrs.
Ass’n v. Sorrell, 272 F.3d 104, 113-15 (2d Cir. 2001)).
1729

See supra Section III.B.2.

1730

2010 Open Internet Order, 25 FCC Rcd at 17936, para. 53.

1731

2014 Open Internet NPRM, 29 FCC Rcd at 5586, para. 69.

1732

Verizon, 740 F.3d at 644–45.

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disclosures we require under today’s transparency rule serve to curb those incentives by shedding light on
the business practices of broadband providers.1733 Accurate information about broadband provider
practices encourages the competition, innovation, and high-quality services that drive consumer demand
and broadband investment and deployment.1734 Tailored disclosures further amplify these positive effects
by ensuring that edge providers have critical network information necessary to develop innovative new
applications and services and that end users have confidence in the broadband providers’ network
management and business practices.1735 In sum, the other government interests supporting the rules in
addition to preventing consumer deception—preserving an open Internet to encourage competition and
remove impediments to infrastructure investment, while enabling consumer choice, end-user control, free
expression, and the freedom to innovate without permission—are substantial and justify our transparency
requirements.
B.

Fifth Amendment Takings

564.
The open Internet rules also present no cognizable claims under the Fifth Amendment’s
Takings Clause. Today’s decision simply identifies as common carriage the services that broadband
Internet access service providers already offer in a manner that carries with it certain statutory duties.
Regulatory enforcement of those duties has never been held to raise takings concerns. Correspondingly,
our rules do not rise to the level of a per se taking because they do not grant third parties a right to
physical occupation of the broadband providers’ property. Finally, they do not constitute a regulatory
taking because they actually enhance the value of broadband networks by protecting the virtuous cycle
that drives innovation, user adoption, and infrastructure investment.
565.
As an initial matter, we note that our reclassification of broadband Internet access service
does not result from compelling the common carriage offering of those services, contrary to the claims of
some broadband providers.1736 Rather, our decision simply identifies as common carriage the services
that broadband Internet access service providers already voluntarily offer in a manner that, under the
Communications Act, carries with it certain statutory duties, which have never been held to raise takings
concerns. Today’s Order recognizes that broadband Internet access service is a telecommunications
service under Title II of the Act.1737 While certain common carriage obligations attach to recognition of
this fact, those requirements operate by virtue of the statutory structure we interpret, not in service to a
discretionary “policy goal the Commission seeks to advance.”1738 Such statutory obligations have never
before posed takings issues, and we conclude that today’s Order, likewise, does not violate the Fifth
Amendment.
566.
Verizon specifically contends that without either a finding of monopoly power or a
restriction on government entry, “compelled common carriage would constitute a government taking.”1739
They cite approvingly Judge Wilkey’s observation in NARUC I that “early common carriage regulations
were ‘challenged as deprivations of property without due process.’”1740 However, Judge Wilkey
1733

2014 Open Internet NPRM, 29 FCC Rcd at 5585, para 66 (“‘Sunlight,’ as Justice Brandeis has explained, ‘is . . .
the best of disinfectants.’”) (citing L. Brandeis, Other People’s Money, Chapter 5 (National Home Library
Foundation ed. 1933), http://www.law.louisville.edu/library/collections/brandeis/node/196.
1734

2014 Open Internet NPRM, 29 FCC Rcd at 5585, para. 66.

1735

Id. at 5580, para. 53.

1736

See, e.g., Verizon Title II White Paper at 1-5.

1737

See generally supra Section IV.

1738

Southwestern Bell Telephone Co. v. FCC, 19 F.3d 1475, 1481 (D.C. Cir. 1994) (citing NARUC I, 525 F.2d at
644 (“Further, we reject those parts of the Orders which imply an unfettered discretion in the Commission to confer
or not confer common carrier status on a given entity, depending on the regulatory goals it seeks to achieve.”).
1739

Verizon Comments at 66; Verizon White Paper at 4 n.3.

1740

Verizon Comments at 66 n.183 (citing NARUC v. FCC, 525 F.2d 630, 640 (1976) (NARUC I)).

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continues in the next sentence to explain that Congress has regularly imposed common carrier obligations
without a showing of monopoly power or entry restrictions.1741 Verizon’s suggestion, when extended to
its logical conclusion, would necessitate rendering unconstitutional any common carriage obligations
outside of true government-sponsored monopolies. The courts have taken a much narrower view of both
the characteristics necessary for common carrier status1742 and the effect of that status on takings claims
when present in a non-monopoly context.1743 Correspondingly, we conclude that today’s classifications,
without a showing of monopoly power do not constitute takings under the Fifth Amendment.
1.

Per Se Takings

567.
Some commenters argue that our rules would effect a per se taking by granting third
parties a perpetual easement onto broadband providers’ facilities, a form of physical occupation.1744
These arguments mischaracterize the nature of the rules we adopt today and misapply Fifth Amendment
jurisprudence. To qualify as a per se taking, the challenged government action must authorize a
permanent physical occupation of private property.1745 This rule, however, is “very narrow” and it does
not “question the equally substantial authority upholding a State’s broad power to impose appropriate
restrictions upon an owner’s use of his property.”1746 The Supreme Court has advised that a per se taking
is “relatively rare and easily identified”1747 and “presents relatively few problems of proof.”1748
568.
Under this formulation, today’s Order does not impose a per se taking on broadband
providers. Regulation of the transmissions travelling over a broadband providers’ property differs
substantially from physical occupations which are the hallmark of per se takings, such as the installation
of cable equipment at issue in Loretto v. Teleprompter CATV Corp.1749 We do not require the permanent
1741

NARUC I, 525 F.2d at 641 (“Subsequently, legislation has been upheld imposing stringent regulations of various
types on entities found to be affected with a public character, even where nothing approaching monopoly power
exists. In such cases as the Motor Carrier Act of 1935, relatively competitive carrying industries have been
subjected to entry, rate and equipment regulations on the basis of the quasi-public character of the activities
involved.”).
1742

See Verizon, 740 F.3d at 651 (“‘[T]he primary sine qua non of common carrier status is a quasi-public character,
which arises out of the undertaking to carry for all people indifferently.’” (internal quotation marks omitted) (citing
Nat’l Assoc. of Reg. Utility Commissioners v. FCC, 533 F.2d 601, 608 (1976) (NARUC II)).
1743

See NARUC I, 525 F.2d at 641 (citing American Trucking Ass’ns, Inc. v. United States, 101 F.Supp. 710 (N.D.
Ala. 1951) (upholding Motor Carrier Act of 1935 applying common carriage status to trucking industry against
constitutional challenge under the Fifth Amendment, though significant competition existed)); see also Sam L.
Majors Jewelers v. ABX, Inc., 117 F.3d 922, 928-29 (5th Cir. 1997) (preserving federal cause of action against air
carriers as common carriers after deregulation of airline industry).
1744

CenturyLink Comments at 64–70; TechFreedom Comments at 93–94; Verizon Comments at 66–67; Verizon
Reply at 48.
1745

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 441 (1982) (holding that a New York law
requiring landlords to permit a cable company to install cables on their leased buildings required just compensation
because it effected a “permanent physical occupation” of their private property). The government may also commit
a per se taking by completely depriving an owner of all economically beneficial use of her property. Lucas v. South
Carolina Coastal Council, 505 U.S. 1003, 1019 (1992). However, the record does not reflect a concern among
commenters that our actions today deprive broadband providers of all economically beneficial use of their
property—nor do we find one merited—so we limit our discussion to the permanent physical occupation variety of
per se takings.
1746

Loretto, 458 U.S. at 441.

1747

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 324 (2002).

1748

Loretto, 458 U.S. at 437.

1749

See generally id.

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installation of any third-party equipment at broadband providers’ network facilities,1750 or deprive
broadband providers of existing property interests in their networks—a broadband provider retains
complete control over its property.1751 Our rules merely regulate the use of a broadband Internet access
provider’s network—they are neither physical nor permanent occupations of private property. Courts
have repeatedly declined to extend per se takings analysis to rules regulating the transmission of
communications traffic over a provider’s facilities,1752 and we believe that these decisions comport with
the Supreme Court’s perspective that permanent physical occupation of property is a narrow category of
takings jurisprudence and is “easily identifiable” when it does occur.1753
569.
Moreover, to the extent that broadband providers voluntarily open their networks to end
users and edge providers, reasonable regulation of the use of their property poses no takings issue. When
owners voluntarily invite others onto their property—through contract or otherwise—the courts will not
find that a permanent physical occupation has occurred.1754 So long as property owners remain free to
avoid physical incursions on their property by discontinuing the services to which it has been dedicated,
reasonable conduct regulations can be imposed on the use of such properties without raising per se
takings concerns.1755 In point of fact, broadband providers regularly invite third parties to transmit signals
through their physical facilities by contracting with end users to provide broadband Internet access service
and promising access to all or substantially all Internet endpoints.1756 Our rules do not compel broadband
providers to offer this service—instead our rules simply regulate broadband providers’ conduct with
respect to traffic which currently freely flows over their facilities. Thus, to the extent that broadband
providers allow any customer to transmit or receive information over its network, the imposition of
reasonable conduct rules on the provision of broadband Internet access services does not constitute a per
se taking. Furthermore, even if the rules did impose a type of physical occupation on the facilities of
1750

Cablevision Systems Corp. v. FCC, 570 F.3d 83, 98 (2d Cir. 2009) (quoting FCC v. Fla. Power Corp., 480 U.S.
245, 252-53 (1987) (“[The] touchstone [of per se takings] is ‘required acquiescence’ to the occupation of the
property by an uninvited stranger or an ‘interloper with a government license.’”)).
1751

The Supreme Court has further cabined this per se takings rule by noting that some permanent incursions onto
private property could be acceptable if the property owner owned the installation and retained discretion in how to
deploy it. Loretto, 458, U.S. at 441, n.19 (hypothesizing that the New York statute in question could have required
landlords “to provide cable installation if a tenant so desires” if the landlord owned the installation). Were our rules
found to impose a permanent physical occupation on broadband providers’ networks, broadband services seem to
fall squarely within this exception. Broadband Internet access services are characterized as distinctly user-directed.
Further, providers retain discretion in the deployment of their facilities and are free to manage traffic through
reasonable network management. See supra Section III.D.4.
1752

See Cablevision Sys. Corp. v. FCC, 570 F.3d 83, 98 (2d Cir. 2009) (upholding Commission’s finding that a
must-carry obligation did not constitute a physical occupation because “the transmission of WRNN’s signal does not
involve a physical occupation of Cablevision’s equipment or property”); Qwest v. United States, 48 Fed. Cl. 672,
693-94 (Fed. Cl. 2001); see also Loretto, 458 U.S. at 435, n.12 (“The permanence and absolute exclusivity of a
physical occupation distinguish it from temporary limitations on the right to exclude . . , [which] are subject to a
more complex balancing process to determine whether they are a taking.”).
1753

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 324 (2002).

1754

See Loretto, 458 U.S. at 440 (“So long as these regulations do not require the landlord to suffer the physical
occupation of a portion of his building by a third party, they will be analyzed under the multifactor inquiry generally
applicable to nonpossessory governmental activity.”).
1755

See Hilton Washington Corp. v. District of Columbia, 777 F.2d 47 (D.C. Cir. 1985) (non-discrimination
requirement with respect to hotel taxi stands held not a taking under Loretto); Yee v. City of Escondido, 503 U.S.
519, 531 (1992) (noting that because mobile home park petitioners “voluntarily open their property to occupation by
others, petitions cannot assert a per se right to . . . exclude particular individuals”); PruneYard Shopping Center v.
Robbins, 447 U.S. 74, 83-84 (1980); FCC v. Florida Power Corp., 480 U.S. 245, 251–253 (1987).
1756

See, e.g., Verizon Comments at 2.

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broadband providers, such an imposition is not an unconstitutional taking because broadband providers
are compensated for the traffic passing over their networks.1757
2.

Regulatory Takings

570.
Nor do the rules we adopt today constitute a regulatory taking.1758 Outside of per se
takings cases, courts analyze putative government takings through “essentially ad hoc, factual inquiries”
into a variety of unweighted factors such as the “economic impact of the regulation,” the degree of
interference with “investment-backed expectations,” and “the character of the government action.”1759
Directing analysis of these factors is a common touchstone—whether the regulatory actions taken are
“functionally equivalent to the classic taking in which government directly appropriates private property
or ousts the owner from his domain.”1760 Open Internet rules do not implicate such a deprivation of value
or control over the networks of broadband providers, and so pose no regulatory takings issues.
571.
The economic impact of the rules we adopt today is limited because, in most
circumstances, the Internet operates in an open manner today.1761 Indeed, rather than reducing the value
of broadband provider property, today’s rules likely serve to enhance the value of broadband networks by
promoting innovation on the edge of the network, thereby driving consumer demand for broadband
Internet access and increasing the networks’ value.1762 Further, today’s Order does not so burden
broadband providers’ discretion in managing and deploying their networks to effectively “oust” them
from ownership and control of their networks. While we have adopted a set of bright-line rules today for
some practices, broadband providers are still afforded a great deal of discretion to enter into
individualized arrangements with respect to the provision of broadband Internet access services under the
no-unreasonable interference/disadvantage standard. The limited scope of the open Internet rules also
injects flexibility into our regulatory framework and provides sufficient property protections to take our
rules outside the ambit of the Fifth Amendment.1763
572.
Likewise, any investment backed expectations of broadband providers in prior regulatory
regimes are minimal. As a general matter, property owners cannot expect that existing legal requirements
regarding their property will remain entirely unchanged.1764 The Commission has long regulated Internet
access services,1765 and there is no doubt that broadband Internet “falls comfortably within the
1757

With respect to the rules governing the broadband Internet access service, broadband providers are compensated
through the imposition of subscription fees on their end users.
1758

See Verizon Comments at 67; CenturyLink Comments at 70–71.

1759

Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104, 124 (1978).

1760

Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 539 (2005) (discussing application of the Penn Central factors).

1761

Charter Comments at 3; BrightHouse Comments at 25-26; Verizon Comments at 3.

1762

See Verizon, 740 F.3d at 649 (affirming the Commission’s finding that “the strength of the effect on broadband
investment that it anticipated from edge-provider innovation, which would benefit both from the preservation of the
‘virtuous circle of innovation’ created by the Internet’s openness and the increased certainty in that openness
engendered by the Commission’s rules”).
1763

See supra Section III.D (excluding from the scope of the open Internet rules reasonable network management,
Internet traffic exchange, and other data services outside the definitions of broadband Internet access services).
1764

Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027 (1992); Gen. Tel. Co. of the Sw. v. United States, 449 F.2d
846, 864 (5th Cir. 1971). Additionally, persons operating in a regulated environment develop fewer reliance
interests in industries subject to comprehensive regulation. See Concrete Pipe & Prods. of S. Cal., Inc. v. Constr.
Laborers Pension Trust for S. Cal., 508 U.S. 602, 645 (1993) (quoting FHA v. The Darlington, Inc., 358 U.S. 84, 91
(1958)).
1765

See Regulatory & Policy Problems Presented by the Interdependence of Computer & Comm. Servs., Docket No.
16979, Final Decision and Order, 28 F.C.C. 2d 267, 270, para. 12, 275, para. 24 (1971) (Computer I Final
Decision), aff’d sub nom. GTE Servs. Corp. v. FCC, 474 F.2d 724 (2d Cir. 1973), decision on remand, 40 F.C.C. 2d
(continued….)

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Commission’s jurisdiction.”1766 Indeed, with respect to broadband Internet access service, claims by
broadband providers that our previous regulatory treatment of broadband engendered reliance interests1767
runs counter to the plain language of the 2002 Cable Modem Declaratory Ruling and the 2005 Wireline
Broadband Classification Order, both of which contained notices of proposed rulemaking seeking
comment on the retention of Title II-like regulation of those services.1768 Also, because we do not propose
to regulate ex ante broadband providers’ ability to set market rates for the broadband Internet access
services they offer, there is no reason to believe that our ruling will deprive broadband providers of the
just compensation that is a full answer to any takings claim.
573.
In characterizing our proposed rules as a regulatory taking, CenturyLink looks to Kaiser
Aetna, a case in which the government sought to establish public access rights to a private marina by
classifying it as “navigable waters of the United States.1769 As described above, we think that analogies to
real property incursions are inapplicable to the provision of broadband Internet access services. In any
event, the facts of Kaiser bear little resemblance to the rights and interests implicated by broadband
networks. Unlike the small, privately held marina which was not open to the public in Kaiser Aetna,
broadband Internet access service involves access to substantially all Internet endpoints.1770 While the
marina in Kaiser Aetna maintained a small fee-paying membership, broadband Internet access services
are offered directly to the public at large, as we recognize in their classification as telecommunications
services. In sum, open Internet rules do not so burden broadband provider’s control and ownership of
their networks as to rise to the level of a regulatory taking in violation of the Fifth Amendment. The
economic impact of our rules is minimal and our classifications do not frustrate any significant reliance
interests.
VII.

SEVERABILITY

574.
We consider the actions we take today to be separate and severable such that in the event
any particular action or decision is stayed or determined to be invalid, we would find that the resulting
regulatory framework continues to fulfill our goal of preserving and protecting the open Internet and that
it shall remain in effect to the fullest extent permitted by law. Though complementary, each of the rules,
requirements, classifications, definitions, and other provisions that we establish in this Report and Order
on Remand, Declaratory Ruling, and Order operate independently to promote the virtuous cycle,
encourage the deployment of broadband on a timely basis, and protect the open Internet.
(Continued from previous page)
293 (1972); Amendment of Section 64.702 of the Comm’n’s Rules & Regs, Second Computer Inquiry, Final
Decision, 77 F.C.C. 2d 384, 417-35, 461-75, paras. 86-132, 201-31 (1980) (Computer II Final Decision), aff’d sub
nom. Computer & Commc’ns Indus. Ass’n v. FCC, 693 F.2d 198 (D.C. Cir. 1982); Amendment of Section 64.702 of
the Comm’n’s Rules & Regs. (Third Computer Inquiry), CC Docket No. 85-229, Phase I, Report and Order, 104
F.C.C. 2d 958, para. 4 (1986) (Computer III Phase I Order) (subsequent history omitted).
1766

Verizon, 740 F.3d at 629-630 (discussing the historical progression of our regulation of Internet access) (citing
Computer II, 77 F.C.C.2d 384, 387, paras. 5-7). See also Comcast, 600 F.3d at 646-47.
1767

See, e.g., Letter from Kathryn Zachem, Senior Vice President, Comcast, to Marlene H. Dortch, Federal
Communications Commission, WC Docket No. 14-28, 10-127, at 7 (filed Nov. 4, 2014); Verizon Title II White
Paper at 12.
1768

See Cable Modem Declaratory Ruling, 17 FCC Rcd at 4841-45 (seeking comment on the extent to which the
Commission should regulate cable modem service, including whether the Commission should require cable
operators to offer “open access’); Wireline Broadband Classification Order, 20 FCC Rcd at 14929-14935, paras.
145-159 (seeking comment on, among other things, the need for geographic rate averaging, and consumer
protections regarding CPNI, against slamming, against sudden discontinuance of service). See supra para. 360
(discussing reliance interests in classification of BIAS).
1769

Kaiser Aetna v. United States, 444 U.S. 164 (1979).

1770

See supra Section III.D.1.

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575.
Severability of Open Internet Rules from One Another. The open Internet rules we adopt
today each operate independently to protect the open Internet, promote the virtuous cycle, and encourage
the deployment of broadband on a timely basis. The Verizon court recognized as much by holding our
initial transparency rule severable from the non-discrimination and no blocking rules from the 2010 Open
Internet Order.1771 We apply that view to today’s transparency rule, as well as to the no blocking, no
throttling, and no paid prioritization rules and the no-unreasonable interference/disadvantage adopted
today. While today’s rules put in place a suite of open Internet protections, we find that each of these
rules, on its own, serves to protect the open Internet. Each rule protects against different potential harms
and thus operates semi-independently from one another. For example, the no-blocking rule protects
consumers’ right to access lawful content, applications, and services by constraining broadband
providers’ incentive to block competitors’ content.1772 The no throttling rule serves as an independent
supplement to this prohibition on blocking by banning the impairment or degradation of lawful content
that does not reach the level of blocking.1773 Should the no blocking rule be declared invalid, the no
throttling rule would still afford consumers and edge providers significant protection, and thus could
independently advance the goals of the open Internet, if not as comprehensively were the no blocking rule
still in effect. The same reasoning holds true for the ban on paid prioritization, which protects against
particular harms independent of the other bright-line rules. Finally, the no-unreasonable
interference/disadvantage standard governs broadband provider conduct generally, providing independent
protections against those three harmful practices along with other and new practices that could threaten to
harm Internet openness. Were any of these individual rules held invalid, the resulting regulations would
remain valuable tools for protecting the open Internet.
576.
Severability of Rules Governing Mobile/Fixed Providers. We have also made clear today
our rules apply to both fixed and mobile broadband service.1774 These are two different services, and thus
the application of our rules to either service functions independently. Accordingly, we find that should
application of our open Internet rules to either fixed or mobile broadband Internet access services be held
invalid, the application of those rules to the remaining mobile or fixed services would still fulfill our
regulatory purposes and remain intact.
VIII.

PROCEDURAL MATTERS
A.

Regulatory Flexibility Analysis

577.
As required by the Regulatory Flexibility Act (RFA),1775 an Initial Regulatory Flexibility
Analysis (IRFA) was incorporated into the 2014 Open Internet NPRM.1776 The Commission sought
written public comment on the possible significant economic impact on small entities regarding the
proposals addressed in the Open Internet NPRM, including comments on the IRFA. Pursuant to the RFA,
a Final Regulatory Flexibility Analysis is set forth in Appendix B.
B.

Paperwork Reduction Act of 1995 Analysis

578.
This document contains new information collection requirements subject to the
Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of
Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public,
and other federal agencies are invited to comment on the new information collection requirements
contained in this proceeding. In addition, we note that pursuant to the Small Business Paperwork Relief
1771

Verizon, 740 F.3d at 659.

1772

See supra Section III.C.1.a.

1773

See supra Section III.C.1.b.

1774

See supra Section III.D.

1775

See 5 U.S.C. § 603.

1776

2014 Open Internet NPRM, Appx. B.

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Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on
how the Commission might further reduce the information collection burden for small business concerns
with fewer than 25 employees.
579.
In this present document, we require broadband providers to publicly disclose accurate
information regarding the commercial terms, performance, and network management practices of their
broadband Internet access services sufficient for end users to make informed choices regarding use of
such services and for content, application, service, and device providers to develop, market, and maintain
Internet offerings. We have assessed the effects of this rule and find that any burden on small businesses
will be minimal because (1) the rule gives broadband providers flexibility in how to implement the
disclosure rule, and (2) the rule gives providers adequate time to develop cost-effective methods of
compliance.
C.

Congressional Review Act

580.
The Commission will send a copy of this Report and Order to Congress and the
Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C.
§ 801(a)(1)(A).
D.

Data Quality Act

581.
The Commission certifies that it has complied with the Office of Management and
Budget Final Information Quality Bulletin for Peer Review, 70 Fed. Reg. 2664 (2005), and the Data
Quality Act, Pub. L. No. 106-554 (2001), codified at 44 U.S.C. § 3516 note, with regard to its reliance on
influential scientific information in the Report and Order on Remand, Declaratory Ruling, and Order in
GN Docket No. 14-28.1777
E.

Accessible Formats

582.
To request materials in accessible formats for people with disabilities (braille, large print,
electronic files, audio format), send an e-mail to [email protected] or call the Consumer & Governmental
Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). Contact the FCC to request reasonable
accommodations for filing comments (accessible format documents, sign language interpreters, CARTS,
etc.) by e-mail: [email protected]; phone: (202) 418-0530 (voice), (202) 418-0432 (TTY).
IX.

ORDERING CLAUSES

583.
Accordingly, IT IS ORDERED that, pursuant to sections 1, 2, 3, 4, 10, 201, 202, 301,
303, 316, 332, 403, 501, and 503, of the Communications Act of 1934, as amended, and section 706 of
the Telecommunications Act of 1996, as amended, 47 U.S.C. §§ 151, 152, 153, 154, 160, 201, 202, 301,
303, 316, 332, 403, 501, 503, and 1302, this Report and Order on Remand, Declaratory Ruling, and Order
IS ADOPTED.
584.
IT IS FURTHER ORDERED that parts 1, 8, and 20 of the Commission’s rules ARE
AMENDED as set forth in Appendix A.
585.
IT IS FURTHER ORDERED that this Report and Order on Remand, Declaratory Ruling,
and Order SHALL BE effective 60 days after publication in the Federal Register, except that those
amendments which contain new or modified information collection requirements that require approval by
the Office of Management and Budget under the Paperwork Reduction Act WILL BECOME
EFFECTIVE after the Commission publishes a notice in the Federal Register announcing such approval
and the relevant effective date. It is our intention in adopting the foregoing Declaratory Ruling and these
rule changes that, if any provision of the Declaratory Ruling or the rules, or the application thereof to any
person or circumstance, is held to be unlawful, the remaining portions of such Declaratory Ruling and the
1777

See Letter from Wireline Competition Bureau, FCC, to Marlene Dortch, Secretary, FCC, GN Docket No. 09191, WC Docket No. 07-52 (filed Dec. 13, 2010).

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rules not deemed unlawful, and the application of such Declaratory Ruling and the rules to other person or
circumstances, shall remain in effect to the fullest extent permitted by law.
586.
IT IS FURTHER ORDERED that the Commission’s Consumer & Governmental Affairs
Bureau, Reference Information Center, SHALL SEND a copy of Report and Order on Remand,
Declaratory Ruling, and Order to Congress and the Government Accountability Office pursuant to the
Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
587.
IT IS FURTHER ORDERED, that the Commission’s Consumer & Governmental Affairs
Bureau, Reference Information Center, SHALL SEND a copy of this Report and Order on Remand,
Declaratory Ruling, and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel
for Advocacy of the Small Business Administration.
588.
IT IS FURTHER ORDERED that the Mozilla Petition to Recognize Remote Delivery
Services in Terminating Access Networks and Classify Such Services as Telecommunications Services
Under Title II of the Communications Act is DENIED.
FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch
Secretary

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APPENDIX A
Final Rules
The Federal Communications Commission amends 47 C.F.R. parts 1, 8 and 20 as follows:
PART 1: PRACTICE AND PROCEDURE
1. Section 1.49 is amended by revising paragraph (f)(1)(i) to read as follows:
§ 1.49 Specifications as to pleadings and documents.
*****
(f) * * *
(1) * * *
(i) Formal complaint proceedings under Section 208 of the Act and rules §§ 1.720 through 1.736, pole
attachment complaint proceedings under Section 224 of the Act and rules §§ 1.1401 through 1.1424, and
formal complaint proceedings under Open Internet rules §§ 8.12 through 8.17, and;
*****
2. The heading of part 8 is amended to read as follows:
PART 8: PROTECTING AND PROMOTING THE OPEN INTERNET
3. The authority citation for part 8 is amended to read as follows:
AUTHORITY: 47 U.S.C. §§ 151, 152, 153, 154, 201, 202, 208, 218, 230, 251, 254, 256, 257, 301, 303,
304, 307, 309, 316, 332, 403, 503, 522, 536, 548, 1302.
4. Section 8.1 is amended to read as follows:
§ 8.1 Purpose.
The purpose of this Part is to protect and promote the Internet as an open platform enabling consumer
choice, freedom of expression, end-user control, competition, and the freedom to innovate without
permission, and thereby to encourage the deployment of advanced telecommunications capability and
remove barriers to infrastructure investment.
5. Section 8.11 is redesignated section 8.2 and is amended to read as follows:
§ 8.2 Definitions.
(a) Broadband Internet access service. A mass-market retail service by wire or radio that provides the
capability to transmit data to and receive data from all or substantially all Internet endpoints, including
any capabilities that are incidental to and enable the operation of the communications service, but
excluding dial-up Internet access service. This term also encompasses any service that the Commission
finds to be providing a functional equivalent of the service described in the previous sentence, or that is
used to evade the protections set forth in this Part.
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(b) Edge provider. Any individual or entity that provides any content, application, or service over the
Internet, and any individual or entity that provides a device used for accessing any content, application, or
service over the Internet.
(c) End user. Any individual or entity that uses a broadband Internet access service.
(d) Fixed broadband Internet access service. A broadband Internet access service that serves end users
primarily at fixed endpoints using stationary equipment. Fixed broadband Internet access service includes
fixed wireless services (including fixed unlicensed wireless services), and fixed satellite services.
(e) Mobile broadband Internet access service. A broadband Internet access service that serves end users
primarily using mobile stations.
(f) Reasonable network management. A network management practice is a practice that has a primarily
technical network management justification, but does not include other business practices. A network
management practice is reasonable if it is primarily used for and tailored to achieving a legitimate
network management purpose, taking into account the particular network architecture and technology of
the broadband Internet access service.
6. Section 8.5 is amended to read as follows:
§ 8.5 No blocking.
A person engaged in the provision of broadband Internet access service, insofar as such person is so
engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to
reasonable network management.
7. Section 8.7 is amended to read as follows:
§ 8.7 No throttling.
A person engaged in the provision of broadband Internet access service, insofar as such person is so
engaged, shall not impair or degrade lawful Internet traffic on the basis of Internet content, application, or
service, or use of a non-harmful device, subject to reasonable network management.
8. Section 8.9 is redesignated section 8.19.
9. New section 8.9 is added to read as follows:
§ 8.9 No paid prioritization.
(a) A person engaged in the provision of broadband Internet access service, insofar as such person is so
engaged, shall not engage in paid prioritization.
(b) “Paid prioritization” refers to the management of a broadband provider’s network to directly or
indirectly favor some traffic over other traffic, including through use of techniques such as traffic
shaping, prioritization, resource reservation, or other forms of preferential traffic management, either (a)
in exchange for consideration (monetary or otherwise) from a third party, or (b) to benefit an affiliated
entity.

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(c) The Commission may waive the ban on paid prioritization only if the petitioner demonstrates that the
practice would provide some significant public interest benefit and would not harm the open nature of the
Internet.
10. New section 8.11 is added to read as follows:
§ 8.11 No unreasonable interference or unreasonable disadvantage standard for Internet conduct.
Any person engaged in the provision of broadband Internet access service, insofar as such person is so
engaged, shall not unreasonably interfere with or unreasonably disadvantage (i) end users’ ability to
select, access, and use broadband Internet access service or the lawful Internet content, applications,
services, or devices of their choice, or (ii) edge providers’ ability to make lawful content, applications,
services, or devices available to end users. Reasonable network management shall not be considered a
violation of this rule.
11. Section 8.13 is amended by revising paragraph (a)(4), revising paragraphs (b), (b)(1) and (b)(2),
removing paragraph (b)(3), redesignating paragraphs (c) and (d) as paragraphs (d) and (e), and adding
new paragraph (c) to read as follows:
§ 8.13 General pleading requirements.
(a) * * *
*****
(4) The original of all pleadings and submissions by any party shall be signed by that party, or by the
party’s attorney. Complaints must be signed by the complainant. The signing party shall state his or her
address, telephone number, email address, and the date on which the document was signed. Copies
should be conformed to the original. Each submission must contain a written verification that the
signatory has read the submission and, to the best of his or her knowledge, information and belief formed
after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith
argument for the extension, modification or reversal of existing law; and that it is not interposed for any
improper purpose. If any pleading or other submission is signed in violation of this provision, the
Commission shall upon motion or upon its own initiative impose appropriate sanctions.
*****
(b) Initial Complaint: Fee remittance; Service; Copies to be filed. The complainant shall remit separately
the correct fee either by check, wire transfer, or electronically, in accordance with part 1, subpart G (see §
1.1106) and:
(1) Shall file an original copy of the complaint, using the Commission’s Electronic Comment Filing
System, and, on the same day:
(2) Serve the complaint by hand delivery on either the named defendant or one of the named defendant’s
registered agents for service of process, if available, on the same date that the complaint is filed with the
Commission;
(c) Subsequent Filings: Service; Copies to be filed.
(1) All subsequent submissions shall be filed using the Commission’s Electronic Comment Filing System.
In addition, all submissions shall be served by the filing party on the attorney of record for each party to
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the proceeding, or, where a party is not represented by an attorney, each party to the proceeding either by
hand delivery, overnight delivery, or by email, together with a proof of such service in accordance with
the requirements of § 1.47(g).
Service is deemed effective as follows:
(a) Service by hand delivery that is delivered to the office of the recipient by 5:30 pm, local time of the
recipient, on a business day will be deemed served that day. Service by hand delivery that is delivered to
the office of the recipient after 5:30 pm, local time of the recipient, on a business day will be deemed
served on the following business day;
(b) Service by overnight delivery will be deemed served the business day following the day it is accepted
for overnight delivery by a reputable overnight delivery service; or
(c) Service by email that is fully transmitted to the office of the recipient by 5:30 pm, local time of the
recipient, on a business day will be deemed served that day. Service by email that is fully transmitted to
the office of the recipient after 5:30 pm, local time of the recipient, on a business day will be deemed
served on the following business day.
(2) Parties shall provide hard copies of all submissions to staff in the Market Disputes Resolution
Division of the Enforcement Bureau upon request.
*****
12. Section 8.14 is amended by adding new paragraph (g), and redesignating paragraphs (g) through
(h) as (h) through (i) to read as follows:
§ 8.14 General formal complaint procedures.
*****
(g) Request for written opinion from outside technical organization. (1) After reviewing the pleadings,
and at any stage of the proceeding thereafter, the Enforcement Bureau may, in its discretion, request a
written opinion from an outside technical organization regarding one or more issues in dispute.
(2) (i) Wherever possible, the opinion shall be requested from an outside technical organization whose
members do not include any of the parties to the proceeding.
(ii) If no such outside technical organization exists, or if the Enforcement Bureau in its discretion chooses
to request an opinion from an organization that includes among its members a party to the proceeding, the
Bureau shall instruct the organization that any representative of a party to the proceeding within the
organization may not participate in either the organization’s consideration of the issue(s) referred or its
drafting of the opinion.
(iii) No outside technical organization shall be required to respond to the Bureau’s request.
(3) (i) If an opinion from an outside technical organization is requested and the request is accepted, the
Enforcement Bureau shall notify the parties to the dispute of the request within ten (10) days and shall
provide them copies of the opinion once it is received.
(ii) The outside technical organization shall provide its opinion within thirty (30) days of the Enforcement
Bureau’s request, unless otherwise specified by the Bureau.
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(iii) Parties shall be given the opportunity to file briefs in reply to the opinion.
*****
13. Section 8.16 is amended by revising paragraph (a), adding new paragraphs (a)(1) through (a)(4),
removing paragraph (b), and redesignating paragraphs (c) through (g) as (b) through (f) to read as
follows:
§ 8.16 Confidentiality of proprietary information.
(a) Any materials generated in the course of a proceeding under this part may be designated as
proprietary by either party to the proceeding or a third party if the party believes in good faith that the
materials fall within an exemption to disclosure contained in the Freedom of Information Act (FOIA), 5
U.S.C. § 552(b) (1)–(9). Any party asserting confidentiality for such materials must:
(1) Clearly mark each page, or portion thereof, for which a proprietary designation is claimed. If a
proprietary designation is challenged, the party claiming confidentiality shall have the burden of
demonstrating, by a preponderance of the evidence, that the materials designated as proprietary fall under
the standards for nondisclosure enunciated in the FOIA.
(2) File with the Commission, using the Commission’s Electronic Comment Filing System, a public
version of the materials that redacts any proprietary information and clearly marks each page of the
redacted public version with a header stating “Public Version.” The redacted document shall be machinereadable whenever technically possible. Where the document to be filed electronically contains metadata
that is confidential or protected from disclosure by a legal privilege (including, for example, the attorneyclient privilege), the filer may remove such metadata from the document before filing it electronically.
(3) File with the Secretary’s Office an unredacted hard copy version of the materials that contain the
proprietary information and clearly marks each page of the unredacted confidential version with a header
stating “Confidential Version.” The unredacted version must be filed on the same day as the redacted
version.
(4) Serve one hard copy of the filed unredacted materials and one hard copy of the filed redacted
materials on the attorney of record for each party to the proceeding, or where a party is not represented by
an attorney, each party to the proceeding either by hand delivery, overnight delivery, or email, together
with a proof of such service in accordance with the requirements of §§ 1.47(g) and 8.13(c)(1)(a)–(c);
(b) Except as provided in paragraph (c) of this section, materials marked as proprietary may be disclosed
solely to the following persons, only for use in the proceeding, and only to the extent necessary to assist
in the prosecution or defense of the case:
(1) Counsel of record representing the parties in the complaint action and any support personnel
employed by such attorneys;
(2) Officers or employees of the opposing party who are named by the opposing party as being directly
involved in the prosecution or defense of the case;
(3) Consultants or expert witnesses retained by the parties;
(4) The Commission and its staff; and
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(5) Court reporters and stenographers in accordance with the terms and conditions of this section.
(c) The Commission will entertain, subject to a proper showing under § 0.459, a party's request to further
restrict access to proprietary information. Pursuant to § 0.459, the other parties will have an opportunity
to respond to such requests. Requests and responses to requests may not be submitted by means of the
Commission’s Electronic Comment Filing System but instead must be filed under seal with the Office of
the Secretary.
(d) The individuals designated in paragraphs (b)(1)–(3) shall not disclose information designated as
proprietary to any person who is not authorized under this section to receive such information, and shall
not use the information in any activity or function other than the prosecution or defense in the case before
the Commission. Each individual who is provided access to the information shall sign a notarized
statement affirmatively stating that the individual has personally reviewed the Commission’s rules and
understands the limitations they impose on the signing party.
(e) No copies of materials marked proprietary may be made except copies to be used by persons
designated in paragraphs (b) and (c) of this section. Each party shall maintain a log recording the number
of copies made of all proprietary material and the persons to whom the copies have been provided.
(f) Upon termination of a complaint proceeding, including all appeals and petitions, all originals and
reproductions of any proprietary materials, along with the log recording persons who received copies of
such materials, shall be provided to the producing party. In addition, upon final termination of the
proceeding, any notes or other work product derived in whole or in part from the proprietary materials of
an opposing or third party shall be destroyed.
14. Section 8.18 is added to read as follows:
§ 8.18 Advisory opinions.
(a) Procedures
(1) Any entity that is subject to the Commission’s jurisdiction may request an advisory opinion from the
Enforcement Bureau regarding its own proposed conduct that may implicate the open Internet rules or
any rules or policies related to the open Internet that may be adopted in the future. Requests for advisory
opinions may be filed via the Commission’s website or with the Office of the Secretary and must be
copied to the Chief of the Enforcement Bureau and the Chief of the Investigations and Hearings Division
of the Enforcement Bureau.
(2) The Enforcement Bureau may, in its discretion, refuse to consider a request for an advisory opinion.
If the Bureau declines to respond to a request, it will inform the requesting party in writing.
(3) Requests for advisory opinions must relate to prospective or proposed conduct that the requesting
party intends to pursue. The Enforcement Bureau will not respond to requests for opinions that relate to
ongoing or prior conduct, and the Bureau may initiate an enforcement investigation to determine whether
such conduct violates the open Internet rules. Additionally, the Bureau will not respond to requests if the
same or substantially the same conduct is the subject of a current government investigation or proceeding,
including any ongoing litigation or open rulemaking at the Commission.
(4) Requests for advisory opinions must be accompanied by all material information sufficient for
Enforcement Bureau staff to make a determination on the proposed conduct for which review is
requested. Requesters must certify that factual representations made to the Bureau are truthful and
accurate, and that they have not intentionally omitted any information from the request. A request for an
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advisory opinion that is submitted by a business entity or an organization must be executed by an
individual who is authorized to act on behalf of that entity or organization.
(5) Enforcement Bureau staff will have discretion to ask parties requesting opinions, as well as other
parties that may have information relevant to the request or that may be impacted by the proposed
conduct, for additional information that the staff deems necessary to respond to the request. Such
additional information, if furnished orally or during an in-person conference with Bureau staff, shall be
promptly confirmed in writing. Parties are not obligated to respond to staff inquiries related to advisory
opinions. If a requesting party fails to respond to a staff inquiry, then the Bureau may dismiss that party’s
request for an advisory opinion. If a party voluntarily responds to a staff inquiry for additional
information, then it must do so by a deadline to be specified by Bureau staff. Advisory opinions will
expressly state that they rely on the representations made by the requesting party, and that they are
premised on the specific facts and representations in the request and any supplemental submissions.
(b) After review of a request submitted hereunder, the Enforcement Bureau will: (1) issue an advisory
opinion that will state the Bureau’s present enforcement intention with respect to the proposed open
Internet practices; (2) issue a written statement declining to respond to the request; or (3) take such other
position or action as it considers appropriate. An advisory opinion states only the enforcement intention
of the Enforcement Bureau as of the date of the opinion, and it is not binding on any party. Advisory
opinions will be issued without prejudice to the Enforcement Bureau or the Commission to reconsider the
questions involved, or to rescind or revoke the opinion. Advisory opinions will not be subject to appeal
or further review.
(c) The Enforcement Bureau will have discretion to indicate the Bureau’s lack of enforcement intent in an
advisory opinion based on the facts, representations, and warranties made by the requesting party. The
requesting party may rely on the opinion only to the extent that the request fully and accurately contains
all the material facts and representations necessary to issuance of the opinion and the situation conforms
to the situation described in the request for opinion. The Bureau will not bring an enforcement action
against a requesting party with respect to any action taken in good faith reliance upon an advisory opinion
if all of the relevant facts were fully, completely, and accurately presented to the Bureau, and where such
action was promptly discontinued upon notification of rescission or revocation of the Commission’s or
Bureau’s approval.
(d) Public disclosure. The Enforcement Bureau will make advisory opinions available to the public on
the Commission’s website. The Bureau will also publish the initial request for guidance and any
associated materials. Parties soliciting advisory opinions may request confidential treatment of
information submitted in connection with a request for an advisory opinion pursuant to § 0.459.
(e) Withdrawal of request. Any requesting party may withdraw a request for review at any time prior to
receipt of notice that the Enforcement Bureau intends to issue an adverse opinion, or the issuance of an
opinion. The Enforcement Bureau remains free, however, to submit comments to such requesting party
as it deems appropriate. Failure to take action after receipt of documents or information, whether
submitted pursuant to this procedure or otherwise, does not in any way limit or stop the Bureau from
taking such action at such time thereafter as it deems appropriate. The Bureau reserves the right to retain
documents submitted to it under this procedure or otherwise and to use them for all governmental
purposes.
PART 20: COMMERCIAL MOBILE SERVICES
15. Section 20.3 is amended to read as follows:
§ 20.3 Definitions.
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*****
Commercial mobile radio service. * * *
*****
(b) The functional equivalent of such a mobile service described in paragraph (a) of this section, including
a mobile broadband Internet access service as defined in Section 8.2.
*****
Interconnected Service. A service:
(a) That is interconnected with the public switched network, or interconnected with the public switched
network through an interconnected service provider, that gives subscribers the capability to communicate
to or receive communication from other users on the public switched network; or
(b) * * *
*****
Public Switched Network. The network that includes any common carrier switched network, whether by
wire or radio, including local exchange carriers, interexchange carriers, and mobile service providers, that
uses the North American Numbering Plan, or public IP addresses, in connection with the provision of
switched services.
*****

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APPENDIX B
Final Regulatory Flexibility Analysis
1.
As required by the Regulatory Flexibility Act of 1980 (RFA),1 as amended, Initial
Regulatory Flexibility Analyses (IRFAs) were incorporated in the Notice of Proposed Rule Making (2014
Open Internet NPRM) for this proceeding.2 The Commission sought written public comment on the
proposals in the 2014 Open Internet NPRM, including comment on the IRFA. The Commission received
comments on the 2014 Open Internet NPRM IRFA, which are discussed below. 3 This present Final
Regulatory Flexibility Analysis (FRFA) conforms to the RFA.4
A.

Need for, and Objectives of, the Proposed Rules

2.
In its remand of the Commission’s Open Internet Order, the D.C. Circuit affirmed the
underlying basis for the Commission’s open Internet rules, holding that “the Commission [had] more than
adequately supported and explained its conclusion that edge provider innovation leads to the expansion
and improvement of broadband infrastructure.”5 The court also found “reasonable and grounded in
substantial evidence” the Commission’s finding that Internet openness fosters the edge provider
innovation that drives the virtuous cycle.6 Open Internet rules benefit investors, innovators, and end users
by providing more certainty to each regarding broadband providers’ behavior, and helping to ensure the
market is conducive to optimal use of the Internet. Further, openness promotes the Internet’s ability to act
as a platform for speech and civic engagement, and can help close the digital divide by facilitating the
development of diverse content, applications, and services. The record on remand convinces us that
broadband providers continue to have the incentives and ability to engage in practices that pose a threat to
Internet openness, and as such, rules to protect the open nature of the Internet remain necessary.
3.
The Commission’s historical open Internet policies and rules have blunted broadband
providers’ incentives to engage in behavior harmful to the open Internet.7 Commenters who argue that
rules are not necessary overlook the role that the Commission’s rules and policies have played in fostering
that result.8 Without rules in place to protect the open Internet, the overwhelming incentives broadband
1

5 U.S.C. § 603. The RFA, 5 U.S.C. §§ 601-612 has been amended by the Contract With America Advancement
Act of 1996, Public Law No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).
2

Protecting & Promoting the Open Internet, GN Docket No. 14-28, Notice of Proposed Rulemaking, 29 FCC Rcd
5561 (2014) (2014 Open Internet NPRM).
3

See, e.g., Adtran Comments at 43, 47; ACA Comments at 32; National Cable and Telecommunications Association
Regulatory Flexibility Act Comments (NCTA RFA Comments); Wireless Internet Service Providers Association
Initial Regulatory Flexibility Analysis Comments (WISPA IRFA Comments); NTCA Reply at 18-20; WISPA
Reply; Letter from Stephen E. Coran, Counsel to the Wireless Internet Service Providers Association to Marlene H.
Dortch, Secretary, FCC, GN Docket No. 14-28, (filed Dec. 8, 2014) (WISPA Dec. 8, 2014 Ex Parte Letter); Letter
from Ross J. Lieberman, Senior Vice President of Government Affairs, American Cable Association, Lisa
Shoenthaler, Vice President, Association Affairs, National Cable & Telecommunications Association, and Stephen
E. Coran, Washington Counsel, Wireless Internet Service Providers Association to Marlene H. Dortch, Secretary,
FCC, GN Docket No. 14-28, (filed Jan. 9, 2015) (Trade Associations Jan. 9, 2015 IRFA Ex Parte Letter).
4

See 5 U.S.C. § 604.

5

Verizon, 740 F.3d at 644.

6

Id.

7

See, e.g., CWA & NAACP Comments at 4 (noting that CWA and NAACP agree with the Commission’s assertion
that one of the primary reasons there have been limited violations of Internet openness is because the Commission
has had policies in place to address misconduct).
8

See supra Section III.A; see also, e.g., Layton Comments at 19.

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providers have to act in ways that are harmful to investment and innovation threaten both broadband
networks and edge content.9 Accordingly, in the Order, we set a clear scope for and subsequently adopt a
number of rules to address such harmful conduct.
4.
First, we note that despite traffic exchange’s inclusion in the definition and classification
of broadband Internet access service, we do not apply the Commission’s conduct-based rules to traffic
exchange today. Instead, we utilize the regulatory backstop of sections 201 and 202, as well as related
enforcement provisions, to provide oversight over traffic exchange arrangements between a broadband
Internet access service provider and other networks. Our definition of broadband Internet access service
includes services “by wire or radio,” and thus the open Internet rules we adopt apply to both fixed and
mobile broadband Internet access services. The record demonstrates the pressing need to apply open
Internet rules to fixed and mobile broadband Internet access services alike, and as such, the Commission’s
prior justifications for treating mobile and fixed services differently under the rules are no longer relevant.
5.
We adopt a bright-line rule prohibiting broadband providers from blocking lawful
content, applications, services, or non-harmful devices. The no-blocking rule applies to all traffic
transmitted to or from end users of a broadband Internet access service, including traffic that may not fit
clearly into any of these categories. Further, the no-blocking rule only applies to transmissions of lawful
content and does not prevent or restrict a broadband provider from refusing to transmit unlawful material,
such as child pornography or copyright-infringing materials. We believe that this approach will allow
broadband providers to honor their service commitments to their subscribers without requiring a specified
level of service to those subscribers or edge providers under the no-blocking rule. We further believe that
the separate no-throttling rule provides appropriate protections against harmful conduct that degrades
traffic but does not constitute outright blocking.
6.
We also adopt a separate bright-line rule prohibiting broadband providers from impairing
or degrading lawful Internet traffic on the basis of content, application, service, or use of a non-harmful
device. While certain broadband provider conduct may result in degradation of an end user’s Internet
experience that is tantamount to blocking, we believe that this conduct requires delineation in an explicit
rule rather than through commentary as part of the no-blocking rule. We interpret throttling to mean any
conduct by a broadband Internet access service provider that impairs, degrades, slows down, or renders
effectively unusable particular content, services, applications, or devices, which is not reasonable network
management. We find this prohibition to be as necessary as a rule prohibiting blocking. Without an
equally strong no-throttling rule, parties note that the no-blocking rule will not be as effective because
broadband providers might otherwise be able to engage in conduct that harms the open Internet but falls
short of the outright blocking standard.
7.
Under our bright-line rule banning paid prioritization, the Commission will treat all paid
prioritization as illegal under our rules except when, in rare circumstances, a broadband provider can
convincingly show that its practice would affirmatively benefit the open Internet. Broadband providers
may seek a waiver of this rule against paid prioritization, and we provide guidance to make clear the very
limited circumstances in which the Commission would be willing to allow paid prioritization. In order to
justify waiver, a party would need to demonstrate that a practice would provide some significant public
interest benefit and would not harm the open nature of the Internet.
8.
In addition to these three bright-line rules, we also set forth a no-unreasonable
interference/disadvantage standard, under which the Commission can prohibit practices that unreasonably
interfere with or unreasonably disadvantage consumers or edge providers, thus causing harm to the open
Internet. This no-unreasonable interference/disadvantage standard will operate on a case-by-case basis
and is designed to evaluate other broadband provider policies or practices—not covered by the bright-line
9

See, e.g., Greenling Institute Comments at 3 (“By rejecting the Commission’s anti-blocking and antidiscrimination rules, the Verizon court has opened up the possibility that without the Commission’s intervention,
carriers will determine the winners and losers of the digital world.”).

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rules— and prohibit those that could harm the open Internet. Under this rule, any person engaged in the
provision of broadband Internet access service, insofar as such person is so engaged, shall not
unreasonably interfere with or unreasonably disadvantage (i) end users’ ability to select, access, and use
broadband Internet access service or the lawful Internet content, applications, services, or devices of their
choice, or (ii) edge providers’ ability to make lawful content, applications, services or devices available to
end users. Reasonable network management shall not be considered a violation of this rule. This
standard importantly allows us to prohibit practices that harm Internet openness, while still permitting
innovative practices and creations that promote the virtuous cycle.10
9.
We note that the no-blocking, no-throttling, and no-unreasonable
interference/disadvantage standard are all subject to reasonable network management. This network
management exception is critical to allow broadband providers to optimize overall network performance
and maintain a consistent quality experience for consumers. This exception does not apply to the paid
prioritization rule because unlike conduct implicating the no-blocking, no-throttling, or no-unreasonable
interference/disadvantage standard, paid prioritization is not a network management practice. We believe
that this approach allows broadband providers to optimize overall network performance and maintain a
consistent quality experience for consumers while carrying a variety of traffic over their networks.
10.
In addition, we adopt our tentative conclusion in the 2014 Open Internet NPRM, that the
Commission should not apply its conduct-based rules to services offered by broadband providers that
share capacity with broadband Internet access service over providers’ last-mile facilities, while closely
monitoring the development of these services to ensure that broadband providers are not circumventing
the open Internet rules. While the 2010 Open Internet Order and the 2014 Open Internet NPRM used the
term “specialized services” to refer to these types of services, the term “non-BIAS data services” is a
more accurate description for this class of services. These services may generally share the following
characteristics: First, these services are not used to reach large parts of the Internet. Second, these
services are not a generic platform—but rather a specific “application level” service. Finally, these
services use some form of network management to isolate network capacity from broadband Internet
access services: physically, logically, statistically, or otherwise.
11.
We also adopt enhancements to the existing transparency rule, which covers both content
and format of disclosures by providers of broadband Internet access services. As the Commission has
previously noted, disclosure requirements are among the least intrusive and most effective regulatory
measures at its disposal. The enhanced transparency requirements adopted in the present Order serve the
same purposes as those required under the 2010 Order: providing critical information to serve end-user
consumers, edge providers of broadband products and services, and the Internet community. Our
enhancements to the existing transparency rule will better enable end-user consumers to make informed
choices about broadband services by providing them with timely information tailored more specifically to
their needs, and will similarly provide edge providers with the information necessary to develop new
content, applications, services, and devices that promote the virtuous cycle of investment and innovation.
12.
We anticipate that many disputes that will arise can and should be resolved by the parties
without Commission involvement. We encourage parties to resolve disputes through informal
discussions and private negotiations, but to the extent these methods are not practical, the Commission
will continue to provide backstop mechanisms to address them. We continue to allow parties to file
formal and informal complaints, and we will also proactively monitor compliance and take strong
enforcement action against parties who violate the open Internet rules. In addition, we institute the use of
advisory opinions similar to those issued by DOJ’s Antitrust Division to provide clarity, guidance, and
predictability concerning the open Internet rules. We also create an ombudsperson position that will serve
as a point of contact for open Internet issues at the Commission to help consumers and edge providers
10

The Verizon court specifically touted the virtuous cycle as a worthy goal and within our authority. Verizon, 740
F.3d at 644 (“The Commission’s finding that Internet openness fosters the edge-provider innovation that drives this
‘virtuous cycle’ was likewise reasonable and grounded in substantial evidence.”).

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direct their inquiries and complaints to the appropriate parties.
13.
The legal basis for the Open Internet rules we adopt today relies on multiple sources of
legal authority, including section 706, Title II, and Title III of the Communications Act. We conclude
that the best approach to achieving our open Internet goals is to rely on several, independent, yet
complementary sources of legal authority. Our authority under Section 706 is not mutually exclusive
with our authority under Titles II and III of the Act. Rather, we read our statute to provide independent
sources of authority that work in concert toward common ends. Under section 706, the Commission has
the authority to take certain regulatory steps to encourage and accelerate the deployment of broadband to
all Americans. Under Title II, the Commission has authority to ensure that common carriers do not
engage in unjust and unreasonable practices or preferences. And under Title III, the Commission has
authority to protect the public interest through spectrum licensing. Each of these sources of authority
provides an alternative ground to independently support our open Internet rules.
B.

Summary of Significant Issues Raised by Public Comments in Response to the IRFA

14.
In response to the 2014 Open Internet NPRM, five entities filed comments, reply
comments, and/or ex parte letters that specifically addressed the IRFA to some degree: ADTRAN, the
American Cable Association (ACA), The National Cable & Telecommunications Association (NCTA),
NTCA—the Rural Broadband Association (NTCA), and the Wireless Internet Service Providers
Association (WISPA). Some of these, as well as other entities filed comments or ex parte letters that
more generally considered the small business impact of our proposals.11 The Office of Advocacy of the
Small Business Administration (SBA) also filed a letter encouraging the FCC to use the RFA to reach out
to small businesses in the course of the proceeding.12 The SBA particularly encouraged the Commission
to “exercise appropriate caution in tailoring its final rules to mitigate any anticompetitive pressure on
small broadband providers as well.”13 We considered the proposals and concerns described by the various
commenters, including the SBA, when composing the Order and accompanying rules.
15.
Some commenters expressed concern that in the IRFA, we had not adequately considered
the varying sizes of broadband providers and the effect of our proposals on smaller entities.14 Contrary to
these concerns, when making the determination reflected in the Order, we carefully considered the impact
of our actions on small entities. The record also reflects small entities’ concern that the rules proposed in
the 2014 Open Internet NPRM did not include sufficient protection for small edge providers and
broadband providers.15 Thus, the rules adopted in the Order reflect a careful consideration of the impact
11

See, e.g., Letter from Forty-Three Municipal Broadband Internet Providers to Marlene H. Dortch, Secretary, FCC,
GN Docket No. 14-28, (filed Feb 10, 2015) (Forty-Three Providers’ Feb 10, 2015 Ex Parte Letter); Letter from
Barbara S. Esbin, Counsel, American Cable Association to Marlene H. Dortch, Secretary, FCC, GN Docket Nos.
14-28, 10-127 (filed Feb 13, 2015) (ACA Feb. 13, 2015 Ex Parte Letter); Letter from Barbara S. Esbin, Counsel for
American Cable Association to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127 (filed Jan. 28,
2015) (ACA Jan. 28, 2015Ex Parte Letter); Letter from Stephen E. Coran, Counsel to the Wireless Internet Service
Providers Association to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 8 (filed Feb. 3, 2015)
(WISPA Feb. 3, 2015 Ex Parte Letter); WTA Comments.
12

See generally Letter from Winslow L. Sargeant, Ph.D., Chief Counsel for Advocacy, SBA, and Jamie Belcore
Saloom, Assistant Chief Counsel for Telecommunications, SBA to Marlene H. Dortch, Secretary, FCC, GN Docket
No. 14-28 (filed Sep. 25, 2014) (SBA Sep. 25, 2014 Ex Parte Letter).
13

Id. at 2.

14

See Adtran Comments at 43; NCTA RFA Comments at 7; WISPA IRFA Comments at 1, 3, 5; NTCA Reply at 20;
WISPA Dec. 8, 2014 Ex Parte Letter at 3; Trade Associations Jan. 9, 2015 IRFA Ex Parte Letter at 2.
15

See, e.g., John Bernadi Reply at 1 (citing concern that as a farmer and a small business owner the rules proposed
in the NPRM were insufficiently robust to protect small business interests); WISPA Reply at iv (“If it is true that
large broadband providers have the ability to unfairly discriminate against small edge providers, it follows that large
edge providers have the ability to unfairly discriminate against small broadband providers. The Commission must
consider these two-sided relationships and marketplace realities instead of focusing only on imposing obligations on
(continued….)

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that our rules will have both on small edge providers and on small broadband providers. The record also
reflects the concerns of some commenters that enhanced transparency requirements will be particularly
burdensome for smaller providers.16 However, in the 2014 Open Internet NPRM IRFA, we specifically
sought comment on whether there are ways the Commission or industry associations could reduce
burdens on broadband providers in complying with the proposed enhanced transparency rule through the
use of a voluntary industry standardized glossary, or through the creation of a dashboard that permits easy
comparison of the policies, procedures, and prices of various broadband providers throughout the
country.17
16.
NCTA and others also state that the IRFA was insufficiently specific considering the
obligations and impact of the classification of broadband Internet access service as a Title II service.18
We disagree with this contention as well. We believe that the IRFA was adequate and that the
opportunity for parties, including small entities, to comment in a publicly accessible docket on the
proposals contained within the 2014 Open Internet NPRM was sufficient. The opportunity for comments,
replies, and ex parte presentations more than adequately shaped the universe of potential obligations that
could stem from our final rules. This was reflected in the overwhelming outpouring of comment on the
proposals contained in the NPRM: including many comments by and on behalf of small entities.19 The
IRFA described that the 2014 Open Internet NPRM sought comment on the best source of authority for
protecting Internet openness, whether section 706, Title II of the Communications Act of 1934, as
amended, and/or other sources of legal authority such as Title III of the Communications Act for wireless
services.20

(Continued from previous page)
broadband providers, especially small businesses.”); Etsy Comments at 7 (arguing that a prohibition on
commercially unreasonable transactions “creates an unacceptable level of uncertainty for small companies and will
be too costly to enforce”); Gerald May Comments at 1 (“I am a small business owner in southern Alabama. I depend
on the internet for the majority of my communications needs to include my web site, my email, and phone calls.
Giving paid priority net service to large corporations or others that have limitless resources will put small companies
like mine at a distinct disadvantage…All small and intermediate businesses will suffer.”).
16

See, e.g., Adtran Comments at 43, ACA Comments at 32-39; Competitive Carrier Association (CCA) Comments
at 8-9 (“Expanding the current disclosure requirements would also be particularly burdensome on smaller carriers);
WISPA Comments at 15-16; WTA Comments at 8 (“WTA is very concerned about the increased costs and
uncertain benefits of the proposed enhanced transparency requirements for smaller carriers and their customers.”);
Trade Associations Jan. 9, 2015 IRFA Ex Parte Letter at 4; Letter from Erin P. Fitzgerald, Assistant Regulatory
Counsel, Rural Wireless Association, Inc. to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28 at 1 (filed
Nov. 14, 2014) (RWA Nov. 14, 2014 Ex Parte Letter) (“While RWA members have developed procedures to
comply with the Commission’s 2010 transparency and disclosure rules, engaging in a similar endeavor to comply
with new and/or more stringent rules would be costly and further strain rural carriers’ limited resources.”); WISPA
Feb. 3, 2015 Ex Parte Letter at 8 (“To avoid the significant effects that would result from the Commission's
proposed rules, the Commission should exempt small businesses from any new transparency and reporting
obligations.”).
17

2014 Open Internet NPRM, 29 FCC Rcd at 5645, para. 51.

18

See NCTA RFA Comments at 1, 3-4;

19

See generally Etsy Comments; WTA Comments at 7- 9 (detailing concerns with the proposed enhanced
transparency requirements); ACA Comments (advocating for the broadband provider businesses of ACA member
companies, which total over 800 and represent a diverse mix of cable operators, rural telecommunications
companies, and municipalities); CCA Comments; Forty-Three Providers’ Feb 10, 2015 Ex Parte Letter at 2
(expressing concern over the economic impact Title II regulation will have on small and medium-sized ISPs).
20

2014 Open Internet NPRM, 29 FCC Rcd at 5629, para. 8.

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Description and Estimate of the Number of Small Entities to Which the Rules
Would Apply

17.
The RFA directs agencies to provide a description of, and where feasible, an estimate of
the number of small entities that may be affected by the proposed rules, if adopted.21 The RFA generally
defines the term “small entity” as having the same meaning as the terms “small business,” “small
organization,” and “small governmental jurisdiction.”22 In addition, the term “small business” has the
same meaning as the term “small-business concern” under the Small Business Act.23 A small-business
concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the SBA.24
1.

Total Small Entities

18.
Our proposed action, if implemented, may, over time, affect small entities that are not
easily categorized at present. We therefore describe here, at the outset, three comprehensive, statutory
small entity size standards.25 First, nationwide, there are a total of approximately 28.2 million small
businesses, according to the SBA.26 In addition, a “small organization” is generally “any not-for-profit
enterprise which is independently owned and operated and is not dominant in its field.”27 Nationwide, as
of 2007, there were approximately 1,621,315 small organizations.28 Finally, the term “small
governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages,
school districts, or special districts, with a population of less than fifty thousand.”29 Census Bureau data
for 2007 indicate that there were 89,476 local governmental jurisdictions in the United States.30 We
estimate that, of this total, as many as 88,761 entities may qualify as “small governmental jurisdictions.”31
Thus, we estimate that most governmental jurisdictions are small.

21

See 5 U.S.C. § 603(b)(3).

22

See 5 U.S.C. § 601(6).

23

See 5 U.S.C. § 601(3) (incorporating by reference the definition of “small-business concern” in the Small
Business Act, 15 U.S.C. § 632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small business applies
“unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after
opportunity for public comment, establishes one or more definitions of such term which are appropriate to the
activities of the agency and publishes such definition(s) in the Federal Register.”
24

See 15 U.S.C. § 632.

25

See 5 U.S.C. §§ 601(3)-(6).

26

See SBA, Office of Advocacy, Frequently Asked Questions,
http://www.sba.gov/sites/default/files/FAQ_March_2014_0.pdf (last accessed Jan. 25, 2015).
27

5 U.S.C. § 601(4).

28

Indep. Sector, The New Nonprofit Almanac and Desk Reference (2010).

29

5 U.S.C. § 601(5).

30

U.S. Census Bureau, Statistical Abstract of the United States: 2012, Section 8, page 267, tbl. 429,
https://www.census.gov/compendia/statab/2012/tables/12s0429.pdf/ (data cited therein are from 2007).
31

The 2007 U.S. Census data for small governmental organizations are not presented based on the size of the
population in each such organization. There were 89,476 local governmental organizations in 2007. If we assume
that county, municipal, township, and school district organizations are more likely than larger governmental
organizations to have populations of 50,000 or less, the total of these organizations is 52,095. As a basis of
estimating how many of these 89,476 local government organizations were small, in 2011, we note that there were a
total of 715 cities and towns (incorporated places and minor civil divisions) with populations over 50,000. City and
Town Totals Vintage: 2011 – U.S. Census Bureau, http://www.census.gov/popest/data/cities/totals/2011/index.html.
If we subtract the 715 cities and towns that meet or exceed the 50,000 population threshold, we conclude that
approximately 88,761 are small. U.S. Census Bureau, Statistical Abstract of the United States: 2012, Section 8,
(continued….)

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2.

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Broadband Internet Access Service Providers

19.
The rules adopted in the Order apply to broadband Internet access service providers. The
Economic Census places these firms, whose services might include Voice over Internet Protocol (VoIP),
in either of two categories, depending on whether the service is provided over the provider’s own
telecommunications facilities (e.g., cable and DSL ISPs), or over client-supplied telecommunications
connections (e.g., dial-up ISPs). The former are within the category of Wired Telecommunications
Carriers,32 which has an SBA small business size standard of 1,500 or fewer employees.33 These are also
labeled “broadband.” The latter are within the category of All Other Telecommunications,34 which has a
size standard of annual receipts of $25 million or less.35 These are labeled non-broadband. According to
Census Bureau data for 2007, there were 3,188 firms in the first category, total, that operated for the
entire year.36 Of this total, 3144 firms had employment of 999 or fewer employees, and 44 firms had
employment of 1000 employees or more.37 For the second category, the data show that 1,274 firms
operated for the entire year.38 Of those, 1,252 had annual receipts below $25 million per year.
Consequently, we estimate that the majority of broadband Internet access service provider firms are small
entities.
20.
The broadband Internet access service provider industry has changed since this definition
was introduced in 2007. The data cited above may therefore include entities that no longer provide
broadband Internet access service, and may exclude entities that now provide such service. To ensure that
this FRFA describes the universe of small entities that our action might affect, we discuss in turn several
different types of entities that might be providing broadband Internet access service. We note that,
although we have no specific information on the number of small entities that provide broadband Internet
access service over unlicensed spectrum, we include these entities in our Final Regulatory Flexibility
Analysis.
3.

Wireline Providers

21.
Incumbent Local Exchange Carriers (Incumbent LECs). Neither the Commission nor the
SBA has developed a small business size standard specifically for incumbent local exchange services.
The closest applicable size standard under SBA rules is for the category Wired Telecommunications
Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees.39
According to Commission data,40 1,307 carriers reported that they were incumbent local exchange service
(Continued from previous page)
page 267, tbl. 429, https://www.census.gov/compendia/statab/2012/tables/12s0429.pdf/ (data cited therein are from
2007).
32

U.S. Census Bureau, 2012 NAICS Definitions, “517110 Wired Telecommunications Carriers,”
http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517110&search=2012%20NAICS%20Search.
33

13 C.F.R. § 121.201, NAICS code 517110.

34

U.S. Census Bureau, 2012 NAICS Definitions, “517919 All Other Telecommunications,”,
http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517919&search=2012%20NAICS%20Search.
35

13 C.F.R. § 121.201, NAICS code 517919.

36

U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, Table 5, “Establishment and Firm Size:
Employment Size of Firms for the United States: 2007 NAICS Code 517110” (issued Nov. 2010).
37

See id.

38

U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, “Establishment and Firm Size,”
NAICS code 5179191 (rel. Nov. 19, 2010) (receipts size).
39

13 C.F.R. § 121.201, NAICS code 517110.

40

Federal Communications Commission, Wireline Competition Bureau, Industry Analysis and Technology
Division, Trends in Telephone Service, tbl. 5.3 (Sept. 2010) (Trends in Telephone Service).

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providers.41 Of these 1,307 carriers, an estimated 1,006 have 1,500 or fewer employees and 301 have
more than 1,500 employees.42 Consequently, the Commission estimates that most providers of
incumbent local exchange service are small businesses that may be affected by rules adopted pursuant to
the Order.
22.
Competitive Local Exchange Carriers (Competitive LECs), Competitive Access Providers
(CAPs), Shared-Tenant Service Providers, and Other Local Service Providers. Neither the Commission
nor the SBA has developed a small business size standard specifically for these service providers. The
appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under
that size standard, such a business is small if it has 1,500 or fewer employees.43 According to
Commission data, 1,442 carriers reported that they were engaged in the provision of either competitive
local exchange services or competitive access provider services.44 Of these 1,442 carriers, an estimated
1,256 have 1,500 or fewer employees and 186 have more than 1,500 employees.45 In addition, 17 carriers
have reported that they are Shared-Tenant Service Providers, and all 17 are estimated to have 1,500 or
fewer employees.46 In addition, 72 carriers have reported that they are Other Local Service Providers.47
Of the 72, seventy have 1,500 or fewer employees and two have more than 1,500 employees.48
Consequently, the Commission estimates that most providers of competitive local exchange service,
competitive access providers, Shared-Tenant Service Providers, and other local service providers are
small entities that may be affected by rules adopted pursuant to the Order.
23.
We have included small incumbent LECs in this present RFA analysis. As noted above,
a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard
(e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its
field of operation.”49 The SBA’s Office of Advocacy contends that, for RFA purposes, small incumbent
LECs are not dominant in their field of operation because any such dominance is not “national” in
scope.50 We have therefore included small incumbent LECs in this RFA analysis, although we emphasize
that this RFA action has no effect on Commission analyses and determinations in other, non-RFA
contexts.
24.
Interexchange Carriers. Neither the Commission nor the SBA has developed a small
business size standard specifically for providers of interexchange services. The appropriate size standard
under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a
business is small if it has 1,500 or fewer employees.51 According to Commission data,52 359 carriers have
41

See Trends in Telephone Service at tbl. 5.3.

42

See id.

43

13 C.F.R. § 121.201, NAICS code 517110.

44

See Trends in Telephone Service at tbl.5.3.

45

See id.

46

See id.

47

See id.

48

See id.

49

5 U.S.C. § 601(3).

50

Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, to William E. Kennard, Chairman, Federal
Communications Commission (filed May 27, 1999). The Small Business Act contains a definition of “small
business concern,” which the RFA incorporates into its own definition of “small business.” 15 U.S.C. § 632(a); 5
U.S.C. § 601(3). SBA regulations interpret “small business concern” to include the concept of dominance on a
national basis. 13 C.F.R. § 121.102(b).
51

13 C.F.R. § 121.201, NAICS code 517110.

52

Trends in Telephone Service, tbl. 5.3.

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reported that they are engaged in the provision of interexchange service. Of these, an estimated 317 have
1,500 or fewer employees and 42 have more than 1,500 employees. Consequently, the Commission
estimates that the majority of IXCs are small entities that may be affected by rules adopted pursuant to the
Order.
25.
Operator Service Providers (OSPs). Neither the Commission nor the SBA has developed
a small business size standard specifically for operator service providers. The appropriate size standard
under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a
business is small if it has 1,500 or fewer employees.53 According to Commission data, 33 carriers have
reported that they are engaged in the provision of operator services. Of these, an estimated 31 have 1,500
or fewer employees and two have more than 1,500 employees.54 Consequently, the Commission
estimates that the majority of OSPs are small entities that may be affected by rules adopted pursuant to
the Order.
4.

Wireless Providers – Fixed and Mobile

26.
The broadband Internet access service provider category covered by this Order may cover
multiple wireless firms and categories of regulated wireless services. Thus, to the extent the wireless
services listed below are used by wireless firms for broadband Internet access service, the proposed
actions may have an impact on those small businesses as set forth above and further below. In addition,
for those services subject to auctions, we note that, as a general matter, the number of winning bidders
that claim to qualify as small businesses at the close of an auction does not necessarily represent the
number of small businesses currently in service. Also, the Commission does not generally track
subsequent business size unless, in the context of assignments and transfers or reportable eligibility
events, unjust enrichment issues are implicated.
27.
Wireless Telecommunications Carriers (except Satellite). Since 2007, the Census Bureau
has placed wireless firms within this new, broad, economic census category.55 Under the present and
prior categories, the SBA has deemed a wireless business to be small if it has 1,500 or fewer employees.56
For the category of Wireless Telecommunications Carriers (except Satellite), census data for 2007 show
that there were 1,383 firms that operated for the entire year.57 Of this total, 1,368 firms had employment
of 999 or fewer employees and 15 had employment of 1000 employees or more.58 Since all firms with
fewer than 1,500 employees are considered small, given the total employment in the sector, we estimate
that the vast majority of wireless firms are small.
28.
Wireless Communications Services. This service can be used for fixed, mobile,
radiolocation, and digital audio broadcasting satellite uses. The Commission defined “small business” for
the wireless communications services (WCS) auction as an entity with average gross revenues of $40
million for each of the three preceding years, and a “very small business” as an entity with average gross

53

13 C.F.R. § 121.201, NAICS code 517110.

54

Trends in Telephone Service, tbl. 5.3.

55

U.S. Census Bureau, 2012 NAICS Definitions, “517210 Wireless Telecommunications Categories (Except
Satellite)”; http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517210&search=2012%20NAICS%20Search.
56

13 C.F.R. § 121.201, NAICS code 517210 (2012 NAICS). The now-superseded, pre-2007 C.F.R. citations were
13 C.F.R. § 121.201, NAICS codes 517211 and 517212 (referring to the 2002 NAICS).
57

U.S. Census Bureau, Subject Series: Information, Table 5, “Establishment and Firm Size: Employment Size of
Firms for the United States: 2007 NAICS Code 517210” (issued Nov. 2010).
58

See id.

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revenues of $15 million for each of the three preceding years.59 The SBA has approved these
definitions.60
29.
1670–1675 MHz Services. This service can be used for fixed and mobile uses, except
aeronautical mobile.61 An auction for one license in the 1670–1675 MHz band was conducted in 2003.
One license was awarded. The winning bidder was not a small entity.
30.
Wireless Telephony. Wireless telephony includes cellular, personal communications
services, and specialized mobile radio telephony carriers. As noted, the SBA has developed a small
business size standard for Wireless Telecommunications Carriers (except Satellite).62 Under the SBA
small business size standard, a business is small if it has 1,500 or fewer employees.63 According to
Commission data, 413 carriers reported that they were engaged in wireless telephony.64 Of these, an
estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees.65 Therefore, a
little less than one third of these entities can be considered small.
31.
Broadband Personal Communications Service. The broadband personal communications
services (PCS) spectrum is divided into six frequency blocks designated A through F, and the
Commission has held auctions for each block. The Commission initially defined a “small business” for
C- and F-Block licenses as an entity that has average gross revenues of $40 million or less in the three
previous calendar years.66 For F-Block licenses, an additional small business size standard for “very
small business” was added and is defined as an entity that, together with its affiliates, has average gross
revenues of not more than $15 million for the preceding three calendar years.67 These small business size
standards, in the context of broadband PCS auctions, have been approved by the SBA.68 No small
businesses within the SBA-approved small business size standards bid successfully for licenses in Blocks
A and B. There were 90 winning bidders that claimed small business status in the first two C-Block
auctions. A total of 93 bidders that claimed small business status won approximately 40 percent of the
1,479 licenses in the first auction for the D, E, and F Blocks.69 On April 15, 1999, the Commission
completed the reauction of 347 C-, D-, E-, and F-Block licenses in Auction No. 22.70 Of the 57 winning
bidders in that auction, 48 claimed small business status and won 277 licenses.

59

Amendment of the Commission’s Rules to Establish Part 27, the Wireless Communications Service (WCS), GN
Docket No. 96-228, Report and Order, 12 FCC Rcd 10785, 10879, para. 194 (1997).
60

See Letter from Aida Alvarez, Administrator, SBA, to Amy Zoslov, Chief, Auctions and Industry Analysis
Division, Wireless Telecommunications Bureau, Federal Communications Commission (filed Dec. 2, 1998)
(Alvarez Letter 1998).
61

47 C.F.R. § 2.106; see generally 47 C.F.R. §§ 27.1-27.70.

62

13 C.F.R. § 121.201, NAICS code 517210.

63

Id.

64

Trends in Telephone Service, tbl. 5.3.

65

Id.

66

See Amendment of Parts 20 and 24 of the Commission’s Rules – Broadband PCS Competitive Bidding and the
Commercial Mobile Radio Service Spectrum Cap; Amendment of the Commission’s Cellular/PCS Cross-Ownership
Rule; WT Docket No. 96-59, GN Docket No. 90-314, Report and Order, 11 FCC Rcd 7824, 7850-52, paras. 57-60
(1996) (PCS Report and Order); see also 47 C.F.R. § 24.720(b).
67

See PCS Report and Order, 11 FCC Rcd at 7852, para. 60.

68

See Alvarez Letter 1998.

69

See Broadband PCS, D, E and F Block Auction Closes, Public Notice, Doc. No. 89838 (rel. Jan. 14, 1997).

70

See C, D, E, and F Block Broadband PCS Auction Closes, Public Notice, 14 FCC Rcd 6688 (WTB 1999). Before
Auction No. 22, the Commission established a very small standard for the C Block to match the standard used for F
(continued….)

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32.
On January 26, 2001, the Commission completed the auction of 422 C and F Block
Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in that auction, 29 claimed small
business status.71 Subsequent events concerning Auction 35, including judicial and agency
determinations, resulted in a total of 163 C and F Block licenses being available for grant. On February
15, 2005, the Commission completed an auction of 242 C-, D-, E-, and F-Block licenses in Auction No.
58. Of the 24 winning bidders in that auction, 16 claimed small business status and won 156 licenses.72
On May 21, 2007, the Commission completed an auction of 33 licenses in the A, C, and F Blocks in
Auction No. 71.73 Of the 12 winning bidders in that auction, five claimed small business status and won
18 licenses.74 On August 20, 2008, the Commission completed the auction of 20 C-, D-, E-, and F-Block
Broadband PCS licenses in Auction No. 78.75 Of the eight winning bidders for Broadband PCS licenses
in that auction, six claimed small business status and won 14 licenses.76
33.
Specialized Mobile Radio Licenses. The Commission awards “small entity” bidding
credits in auctions for Specialized Mobile Radio (SMR) geographic area licenses in the 800 MHz and 900
MHz bands to firms that had revenues of no more than $15 million in each of the three previous calendar
years.77 The Commission awards “very small entity” bidding credits to firms that had revenues of no
more than $3 million in each of the three previous calendar years.78 The SBA has approved these small
business size standards for the 900 MHz Service.79 The Commission has held auctions for geographic
area licenses in the 800 MHz and 900 MHz bands. The 900 MHz SMR auction began on December 5,
1995, and closed on April 15, 1996. Sixty bidders claiming that they qualified as small businesses under
the $15 million size standard won 263 geographic area licenses in the 900 MHz SMR band. The 800
MHz SMR auction for the upper 200 channels began on October 28, 1997, and was completed on
December 8, 1997. Ten bidders claiming that they qualified as small businesses under the $15 million
size standard won 38 geographic area licenses for the upper 200 channels in the 800 MHz SMR band.80 A
second auction for the 800 MHz band was held on January 10, 2002 and closed on January 17, 2002 and
included 23 BEA licenses. One bidder claiming small business status won five licenses.81
(Continued from previous page)
Block. Amendment of the Commission’s Rules Regarding Installment Payment Financing for Personal
Communications Services (PCS) Licensees, WT Docket No. 97-82, Fourth Report and Order, 13 FCC Rcd 15743,
15768, para. 46 (1998).
71

See C and F Block Broadband PCS Auction Closes; Winning Bidders Announced, Public Notice, 16 FCC Rcd
2339 (2001).
72

See Broadband PCS Spectrum Auction Closes; Winning Bidders Announced for Auction No. 58, Public Notice, 20
FCC Rcd 3703 (2005).
73

See Auction of Broadband PCS Spectrum Licenses Closes; Winning Bidders Announced for Auction No. 71,
Public Notice, 22 FCC Rcd 9247 (2007).
74

Id.

75

See Auction of AWS-1 and Broadband PCS Licenses Closes; Winning Bidders Announced for Auction 78, Public
Notice, 23 FCC Rcd 12749 (WTB 2008).
76

Id.

77

47 C.F.R. § 90.814(b)(1).

78

Id.

79

See Letter from Aida Alvarez, Administrator, SBA, to Thomas Sugrue, Chief, Wireless Telecommunications
Bureau, Federal Communications Commission (filed Aug. 10, 1999) (Alvarez Letter 1999).
80

See Correction to Public Notice DA 96-586 “FCC Announces Winning Bidders in the Auction of 1020 Licenses to
Provide 900 MHz SMR in Major Trading Areas,” Public Notice, 18 FCC Rcd 18367 (WTB 1996).
81

See Multi-Radio Service Auction Closes, Public Notice, 17 FCC Rcd 1446 (WTB 2002).

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34.
The auction of the 1,053 800 MHz SMR geographic area licenses for the General
Category channels began on August 16, 2000, and was completed on September 1, 2000. Eleven bidders
won 108 geographic area licenses for the General Category channels in the 800 MHz SMR band and
qualified as small businesses under the $15 million size standard.82 In an auction completed on December
5, 2000, a total of 2,800 Economic Area licenses in the lower 80 channels of the 800 MHz SMR service
were awarded.83 Of the 22 winning bidders, 19 claimed small business status and won 129 licenses.
Thus, combining all four auctions, 41 winning bidders for geographic licenses in the 800 MHz SMR band
claimed status as small businesses.
35.
In addition, there are numerous incumbent site-by-site SMR licenses and licensees with
extended implementation authorizations in the 800 and 900 MHz bands. We do not know how many
firms provide 800 MHz or 900 MHz geographic area SMR service pursuant to extended implementation
authorizations, nor how many of these providers have annual revenues of no more than $15 million. One
firm has over $15 million in revenues. In addition, we do not know how many of these firms have 1,500
or fewer employees, which is the SBA-determined size standard.84 We assume, for purposes of this
analysis, that all of the remaining extended implementation authorizations are held by small entities, as
defined by the SBA.
36.
Lower 700 MHz Band Licenses. The Commission previously adopted criteria for
defining three groups of small businesses for purposes of determining their eligibility for special
provisions such as bidding credits.85 The Commission defined a “small business” as an entity that,
together with its affiliates and controlling principals, has average gross revenues not exceeding $40
million for the preceding three years.86 A “very small business” is defined as an entity that, together with
its affiliates and controlling principals, has average gross revenues that are not more than $15 million for
the preceding three years.87 Additionally, the lower 700 MHz Service had a third category of small
business status for Metropolitan/Rural Service Area (MSA/RSA) licenses—“entrepreneur”—which is
defined as an entity that, together with its affiliates and controlling principals, has average gross revenues
that are not more than $3 million for the preceding three years.88 The SBA approved these small size
standards.89 An auction of 740 licenses (one license in each of the 734 MSAs/RSAs and one license in
each of the six Economic Area Groupings (EAGs)) commenced on August 27, 2002, and closed on
September 18, 2002. Of the 740 licenses available for auction, 484 licenses were won by 102 winning
bidders. Seventy-two of the winning bidders claimed small business, very small business or entrepreneur
status and won a total of 329 licenses.90 A second auction commenced on May 28, 2003, closed on June
13, 2003, and included 256 licenses: 5 EAG licenses and 476 Cellular Market Area licenses.91 Seventeen
winning bidders claimed small or very small business status and won 60 licenses, and nine winning
82

See 800 MHz Specialized Mobile Radio (SMR) Service General Category (851–854 MHz) and Upper Band (861–
865 MHz) Auction Closes; Winning Bidders Announced, Public Notice, 15 FCC Rcd 17162 (2000).
83

See 800 MHz SMR Service Lower 80 Channels Auction Closes; Winning Bidders Announced, Public Notice,
16 FCC Rcd 1736 (2000).
84

See generally 13 C.F.R. § 121.201, NAICS code 517210.

85

See Reallocation and Service Rules for the 698–746 MHz Spectrum Band (Television Channels 52–59), GN
Docket No. 01-74, Report and Order, 17 FCC Rcd 1022 (2002) (Channels 52–59 Report and Order).
86

See id. at 1087-88, para. 172.

87

See id.

88

See id., at 1088, para. 173.

89

See Alvarez Letter 1999.

90

See Lower 700 MHz Band Auction Closes, Public Notice, 17 FCC Rcd 17272 (WTB 2002).

91

See id.

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bidders claimed entrepreneur status and won 154 licenses.92 On July 26, 2005, the Commission
completed an auction of 5 licenses in the Lower 700 MHz band (Auction No. 60). There were three
winning bidders for five licenses. All three winning bidders claimed small business status.
37.
In 2007, the Commission reexamined its rules governing the 700 MHz band in the 700
MHz Second Report and Order.93 An auction of 700 MHz licenses commenced January 24, 2008 and
closed on March 18, 2008, which included, 176 Economic Area licenses in the A Block, 734 Cellular
Market Area licenses in the B Block, and 176 EA licenses in the E Block.94 Twenty winning bidders,
claiming small business status (those with attributable average annual gross revenues that exceed $15
million and do not exceed $40 million for the preceding three years) won 49 licenses. Thirty three
winning bidders claiming very small business status (those with attributable average annual gross
revenues that do not exceed $15 million for the preceding three years) won 325 licenses.
38.
Upper 700 MHz Band Licenses. In the 700 MHz Second Report and Order, the
Commission revised its rules regarding Upper 700 MHz licenses.95 On January 24, 2008, the
Commission commenced Auction 73 in which several licenses in the Upper 700 MHz band were
available for licensing: 12 Regional Economic Area Grouping licenses in the C Block, and one
nationwide license in the D Block.96 The auction concluded on March 18, 2008, with 3 winning bidders
claiming very small business status (those with attributable average annual gross revenues that do not
exceed $15 million for the preceding three years) and winning five licenses.
39.
700 MHz Guard Band Licensees. In 2000, in the 700 MHz Guard Band Order, the
Commission adopted size standards for “small businesses” and “very small businesses” for purposes of
determining their eligibility for special provisions such as bidding credits and installment payments.97 A
small business in this service is an entity that, together with its affiliates and controlling principals, has
average gross revenues not exceeding $40 million for the preceding three years.98 Additionally, a very
small business is an entity that, together with its affiliates and controlling principals, has average gross
revenues that are not more than $15 million for the preceding three years.99 SBA approval of these
definitions is not required.100 An auction of 52 Major Economic Area licenses commenced on September
92

See id.

93

Service Rules for the 698–746, 747–762 and 777–792 MHz Band; Revision of the Commission’s Rules to Ensure
Compatibility with Enhanced 911 Emergency Calling Systems; Section 68.4(a) of the Commission’s Rules
Governing Hearing Aid-Compatible Telephones; Biennial Regulatory Review—Amendment of Parts 1, 22, 24, 27,
and 90 to Streamline and Harmonize Various Rules Affecting Wireless Radio Services; Former Nextel
Communications, Inc. Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of the Commission’s Rules;
Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band; Development
of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety
Communications Requirements Through the Year 2010; Declaratory Ruling on Reporting Requirement under
Commission’s Part 1 Anti-Collusion Rule, WT Docket Nos. 07-166, 06-169, 06-150, 03-264, 96-86, PS Docket No.
06-229, CC Docket No. 94-102, Second Report and Order, 22 FCC Rcd 15289, 15359 n. 434 (2007) (700 MHz
Second Report and Order).
94

See Auction of 700 MHz Band Licenses Closes, Public Notice, 23 FCC Rcd 4572 (WTB 2008).

95

700 MHz Second Report and Order, 22 FCC Rcd 15289.

96

See Auction of 700 MHz Band Licenses Closes, Public Notice, 23 FCC Rcd 4572 (WTB 2008).

97

See Service Rules for the 746–764 MHz Bands, and Revisions to Part 27 of the Commission’s Rules, WT Docket
No. 99-168, Second Report and Order, 15 FCC Rcd 5299 (2000) (746–764 MHz Band Second Report and Order).
98

See id. at 5343, para. 108.

99

See id.

100

See id. at 5343, para. 108 n.246 (for the 746–764 MHz and 776–794 MHz bands, the Commission is exempt from
15 U.S.C. § 632, which requires Federal agencies to obtain SBA approval before adopting small business size
standards).

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6, 2000, and closed on September 21, 2000.101 Of the 104 licenses auctioned, 96 licenses were sold to
nine bidders. Five of these bidders were small businesses that won a total of 26 licenses. A second
auction of 700 MHz Guard Band licenses commenced on February 13, 2001, and closed on February 21,
2001. All eight of the licenses auctioned were sold to three bidders. One of these bidders was a small
business that won a total of two licenses.102
40.
Air-Ground Radiotelephone Service. The Commission has previously used the SBA’s
small business size standard applicable to Wireless Telecommunications Carriers (except Satellite), i.e.,
an entity employing no more than 1,500 persons.103 There are approximately 100 licensees in the AirGround Radiotelephone Service, and under that definition, we estimate that almost all of them qualify as
small entities under the SBA definition. For purposes of assigning Air-Ground Radiotelephone Service
licenses through competitive bidding, the Commission has defined “small business” as an entity that,
together with controlling interests and affiliates, has average annual gross revenues for the preceding
three years not exceeding $40 million.104 A “very small business” is defined as an entity that, together
with controlling interests and affiliates, has average annual gross revenues for the preceding three years
not exceeding $15 million.105 These definitions were approved by the SBA.106 In May 2006, the
Commission completed an auction of nationwide commercial Air-Ground Radiotelephone Service
licenses in the 800 MHz band (Auction No. 65). On June 2, 2006, the auction closed with two winning
bidders winning two Air-Ground Radiotelephone Services licenses. Neither of the winning bidders
claimed small business status.
41.
AWS Services (1710–1755 MHz and 2110–2155 MHz bands (AWS-1); 1915–1920 MHz,
1995–2000 MHz, 2020–2025 MHz and 2175–2180 MHz bands (AWS-2); 2155–2175 MHz band (AWS3)). For the AWS-1 bands,107 the Commission has defined a “small business” as an entity with average
annual gross revenues for the preceding three years not exceeding $40 million, and a “very small
business” as an entity with average annual gross revenues for the preceding three years not exceeding $15
million. For AWS-2 and AWS-3, although we do not know for certain which entities are likely to apply
for these frequencies, we note that the AWS-1 bands are comparable to those used for cellular service and
personal communications service. The Commission has not yet adopted size standards for the AWS-2 or
AWS-3 bands but proposes to treat both AWS-2 and AWS-3 similarly to broadband PCS service and
AWS-1 service due to the comparable capital requirements and other factors, such as issues involved in
relocating incumbents and developing markets, technologies, and services.108
101

See 700 MHz Guard Bands Auction Closes: Winning Bidders Announced, Public Notice, 15 FCC Rcd 18026
(WTB 2000).
102

See 700 MHz Guard Bands Auction Closes: Winning Bidders Announced, Public Notice, 16 FCC Rcd 4590
(WTB 2001).
103

13 C.F.R. § 121.201, NAICS codes 517210.

104

Amendment of Part 22 of the Commission’s Rules to Benefit the Consumers of Air-Ground Telecommunications
Services, Biennial Regulatory Review—Amendment of Parts 1, 22, and 90 of the Commission’s Rules, Amendment of
Parts 1 and 22 of the Commission’s Rules to Adopt Competitive Bidding Rules for Commercial and General
Aviation Air-Ground Radiotelephone Service, WT Docket Nos. 03-103, 05-42, Order on Reconsideration and Report
and Order, 20 FCC Rcd 19663, paras. 28-42 (2005).
105

Id.

106

See Letter from Hector V. Barreto, Administrator, SBA, to Gary D. Michaels, Deputy Chief, Auctions and
Spectrum Access Division, Wireless Telecommunications Bureau, Federal Communications Commission (filed
Sept. 19, 2005).
107

The service is defined in section 90.1301 et seq. of the Commission’s Rules, 47 C.F.R. § 90.1301 et seq.

108

See Service Rules for Advanced Wireless Services in the 1.7 GHz and 2.1 GHz Bands, WT Docket No. 02-353,
Report and Order, 18 FCC Rcd 25162, Appx. B (2003), modified by Service Rules for Advanced Wireless Services
in the 1.7 GHz and 2.1 GHz Bands, WT Docket No. 02-353, Order on Reconsideration, 20 FCC Rcd 14058, Appx.
(continued….)

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42.
3650–3700 MHz band. In March 2005, the Commission released a Report and Order
and Memorandum Opinion and Order that provides for nationwide, non-exclusive licensing of terrestrial
operations, utilizing contention-based technologies, in the 3650 MHz band (i.e., 3650–3700 MHz). As of
April 2010, more than 1270 licenses have been granted and more than 7433 sites have been registered.
The Commission has not developed a definition of small entities applicable to 3650–3700 MHz band
nationwide, non-exclusive licensees. However, we estimate that the majority of these licensees are
Internet Access Service Providers (ISPs) and that most of those licensees are small businesses.
43.
Fixed Microwave Services. Microwave services include common carrier,109 privateoperational fixed,110 and broadcast auxiliary radio services.111 They also include the Local Multipoint
Distribution Service (LMDS),112 the Digital Electronic Message Service (DEMS),113 and the 24 GHz
Service,114 where licensees can choose between common carrier and non-common carrier status.115 At
present, there are approximately 36,708 common carrier fixed licensees and 59,291 private operationalfixed licensees and broadcast auxiliary radio licensees in the microwave services. There are
approximately 135 LMDS licensees, three DEMS licensees, and three 24 GHz licensees. The
Commission has not yet defined a small business with respect to microwave services. For purposes of the
FRFA, we will use the SBA’s definition applicable to Wireless Telecommunications Carriers (except
satellite)—i.e., an entity with no more than 1,500 persons.116 Under the present and prior categories, the
SBA has deemed a wireless business to be small if it has 1,500 or fewer employees.117 The Commission
does not have data specifying the number of these licensees that have more than 1,500 employees, and
thus is unable at this time to estimate with greater precision the number of fixed microwave service
licensees that would qualify as small business concerns under the SBA’s small business size standard.
Consequently, the Commission estimates that there are up to 36,708 common carrier fixed licensees and
up to 59,291 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave
services that may be small and may be affected by the rules and policies adopted herein. We note,
however, that the common carrier microwave fixed licensee category includes some large entities.
44.
Broadband Radio Service and Educational Broadband Service. Broadband Radio
Service systems, previously referred to as Multipoint Distribution Service (MDS) and Multichannel
(Continued from previous page)
C (2005); Service Rules for Advanced Wireless Services in the 1915–1920 MHz, 1995–2000 MHz, 2020–2025 MHz
and 2175–2180 MHz Bands; Service Rules for Advanced Wireless Services in the 1.7 GHz and 2.1 GHz Bands, WT
Docket Nos. 04-356, 02-353, Notice of Proposed Rulemaking, 19 FCC Rcd 19263, Appx. B (2005); Service Rules
for Advanced Wireless Services in the 2155–2175 MHz Band, WT Docket No. 07-195, Notice of Proposed
Rulemaking, 22 FCC Rcd 17035, Appx. (2007).
109

See 47 C.F.R. Part 101, Subparts C and I.

110

See 47 C.F.R. Part 101, Subparts C and H.

111

Auxiliary Microwave Service is governed by Part 74 of Title 47 of the Commission’s Rules. See 47 C.F.R. Part
74. Available to licensees of broadcast stations and to broadcast and cable network entities, broadcast auxiliary
microwave stations are used for relaying broadcast television signals from the studio to the transmitter, or between
two points such as a main studio and an auxiliary studio. The service also includes mobile TV pickups, which relay
signals from a remote location back to the studio.
112

See 47 C.F.R. Part 101, Subpart L.

113

See 47 C.F.R. Part 101, Subpart G.

114

See id.

115

See 47 C.F.R. §§ 101.533, 101.1017.

116

13 C.F.R. § 121.201, NAICS code 517210.

117

13 C.F.R. § 121.201, NAICS code 517210 (2007 NAICS). The now-superseded, pre-2007 C.F.R. citations were
13 C.F.R. § 121.201, NAICS codes 517211 and 517212 (referring to the 2002 NAICS).

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Multipoint Distribution Service (MMDS) systems, and “wireless cable,” transmit video programming to
subscribers and provide two-way high speed data operations using the microwave frequencies of the
Broadband Radio Service (BRS) and Educational Broadband Service (EBS) (previously referred to as the
Instructional Television Fixed Service (ITFS)).118 In connection with the 1996 BRS auction, the
Commission established a small business size standard as an entity that had annual average gross
revenues of no more than $40 million in the previous three calendar years.119 The BRS auctions resulted
in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67
auction winners, 61 met the definition of a small business. BRS also includes licensees of stations
authorized prior to the auction. At this time, we estimate that of the 61 small business BRS auction
winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA
authorizations, there are approximately 392 incumbent BRS licensees that are considered small entities.120
After adding the number of small business auction licensees to the number of incumbent licensees not
already counted, we find that there are currently approximately 440 BRS licensees that are defined as
small businesses under either the SBA or the Commission’s rules.
45.
In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS
areas.121 The Commission offered three levels of bidding credits: (i) a bidder with attributed average
annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three
years (small business) received a 15 percent discount on its winning bid; (ii) a bidder with attributed
average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding
three years (very small business) received a 25 percent discount on its winning bid; and (iii) a bidder with
attributed average annual gross revenues that do not exceed $3 million for the preceding three years
(entrepreneur) received a 35 percent discount on its winning bid.122 Auction 86 concluded in 2009 with
the sale of 61 licenses.123 Of the ten winning bidders, two bidders that claimed small business status won
4 licenses; one bidder that claimed very small business status won three licenses; and two bidders that
claimed entrepreneur status won six licenses.
46.
In addition, the SBA’s Cable Television Distribution Services small business size
standard is applicable to EBS. There are presently 2,436 EBS licensees. All but 100 of these licenses are
held by educational institutions. Educational institutions are included in this analysis as small entities.124
Thus, we estimate that at least 2,336 licensees are small businesses. Since 2007, Cable Television
Distribution Services have been defined within the broad economic census category of Wired
118

Amendment of Parts 21 and 74 of the Commission’s Rules with Regard to Filing Procedures in the Multipoint
Distribution Service and in the Instructional Television Fixed Service and Implementation of Section 309(j) of the
Communications Act—Competitive Bidding, MM Docket No. 94-131, PP Docket No. 93-253, Report and Order, 10
FCC Rcd 9589, 9593, para. 7 (1995).
119

47 C.F.R. § 21.961(b)(1).

120

47 U.S.C. § 309(j). Hundreds of stations were licensed to incumbent MDS licensees prior to implementation of
Section 309(j) of the Communications Act of 1934, 47 U.S.C. § 309(j). For these pre-auction licenses, the
applicable standard is SBA’s small business size standard of 1500 or fewer employees.
121

Auction of Broadband Radio Service (BRS) Licenses, Scheduled for October 27, 2009, Notice and Filing
Requirements, Minimum Opening Bids, Upfront Payments, and Other Procedures for Auction 86, AU Docket No.
09-56, Public Notice, 24 FCC Rcd 8277 (2009).
122

Id. at 8296 para. 73.

123

Auction of Broadband Radio Service Licenses Closes, Winning Bidders Announced for Auction 86, Down
Payments Due November 23, 2009, Final Payments Due December 8, 2009, Ten-Day Petition to Deny Period,
Public Notice, 24 FCC Rcd 13572 (2009).
124

The term “small entity” within SBREFA applies to small organizations (nonprofits) and to small governmental
jurisdictions (cities, counties, towns, townships, villages, school districts, and special districts with populations of
less than 50,000). 5 U.S.C. §§ 601(4)-(6). We do not collect annual revenue data on EBS licensees.

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Telecommunications Carriers; that category is defined as follows: “This industry comprises
establishments primarily engaged in operating and/or providing access to transmission facilities and
infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using
wired telecommunications networks. Transmission facilities may be based on a single technology or a
combination of technologies.”125 The SBA has developed a small business size standard for this category,
which is: all such firms having 1,500 or fewer employees. To gauge small business prevalence for these
cable services we must, however, use the most current census data that are based on the previous category
of Cable and Other Program Distribution and its associated size standard; that size standard was: all such
firms having $13.5 million or less in annual receipts.126 According to Census Bureau data for 2007, there
were a total of 996 firms in this category that operated for the entire year.127 Of this total, 948 firms had
annual receipts of under $10 million, and 48 firms had receipts of $10 million or more but less than $25
million.128 Thus, the majority of these firms can be considered small.
5.

Satellite Service Providers

47.
Satellite Telecommunications Providers. Two economic census categories address the
satellite industry. The first category has a small business size standard of $30 million or less in average
annual receipts, under SBA rules.129 The second has a size standard of $30 million or less in annual
receipts.130
48.
The category of Satellite Telecommunications “comprises establishments primarily
engaged in providing telecommunications services to other establishments in the telecommunications and
broadcasting industries by forwarding and receiving communications signals via a system of satellites or
reselling satellite telecommunications.”131 For this category, Census Bureau data for 2007 show that there
were a total of 570 firms that operated for the entire year.132 Of this total, 530 firms had annual receipts of
under $30 million, and 40 firms had receipts of over $30 million.133 Consequently, we estimate that the
majority of Satellite Telecommunications firms are small entities that might be affected by our action.
49.
The second category of Other Telecommunications comprises, inter alia, “establishments
primarily engaged in providing specialized telecommunications services, such as satellite tracking,
communications telemetry, and radar station operation. This industry also includes establishments
primarily engaged in providing satellite terminal stations and associated facilities connected with one or
more terrestrial systems and capable of transmitting telecommunications to, and receiving
telecommunications from, satellite systems.”134 For this category, Census Bureau data for 2007 show that
125

U.S. Census Bureau, 2012 NAICS Definitions, “517110 Wired Telecommunications Carriers,” (partial
definition), http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517110&search=2012.
126

13 C.F.R. § 121.201, NAICS code 517110.

127

U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, Receipts by Enterprise Employment
Size for the United States: 2007, NAICS code 517510 (rel. Nov. 19, 2010).
128

Id.

129

13 C.F.R. § 121.201, NAICS Code 517410.

130

13 C.F.R. § 121.201, NAICS Code 517919.

131

U.S. Census Bureau, 2012 NAICS Definitions, “517410 Satellite Telecommunications,”
http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517410&search=2012.
132

U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, “Establishment and Firm Size,”
NAICS code 517410 (rel. Nov. 19, 2010).
133

Id.

134

U.S. Census Bureau, 2012 NAICS Definitions, “517919 All Other Telecommunications,”
http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517919&search=2012.

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there were a total of 1,274 firms that operated for the entire year.135 Of this total, 1,252 had annual
receipts below $25 million per year.136 Consequently, we estimate that the majority of All Other
Telecommunications firms are small entities that might be affected by our action.
6.

Cable Service Providers

50.
Because section 706 requires us to monitor the deployment of broadband using any
technology, we anticipate that some broadband service providers may not provide telephone service.
Accordingly, we describe below other types of firms that may provide broadband services, including
cable companies, MDS providers, and utilities, among others.
51.
Cable and Other Program Distributors. Since 2007, these services have been defined
within the broad economic census category of Wired Telecommunications Carriers; that category is
defined as follows: “This industry comprises establishments primarily engaged in operating and/or
providing access to transmission facilities and infrastructure that they own and/or lease for the
transmission of voice, data, text, sound, and video using wired telecommunications networks.
Transmission facilities may be based on a single technology or a combination of technologies.”137 The
SBA has developed a small business size standard for this category, which is: all such firms having 1,500
or fewer employees. To gauge small business prevalence for these cable services we must, however, use
current census data that are based on the previous category of Cable and Other Program Distribution and
its associated size standard; that size standard was: all such firms having $13.5 million or less in annual
receipts.138 According to Census Bureau data for 2007, there were a total of 2,048 firms in this category
that operated for the entire year.139 Of this total, 1,393 firms had annual receipts of under $10 million, and
655 firms had receipts of $10 million or more.140 Thus, the majority of these firms can be considered
small.
52.
Cable Companies and Systems. The Commission has also developed its own small
business size standards, for the purpose of cable rate regulation. Under the Commission’s rules, a “small
cable company” is one serving 400,000 or fewer subscribers, nationwide.141 Industry data shows that
there were 1,141 cable companies at the end of June 2012.142 Of this total, all but ten cable operators
nationwide are small under this size standard.143 In addition, under the Commission’s rules, a “small
135

U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, “Establishment and Firm Size,”
NAICS code 517410 (rel. Nov. 19, 2010).
136

Id.

137

U.S. Census Bureau, 2012 NAICS Definitions, “517110 Wired Telecommunications Carriers,” (partial
definition), http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517110&search=2012.
138

13 C.F.R. § 121.201, NAICS code 517110.

139

U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, “Establishment and Firm Size,”
NAICS code 517110 (rel. Nov. 19, 2010).
140

Id.

141

47 C.F.R. § 76.901(e). The Commission determined that this size standard equates approximately to a size
standard of $100 million or less in annual revenues. Implementation of Sections of the 1992 Cable Act: Rate
Regulation, Sixth Report and Order and Eleventh Order on Reconsideration, 10 FCC Rcd 7393, 7408 (1995).
142

NCTA, Industry Data, Number of Cable Operating Companies (June 2012), http://www.ncta.com/Statistics.aspx
(visited Sept. 28, 2012). Depending upon the number of homes and the size of the geographic area served, cable
operators use one or more cable systems to provide video service. See Annual Assessment of the Status of
Competition in the Market for Delivery of Video Programming, MB Docket No. 12-203, Fifteenth Report, 28 FCC
Rcd 10496, 10505-06, para. 24 (2013) (15th Annual Competition Report).
143

See SNL Kagan, “Top Cable MSOs – 12/12 Q”,
http://www.snl.com/InteractiveX/TopCableMSOs.aspx?period=2012Q4&sortcol=subscribersbasic&sortorder=desc.
We note that, when applied to an MVPD operator, under this size standard (i.e., 400,000 or fewer subscribers) all
(continued….)

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system” is a cable system serving 15,000 or fewer subscribers.144 Current Commission records show
4,945 cable systems nationwide.145 Of this total, 4,380 cable systems have less than 20,000 subscribers,
and 565 systems have 20,000 or more subscribers, based on the same records. Thus, under this standard,
we estimate that most cable systems are small entities.
53.
Cable System Operators. The Communications Act of 1934, as amended, also contains a
size standard for small cable system operators, which is “a cable operator that, directly or through an
affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not
affiliated with any entity or entities whose gross annual revenues in the aggregate exceed
$250,000,000.”146 The Commission has determined that an operator serving fewer than 677,000
subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual
revenues of all its affiliates, do not exceed $250 million in the aggregate.147 Based on available data, we
find that all but ten incumbent cable operators are small entities under this size standard.148 We note that
the Commission neither requests nor collects information on whether cable system operators are affiliated
with entities whose gross annual revenues exceed $250 million,149 and therefore we are unable to estimate
more accurately the number of cable system operators that would qualify as small under this size
standard.
7.

Electric Power Generators, Transmitters, and Distributors

54.
Electric Power Generators, Transmitters, and Distributors. The Census Bureau defines
an industry group comprised of “establishments, primarily engaged in generating, transmitting, and/or
distributing electric power. Establishments in this industry group may perform one or more of the
following activities: (1) operate generation facilities that produce electric energy; (2) operate
transmission systems that convey the electricity from the generation facility to the distribution system;
and (3) operate distribution systems that convey electric power received from the generation facility or
the transmission system to the final consumer.”150 The SBA has developed a small business size standard
for firms in this category: “A firm is small if, including its affiliates, it is primarily engaged in the
generation, transmission, and/or distribution of electric energy for sale and its total electric output for the
preceding fiscal year did not exceed 4 million megawatt hours.”151 Census Bureau data for 2007 show
(Continued from previous page)
but 14 MVPD operators would be considered small. See NCTA, Industry Data, Top 25 Multichannel Video Service
Customers (2012), http://www.ncta.com/industry-data. The Commission applied this size standard to MVPD
operators in its implementation of the CALM Act. See Implementation of the Commercial Advertisement Loudness
Mitigation (CALM) Act, MB Docket No. 11-93, Report and Order, 26 FCC Rcd 17222, 17245-46, para. 37 (2011)
(CALM Act Report and Order) (defining a smaller MVPD operator as one serving 400,000 or fewer subscribers
nationwide, as of December 31, 2011).
144

47 C.F.R. § 76.901(c).

145

The number of active, registered cable systems comes from the Commission’s Cable Operations and Licensing
System (COALS) database on Aug. 28, 2013. A cable system is a physical system integrated to a principal headend.
146

47 U.S.C. § 543(m)(2); see 47 C.F.R. § 76.901(f) & nn.1-3.

147

47 C.F.R. § 76.901(f); see FCC Announces New Subscriber Count for the Definition of Small Cable Operator,
Public Notice, 16 FCC Rcd 2225 (Cable Services Bureau 2001).
148

See NCTA, Industry Data, Top 25 Multichannel Video Service Customers (2012), http://www.ncta.com/industrydata.
149

The Commission does receive such information on a case-by-case basis if a cable operator appeals a local
franchise authority’s finding that the operator does not qualify as a small cable operator pursuant to § 76.901(f) of
the Commission’s rules. See 47 C.F.R. § 76.909(b).
150

U.S. Census Bureau, 2002 NAICS Definitions, “2211 Electric Power Generation, Transmission and
Distribution,” http://www.census.gov/epcd/naics02/def/NDEF221.HTM (last visited Oct. 21, 2009).
151

13 C.F.R. § 121.201, NAICS codes 221111, 221112, 221113, 221119, 221121, 221122, n. 1.

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that there were 1,174 firms that operated for the entire year in this category.152 Of these firms, 50 had
1,000 employees or more, and 1,124 had fewer than 1,000 employees.153 Based on this data, a majority of
these firms can be considered small.
D.

Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements for Small Entities

55.
The Order clarifies and adopts certain incremental enhancements to the existing
transparency rule, which was adopted in 2010, and will continue to require providers of broadband
Internet access services to “publicly disclose accurate information regarding the network management
practices, performance, and commercial terms of its broadband Internet access services sufficient for
consumers to make informed choices regarding use of such services and for content, application, service,
and device providers to develop, market, and maintain Internet offerings.”154 We summarize below the
record keeping and reporting obligations of the accompanying Order. Additional information on each of
these requirements can be found in the Order.
56.
First, we clarify that all of the pieces of information described in paragraphs 56 and 98 of
the 2010 Open Internet Order have been required as part of the current transparency rule, and we will
continue to require the information as part of our enhanced rule. The only exception is the requirement to
disclose “typical frequency of congestion,” which we no longer require since it is superseded by more
precise disclosures already required by the rule, such as actual performance. Also, the requirement that
all disclosures made by a broadband provider be accurate includes the need to maintain the accuracy of
these disclosures.
57.
Second, we enhance and describe in more specific terms than in 2010 the information to
be provided in disclosing commercial terms, network performance characteristics, and network practices.
For example, in meeting the existing requirement to disclose “actual performance,” providers of
broadband Internet access services will be required to report packet loss, in addition to the already
required metrics of speed and latency.
58.
Third, we require that providers directly notify end users if their particular use of a
network will trigger a network practice, based on a user’s demand during more than the period of
congestion, that is likely to have a significant impact on the end user’s use of the service. The purpose of
such notification is to provide the affected end users with sufficient information and time to consider
adjusting their usage to avoid application of the practice.
59.
Fourth, we establish a voluntary safe harbor that providers may use in meeting the
existing requirement to make transparency disclosures in a format that meets the needs of end users. The
safe harbor consists of the use of a standalone disclosure targeted to end users. Based on concerns raised
in the record by smaller providers of broadband Internet access service, however, we do not at this time
require use of this standalone format, and instead have submitted this issue to the Consumer Advisory
Committee for further consideration.155

152

See U.S. Census Bureau, American FactFinder, Utilities: Subject Series - Establishment and Firm Size: Summary
Statistics by Revenue Size of Firms for the United States: 2007, NAICS code 221122,
http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_22SSSZ5&prod
Type=table (last visited February 4, 2014).
153

See id.

154

8 C.F.R. § 8.3.

155

We note that although we have sought comment on what format would be most effective, the record is lacking on
specific details as to how such a disclosure should be formatted.

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Steps Taken to Minimize the Significant Economic Impact on Small Entities,
and Significant Alternatives Considered

60.
The RFA requires an agency to describe any significant alternatives that it has considered
in reaching its proposed approach, which may include (among others) the following four alternatives:
(1) the establishment of differing compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather
than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small
entities.156 We have considered all of these factors subsequent to receiving substantive comments from
the public and potentially affected entities. The Commission has considered the economic impact on
small entities, as identified in comments filed in response to the 2014 Open Internet NPRM and its IRFA,
in reaching its final conclusions and taking action in this proceeding.
61.
We considered, for example, a variety of approaches to deal with paid prioritization, and
we determined that a flat ban on paid prioritization has advantages over alternative approaches identified
in the record. We note that this approach relieves small edge providers, innovators, and consumers of the
burden of detecting and challenging instances of harmful paid prioritization. Related to this issue, smaller
edge providers expressed concern that they do not have the resources to fight against commercially
unreasonable practices, which could result in an unfair playing field before the Commission.157 Still
others argued that the standard would permit paid prioritization, which could disadvantage smaller entities
and individuals.158 Given these concerns, we declined to adopt our proposed rule to prohibit practices that
are not commercially reasonable.159
62.
With regard to our no-unreasonable interference/disadvantage standard, we were mindful
that vague or unclear regulatory requirements could stymie rather than encourage innovation, and found
that the approach we adopted provides sufficient certainty and guidance to consumers, broadband
providers, and edge providers—particularly smaller entities that might lack experience dealing with
broadband providers—while also allowing parties flexibility in developing new services.160
63.
We found our existing informal complaint rule offers an accessible and effective
mechanism for parties―including consumers and small businesses with limited resources―to report
possible noncompliance with our open Internet rules without being subject to burdensome evidentiary or

156

5 U.S.C. § 603(c).

157

See, e.g., Tumblr Reply at 10 (“Tumblr cannot afford to engage in what would likely be multi-year challenges
against the biggest broadband providers, with large legal teams experienced in telecommunications law, simply to
secure access for its users equal to that of its current, and future, competitors with deeper resources.”); Etsy
Comments at 7 (arguing that a prohibition on commercially unreasonable transactions “creates an unacceptable level
of uncertainty for small companies and will be too costly to enforce”); Reddit Comments at 8; Engine Advocacy
Comments at 15; CodeCombat Comments at 7.
158

See, e.g., Illinois and NY Comments at 5-8; CCIA Reply at 17; i2Coaltion Comments at 10 (“Start-ups that
require priority service may not be able to bring their product to market without significant outside investment and
investors will be affected by the increased equity needs of entrepreneurs.”); AAJC Comments at 5 (“A commercially
reasonable standard where certain forms of prioritization are allowed benefits those with financial resources. Such
prioritization would negatively impact many minority entrepreneurs who come from historically disadvantaged
communities with lower incomes and educational opportunities . . . .”).
159

Based on the record before us, we were persuaded that adopting a legal standard prohibiting commercially
unreasonable practices is not the most effective or appropriate approach for protecting and promoting an open
Internet. See supra Section III.C.2.c
160

See supra Section. III.C.2.a.

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pleading requirements.161 Accordingly we declined to adopt proposals modifying the existing standard.162
64.
We also decline to adopt arbitration procedures or to mandate arbitration for parties to
open Internet complaint proceedings. Under the rules adopted today, parties are still free to engage in
mediation and outside arbitration to settle their open Internet disputes, but alternative dispute resolution
will not be required. We noted commenters’ concerns that mandatory arbitration, in particular, may more
frequently benefit the party with more resources and more understanding of dispute procedure, and
therefore should not be adopted.163
65.
In formulating the enhanced disclosure requirements, we crafted rules that strike a
balance between compliance burdens to industry and utility for end-user consumers, edge providers, and
the Internet community. We considered several additional metrics contemplated in the NPRM, but
ultimately declined to require their disclosure in the Order, concluding that the adopted enhancements to
transparency were sufficient to protect consumers.164 We also recognized with respect to the nature of
disclosures that there are differences between fixed and mobile broadband networks.
66.
The record reflects the concerns of some commenters that enhanced transparency
requirements will be particularly burdensome for smaller providers.165 ACA, for example, suggests that
smaller providers be exempted from the provision of such disclosures.166 ACA states that its member
companies are complying with the current transparency requirements, which “strike the right balance
between edge provider and consumer needs for pertinent information and the need to provide ISPs with
some flexibility in how they disclose pertinent information.”167 We believe that the enhanced
requirements adopted herein are incremental in nature, but nevertheless necessary to provide end-user
consumers, edge providers, and the Internet community with better information about the critical network
161

See, e.g., NetAccess Futures Comments at 28 (“‘Lightweight’ procedures and structures like . . . improved
informal complaints processes . . . appear to be preferable to the Commission’s existing ‘heavyweight’ enforcement
and dispute resolution processes.”); WISPA Comments at 35-37 (advocating for use of the informal complaint
process).
162

See supra Section III.E.2.b.

163

See, e.g., AAJC Comments at 1 (noting that “[i]n most cases, consumers must pay filing fees and the arbitrator’s
costs, which can amount to thousands of dollars,” and the provider can select the arbitration location, making the
process even costlier; further noting that arbitrated decisions are not reviewable and often not public, precluding
consumers from uncovering potential biases in the process); Public Citizen and NACA Comments at 1-2; see also
supra Section III.E.3.b.
164

For example, we do not require disclosure of the source of congestion due to the difficulty in determining the
source, and the corresponding additional burden in requiring that information to be disclosed.
165

See, e.g., ACA Comments at 32-39; Competitive Carrier Association (CCA) Comments at 8-9 (“Expanding the
current disclosure requirements would also be particularly burdensome on smaller carriers); WISPA Comments at
15-16; WTA Comments at 8 (“WTA is very concerned about the increased costs and uncertain benefits of the
proposed enhanced transparency requirements for smaller carriers and their customers.”); Letter from Erin P.
Fitzgerald, Assistant Regulatory Counsel, Rural Wireless Association, Inc. to Marlene H. Dortch, Secretary, FCC,
GN Docket Nos. 14-28 at 1 (filed Nov. 14, 2014) (RWA Nov. 14, 2014 Ex Parte Letter) (“While RWA members
have developed procedures to comply with the Commission’s 2010 transparency and disclosure rules,[footnote
omitted] engaging in a similar endeavor to comply with new and/or more stringent rules would be costly and further
strain rural carriers’ limited resources.”); Letter from Stephen E. Coran, Counsel to the Wireless Internet Service
Providers Association to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28 at 8 (filed Feb. 3, 2015) (“To
avoid the significant effects that would result from the Commission's proposed rules, the Commission should
exempt small businesses from any new transparency and reporting obligations.”).
166

See ACA Comments at 39-40 (“any enhanced disclosure rule regarding network congestion . . . should exclude
‘small providers’”).
167

Letter from Barbara Esbin, Counsel for ACA, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10127, at 6 (filed Feb. 2, 2015) (ACA Feb. 2, 2015 Ex Parte Letter).

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performance metrics, practices, and commercial terms that have a direct impact on their use of the
network. Customers of small broadband providers have an equal need for this information. However, out
of an abundance of caution, we grant a temporary exemption for small providers, with the potential for
that exemption to become permanent.168 We note that all providers of broadband Internet access service,
including small providers, remain subject to the existing transparency rule adopted in 2010.
67.
To ensure we have crafted rules that strike a balance between utility for consumers and
compliance burdens for industry including smaller providers, we took certain additional important
measures. For example, Commission staff continues to refine the mobile MBA program, which could at
the appropriate time be declared a safe harbor for mobile broadband providers.169 In addition, we have
declined to require certain disclosures proposed in the 2014 Open Internet NPRM such as the source of
congestion, packet corruption, and jitter in recognition of commenter concerns with the benefits and
difficulty of making these particular disclosures.170 Noting commenter concerns, we also decline to
mandate separate tailored disclosures for different audiences (e.g. end users and edge providers) at this
time.171 Lastly, we note that many of the enhanced disclosures specified in the Order may have been
required under the current transparency rule. As a result, we believe the enhanced requirements make
more explicit many of the existing requirements rather than imposing new regulatory burdens on
providers that are in compliance with our current rule.
F.

Report to Congress

68.
The Commission will send a copy of the Order, including this FRFA, in a report to be
sent to Congress and the Government Accountability Office pursuant to the Small Business Regulatory
Enforcement Fairness Act of 1996.172 In addition, the Commission will send a copy of the Order,
including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of
the Order and FRFA (or summaries thereof) will also be published in the Federal Register.173
168

The Order adopts a temporary exemption from the enhancements to the transparency rule for those providers of
broadband Internet access service (whether fixed or mobile) with 100,000 or fewer broadband subscribers as per
their most recent form 477, aggregated over all the providers’ affiliates.
169

At a minimum, this would give small providers and others a way to ensure that they are in compliance with our
rules.
170

See, e.g., Forty-Three Providers’ Feb 10, 2015 Ex Parte Letter at 2 (“[A]doption of the proposed enhanced
transparency requirements, including . . . real-time congestion on our networks, could be significantly burdensome
for providers of our size without providing any real benefit to edge providers or consumers.”); Charter Comments at
27 (“Because ISPs can monitor only a portion of the transmission path between a consumer and an edge provider,
the information that could be collected would be of limited usefulness and inequitably burden the ISP relative to
other potential sources of congestion.”); WISPA Reply at 9 (“Without question, small broadband providers would be
forced to incur increased costs to comply with rules that would require multiple disclosures and detailed statements
concerning congestion and reporting obligations.”); WTA Comments at 8 (“WTA is very concerned about the
increased costs and uncertain benefits of the proposed enhanced transparency requirements for small carriers and
their customers. For example, the monitoring and test equipment necessary to measure and report on a frequent or
constant basis . . . latency, packet loss, packet corruption and/or jitter on a RLEC or other small provider's network
can cost as much as the underlying data transmission equipment deployed to provide the broadband service.”).
171

See, e.g., ACA Feb. 13, 2015 Ex Parte Letter at 2 (expressing concern with “proposals to require detailed Open
Internet disclosures tailored to the needs of edge providers and the lack of demonstrable benefits that would accrue
from such reporting”); ACA Jan. 28, 2015Ex Parte Letter at 4 (explaining that disclosures tailored to edge providers
“would require small ISPs, who manage their own networks and may only have a handful of network operators,
engineers, and head end staff to make onerous expenditures of both personnel hours and financial resources”);
Bright House Comments at 14 (questioning “the feasibility of creating disclosures tailored to the varied and
potentially unique needs of the hundreds of such providers, particularly with no reciprocal obligation”).
172

5 U.S.C. § 801(a)(1)(A).

173

See id. § 604(b).

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STATEMENT OF
CHAIRMAN TOM WHEELER
Re:

Protecting and Promoting the Open Internet, GN Docket No. 14-28.

For over a decade, the Commission has endeavored to protect and promote the open Internet.
FCC Chairs and Commissioners, Republican and Democrat alike, have embraced the importance of the
open Internet, and the need to protect and promote that openness. Today is the culmination of that effort,
as we adopt the strongest possible open Internet protections.
Last May, the Commission proposed a set of open Internet protections and, at the same time,
asked an extensive series of questions about that proposal and about alternative approaches for protecting
the open Internet. We asked about the benefits and drawbacks of different approaches, different rule
formulations, and different legal theories. We asked the public to weigh in, and they responded like never
before.
We heard from startups and world-leading tech companies. We heard from ISPs, large and small.
We heard from public-interest groups and public-policy think tanks. We heard from Members of
Congress, and, yes, the President. Most important, we heard from nearly 4 million Americans who
overwhelmingly spoke up in favor of preserving a free and open Internet.
We listened. We learned. And we adjusted our approach based on the public record. In the
process we saw a graphic example of why open and unfettered communications are essential to freedom
of expression in the 21st century.
I am incredibly proud of the process the Commission has run in developing today’s historic open
Internet protections. I say that not just as the head of this agency, but as a U.S. citizen. Today’s Open
Internet Order is a shining example of American democracy at work.
It should not be surprising the public engaged like never before, because the stakes of the debate
before the Commission have never been higher.
Broadband networks are the most powerful and pervasive connectivity in history. Broadband is
reshaping our economy and recasting the patterns of our lives. Every day, we rely on high-speed
connectivity to do our jobs, access entertainment, keep up with the news, express our views, and stay in
touch with friends and family.
There are three simple keys to our broadband future. Broadband networks must be fast.
Broadband networks must be fair. Broadband networks must be open.
We know from the history of previous networks that both human nature and economic
opportunism act to encourage network owners to become gatekeepers that prioritize their interests above
the interests of their users. As the D.C. Circuit observed in the Verizon decision and as the public record
affirms, broadband providers have both the economic incentive and the technological capability to abuse
their gatekeeper position.
Our challenge is to achieve two equally important goals: ensure incentives for private investment
in broadband infrastructure so the U.S. has world-leading networks and ensure that those networks are
fast, fair, and open for all Americans.
The Open Internet Order achieves those goals, giving consumers, innovators, and entrepreneurs
the protections they deserve, while providing certainty for broadband providers and the online
marketplace.
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The Open Internet Order reclassifies broadband Internet access as a “telecommunications
service” under Title II of the Communications Act while simultaneously foregoing utility-style,
burdensome regulation that would harm investment. This modernized Title II will ensure the FCC can
rely on the strongest legal foundation to preserve and protect an open Internet.
Allow me to emphasize that word “modernized.” We have heard endless repetition of the talking
point that “Title II is old-style, 1930’s monopoly regulation.” It’s a good sound bite, but it is misleading
when used to describe the modernized version of Title II in this Order.
Today’s Order will also use the significant powers in Section 706, not as a substitute but as a
complement. This one-two punch applies both Title II, as well as Section 706, to protect broadband
Internet access. It is the FCC using all of the tools in its toolbox to protect innovators and consumers.
Building on this strong legal foundation, the Open Internet Order will:




Ban Paid Prioritization: “Fast lanes” will not divide the Internet into “haves” and “havenots.”
Ban Blocking: Consumers must get what they pay for – unfettered access to any lawful
content on the Internet.
Ban Throttling: Degrading access to legal content and services can have the same effect as
blocking and will not be permitted.

These enforceable, bright-line rules assure the rights of Internet users to go where they want,
when they want, and the rights of innovators to introduce new products without asking anyone’s
permission.
The Order also includes a general conduct rule that can be used to stop new and novel threats to
the Internet. That means there will be basic ground rules and a referee on the field to enforce them. If an
action hurts consumers, competition, or innovation, the FCC will have the authority to throw the flag.
Under the Order we adopt today, open Internet protections would – for the first time – apply
equally to both fixed and mobile networks. Mobile wireless networks account for 55 percent of Internet
usage. We cannot have two sets of Internet protections – one fixed and one mobile – when the difference
is increasingly anachronistic to consumers.
Today’s Order also asserts jurisdiction over interconnection. The core principle is the Internet
must remain open. We will protect this on the last mile and at the point of interconnection.
We also ensure that network operators continue to have the incentives they need to invest in their
networks. Let me be clear, the FCC will not impose “utility style” regulation. We forbear from sections of
Title II that pose a meaningful threat to network investment, and over 700 provisions of the FCC’s rules.
That means no rate regulation, no filing of tariffs, and no network unbundling. During the 22 years that
wireless voice has been regulated under a light-touch Title II like we propose today, there has never been
concern about the ability of wireless companies to price competitively, flexibly, or quickly, or their ability
to achieve a return on their investment.
The American people reasonably expect and deserve an Internet that is fast, fair, and open. Today
they get what they deserve: strong, enforceable rules that will ensure the Internet remains open, now and
in the future.

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STATEMENT OF
COMMISSIONER MIGNON L. CLYBURN
Re:

Protecting and Promoting the Open Internet, GN Docket No. 14-28.

Following years of vigorous debate, the United States adopted the Bill of Rights in 1791. The
Framers recognized that basic freedoms, as enshrined in the first ten amendments to the Constitution,
were fundamental to a free and open democratic society.
James Madison gave life to the First Amendment in a scant 45 words, which are fundamental to
the spirit of this great nation. Almost two centuries later, Justice William Brennan would write in the
historic 1964 New York Times v. Sullivan decision that “debate on public issues. . . [should be] . . .
uninhibited, robust and wide-open.”1 I believe President Madison and Justice Brennan would be
particularly proud of the rigorous, robust, and unfettered debate that has led us to this historic moment. …
And what a moment it is.
I believe the Framers would be pleased to see these principles embodied in a platform that has
become such an important part of our lives. I also believe that they never envisioned a government that
would include the input and leadership of women, people of color, and immigrants, or that there would be
such an open process that would enable more than four million citizens to have a direct conversation with
their government. They would be extremely amazed, I venture to say, because even we are amazed.
So here we are, 224 years later, at a pivotal fork in the road, poised to preserve those very same
virtues of a democratic society – free speech, freedom of religion, a free press, freedom of assembly and
a functioning free market.
As we look around the world we see foreign governments blocking access to websites including
social media -- in sum, curtailing free speech. There are countries where it is routine for governments,
not the consumer, to determine the type of websites and content that can be accessed by its citizens. I am
proud to be able to say that we are not among them.
Absent the rules we adopt today, however, any Internet Service Provider (ISP) has the liberty to
do just that. They would be free to block, throttle, favor or discriminate against traffic or extract tolls
from any user for any reason or for no reason at all.
This is more than a theoretical exercise. Providers here in the United States have, in fact, blocked
applications on mobile devices, which not only hampers free expression but also restricts competition and
innovation by allowing companies, not the consumer, to pick winners and losers.
As many of you know, this is not my first Open Internet rodeo. While I did vote to approve the
2010 rules, it was no secret that I preferred a different path than the one the Commission ultimately
adopted. Specifically, I preferred: (1) Title II with forbearance, (2) mobile parity, (3) a ban on paid
prioritization, and (4) preventing the specialized services exemption from becoming a loophole.
So, I am sincerely grateful to the Chairman for his willingness to work with my office to better
ensure that this Order strikes the right balance and is positioned to provide us with strong, legally
sustainable rules. This is our third bite at the apple and we must get it right.
Today, we are here to answer a few simple questions:
1

New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

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





FCC 15-24

Who determines how you use the Internet?
Who decides what content you can view and when?
Should there be a single Internet or fast lanes and slow lanes?
Should Internet service providers be left free to slow down or throttle certain applications
or content as they see fit?
Should your access to the Internet on your mobile device have the same protections as
your fixed device at home?

These questions, for me, get to the essence of the Open Internet debate: How do we continue to
ensure that consumers have the tools they need to decide based on their own user experience. The
consumer … not me, not the government and not the industry, but you, the consumer, makes these
decisions.
Keeping in touch with your loved one overseas; interacting with your health care provider, even if
you are miles away from the closest medical facility; enrolling in courses online to improve your
educational, professional or entrepreneurial potential without worrying whether the university paid for a
fast lane to ensure that the lecture won’t buffer for hours because the quality has been degraded or
throttled; not wondering if that business affiliated with your Internet Service Provider is getting
preferential treatment over that start up you worked so hard to establish.
We are here so that teachers don’t have to give a second thought about assigning homework that
can only be researched online because they are sure that their students are free to access any lawful
website, and that such websites won’t load at dial-up speed. And, today, we are answering the calls of
more than four million commenters who raised their voices and made a difference through civic, and
sometimes not so civil, discourse.
We are here to ensure that every American has the ability to communicate by their preferred
means over their chosen platform, because as one of our greatest civil rights pioneers, Representative
John Lewis, said so eloquently: “If we had the Internet during the movement, we could have done more,
much more, to bring people together from all around the country, to organize and work together, to build
the beloved community. That is why it is so important for us to protect the Internet. Every voice matters
and we cannot let the interests of profit silence the voices of those pursuing human dignity.”
We are here to ensure that there is only one Internet where all applications, new products, ideas
and points of view, have an equal chance of being seen and heard. We are here because we want to
enable those with deep pockets, as well as those with empty pockets, the same opportunities to succeed.
There are many aspects of this item that I am particularly pleased to support. And, while time
and stamina prohibit me from naming them all, I do want to highlight a few.
Mobile Parity. Users of mobile devices should not be relegated to a second class Internet. We
know that many low-income Americans rely heavily on their mobile device and, for some, that mobile
device is their only access to the Internet. They need and deserve a robust experience on par with their
wired peers. So again, I thank the Chairman for ensuring equality and erasing the mobile versus fixed
distinction.
No Blocking, No Throttling, No Paid Prioritization. The item contains strong, clear rules to
ensure that all content, all applications and all bits are treated equally. These are all essential to the free
market and this is pro-competitive.

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No Loopholes. We must also ensure that companies are not able to take actions that circumvent
or undermine the Open Internet rules, whether through exemptions in the definition or at the point of
interconnection. And despite a flurry of press reports earlier this week, I would never advocate for any
policy that undermines FCC oversight or enforcement of any open Internet protections including
interconnection. I’m pleased that the Order commits to monitor Internet traffic exchange arrangements,
and enables the FCC to intervene, if appropriate.
Promoting Affordable Access. I have also been vocal about my call to modernize the Lifeline
program, which has been stuck in an MC Hammer, parachute-pants time warp since 1985. The Order
enables the FCC to support broadband as a separate service, which will truly help low-income
communities break out of digital darkness.
In the seemingly endless meetings with stakeholders, my office has heard concerns from many
sides. To some, the item does not go far enough, others want a ban on “access fees,” and there are those
who advocate a ban on zero rating, and others, who feel that it goes too far, whether on the scope of
forbearance or the focus on interconnection.
We worked closely with the Chairman’s office to strike an appropriate balance and yes, it is true,
that significant changes were made at the request of my office, including the elimination of the senderside classification. I firmly believe these edits have strengthened this item. Reports that this weakens our
legal authority over interconnection are completely inaccurate.
But it should come as no surprise that, with any item in excess of 300 pages, there are a few
issues I would have decided differently.
First, I would have preferred to readopt the unreasonable discrimination and reasonable network
management rules from 2010.
Second, I think we should tread lightly when it comes to preempting the states’ ability to adopt
and implement their own universal service funds. Not doing so could put a strain on the tremendous
federal-state partnership that I have worked so hard to create, and state universal service funds are
completely distinct from any federal program.
Finally, I have been struck by how much rhetoric in this proceeding is completely divorced from
reality. While as a rule, I generally refrain from responding, in this case, I must address concerns about
rate regulation.
Many of you know that reforming the inmate calling service regime has been a priority for me.
Despite clear legal authority, the FCC dragged its feet for over a decade, while families, friends, lawyers,
and clergy, paid egregiously high and patently unlawful fees to make a simple phone call to and from
inmate facilities.
I bring this up today because the inmate calling proceeding represents a prime example of how
the FCC resisted rate regulation for years, even where consumers were subjected to blatantly
unreasonable charges by providers with a clear monopoly, where severe costs to society were evident, and
where there was a clear case of market failure. So, for those in a panic about rate regulation, there are
millions who can testify to how high the bar is when it comes to the FCC intervening on rates and
charges.
And I repeat this challenge to anyone willing to accept it: Highlight examples, where the FCC
has ruled that a rate is unreasonable in a context other than inmate calling or a tariff investigation over the
last decade. To date, no one has come forth with any examples, and that in and of itself is telling.
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And, lest we forget, over 700 small broadband providers in rural America offer broadband
Internet access pursuant to the full panoply of Title II regulation. They contribute to universal service
and, amazingly, the sky has not fallen and things are okay. Indeed, such carriers advocated that the Open
Internet proceeding not change their status and require a lighter touch Title II.2 Their retail broadband
Internet access rates are not regulated, and I am unaware of any stream of class action lawsuits. Even so,
the item does assert primary jurisdiction to reduce such concerns.
Mr. Chairman, today I support this item because I believe it provides the strong protections we
need and balances the concerns raised by stakeholders, large and small.
The Order we are poised to adopt is not the product of some artificial life force. A dedicated
team from the Wireline Competition and Wireless Telecommunications Bureaus and Office of General
Counsel worked extremely hard on this significant item. There are too many people to thank, but I would
be remiss if I didn’t mention Jonathan Sallet, Stephanie Weiner, Matt DelNero, Claude Aiken, Marcus
Maher, Roger Sherman, Jim Schlichting, Joel Taubenblatt, and Michael Janson. And, of course, I must
thank my legal advisors, Louis Peraertz and Rebekah Goodheart for their hard work and dedication. Last,
but not least, I want to thank you, the American people – more than four million strong, for your role in
framing this historic Order. Today, we better enable millions to tell their stories, reach their potential and
realize their American ideals.

2

See Letter from Michael R. Romano, Senior Vice President Policy, NTCA, to Marlene H. Dortch, Secretary, FCC,
GN Docket No. 14-28; CC Docket No. 96-45; WC Docket No. 06-122, at 2 (Feb. 13, 2015) (“NTCA and NECA
urged the Commission to ensure that small rural telcos such as those within their respective memberships can
continue to avail themselves of the option to tariff broadband-capable transmission services that underpin retail
broadband Internet access services.”).

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STATEMENT OF
COMMISSIONER JESSICA ROSENWORCEL
Re:

Protecting and Promoting the Open Internet, GN Docket No. 14-28.

Our Internet economy is the envy of the world. We invented it. The applications economy began
here—on our shores. The broadband below us and the airwaves all around us deliver its collective might to
our homes and businesses in communities across the country. What produced this dynamic engine of
entrepreneurship and experimentation is a foundation of openness. Sustaining what has made us
innovative, fierce, and creative should not be a choice—it should be an obligation.
We also have a duty—a duty to protect what has made the Internet the most dynamic platform for
free speech ever invented. It is our printing press. It is our town square. It is our individual soapbox—and
our shared platform for opportunity.
That is why open Internet policies matter. That is why I support network neutrality.
We cannot have a two-tiered Internet with fast lanes that speed the traffic of the privileged and
leave the rest of us lagging behind. We cannot have gatekeepers who tell us what we can and cannot do
and where we can and cannot go online. And we do not need blocking, throttling, and paid prioritization
schemes that undermine the Internet as we know it.
For these reasons, I support Chairman Wheeler’s efforts and rules today. They use our existing
statutory tools, including Title II authority, to put back in place basic open Internet policies that we all rely
on but last year our courts took away. The result honors the creative, collaborative, and open Internet
envisioned by those who were there at the start, including the legendary Sir Tim Berners-Lee, the creator of
the World Wide Web—whom we have had the privilege of hearing from today.
This is a big deal. What is also a big deal is 4 million voices. Four million Americans wrote this
agency to make known their ideas, thoughts, and deeply-held opinions about Internet openness. They lit up
our phone lines, clogged our e-mail in-boxes, and jammed our online comment system. That might be
messy, but whatever our disagreements on network neutrality are, I hope we can agree that’s democracy in
action and something we can all support.

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DISSENTING STATEMENT OF
COMMISSIONER AJIT PAI
Re:

Protecting and Promoting the Open Internet, GN Docket No. 14-28.

Americans love the free and open Internet. We relish our freedom to speak, to post, to rally, to
learn, to listen, to watch, and to connect online. The Internet has become a powerful force for freedom,
both at home and abroad. So it is sad to witness the FCC’s unprecedented attempt to replace that freedom
with government control.
It shouldn’t be this way. For twenty years, there’s been a bipartisan consensus in favor of a free
and open Internet. A Republican Congress and a Democratic President enshrined in the
Telecommunications Act of 1996 the principle that the Internet should be a “vibrant and competitive free
market . . . unfettered by Federal or State regulation.”1 And dating back to the Clinton Administration,
every FCC Chairman—Republican and Democrat—has let the Internet grow free from utility-style
regulation. The result? The Internet has been an amazing success story, changing our lives and the world
in ways that would have been unimaginable when the 1996 Act was passed.
But today, the FCC abandons those policies. It reclassifies broadband Internet access service as a
Title II telecommunications service. It seizes unilateral authority to regulate Internet conduct, to direct
where Internet service providers put their investments, and to determine what service plans will be
available to the American public. This is not only a radical departure from the bipartisan, market-oriented
policies that have served us so well for the last two decades. It is also an about-face from the proposals
the FCC made just last May.
So why is the FCC changing course? Why is the FCC turning its back on Internet freedom? Is it
because we now have evidence that the Internet is not open? No. Is it because we have discovered some
problem with our prior interpretation of the law? No. We are flip-flopping for one reason and one reason
alone. President Obama told us to do so.
On November 10, President Obama asked the FCC to implement his plan for regulating the
Internet, one that favors government regulation over marketplace competition.2 As has been widely
reported in the press, the FCC has been scrambling ever since to figure out a way to do just that.
The courts will ultimately decide this Order’s fate. And I doubt they will countenance this
unlawful power grab. Litigants are already lawyering up to seek judicial review of these new rules.
Given the Order’s many glaring legal flaws, they will have plenty of fodder.
But if this Order manages to survive judicial review, these will be the consequences: higher
broadband prices, slower speeds, less broadband deployment, less innovation, and fewer options for
American consumers. To paraphrase Ronald Reagan, President Obama’s plan to regulate the Internet
isn’t the solution to a problem. His plan is the problem.
In short, because this Order imposes intrusive government regulations that won’t work to solve a
problem that doesn’t exist using legal authority the FCC doesn’t have, I dissent.
I.
The Commission’s decision to adopt President Obama’s plan marks a monumental shift toward
government control of the Internet. It gives the FCC the power to micromanage virtually every aspect of
how the Internet works. It’s an overreach that will let a Washington bureaucracy, and not the American
people, decide the future of the online world.
1

Communications Act of 1934, as amended, § 230(b)(2).

2

The White House, Net Neutrality: President Obama’s Plan for a Free and Open Internet,
https://web.archive.org/web/20150204034321/http://www.whitehouse.gov/net-neutrality (Nov. 10, 2014).

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One facet of that control is rate regulation. For the first time, the FCC will regulate the rates that
Internet service providers may charge and will set a price of zero for certain commercial agreements.3
And the Order goes out of its way to reject calls to forbear from section 201’s authorization of rate
regulation,4 thus making clear that the FCC will have the authority to determine the appropriate rates and
charges for service.5 The Order also expressly invites parties to file such complaints with the
Commission.6 A government agency deciding whether a rate is lawful is the very definition of rate
regulation.
As a consequence, if the FCC decides that it does not like how broadband is being priced, Internet
service providers may soon face admonishments, citations,7 notices of violation,8 notices of apparent
liability,9 monetary forfeitures and refunds,10 cease and desist orders,11 revocations,12 and even referrals
for criminal prosecution.13 The only limit on the FCC’s discretion to regulate rates is its own
determination of whether rates are “just and reasonable,” which isn’t much of a restriction at all.
Although the Order plainly regulates rates, the plan takes pains to claim that it is not imposing
further “ex ante rate regulation.”14 Of course, that concedes that the new regulatory regime will involve
ex post rate regulation. But even the agency’s suggestion that it today “cannot . . . envision” ex ante rate
regulations “in this context” says nothing of what a future Commission—perhaps this very Commission
in a few months or years—could envision.15 Indeed, the FCC grants forbearance against ex ante rate
regulation but then turns around and says there’s no apparent “incremental benefit” to doing so since the
Commission could just reverse that decision in any future rulemaking.16
Indeed, it’s actually quite easy to envision this same Commission deciding to discard the
predictive judgment that ex ante rate regulation is unnecessary. After all, the Commission in this very
Order and without explanation junks the agency’s 2002 predictive judgment that intermodal broadband
competition would develop.17 The short shrift the Order gives to our past bodes poorly for our future—
for why should anyone trust these latest promises at all?

3

The Order bans paid prioritization, and as the Verizon court put it: “In requiring that all edge providers receive
this minimum level of access for free, these rules would appear on their face to impose per se common carrier
obligations with respect to that minimum level of service.” Verizon v. FCC, 740 F.3d 623, 658 (D.C. Cir. 2014).
Setting a prospective rate of zero for a service is the very definition of ex ante rate regulation.
4

Order at paras. 449–50.

5

Communications Act § 201(a), (b).

6

Order at para. 455.

7

See Communications Act § 503(b)(5).

8

See 47 C.F.R. § 1.89.

9

See Communications Act § 503(b)(4).

10

See Communications Act § 503(b).

11

See Communications Act § 312(b).

12

See 47 C.F.R. § 1.91.

13

See Communications Act § 501.

14

Order at paras. 441, 443, 447, 451, 452.

15

Order at para. 452; see Order at para. 451 (“[W]e do not and cannot envision adopting new ex ante rate regulation
of broadband Internet access service in the future”).
16

Order at note 1352.

17

Order at para. 330.

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Just as pernicious is the FCC’s new “Internet conduct” standard, a standard that gives the FCC a
roving mandate to review business models and upend pricing plans that benefit consumers.18 Usagebased pricing plans and sponsored data plans are the current targets. So if a company doesn’t want to
offer an expensive, unlimited data plan, it could find itself in the FCC’s cross hairs.19
Consider that activists promoting this rule had previously targeted neither AT&T nor Verizon
with their first net-neutrality complaint but MetroPCS—an upstart competitor with a single-digit market
share and not an ounce of market power. Its crime? Unlimited YouTube. MetroPCS offered a $40-permonth plan with unlimited talk, text, Web browsing and YouTube streaming. The company’s strategy
was to entice customers to switch from the four national carriers or to upgrade to its newly built 4G Long
Term Evolution network. Whatever the benefits of MetroPCS’s approach, activists have said “there can
be no compromise.”20
Or take T-Mobile’s Music Freedom program, which the Internet conduct rule puts on the
chopping block. The “Un-carrier” lets consumers stream as much online music as they want without
charging it against their monthly data allowance. Consumers love it, judging by T-Mobile’s rapid
subscriber growth. Yet Music Freedom too stands on the brink of a ban—with the FCC “mindful of the
concerns raised in the record that sponsored data plans have the potential to distort competition by
allowing service providers to pick and choose among content and application providers to feature on
different service plans.”21
Affordable, prepaid plans are now also suspect. These plans have enabled millions of lowincome households to have mobile service. And yet the Order plays up the “concern that such practices
can potentially be used by broadband providers to disadvantage over-the-top providers.”22 In other
words, these plans aren’t the all-you-can-eat plans endorsed by the FCC, and so they, too, may violate the
Internet conduct standard.
Our standard should be simple: If you like your current service plan, you should be able to keep
your current service plan. The FCC shouldn’t take it away from you. Indeed, economists have long
understood innovative business models like these are good for consumers because they give them more
choices and lower prices. To apply outmoded economic thinking to the Internet marketplace would just
hurt consumers, especially the middle-class and low-income Americans who are the biggest beneficiaries
of these plans.
In all, the FCC will have almost unfettered discretion to decide what business practices clear the
bureaucratic bar, so these won’t be the last business models targeted by the agency. And though the FCC
spends several paragraphs describing seven vaguely worded factors that it will consider when applying
the Internet conduct standard—end-user control; competitive effects; consumer protection; effect on
innovation, investment, or broadband deployment; free expression; application agnostic; and standard
practices23—these factors lead to more questions than they answer. As the Electronic Frontier Foundation
18

Order at paras. 133–53.

19

Order at paras. 152–53.

20

See, e.g., Susan Crawford, Zero for Conduct, Medium (Jan. 7, 2015) (“Zero-rating . . . is absolutely
inappropriate. It makes certain kinds of traffic exempt from any data cap at all, or creates a synthetic ‘online’
experience for users that isn’t the Internet. . . . [Z]ero rating is not just a competition issue. It’s also a human
rights issue. Saying that walled gardens are “good enough” for poorer people is clearly destructive. . . . All
compromise is based on give and take. But when it comes to fundamentals — including the earth-shaking idea of
the Internet, which has made possible for the first time an open, global, interoperable platform for
communications — there can be no compromise.”), available at http://bit.ly/14xVnUT.
21

Order at para. 152.

22

Order at para. 153.

23

Order at paras. 139, 140, 141, 142, 143, 144, 145.

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wrote just this week: This open-ended rule will be “anything but clear” and “suggests that the FCC
believes it has broad authority to pursue any number of practices.” And “multi-factor test gives the FCC
an awful lot of discretion, potentially giving an unfair advantage to parties with insider influence.” Or as
they put it more bluntly, this rule is “hardly the narrow, light-touch approach we need to protect the open
Internet.”24 Even FCC leadership conceded that, with respect to the sorts of activities the Internet conduct
standard could regulate, “we don’t really know” and that “we don’t know where things go next,” other
than that the “FCC will sit there as a referee and be able to throw the flag.”25
And because this list is “non-exhaustive,” with “other considerations relevant to determining
whether a particular practice violates” the standard,26 Internet service providers are left to guess. Will the
rate of return on investment be a factor? How about an operator’s margins? What if the Internet service
provider separately offers an interconnected VoIP service?
Net neutrality proponents are already bragging that it will turn the FCC into the “Department of
the Internet”27—and it’s no wonder. The FCC’s newfound control extends to the design of the Internet
itself, from the last mile through the backbone. Section 201(a) of the Communications Act gives the FCC
authority to order “physical connections” and “through routes,”28 meaning the FCC can decide where the
Internet should be built and how it should be interconnected. And with the broad Internet conduct
standard, decisions about network architecture and design will no longer be in the hands of engineers but
bureaucrats and lawyers.
So if one Internet service provider wants to follow in the footsteps of Google Fiber and enter the
market incrementally, the FCC may say no. If another wants to upgrade the bandwidth of its routers at
the cost of some latency, the FCC may block it. Every decision to invest in ports for interconnection may
be second-guessed; every use of priority coding to enable latency-sensitive applications like Voice over
LTE may be reviewed with a microscope. How will this all be resolved? No one knows. 81-year-old
laws like this don’t self-execute, and even in 317 pages, there’s not enough room for the FCC to describe
how it would decide whether this or that broadband business practice is just and reasonable. So
businesses will have to decide for themselves—with newly-necessary counsel from high-priced attorneys
and accountants—whether to take a risk.
That’s just from some of the rules that the FCC is deciding to apply now. Yet more rules are on
the horizon. The Commission commits “to commence in the near term a separate proceeding to revisit
the data roaming obligations of [mobile broadband] providers in light of our reclassification decisions”
and to determine whether full-fledged common-carriage wholesale obligations should apply.29 And it

24

Corynne McSherry, Electronic Frontier Foundation, Dear FCC: Rethink The Vague “General Conduct” Rule
(Feb. 24, 2015), available at http://bit.ly/1AIJrKU; see also Letter from Corynne McSherry, Intellectual Property
Director, Electronic Frontier Foundation, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 09-191, 14-28
(Feb. 19, 2015) (“The Commission has an important role to play in promulgating ‘rules of the road’ for broadband,
but that role should be narrow and firmly bounded. We fear the proposed ‘general conduct rule’ may meet neither
criteria. Accordingly, if the Commission intends to adopt a ‘general conduct rule’ it should spell out, in advance, the
contours and limits of that rule, and clarify that the rule shall be applied only in specific circumstances.”), available
at http://go.usa.gov/3cP53.
25

February 2015 Open Meeting Press Conference of Chairman Tom Wheeler (Feb. 26, 2015), available at
http://www.fcc.gov/events/open-commission-meeting-february-2015 (165:30-166:51).
26

Order at para. 138.

27

See, e.g., Nilay Patel, We won the internet back, The Verge (Feb. 4, 2015), available at http://bit.ly/1C17xB5.

28

Communications Act § 201(a).

29

Order at para. 526.

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promises a new rulemaking to apply section 222’s customer-proprietary network information provisions
to Internet service providers.30 Still more are sure to come.
And then there is the temporary forbearance. Did I forget to mention that? Although the Order
crows that its forbearance from Title II’s provisions and rules yields a “‘light-touch’ regulatory
framework,”31 in reality it isn’t light at all, coming as it does with the provisos, limitations, and
qualifications that the public has come to expect from Washington, DC. The plan is quite clear about the
limited duration of its forbearance decisions, stating that the FCC will revisit them in the future and
proceed in an incremental manner with respect to additional regulation.32 In discussing additional rate
regulation, tariffs, last-mile unbundling, burdensome administrative filing requirements, accounting
standards, and entry and exit regulation, the plan repeatedly states that it is only forbearing “at this
time.”33 For others, the FCC will not impose rules “for now.”34
To be sure, with respect to some rules, the agency says that it “cannot envision” going further.35
But as the history of this proceeding makes clear, temporal statements like these don’t tend to last very
long. Ask people who have followed this proceeding closely, and they could tell you that as late as
November 2014, reclassification was not under serious consideration by the FCC “at this time,” Title II
was not going to be imposed “for now,” and the agency “could not envision” going further than either a
706-based approach or the Mozilla-inspired hybrid proposal. In other words, expect the forbearance to
fade and the regulations to ratchet up as time marches on.
A.
Consumers will be worse off under President Obama’s plan to regulate the Internet. Consumers
should expect their bills to go up, and they should expect that broadband will be slower going forward
than it otherwise would have been. This isn’t what anyone was promised, and no one likes paying more
for less.
1. New Broadband Taxes.—One avenue for higher bills is the new taxes and fees that will be
applied to broadband. Here’s the background. If you look at your phone bill, you’ll see a “Universal
Service Fee,” or something like it. These fees (what most Americans would call taxes) are paid by
Americans on their telephone service and funnel about $9 billion each year through the FCC—all outside
the congressional appropriations process. Consumers haven’t had to pay these taxes on their broadband
bills because broadband Internet access service has never before been a Title II service.
But now it is. And so the Order explicitly opens the door to billions of dollars in new taxes on
broadband. As the Order frankly acknowledges, Title II “authorizes the Commission to impose universal
service contributions requirements on telecommunications carriers—and, indeed, goes even further to
require ‘[e]very telecommunications carrier that provides interstate telecommunications services’ to
contribute.”36 And so the FCC now has a statutory obligation to make sure that all Internet service
providers (and in the end, their customers) contribute to the Universal Service Fund.

30

Order at para. 462.

31

Order at para. 5.

32

See, e.g., Order at note 1487.

33

Order at paras. 497 (additional rate regulation and tariffing), 500 (same), 501 (same), 502 (same), 508
(administrative filing requirements and accounting standards), 510 (entry and exit regulation), 513 (last-mile
unbundling and resale).
34

Order at paras. 470, 488.

35

Order at para. 451; see also Order at paras. 452, 508.

36

Order at para. 488 (quoting Communications Act § 254(d)).

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That’s why the Order repeatedly states that it is only deferring a decision on new broadband
taxes—not prohibiting them.37 This is fig-leaf forbearance, a reprieve only “insofar as [the provisions]
would immediately require new universal service contributions for broadband Internet access services
sold to end users but not insofar as they authorize the Commission to require such contributions in a
rulemaking in the future.”38
That future is swiftly approaching; it may be just a few months. The Order notes that the FCC
has referred the question of assessing state and federal taxes on broadband to the Federal-State Joint
Board on Universal Service and has “requested a recommended decision by April 7, 2015,” right before
Tax Day—although a “a short extension of that deadline” may be in order.39 It’s no surprise that many
have interpreted this referral as a question of how to tax broadband, not whether to do so, and states have
already begun discussions on how they will spend the extra money.40
And the agency’s preference is clear. The Order argues that taxing broadband “potentially could
spread the base of contributions” and could add “to the stability of the universal service fund.”41 For
those not familiar with this Beltway argot, let me translate: “Extending these taxes to broadband would
make it easier to spend more without public oversight.” But using plain English hardly makes for a
compelling public message.
We’ve seen this game played before. During reform of the E-Rate program in July 2014, the
FCC secretly told lobbyists that it would raise USF taxes after the election to pay for the promises it was
making.42 Sure enough, in December 2014, the agency did just that—increasing E-Rate spending (and
with it telephone taxes) by $1.5 billion per year.43
The federal government is sure to tap this new revenue stream soon to spend more of consumers’
hard-earned dollars. Indeed, it’s been publicly reported that the FCC is itching to use the Universal
Service Fund to extend the Lifeline program to broadband. That won’t come cheap. In order to provide
discounted broadband service to millions of Americans, the FCC will have to find the money somewhere.
With this Order, that somewhere is your wallet. So when it comes to broadband, read my lips: More new
taxes are coming. It’s just a matter of when.44
37

See, e.g., Order at para. 489 (“We therefore conclude that limited forbearance is warranted at the present time in
order to allow the Commission to consider the issues presented based on a full record in that docket.”).
38

Order at para. 490.

39

Order at note 1471.

40

See, e.g., Vermont Public Radio, Under New FCC Standard, 30 Percent Of Vermonters Now Lack Broadband (Feb. 3,
2015) (“One of the things that would come along with [reclassification] is the ability to assess a universal service
fee on broadband services. . . . If that happens, the money might be there to fund these higher speeds.”), available
at http://digital.vpr.net/post/under-new-fcc-standard-30-percent-vermonters-now-lack-broadband.
41

Order at para. 489.

42

Modernizing the E-Rate Program for Schools and Libraries, WC Docket No. 13-184, Report and Order and
Further Notice of Proposed Rulemaking, 29 FCC Rcd 8870, 9042 (2014) (Dissenting Statement of Commissioner
Ajit Pai); see also E-Rate Statement of FCC Commissioner Ajit Pai at the July 11, 2014 Open Meeting,
http://youtu.be/6LDko49R9YM.
43

Modernizing the E-Rate Program for Schools and Libraries; Connect America Fund, WC Docket Nos. 13-184,
10-90, Second Report and Order and Order on Reconsideration, FCC 14-189 (rel. Dec. 19, 2014) (Dissenting
Statement of Commissioner Ajit Pai), available at http://go.usa.gov/3cpm4.
44

In fact, broadband taxes may go up even further than this should the FCC revisit its decision to forbear from
requiring contributions to the Telecommunications Relay Service (TRS) Fund. See Order at para. 470 (“[F]or now
we do forbear in part from the application of TRS contribution obligations that otherwise would newly apply to
broadband Internet access service”) (emphasis added). There, too, the fix may be in. See id. (“Applying new TRS
contribution requirements on broadband Internet access potentially could spread the base of contributions to the TRS
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The great irony of all of this? The broadband tax increase enabled by reclassification is going to
deter broadband adoption, especially among the low-income Americans for whom broadband (especially
mobile broadband) is increasingly important for professional success, education, and more.45 The iron
law of microeconomics still holds: The more you tax something, the less you get of it. In this case, the
FCC’s decision today will mean fewer digital opportunities for hard-working Americans tomorrow.
2. Slower Broadband.—These Internet regulations will work another serious harm on consumers.
Their broadband speeds will be slower than they would have been without these regulations.
The record is replete with evidence that Title II regulations will slow investment and innovation
in broadband networks.46 Remember: Broadband networks don’t have to be built. Capital doesn’t have
to be invested here. Risks don’t have to be taken. The more difficult the FCC makes the business case
for deployment—and micromanaging everything from interconnection to service plans makes it difficult
indeed—the less likely it is that broadband providers big and small will connect Americans with digital
opportunities. And neither big nor small providers will bring rural and poor Americans online if it’s
economically irrational for them to do so. Utility-style regulation of the kind the FCC adopts here thus
will simply broaden the digital divide.
The Old World offers a cautionary tale here. Compare the broadband market in the United States
to that in Europe, where broadband is generally regulated as a public utility. Data show that 82% of
Americans, and 48% of rural Americans, have access to 25 Mbps broadband speeds. In Europe, those
figures are only 54% and 12%, respectively. Similarly, wireline broadband providers in the United States
are investing more than twice as much as their European counterparts ($562 per household versus $244).
The data for wireless broadband providers shows the same pattern ($110 per person versus $55). In the
United States, broadband providers deploy fiber to the premises about twice as often (23% versus 12%).
And with respect to mobile broadband, 30% of subscribers in the United States have the fastest
technology in wide deployment, 4G LTE, but in Europe that figure is only 4%. Moreover, in the United
States, average mobile speeds are about 30% faster than they are in Western Europe.47
(Continued from previous page)
Fund, having the benefit of adding to the stability of the TRS Fund. Nevertheless, before taking any steps that
would depart from the status quo in this regard, the Commission would like to assess the need for such additional
funding, and the appropriate contribution level.”).
45

Letter from Kim Keenan, President & Chief Executive Officer, MMTC, to the Honorable Tom Wheeler,
Chairman, FCC, et al., GN Docket No. 14-28, at 3 (Feb. 18, 2015) (“Title II regulation, even when ostensibly
administered with a lighter touch, will likely have unintended consequences on broadband adoption for people of
color, the disabled, the economically disadvantaged, rural residents, and seniors.”), available at
http://apps.fcc.gov/ecfs/document/view?id=60001030899.
46

See, e.g., ACA Comments at 60–66; Alcatel-Lucent Comments at 2; AT&T Comments at 51–53; CenturyLink
Comments at 5–6; Charter Comments at 13, 15–16; Cisco Comments at 27; Comcast Comments at 46–50; Cox
Comments at 34–36; CTIA Comments at 46–48; Ericsson Comments at 12; Frontier Comments at 2–4; Qualcomm
Comments at 4–7; Verizon Comments at 57; Letter from Matthew A. Brill, Counsel for National Cable &
Telecommunications Association, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 3–5
(Dec. 23, 2014); Letter from Patrick S. Brogan, USTelecom to Marlene Dortch, Secretary, FCC, GN Docket No. 1428 (Nov. 19, 2014) (attaching Kevin A. Hassett & Robert J. Shapiro, Sonecon, The Impact of Title II Regulation of
Internet Providers on Their Capital Investment (Nov. 2014)); Letter from Laurence Brett Glass, d/b/a LARIAT to
Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (Jan. 9, 2015); Letter from John Mayo, Exec.
Director, Georgetown Center for Business and Public Policy to Marlene H. Dortch, Secretary, FCC, GN Docket No.
14-28 (Jan. 16, 2015) (attaching Anna-Maria Kovacs, Regulatory Uncertainty: The FCC’s Open Internet Docket
(Jan. 2015)); Martin H. Thelle & Dr. Bruno Basalisco, Copenhagen Economics, Europe Can Catch Up With the US:
A Contrast of Two Contrary Broadband Models (June 2013), available at http://bit.ly/1zJritJ.
47

Christopher S. Yoo, U.S. vs. European Broadband Deployment: What Do the Data Say? Penn Law Center for
Technology, Innovation and Competition, at 4–5, 13, 23 (June 2014), available at
http://apps.fcc.gov/ecfs/document/view?id=7521285448; CISCO, VNI Mobile Forecast Highlights, 2014-2019
(continued….)

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It’s no wonder that many Europeans are perplexed by what is taking place at the FCC. Just days
before the FCC adopted this Order, for example, the Secretary General of the European People’s Party,
the largest party in the European Parliament, observed that the FCC, “at the behest of . . . [P]resident
[Obama] himself,”, was about to impose the type of “[r]egulation which . . . has led Europe to fall behind
the US in levels of investment.”48
But the Order doesn’t just adopt utility-style regulation. It goes even further and injects
tremendous uncertainty into the market. At least with easy-to-understand, bright-line rules, a business
can plan. But a thick regulatory haze—rules that are unclear with the overhang of more rules to come—
should make any rational businesses hold back on investment and start returning any free cash back to
their shareholders.
Ironically enough, the Commission itself acknowledges at one point that “vague or unclear
regulatory requirements could stymie rather than encourage innovation.”49 But those are precisely the
kind of requirements the FCC is adopting. Its predictive judgment that uncertainty is “likely to be short
term and will dissipate over time as the marketplace internalizes our Title II approach”50 prioritizes faith
above experience.
Making it all worse is the fact that the FCC cannot promise anything about how these new rules
will be enforced because it is not the only adjudicator. After this decision, “[a]ny person claiming to be
damaged by any” Internet service provider “may bring suit for the recovery of the damages” in any
federal district court.51 Although the Order hesitates to admit it,52 the FCC has now condoned litigation—
from individual claims about the justness and reasonableness of ISP pricing to sprawling class actions for
violations of the new Internet conduct rule—as an appropriate means of regulating the Internet economy.
Is there any American who believes that administrative wrangling at the FCC and endless litigation in the
federal courts will do anything for the American consumer?
The not-so-dirty secret, of course, is that this will be a boon for trial lawyers. And the Order’s
decisions will make their lives even easier. Every edge provider, and thus every person online, is now
swept up by FCC’s new and rather peculiar view of what constitutes broadband Internet access service.
This means that a wayward plaintiff’s attorney could sue every single Internet service provider in the
country from his hometown courtroom. I’m sure such litigation will benefit our nation’s lawyers, but the
American people—not so much.
And these are just the intended results of reclassification!
(Continued from previous page)
(compare the average mobile connection speed in the United States of 2,619 kbps with the 2,037 kbps average
mobile connection speed in Western Europe), available at
http://www.cisco.com/assets/sol/sp/vni/forecast_highlights_mobile/index.html#~Country; see also Roger Entner,
Spectrum Fuels Speed and Prosperity, Recon Analytics (Sep. 2014), available at
http://apps.fcc.gov/ecfs/document/view?id=60000870483; Letter from Scott K. Bergmann, Vice President –
Regulatory Affairs, CTIA, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 10-127, 14-28 (Feb. 10, 2015),
available at http://apps.fcc.gov/ecfs/document/view?id=60001028379; Letter from Scott K. Bergmann, Vice
President – Regulatory Affairs, CTIA, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 10-127, 14-28 (Oct.
2, 2014), available at http://apps.fcc.gov/ecfs/document/view?id=60000870404.
48

Letter from Antonio López Istúriz-White MEP, Secretary General, European People’s Party, to the Editor,
Financial Times (Feb. 22, 2015), available at http://on.ft.com/1DViF4r.
49

Order at para. 138.

50

Order at para. 410.

51

Communications Act § 207.

52

Order at para. 455 (noting the importance of the “doctrine of primary jurisdiction” but declining to forbear from
applying section 207 to Internet service providers).

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There are unintended consequences as well. For one, the rate that broadband providers—ranging
from small-town cable operators to new entrants like Google—pay to deploy broadband will go up by an
estimated $150–200 million per year.53 And that’s because the Communications Act establishes a higher
rate for telecommunications carriers to pay for access to poles, conduits, and rights of way than other
Internet service providers.
While it may not be the “Commission’s intent to see any increase in the rates for pole
attachments,”54 the agency has no power to stop it. The actual utilities that own these poles get to charge
what they want up to the statutory maximum, and the FCC has just raised that maximum. Or to use the
FCC’s preferred parlance, utilities will have the “incentive and ability” to exploit this new maximum rate
for Internet service providers. The end result: Reclassification would subject Internet service providers
“to significantly higher attachment rates, inadvertently threatening the very broadband deployment the
Commission seeks to facilitate.”55
For another, reclassification will expose many small companies to higher state and local taxes.
Tax rates on telecommunications companies are often significantly higher than those imposed on general
businesses, and so reclassification threatens Internet service providers with property tax hikes, new
transaction-based taxes and fees, and greater income, franchising, and gross receipts taxes.56 And these
tax hikes won’t necessarily be de minimis. In the District of Columbia, for instance, companies will face
an instant 11% increase in taxes on their gross receipts.57 That big bite will leave a welt on Washington
consumers’ wallets.
The Order trots out Congress’s recent (temporary) extension of the Internet Tax Freedom Act to
claim that states and localities cannot impose new “[t]axes on Internet access.”58 And that’s true (and a
victory for consumers). But broadband taxes like those imposed by the Order have evaded the scope of
the Internet Tax Freedom Act so far—because they are “fees,” not “taxes,” and because they’re not
exclusively about “Internet access” but more generally applied.59 And since Congress has not entrusted
the Commission with interpreting the Internet Tax Freedom Act, even our most fervent pronouncements
for it to be broader will not make it so.
All of these new fees and costs add up. One estimate puts the total at $11 billion a year.60 And
every dollar spent on fees and new costs like lawyers and accountants has to come from somewhere:
53

See, e.g., Letter from Steven F. Morris, Vice President and Associate General Counsel, National Cable &
Telecommunications Association, GN Docket No. 14-28, WC Docket No. 07-245, at 2 (Jan. 22, 2015), available at
http://go.usa.gov/3cppB.
54

Order at para. 482.

55

Letter from Thomas Cohen & Edward A. Yorkgitis, Jr., Counsel for American Cable Association, to Marlene H.
Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, 09-51, WC Docket No. 07-245, at 2 (Jan. 20, 2015),
available at http://apps.fcc.gov/ecfs/document/view?id=60001014745.
56

Letter from James Assey, Executive Vice President, National Cable & Telecommunications Association, to
Jonathan Sallet, General Counsel, FCC, GN Docket Nos. 14-28, 10-127, at 2 (Dec. 2, 2014), available at
http://apps.fcc.gov/ecfs/document/view?id=60000989301.
57

Id. at 3–4.

58

Order at para. 430 (quoting Internet Tax Freedom Act § 1101(a)(1), Pub. L. 105-277, 112 Stat. 2681, 2719
(1998), and citing Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 624, 128
Stat. 2130, 2377 (2014)).
59

Letter from James Assey, Executive Vice President, National Cable & Telecommunications Association, to
Jonathan Sallet, General Counsel, FCC, GN Docket Nos. 14-28, 10-127, at 3 (Dec. 2, 2014).
60

Hal Singer & Robert Litan, No Guarantees When It Comes to Telecom Fees, Progressive Policy Institute Blog, at
FN5 (Dec. 16, 2014) (estimating annual taxes and fees of $11 billion assuming the Internet Tax Freedom Act is
made permanent), available at http://bit.ly/1AcraGq; Robert Litan & Hal Singer, Outdated Regulations Will Make
(continued….)

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either the pockets of the American consumer or projects to deploy faster broadband. And so these higher
costs will lead to slower speeds and higher prices—in short, less value—for the American consumer.
B.
So do American consumers want slower speeds at higher prices? I don’t think so.
That’s certainly not what I heard when I hosted the Texas Forum on Internet Regulation in
College Station, the FCC’s only field hearing on net neutrality where audience members were allowed to
speak. There, I heard from Internet innovators, from students, from everyday people who wanted
something else from the FCC—something that I thought had a familiar ring to it. The consumers I spoke
with wanted competition, competition, competition.
And yet, literally nothing in this Order will promote competition among Internet service
providers. To the contrary, reclassifying broadband, applying the bulk of Title II rules, and half-heartedly
forbearing from the rest “for now” will drive smaller competitors out of business and leave the rest in
regulatory vassalage. Monopoly rules designed for the monopoly era will inevitably move us in the
direction of a monopoly. President Obama’s plan to regulate the Internet is nothing more than a
Kingsbury Commitment for the digital age.61 If you liked the Ma Bell monopoly in the 20th century,
you’ll love Pa Broadband in the 21st.
Today there are thousands of smaller Internet service providers—wireless Internet service
providers (WISPs), small-town cable operators, municipal broadband providers, electric cooperatives, and
others—that don’t have the means or the margins to withstand a regulatory onslaught. Imposing on
competitive broadband companies the rules designed to constrain Cornelius Vanderbilt’s railroad empire
or the continent-spanning Bell telephone monopoly will do nothing but raise the costs of doing business.
Smaller, rural competitors will be disproportionately affected, and the FCC’s decision will diminish
competition—the best guarantor of consumer welfare.
This isn’t just my view. The President’s own Small Business Administration—apparently acting
independently—admonished the FCC that its proposed rules would unduly burden small businesses. The
SBA urged the FCC to “address[] the concerns raised by small businesses in comments” and “exercise
appropriate caution in tailoring its final rules to mitigate any anti-competitive pressure on small
broadband providers as well.”62 Following the President’s lead, the FCC ignores this admonition by
applying heavy-handed Title II regulations to each and every small broadband provider as if it were an
industrial giant. As a result, small providers will be squeezed—perhaps out of business altogether. If
they go dark, consumers they serve (including my parents, who are WISP subscribers in rural Kansas)
will be thrown offline.
Unsurprisingly, small Internet service providers are worried. I heard this for myself at the Texas
Forum on Internet Regulation. One of the panelists, Joe Portman, runs Alamo Broadband, a WISP that
serves 700 people across 500 square miles south of San Antonio. As he put it, his customers “had very
limited choices for internet service before we came along. The big names, the telcos and cable
(Continued from previous page)
Consumers Pay More for Broadband, Progressive Policy Institute Policy Brief, at 1 (Dec. 1, 2014) (estimating
annual taxes and fees of $15 billion assuming the Internet Tax Freedom Act expires), available at
http://bit.ly/1wcR7VX.
61

Remarks of FCC Commissioner Ajit Pai at TechFreedom’s Forum on the 100th Anniversary of the Kingsbury
Commitment (Dec. 19, 2013), available at http://go.usa.gov/3cKdk.
62

Small Business Administration Office of Advocacy, Fact Sheet: Advocacy Submits Comments to the Federal
Communications Commission regarding Small Business Engagement and Regulatory Flexibility Act Compliance,
http://go.usa.gov/3cKdP (Sept. 25, 2014); Letter from Winslow L. Sargeant, Ph.D., Chief Counsel, Office of
Advocacy, U.S. Small Business Administration, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 135, 12-353, WC Docket Nos. 05-25, 10-90, RM-10593 (Sept. 25, 2014), available at http://go.usa.gov/3cKsm.

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companies, when it comes to rural areas such as the areas we serve don’t see the value and won’t invest
the capital (at least if it’s their money) to build infrastructure and bring service to the people that live
there. We, and thousands others like us, have found a way to do it.”63
What does Joe think of Title II? He thinks it’s “pretty much a terrible idea.”64 His staff “is pretty
busy just dealing with the loads we already carry. More staff to cover regulations means less funds to run
the network and provide the very service our customers depend on.” Bottom line? Title II will just
impede broadband deployment—especially from WISPs like his.
Other WISPs feel the same way. Take Galen Manners, in my hometown of Parsons, Kansas. He
runs Wave Wireless, a WISP that delivers Internet access to residents of rural Labette County65—
including my parents. I can tell you from personal knowledge that folks back home have few options.
Google Fiber isn’t building there; other major ISPs wouldn’t bother either.
Manners said that Wave Wireless “will feel the sting of the [Title II] regulations,” which “will
complicate and increase the cost of providing service. The result is the consumer will pay more for [his]
service.” Manners hopes he can weather the regulatory storm, unlike WISPs that he thinks may go out of
business. But he summed up his situation in a way that applies to companies and customers nationwide:
“It’s not a good thing for business. It’s not a good thing for the consumer. . . . It’s going to be a gamechanger.”66
Just last week, 142 WISPs joined the chorus. Whether it’s Aerux.com in Castle Rock, Colorado,
or Aristotle.Net in Little Rock, Arkansas, whether it’s STE Wireless in Utica, Nebraska, or Cyber
Broadcasting in Coal City, Illinois, these WISPs have deployed wireless broadband to customers who
often have no alternatives. They rely heavily on unlicensed spectrum, take no federal subsidies, and often
run on a shoestring budget with just a few people to run the business, install equipment, and handle
service calls. They have no incentive and no ability to take on commercial giants like Netflix. And they
say the FCC’s new “regulatory intrusion into our businesses . . . would likely force us to raise prices,
delay deployment expansion, or both.”67
Or consider the views of 24 of the country’s smallest Internet service providers, each with fewer
than 1,000 residential broadband customers. The largest, FamilyView Cablevision, has just 900
customers in Pendleton, South Carolina. The smallest, Main Street Broadband, has just 4 residential
customers in Cannon Falls, Minnesota. They wrote us that Title II “will badly strain our limited
resources” because these Internet service providers “have no in-house attorneys and no budget line items
for outside counsel” and the “rules of the road . . . could change anytime the issues an advisory, rules on a
complaint, or adopts new rules. To subject small and medium-sized ISPs to such a regime, no less the
very smallest of ISPs, is simply unreasonable.”68
63

Testimony of Joe Portman, President and Founder, Alamo Broadband Inc., Elmendorf, Texas, at the Texas Forum
on Internet Regulation, at 1 (Oct. 21, 2014), available at http://go.usa.gov/3cpPe.
64

Id. at 2.

65

See Wave Wireless, About Us, http://www.wavewls.com/about-us.html.

66

Ray Nolting, Proposed regulations concern business, FCC commissioner, Parsons Sun (Feb. 21, 2015), available
at http://bit.ly/1JOoplx.
67

Letter from Dustin Surran, Aerux.com, Castle Rock, Colorado, Bryan Robinson, Affordable Internet Solutions,
Waverly, Nebraska, and 140 other WISPs to the Honorable Thomas Wheeler, Chairman, FCC, GN Docket No. 1428 (Feb. 19, 2015), available at http://go.usa.gov/3c8rH.
68

Letter from Robert J. Dunker, Owner/President, Atwood Cable Systems, Inc., Atwood, Kansas, Richard A.
Nowak, Owner/President, Bellaire TV Cable Company, Bellaire, Ohio, and 22 other small ISPs to the Honorable
Thomas Wheeler, Chairman, FCC, GN Docket Nos. 14-28, 10-127 (Feb. 17, 2015), available at
http://go.usa.gov/3cpPw.

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Or how about the 43 municipal broadband providers that flatly told the FCC that “there is no
basis for the Commission to reclassify our Internet service for the purpose of imposing any Title II
common carrier obligations.”69 They continued, “Title II regulation will undermine the business model
that supports our network, raises our costs and hinders our ability to further deploy broadband.”70 Their
closing is a stinging rebuke to those who argue that Title II is harmless to those providers who don’t harm
consumers:
[W]e ask that you not fall prey to the facile argument that if smaller ISPs are not blocking,
throttling, or discriminating amongst Internet traffic on their networks today, they have nothing to
fear because they will experience no harm under Title II regulation. The economic harm will
flow not from following net neutrality principles, which we do today because we think it is
beneficial to all, but from the collateral effects of a change in regulatory status that will trigger
consequences beyond the Commission’s control and risk serious harm to our ability to fund and
deploy broadband without bringing any concrete benefit for consumers or edge providers that the
market is not already proving today without the aid of any additional regulation.71
There’s a special irony given that right before this vote, the FCC voted to preempt state laws
regarding city-owned broadband projects. This is an initiative President Obama announced just one
month before this Order was adopted while he was in Cedar Falls, Iowa, and the FCC is now dutifully
implementing that initiative too. But I’m not sure the President realized that Cedar Falls Utilities, the
very municipal broadband provider he touted, thinks that Title II is a tremendous mistake.72 Well, now
he—and we—know better.
It’s for these reasons that the Small Business & Entrepreneurship Council, a nonprofit
organization representing nearly 100,000 small businesses nationwide, wrote to us that Title II “will
deeply erode investment and innovation, which will dramatically harm entrepreneurs and small
businesses.”73
It’s for these reasons that the National Black Chamber of Commerce, the National Gay & Lesbian
Chamber of Commerce, the U.S. Hispanic Chamber of Commerce, and the U.S. Pan Asian American
Chamber of Commerce wrote us that “Forcing the Internet into a Title II classification can only make it
more difficult for individuals to make the highest and best use of this important tool . . . . The last thing
small businesses in America need are more forms to fill out; more regulations to track; and more rules to
follow.”74
And it’s for these reasons that the trade associations for our nation’s smallest Internet service
providers asked the FCC last month to “conduct an en banc hearing to examine the significant economic

69

Letter from Randy Darwin Tilk, Utility Manager, Alta Municipal Broadband Communications, Alta, Iowa, Loras
Herrig, City Administrator, Bellevue Municipal Cable, Bellevue, Iowa, and 41 other municipal ISPs to the
Honorable Thomas Wheeler, Chairman, FCC, GN Docket Nos. 14-28, 10-127, at 1 (Feb. 10, 2015), available at
http://apps.fcc.gov/ecfs/document/view?id=60001028442.
70

Id. at 1.

71

Id. at 2.

72

See Editorial, Obama’s Favorite Internet Company, The Wall Street Journal (Feb. 5, 2015), available at
http://on.wsj.com/1KnkoBh; Matthew Patane, Obama-touted Iowa utility balks at FCC Internet plan, Des Moines
Register (Feb. 5, 2015), available at http://dmreg.co/1zg2VCS.
73

Small Business & Entrepreneurship Council Comments at 2.

74

National Black Chamber of Commerce et al. Comments at 2.

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impact of its proposals on small broadband providers.”75 I would have welcomed such an en banc
hearing. But like all other calls for greater transparency in this proceeding, this request was denied.
So what does the Order tell the Americans whose Internet service provider isn’t a Comcast, an
AT&T, a Google, or a Sprint? What does it tell those whose service will be more expensive as a direct
result of reclassification? What does it tell those who may lose their Internet service if their small
operator goes out of business? What does it tell those who worked for years to serve their community and
build a business, one that’s finally in the black? There’s no explanation. There’s not even an
acknowledgement. There’s just the smug assurance that it won’t be that bad.
C.
So while the FCC is abandoning a 20-year-old, bipartisan framework for keeping the Internet free
and open in favor of Great Depression-era legislation designed to regulate Ma Bell, at least the American
public is getting something in return, right? Wrong. The Internet is not broken. There is no problem for
the government to solve.
That the Internet works—that Internet freedom works—should be obvious to anyone with a Dell
laptop or an HP Desktop, an Apple iPhone or Microsoft Surface, a Samsung Smart TV or a Roku, a Nest
Thermostat or a Fitbit. We live in a time where you can buy a movie from iTunes, watch a music video
on YouTube, post a photo of your daughter on Facebook, listen to a personalized playlist on Pandora,
watch your favorite Philip K. Dick novel come to life on Amazon Streaming Video, help someone make
potato salad on KickStarter, check out the latest comic at XKCD, see what Seinfeld’s been up to on
Crackle, manage your fantasy football team on ESPN, get almost any question answered on Quora,
navigate bad traffic with Waze, and do literally hundreds of other things all with an online connection. At
the start of the millennium, we didn’t have any of this Internet innovation.
And no, the federal government didn’t build that. It didn’t trench the fiber. It didn’t erect the
towers. It didn’t string the cable from one pole to the next, and it didn’t design the routers that direct
terabits of data across the Internet each and every second. It didn’t invest in startups at the angel or seed
stage or Series A rounds. It didn’t code the webpages, the software, the applications, or the databases that
make the online world useful. And it didn’t create the content that makes going online so worthwhile.
For all intents and purposes, the Internet didn’t exist until the private sector took it over in the
1990s, and it’s been the commercial Internet that has led to the innovation, the creativity, the engineering
genius that we see today.
Nevertheless, the Order ominously claims that “[t]hreats to Internet openness remain today,” that
broadband providers “hold all the tools necessary to deceive consumers, degrade content or disfavor the
content that they don’t like,” and that the FCC continues “to hear concerns about other broadband
provider practices involving blocking or degrading third-party applications.”76
The evidence of these continuing threats? There is none; it’s all anecdote, hypothesis, and
hysteria. A small ISP in North Carolina allegedly blocked VoIP calls a decade ago. Comcast capped
BitTorrent traffic to ease upload congestion eight years ago. Apple introduced FaceTime over Wi-Fi first,
cellular networks later. Examples this picayune and stale aren’t enough to tell a coherent story about net
neutrality. The bogeyman never had it so easy.

75

Letter from Ross J. Lieberman, Senior Vice President of Government Affairs, American Cable Association, Lisa
Schoenthaler, Vice President for Association Affairs Office of Rural/Small Systems, and Stephen E. Coran, Counsel
for the Wireless Internet Service Providers Association, to the Honorable Tom Wheeler, Chairman, FCC, GN
Docket No. 14-28, at 1 (Jan. 9, 2015), available at http://apps.fcc.gov/ecfs/document/view?id=60001012562.
76

Order at para. 8.

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But the Order trots out other horribles: “[B]roadband providers have both the incentive and the
ability to act as gatekeepers,”77 “the potential to cause a variety of other negative externalities that hurt the
open nature of the Internet,”78 and “the incentive and ability to engage in paid prioritization”79 or other
“consumer harms.”80 The common thread linking these and countless other exhibits is that they simply do
not exist. One could read the entire document—and I did—without finding anything more than
hypothesized harms. One would think that a broken Internet marketplace would be rife with
anticompetitive examples. But the agency doesn’t list them. And it’s not for a lack of effort.
So what is there to fear? A sober reader might borrow from the father of Title II: “The only
thing we have to fear is fear itself.” But the FCC instead intones the nine scariest words for any friend of
Internet freedom: “I’m from the government, and I’m here to help.”
To put it another way, Title II is not just a solution in search of a problem—it’s a government
solution that creates a real-world problem. This is not what the Internet needs, and it’s not what the
American people want.
D.
So—that’s substance. A few words on process. When the Commission launched this
rulemaking, I said that we needed to “give the American people a full and fair opportunity to participate
in this process.”81 Unfortunately, over the course of the past nine months, we have fallen woefully short
of that standard.
Most importantly, the plan in front of us today was not formulated within this building through a
transparent notice-and-comment rulemaking process. Rather, The Wall Street Journal reports that it was
developed through “an unusual, secretive effort inside the White House.”82 Indeed, White House
officials, according to the Journal, functioned as a “parallel version of the FCC.”83 Their work led to the
President’s announcement in November of his plan for Internet regulation, a plan which “blindsided” the
FCC and “swept aside . . . months of work by [Chairman] Wheeler toward a compromise.”84
Therefore, all of the action at the Commission was just for show. Those filing comments, holding
publicly disclosed meetings with FCC officials, or participating in FCC roundtables were being led to
believe that their input would matter. But the joke was on them. While the media and the public were
focusing on events at the FCC, the real action was occurring behind closed doors at the White House.
Of course, a few insiders were clued in about what was transpiring. Just listen to what a leader
for the85 group Fight for the Future had to say: “We’ve been hearing for weeks from our allies in DC that
the only thing that could stop FCC Chairman Tom Wheeler from moving ahead with his sham proposal to
77

Order at para. 20.

78

Order at para. 83.

79

Order at para. 127.

80

Order at para. 200.

81

Protecting & Promoting the Open Internet, GN Docket No. 14-28, Notice of Proposed Rulemaking, 29 FCC Rcd
5561, 5656 (2014) (Notice) (Dissenting Statement of Commissioner Ajit Pai), available at http://go.usa.gov/3cpEj.
82

Gautham Nagesh & Brody Mullins, Net Neutrality: How White House Thwarted FCC Chief, Wall Street Journal,
(Feb. 4, 2015), available at http://on.wsj.com/16FXTcH.
83

Id.

84

Id.; see also Gautham Nagesh, FCC ‘Net Neutrality’ Plan Calls for More Power Broadband: Chairman Tom
Wheeler Considers Hybrid Approach to Internet Access, Wall Street Journal (Oct. 30, 2014) (“Mr. Wheeler is close
to settling on a hybrid approach, people close to the chairman say.”), available at http://on.wsj.com/1ES0YkT.
85

[[Intentionally omitted]].

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gut net neutrality was if we could get the President to step in. So we did everything in our power to make
that happen. We took the gloves off and played hard, and now we get to celebrate a sweet victory.”86
What the press has called the “parallel FCC” at the White House opened its doors to a plethora of
special-interest activists: Daily Kos, Demand Progress, Fight for the Future, Free Press, and Public
Knowledge, just to name a few.87 Indeed, even before activists were blocking Chairman Wheeler’s
driveway late last year, some of them had met with White House officials.88 But what about the rest of
the American people? They certainly couldn’t get White House meetings. They were shut out of the
process. They were being played for fools.
And the situation didn’t improve once the White House announced President Obama’s plan and
“ask[ed]” the FCC to “implement” it.89 The document in front of us today differs dramatically from the
proposal that the FCC put out for comment last May. It differs so dramatically that even net neutrality
advocates frantically rushed in recent days to make last-minute filings registering their concerns that the
FCC might be going too far.90 Yet the American people to this day have not been allowed to see
President Obama’s plan. It has remained secret.
Especially given the unique importance of the Internet, Commissioner O’Rielly and I asked for
the plan to be released to the public. Senate Commerce Committee Chairman John Thune and House of
Representatives Energy and Commerce Chairman Fred Upton requested this as well. And according to a
survey last week by a respected Democratic polling firm, 79% of the American people favored making
the document public.91 But still the FCC’s leadership has insisted on keeping it hidden. We have to pass
President Obama’s 317-page plan so that the American people can find out what is in it.
This isn’t how the FCC should operate. We should be an independent agency making decisions
in a transparent manner based on the law and the facts in the record. We shouldn’t be a rubber stamp for
political decisions made by the White House.
And we should have released this plan to the public, solicited their feedback, incorporated that
input into the plan, and then proceeded to a vote. There was no need for us to resolve this matter today.
There is no immediate crisis in the Internet marketplace that demands immediate action.
The backers of the President’s plan know this. But they also know that the details of this plan
cannot stand up to the light of day. They know that the more the American people learn about this plan,
the less they like it. That is why this plan was developed behind closed doors at the White House. And
that is why the plan has remained hidden from public view.

86

Kerry Picket, Obama’s Move to Regulate Internet Has Activists’ “Fingerprints All Over It,” The Daily Caller,
(Feb. 23, 2015), available at http://bit.ly/1zg6pFj.
87

Id.

88

Id.

89

See The White House, Net Neutrality: President Obama’s Plan for a Free and Open Internet,
https://web.archive.org/web/20150204034321/http://www.whitehouse.gov/net-neutrality (Nov. 10, 2014).
90

See, e.g., Letter from Austin C. Schlick, Director, Communications Law, Google Inc., to Marlene H. Dortch,
Secretary, FCC, GN Docket Nos. 14-28, 10-127 (Feb. 20, 2015), available at
http://apps.fcc.gov/ecfs/document/view?id=60001032150; Letter from Corynne McSherry, Intellectual Property
Director, Electronic Frontier Foundation, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 09-191, 14-28
(Feb. 19, 2015), available at http://apps.fcc.gov/ecfs/document/view?id=60001031536.
91

The Progressive Policy Institute, Press Release, New Survey Finds Americans Skeptical that FCC Regulation of
the Internet Will Be Helpful; Favor More Disclosure (Feb. 19, 2015), available at http://bit.ly/1FyPKoO.

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II.
There’s another reason the public does not know what rules the Order adopts. The Commission
never proposed them.
A.
Recall that last year’s Notice came on the heels of the D.C. Circuit’s Verizon decision, which
“struck down the ‘anti-blocking’ and ‘anti-discrimination’ rules,” holding that “the Commission had
imposed per se common carriage requirements on providers of Internet access services.”92 The purpose
of the Notice was to “respond directly to that remand and propose to adopt enforceable rules of the road,
consistent with the court’s opinion, to protect and promote the open Internet.”93 Or, as Chairman Wheeler
put it: “In response [to the Verizon decision], I promptly stated that we would reinstate rules that achieve
the goals of the 2010 Order using the Section 706-based roadmap laid out by the court. That is what we
are proposing today.”94
And it was. Every single proposal and every single tentative conclusion in the Notice was
tailored to avoid reclassification and to comply with the limits the Verizon court put on the Commission’s
authority under section 706 of the Telecommunications Act.
For example, the Notice proposed to define “blocking” as failing “to provide an edge provider
with a minimum level of access that is sufficiently robust, fast, and dynamic for effective use by end users
and edge providers.”95 It did so “to make clear that the no-blocking rule would allow individualized
bargaining above a minimum level of access,” which was “the revised rationale the court suggested would
be permissible rather than per se common carriage.”96 The Notice then devoted an entire section to
“establishing the minimum level of access under the no-blocking rule,”97 because “the [Verizon] court
suggested [such a rule] would be permissible rather than per se common carriage”98 and would be
“[c]onsistent with the court’s ruling.”99
The Notice was even more forthright that its proposed rule barring commercially unreasonable
practices was tied to the limits of the Verizon decision. Under that rule, the Commission would,
“consistent with the court’s decision, . . . permit broadband providers to engage in individualized
practices”—indeed, the “encouragement of individualized negotiation” was one of its “essential
elements.”100 The Notice tentatively concluded that such a rule was appropriate because the “court
underscored the validity of the ‘commercially reasonable’ legal standard”101 and “explained that such an
approach distinguished the data roaming rules at issue in Cellco from common carrier obligations.”102 Or
as the Notice put it: “The core purpose of the legal standard that we wish to adopt . . . is to effectively
92

Notice, 29 FCC Rcd at 5569, para. 23 (citing Verizon v. FCC, 740 F.3d 623, 656–59 (D.C. Cir. 2014)).

93

Notice, 29 FCC Rcd at 5569, para. 24.

94

Notice, 29 FCC Rcd at 5647 (Statement of Chairman Tom Wheeler).

95

Notice, 29 FCC Rcd at 5627 (Proposed Rule § 8.11(a)).

96

Notice, 29 FCC Rcd at 5595, para. 95.

97

Notice, 29 FCC Rcd at 5596, Section III.D.3 (capitalizations omitted); see Notice 29 FCC Rcd at 5596–98, paras.
97–104 (discussing the proposed minimum-level-of-access requirement).
98

Notice, 29 FCC Rcd at 5595, para. 95.

99

Notice, 29 FCC Rcd at 5596, para. 97.

100

Notice, 29 FCC Rcd at 5599–5600, para. 111.

101

Notice, 29 FCC Rcd at 5599, para. 110.

102

Notice, 29 FCC Rcd at 5602, para. 116.

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employ the authority that the Verizon court held was within the Commission’s power under section
706.”103 Or as the title of that subpart put it even more bluntly: The goal of the FCC was “codifying an
enforceable rule to protect the open Internet that is not common carriage per se.”104
If this weren’t enough, the FCC “propose[d] that the Commission exercise its authority under
section 706, consistent with the D.C. Circuit’s opinion in Verizon v. FCC, to adopt our proposed rules”105
and then cited section 706 of the Telecommunications Act—but not a single provision of Title II—in the
Notice’s ordering clauses.106 And it affirmatively proposed to remove several legal provisions from the
“authority” section of our Part 8 “Open Internet” rules—including all references to Title II—and leave
section 706 of the Telecommunications Act as the prime authority for the proposed rules.107
In all, the Notice cited or quoted the Verizon decision 52 separate times,108 proposed two pages of
rules that would be consistent with that decision and within the Commission’s section 706 authority,109
and reiterated in tentative conclusion after tentative conclusion that the FCC should tread no further than
the limits the Verizon court set on the FCC’s authority under section 706.
Contrast that with today’s decision. The entire Order is premised on the reclassification of
broadband Internet access service as a Title II, telecommunications service. Accordingly, none of these
rules follow the section 706-based roadmap laid out by the Verizon court, and none of them purport to do
so.110 As a result, instead of a minimum-level-of-access rule (that would follow the roadmap), the Order
adopts the flat no-blocking rule that the Verizon court overturned.111 Instead of the rule against
commercially unreasonable practices, which was intended to encourage “individualized negotiation,” the
Order adopts a flat ban on individual negotiations through a no-paid-prioritization rule.112 And rather
than limiting the new rules to those proposed in the Notice, the Order also adopts a never-before-

103

Notice, 29 FCC Rcd at 5602, para. 118.

104

Notice, 29 FCC Rcd at 5599, Subpart III.E (capitalizations omitted); see also Notice, 29 FCC Rcd at 5602–10,
paras. 116–41 (discussing the proposed no-commercially-unreasonable-practices rule).
105

Notice, 29 FCC Rcd at 5610, para. 142.

106

Notice, 29 FCC Rcd at 5625, para. 183 (“Accordingly, IT IS ORDERED, pursuant to sections 1, 2, 4(i)–(j), 303
and 316 of the Communications Act of 1934, as amended, and section 706 of the Telecommunications Act of 1996,
as amended, 47 U.S.C. §§ 151, 152, 154(i)–(j), 303, 316, 1302, that this Notice of Proposed Rulemaking IS
ADOPTED.”). Title II of the Act consists of sections 201 through 276, 47 U.S.C. §§ 201–276.
107

Compare 47 C.F.R. Part 8 (“Authority: 47 U.S.C. secs. 151, 152, 153, 154, 201, 218, 230, 251, 254, 256, 257,
301, 303, 304, 307, 309, 316, 332, 403, 503, 522, 536, 548, 1302.”), with Notice, 29 FCC Rcd at 5626 (“Part 8 of
Title 47 of the Code of Federal Regulations is amended to read as follows: . . . AUTHORITY: 47 U.S.C. §§ 151,
152, 154(i)–(j), 303, 316, 1302.”). Note that section 706 of the Telecommunications Act has been unofficially
codified at 47 U.S.C. § 1302.
108

See Notice, 29 FCC Rcd at 5564, n.11; 5569, nn.42–48; 5571, nn.58–59; 5574, n.88; 5576, nn.97–100; 5577,
n.101; 5579, nn. 111, 114; 5580, n.122; 5581, n.125; 5585, n.153; 5593, n.200; 5594, nn.206–12; 5595, n.213; 5596,
nn.219, 221, 223; 5599, n.231; 5600, nn.236–37; 5601, nn.238–39, 241–42; 5602, nn.244–47; 5608, n.270; 5610,
n.282; 5612, nn.291–94; 5613, n.296; 5615, n.309.
109

Notice, 29 FCC Rcd at 5626–27 (Appendix A: Proposed Rules).

110

Although the general Internet conduct rule does claim that it should not be read to constitute common carriage
per se, the Order concedes that the rule “represents our interpretation of these 201 and 202 obligations in the open
Internet context,” Order at para. 295—which is to say that it too is premised on reclassification.
111

Order at paras. 113–15.

112

Order at para. 125.

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proposed no-throttling rule113 and a wholly new no-unreasonable-interference-or-unreasonabledisadvantage standard for Internet conduct.114
Given this new legal justification, it’s no wonder that the FCC now feels compelled to cite nine
new sources of legal authority for adopting the Order, invoking sections 201 and 202 of Title II along
with sections 3, 10, 301, 332, 403, 501, and 503 of the Communications Act.115 Nor that the final rules
purport to rely on 20 sections of the Communications Act that were not included in the original proposal,
including several sections not discussed even once in the Notice.116
In sum, the Notice proposed “the terms . . . of the proposed rule” and a “reference to the legal
authority under which the rule is proposed.”117 But the Order adopts something completely different.
That’s not what the Administrative Procedure Act envisions.
B.
None of this is to say that the Commission had to adopt the exact same rules under the precise
rationale proposed in the Notice. Of course, the adopted rules may be the “logical outgrowth” of the
original proposal.118 But the Order’s decision to reclassify, to forbear, and to adopt rules grounded in
Title II is a reversal of the proposals and tentative conclusions in the Notice, not a natural evolution.
The standard is whether all interested parties “should have anticipated” the final rule.119 The
question “is one of fair notice”120: whether “persons are sufficiently alerted to likely alternatives so that
they know whether their interests are at stake.”121 In other words, “general notice that a new standard will
be adopted affords the parties scant opportunity for comment”—the “agency’s obligation is more
demanding.”122
Although the agency dutifully recites that standard,123 at points it seems to apply a different one:
something akin to asking whether parties could have anticipated the final rule.124 In essence, the Order

113

Order at para. 119.

114

Order at paras. 133, 136.

115

Order at para. 583.

116

Compare Notice, 29 FCC Rcd at 5626 (“Part 8 of Title 47 of the Code of Federal Regulations is amended to read
as follows: . . . AUTHORITY: 47 U.S.C. §§ 151, 152, 154(i)–(j), 303, 316, 1302”), with Order at Appendix A (“The
authority citation for part 8 is amended to read as follows: AUTHORITY: 47 U.S.C. §§ 151, 152, 153, 154, 201,
202, 208, 218, 230, 251, 254, 256, 257, 301, 303, 304, 307, 309, 316, 332, 403, 503, 522, 536, 548, 1302.”). The
Notice made no mention whatsoever of sections 218, 251, 256, 257, 301, 304, 307, 403, 503, 522, and 536.
117

5 U.S.C. § 553(b)(2)–(3).

118

See, e.g., Crawford v. FCC, 417 F.3d 1289, 1295 (D.C. Cir. 2005).

119

Northeast Maryland Waste Disposal Authority v. EPA, 358 F.3d 936, 952 (D.C. Cir. 2004) (per curiam)
(emphasis added) (internal quotation marks omitted); see also Council Tree Communications v. FCC, 619 F.3d 235,
256 (3d Cir. 2010) (“[E]ven if some sophisticated observers would have seen the connection between the stricter
compliance that had been noticed and the lower standards eventually announced, the proper question under the APA
was whether the agency had provided notice to all ‘interested parties.’ . . . [T]he inferential notice purportedly
provided . . . did not satisfy that standard.” (quoting Wagner Electric Corp. v. Volpe, 466 F.2d 1013, 1019 (3d Cir.
1972))).
120

Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007).

121

Time Warner Cable Inc. v. FCC, 729 F.3d 137, 170 (2d Cir. 2013) (internal quotation marks omitted).

122

Horsehead Resource Development Co., Inc. v. Browner, 16 F.3d 1246, 1268 (D.C. Cir. 1994).

123

Order at para. 539.

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suggests an agency may adopt any rule unless it was impossible for anyone to anticipate that rule. No
court, to my knowledge, has ever endorsed such a standard. And it’s easy to see why: Such a standard
would give an agency a tremendous incentive to outline its proposals in broad and vague terms to expand
the realm of possibility. Notices of proposed rulemaking could be nothing more than a single sentence:
“We propose to regulate XYZ.”
Here’s an illustration of how those standards differ. Say you and a friend are in Kansas. The two
of you have been talking every day for months about how wonderful it would be to visit San Francisco.
One day, your friend brings up San Francisco yet again and says “Say, we’ve talked enough about this. I
propose we go on a cross-country drive. Do you want to come?” Eager to go west, you say yes. You get
in the car, fall asleep for a few hours, and wake up to find that . . . you’re heading east toward Boston!
“Wait,” you protest, “I thought we were heading to San Francisco!” Your friend replies: “Well, I
proposed merely that we go on a cross-country drive. I know we’d been talking every day for months
about San Francisco, but you could have realized that I had Boston in mind.” Deflated, you retort: “But
should I have? Shouldn’t you have told me we were heading to Boston and given me a chance to say yes
or no before we hit the road?”
Here’s another one. Say a government agency seeks competitive bids to build a suspension
bridge. The request for proposals details how the suspension bridge should be built but reserves the right
to build another type of bridge instead. Could a bidder anticipate that the government will hire someone
to build an arch bridge through this RFP? Perhaps. But what should bidders expect? That if the agency
decides not to build the proposed suspension bridge, it will issue a new RFP. Otherwise, a serious bidder
would be obligated to draw plans and submit a proposal for each and every type of bridge feasible—thus
reducing the quality of each response since every bidder would need to spread its resources anticipating
possibilities rather than focusing on the proposal at hand.
Indeed, courts have repeatedly held that “if the final rule deviates too sharply from the proposal,
affected parties will be deprived of notice and an opportunity to respond to the proposal.”125 And so when
a notice of proposed rulemaking has “clearly stated that the FCC intended to adopt [a proposed rule]” and
“even recited the rationale for the proposed rule,” the courts have reversed the Commission when “the
final rule took a contrary position.”126
The Order’s primary retort appears to be that—alongside its section 706-based proposals and
tentative conclusions—the Notice sought comment on alternatives.127 As the Order puts it, the Notice
“proposed to rely on section 706 of the Telecommunications Act of 1996, but at the same time stated that
it would ‘seriously consider the use of Title II of the Communications Act as the basis for legal authority.’
(Continued from previous page)
124
Compare, e.g., Order at para. 37 (“[O]ur forbearance approach results in over 700 codified rules being
inapplicable . . . .”), with Order at para. 540 (claiming notice for such a result based on two sentences seeking
general comment “on the extent to which forbearance from certain provisions of the Act or our rules would be
justified”); see also Order at note 1671 (arguing that the FCC used “slightly different wording to the same effect”
when it had previously endorsed a “could have anticipated” standard).
125

Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547 (D.C. Cir. 1983).

126

National Black Media Coalition v. FCC, 791 F.2d 1016, 1022 (2d. Cir. 1986).

127

As the Order points out, almost every section of the Notice included a generic paragraph seeking comment on
alternatives. For example, the Order points to paragraph 96 of the Notice, which spends six sentences discussing
possible alternatives for how to define a no-blocking rule and then one sentence asking commenters to “address the
legal bases and theories, including Title II, that the Commission could rely on for such a no-blocking rule, and how
different sources of authority might lead to different formulations of the no-blocking rule.” Notice, 29 FCC Rcd at
5595–96, para. 96 (cited by Order at note 1100). Such back-of-the-hand mentions are hardly sufficient to apprise
commenters on the hows, the whats, and the whys of reclassification, and so I focus on the Notice’s most fulsome
discussion instead.

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The [Notice] sought comment on the benefits of both section 706 and Title II, and emphasized its
recognition that ‘both section 706 and Title II are viable solutions.’”128
It’s true that the Notice sought comment on reclassification. Here is that entire discussion:
Title II—Revisiting the Classification of Broadband Internet Access Service. In a series
of decisions beginning in 2002, the Commission has classified broadband Internet access
service offered over cable modem, DSL and other wireline facilities, wireless facilities,
and power lines as an information service, which is not subject to Title II and cannot be
regulated as common carrier service. In 2010, following the D.C. Circuit’s Comcast
decision, the Commission issued a Notice of Inquiry (2010 NOI) that, among other
things, asked whether the Commission should revisit these decisions and classify a
telecommunications component service of wired broadband Internet access service as a
“telecommunications service.” The Commission also asked whether it should similarly
alter its approach to wireless broadband Internet access service, noting that section 332
requires that wireless services that meet the definition of “commercial mobile service” be
regulated as common carriers under Title II. In response, the Commission received
substantial comments on these issues. We now seek further and updated comment on
whether the Commission should revisit its prior classification decisions and apply Title II
to broadband Internet access service (or components thereof). How would such a
reclassification approach serve our goal to protect and promote Internet openness? What
would be the legal bases and theories for particular open Internet rules adopted pursuant
to such an approach? Would reclassification and applying Title II for the purpose of
protecting and promoting Internet openness impact the Commission’s overall policy
goals and, if so, how?
What factors should the Commission keep in mind as it considers whether to revisit its
prior decisions? Have there been changes to the broadband marketplace that should lead
us to reconsider our prior classification decisions? To what extent is any
telecommunications component of that service integrated with applications and other
offerings, such that they are “inextricably intertwined” with the underlying connectivity
service? Is broadband Internet access service (or any telecommunications component
thereof) held out “for a fee directly to the public, or to such classes of users as to be
effectively available directly to the public?” If not, should the Commission compel the
offering of such functionality on a common carrier basis even if not offered as such? For
mobile broadband Internet access service, does that service fit within the definition of
“commercial mobile service”? We also note that on May 14, 2014, Representative Henry
Waxman, Ranking Member of the Committee on Energy and Commerce of the U.S.
House of Representatives, sent a letter to Chairman Wheeler proposing an approach to
protecting the open Internet whereby the Commission would proceed under section 706
but use Title II as a “backstop authority.” We seek comment on the viability of that
approach.129
If these two paragraphs, tucked into an 85-page document, are sufficient notice to discard the
regulatory framework for Internet access services that the Commission has relied on for almost two
decades—a framework the FCC has affirmed time130 and again131 and again132 and again133 and again134—
128

Order at para. 327 (quoting Notice, 29 FCC Rcd at 5563, para. 4) (footnotes omitted).

129

Notice, 29 FCC Rcd at 5613–14, paras. 149–50 (footnotes omitted).

130

See Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Report to Congress, 13 FCC Rcd
11501 (1998) (Stevens Report) (classifying Internet access service).
131

See Inquiry Concerning High-Speed Access to the Internet Over Cable & Other Facilities; Internet Over Cable
Declaratory Ruling; Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities,
(continued….)

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and the myriad of related precedents and agency rules, then the FCC (and likely every federal agency) has
been doing notice-and-comment rulemaking wrong for decades. I am not aware of, and the Order does
not cite, one single notice of proposed rulemaking that the Commission has issued that is so abbreviated.
Nor one that would reverse so much precedent with so little analysis. Nor one whose consequences
would be so far reaching (and collateral impacts so many) with so little discussion. Just look at the
Notice’s detailed discussion of the FCC’s section 706 authority to see how we normally tee up a
proposal.135 Or look at the 83-paragraph notice of proposed rulemaking that preceded the classification of
wireline broadband Internet access service as an information service to see how we normally tee up a new
regulatory framework.136 The contrast could not be starker.137
The failure of the Notice to properly frame the Title II proposal matters. Indeed, “[a]n agency
adopting final rules that differ from its proposed rules is required to renotice when the changes are so
major that the original notice did not adequately frame the subjects for discussion. The purpose of the
new notice is to allow interested parties a fair opportunity to comment upon the final rules in their altered
form.”138
And given the Notice’s framing, I simply cannot understand how any commenter could have
anticipated—let alone should have anticipated—the 128 paragraphs of the Order that explain the
Commission’s rationale for reclassification and the ramifications of that decision.139 Search the Notice’s
two paragraphs as I might, I cannot ferret out any discussion of the three factual changes that have led to
the Commission’s determination today—namely, “(1) consumer conduct, . . . (2) broadband providers’
marketing and pricing strategies . . . and (3) the technical characteristics of broadband Internet access
service.”140 Nor can I find any discussion of how Domain Name System (DNS) service, caching, or any
other feature of broadband Internet access service falls into the telecommunications system management
(Continued from previous page)
GN Docket No. 00-185, CS Docket No. 02-52, Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCC
Rcd 4798 (2002) (Cable Modem Order) (classifying broadband Internet access service over cable systems), aff’d
sub nom. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005).
132

See Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities et al., CC Docket
Nos. 02-33, 01-337, 95-20, 98-10, WC Docket Nos. 04-242, 05-271, Report and Order and Notice of Proposed
Rulemaking, 20 FCC Rcd 14853 (2005) (Wireline Broadband Internet Access Services Order) (classifying
broadband Internet access service over wireline facilities).
133

See United Power Line Council’s Petition for Declaratory Ruling Regarding the Classification of Broadband
over Power Line Internet Access Service as an Information Service, WC Docket No. 06-10, Memorandum Opinion
and Order, 21 FCC Rcd 13281 (2006) (classifying broadband Internet access service over power lines).
134

See Appropriate Regulatory Treatment for Broadband Access to the Internet Over Wireless Networks, WT
Docket No. 07-53, Declaratory Ruling, 22 FCC Rcd 5901 (2007) (Wireless Broadband Internet Access Order)
(classifying broadband Internet access service over wireless networks).
135

Notice, 29 FCC Rcd at 5610–12, paras. 143–47.

136

Appropriate Framework for Broadband Access to the Internet over Wireline Facilities; Universal Service
Obligations of Broadband Providers, CC Docket Nos. 02-33, 95-20, 98-10, Notice of Proposed Rulemaking, 17
FCC Rcd 3019 (2002).
137

Accord Council Tree Communications v. FCC, 619 F.3d 235, 254 (3d Cir. 2010) (holding that the FCC failed to
provide APA notice for a rule after “find[ing] it instructive that the FCC had previously solicited broader comment
on” the point covered by the rule “and in much more specific terms than it did here” and observing that “[t]he
contrast could not be more stark”).
138

Connecticut Light & Power Co. v. Nuclear Regulatory Commission, 673 F.2d 525, 533 (D.C. Cir. 1982).

139

Order at paras. 306–433. Note that I exclude from this discussion any mention of forbearance, which I address
below.
140

Order at para. 330; see also Order at paras. 346–54.

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exception to the definition of information service (or even any discussion of the meaning of that
exception).141 Nor can I find any discussion of the benefits reclassification would have for broadband
investment.142 Nor can I find any discussion of what reclassification means for state or local regulation of
broadband services.143 Nor can I find any mention that the FCC’s past “predictive judgments . . .
anticipating vibrant intermodal competition” were wrong.144
To get to the point: Could someone reading the Notice have anticipated the FCC might reject its
past proposals and tentative conclusions and instead pursue reclassification? Perhaps. Anything is
possible. But should the public have anticipated the FCC would move forward with reclassification
without issuing a Further Notice of Proposed Rulemaking? Surely not. The Notice itself left just too
many questions unanswered—and too many questions unasked for that matter.
To be clear, the deficiencies in the Notice were not the product of incompetence. Rather, they
reflect the fact that the agency was headed in a different direction until political pressure was applied to
the Commission last November. Specifically, President Obama’s endorsement of Title II forced a change
in the FCC’s approach.145 Indeed, the agency was publicly considering a so-called “hybrid” approach on
the day of the President’s announcement146 and was reportedly pursuing such an approach even in the

141

Order at paras. 366–75.

142

Order at paras. 409–25.

143

Order at paras. 430–33.

144

Order at para. 330. To be sure, that last omission is understandable. The FCC could not have mentioned that
point until just 22 days before this vote, when the agency decided to hike the standard for what qualifies as
broadband Internet access service from 4 Mbps to 25 Mbps, excluding in one fell swoop all wireless and most
wireline operators from the market. Inquiry Concerning the Deployment of Advanced Telecommunications
Capability to All Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate Such
Deployment Pursuant to Section 706 of the Telecommunications Act of 1996, as Amended by the Broadband Data
Improvement Act, GN Docket No. 14-126, 2015 Broadband Progress Report and Notice of Inquiry on Immediate
Action to Accelerate Deployment, FCC 15-10 (rel. Feb. 4, 2015) (2015 Broadband Progress Report), available at
http://go.usa.gov/3ay5d. Indeed, the agency still has not published that decision in the Federal Register and the
public still has more than a month before the comment period closes on the accompanying notice of inquiry. Id.
(establishing a deadline for initial comments of March 6, 2015, and a deadline for replies for April 6, 2015).
145

Gautham Nagesh and Brody Mullins, Net Neutrality: How White House Thwarted FCC Chief, The Wall Street
Journal (Feb. 4, 2015) (“In November, the White House’s top economic adviser dropped by the Federal
Communications Commission with a heads-up for the agency’s chairman, Tom Wheeler. President Barack Obama
was ready to unveil his vision for regulating high-speed Internet traffic. The specifics came four days later in an
announcement that blindsided officials at the FCC.”), available at http://on.wsj.com/16FXTcH. It strains credulity
to think otherwise; had the agency been on track to adopt the President’s plan all along, there would have been no
need for him to “la[y] out a plan to do [Title II]” and (critically) “ask[] the FCC to implement it.” The White House,
Net Neutrality: President Obama’s Plan for a Free and Open Internet,
https://web.archive.org/web/20150204034321/http://www.whitehouse.gov/net-neutrality (Nov. 10, 2014).
146

FCC Chairman Tom Wheeler’s Statement on President Barack Obama’s Statement Regarding Open Internet
(Nov. 10, 2014), available at https://apps.fcc.gov/edocs_public/attachmatch/DOC-330414A1.pdf.

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days after that announcement147—only to succumb to executive branch entreaties when pen was put to
paper.148
But the Commission cannot credibly claim APA notice from the White House’s November 10
YouTube announcement of “President Obama’s Plan for a Free and Open Internet.”149 Although that
announcement did (unlike the Notice) propose reclassification under Title II150 and did (again unlike the
Notice) propose “bright-line” no-blocking, no-throttling, and no-paid-prioritization rules,151 I can find no
record of the FCC voting on that proposal, publishing it in the Federal Register, nor soliciting the public
for comment.
Nor, for that matter, can the Order point to Chairman Wheeler’s February 4 editorial on
Wired.com explaining “This Is How We Will Ensure Net Neutrality.”152 Although that announcement

147

See Brian Fung, How Obama’s net neutrality comments undid weeks of FCC work, Washington Post (Nov. 14,
2014) (“Three people who met with [FCC Chairman Tom] Wheeler in the days after the president’s statement say he
was ‘adamant’ that all options remain on the table—but they also walked away with the impression that the
chairman is still not ready to give up on the agency’s hybrid proposal. ‘He certainly referred to the hybrid
glowingly,’ said one official, who met with Wheeler late this week and spoke on condition of anonymity to speak
freely about the gathering. ‘If we had to bet where he’s heading, it’s still the hybrid.’”), available at
http://wapo.st/1alNQed.
148

Indeed, the agency did not think it could prohibit paid prioritization—the bête noire of net neutrality
proponents—under Title II before the President’s announcement. As the Chairman testified to Congress less than a
week after the Commission adopted the Notice, “[t]here is nothing in Title II that prohibits paid prioritization.”
Hearing before the Subcommittee on Communications and Technology of the United States House of
Representatives Committee on Energy and Commerce, “Oversight of the Federal Communications Commission,”
Video at 44:56 (May 20, 2014), available at http://go.usa.gov/3aUmY. And he was right: Title II makes clear that
“different charges may be made for the different classes of communications.” Communications Act § 201(b). And
there’s more than a century of precedent that common carriers may charge different rates for different services. See,
e.g., Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local
Public Safety Agency Communication Requirements Through the Year 2010; Establishment of Rules and
Requirements for Priority Access Service, WT Docket No. 96-86, Second Report and Order, 15 FCC Rcd 16720
(2000) (finding Priority Access Service, a wireless priority service for both governmental and non-government
public safety personnel, “prima facie lawful” under section 202); Access Charge Reform; Price Cap Performance
Review for Local Exchange Carriers; Interexchange Carrier Purchases Of Switched Access Services Offered By
Competitive Local Exchange Carriers; Petition of US West Communications, Inc. for Forbearance from Regulation
as a Dominant Carrier in the Phoenix, Arizona MSA, CC Docket Nos. 96-262, 94-1, 98-157, CCB/CPD File No. 9863, 14 FCC Rcd 14221 (1999) (granting dominant carriers pricing flexibility or special access services, allowing
both higher charges for faster connections as well as individualized pricing and customers discounts); GTE
Telephone Operating Companies Tariff F.C.C. No. 1 et al., Transmittal Nos. 900, 102, 519, 621, 9 FCC Rcd 5758
(Common Carrier Bur. 1994) (approving tariffs for Government Emergency Telephone Service(GETS), a prioritized
telephone service, and additional charges therefor); see also, e.g., Interstate Commerce Commission v. Baltimore &
O.R. Co., 145 U.S. 263, 283–84 (1892) (noting that common carriers are “only bound to give the same terms to all
persons alike under the same conditions and circumstances” and that “any fact which produces an inequality of
condition and a change of circumstances justifies an inequality of charge”).
149

The White House, Net Neutrality: President Obama’s Plan for a Free and Open Internet,
https://web.archive.org/web/20150204034321/http://www.whitehouse.gov/net-neutrality (Nov. 10, 2014).
150

Id. (“I believe the FCC should reclassify consumer broadband service under Title II of the Telecommunications
Act . . . .”).
151

Id. (“The rules I am asking for are simple, common-sense steps that reflect the Internet you and I use every day,
and that some ISPs already observe. These bright-line rules include: No blocking. . . . No throttling. . . . No paid
prioritization.”).
152

Tom Wheeler, FCC Chairman Tom Wheeler: This Is How We Will Ensure Net Neutrality, Wired,
http://wrd.cm/1EGifR4 (Feb. 4, 2015) (“[T]he time to settle the Net Neutrality question has arrived. This week, I
(continued….)

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did (unlike the Notice) propose reclassification under Title II153 and did (again unlike the Notice) propose
“bright-line” no-blocking, no-throttling, and no-paid-prioritization rules,154 I again can find no record of
the FCC voting on that proposal, publishing it in the Federal Register, nor soliciting the public for
comment.
Some of us at the FCC have seen this movie before. About one month before concluding the
FCC’s 2006 media ownership proceeding, then-FCC Chairman Kevin Martin published an editorial in
The New York Times unveiling his own proposal for revising the newspaper/broadcast cross-ownership
rule. In its Prometheus decision, the Third Circuit explained that the editorial “did not satisfy the APA’s
notice requirements. The proposal was not published in the Federal Register, the views expressed were
those of one person and not the Commission, and the Commission voted days after substantive responses
were filed, allowing little opportunity for meaningful consideration of the responses before the final rule
was adopted.”155 It then went on: “Although it was clear from [several Commission notices], taken
together, that the Commission was planning to overhaul its approach to newspaper/broadcast crossownership, they did not contain enough information about what it was planning to do, or the options it
was considering, to provide the public with a meaningful opportunity to comment. Until Chairman
Martin’s November 2007 personal Op-Ed/Press Release, the public did not know even what options he
was considering, let alone the Commission.”156 If anything, Chairman Martin provided more notice than
has been offered in this proceeding. There, he made public the exact text of his proposed
newspaper/broadcast cross-ownership rule. Here, the details of the Chairman’s complex proposal have
remained shrouded in mystery.
Indeed, it was widely reported that the Commission strongly considered seeking additional
comment because of the notice problems.157 In an email sent to the press, a “commission spokeswoman”
described a blog post that Chairman Wheeler published just hours after President Obama called for
reclassification and said: “The Chairman said in his statement last Monday that there is more work to do
and substantive legal questions to answer.” She then added that “[t]he Commission is considering the
best way to invite additional comments on those questions.”158 But ultimately, after even more political
(Continued from previous page)
will circulate to the members of the Federal Communications Commission (FCC) proposed new rules to preserve
the internet as an open platform for innovation and free expression.”).
153

Id. (“I am proposing that the FCC use its Title II authority to implement and enforce open internet protections.”).

154

Id. (“These enforceable, bright-line rules will ban paid prioritization, and the blocking and throttling of lawful
content and services.”).
155

Prometheus Radio Project v. FCC, 652 F.3d 431, 450 (3d Cir. 2011).

156

Id. at 451.

157

See, e.g., Jesse Jackson Urges Wheeler Against Title II, Communications Daily (Nov. 19, 2014) (“Several
involved in the net neutrality debate have said in recent days that they expect the agency, in light of Wheeler’s
statement last week, to seek additional comments in the proceeding.”); Lydia Beyoud, Obama’s Call for Title II
Reclassification Forces Rulemaking Delay, Bloomberg BNA (Nov. 12, 2014) (“Several sources said that [figuring
out a way forward] could involve an additional public comment period, whether from a further notice of proposed
rulemaking or through a public notice at the bureau level.”), available at http://bit.ly/17zHLcC; Laura Ryan,
Brendan Sasso and Dustin Volz, What’s Next in the Never-Ending Net Neutrality Fight, National Journal (Nov. 11,
2014) (“An FCC official said the chairman hasn’t decided yet whether he’ll need to issue a further notice of
proposed rule-making before moving on to final rules.”), available at http://bit.ly/1AsB4EA; No December Vote:
Obama Wants Title II; Wheeler Says There are Issues to Be Resolved, Communications Daily (Nov. 12, 2014)
(“[S]ome industry attorneys said the agency may seek even more comments.”); id. (“Some industry attorneys said
the commission may open up . . . [the] proceeding . . . to another round of comments to bolster the record for
classification.”).
158

Jesse Jackson Urges Wheeler Against Title II, Communications Daily (Nov. 19, 2014).

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pressure was put on the agency to move forward without seeking comment,159 the agency decided to plow
ahead.
So here we are. We are moving forward with an Order the contours of which no one could have
or should have anticipated, considering how drastically different the Notice’s proposals were. The FCC
proposed to the public a cross-country trip to San Francisco. Only after the car was on the road did the
public realize the agency was taking it to Boston.
C.
The failure of notice extends beyond the rules and rationale to discrete decisions littered
throughout the Order. Rather than cataloging each and every failure, I’ll give three examples to illustrate
just how far afield the Order has strayed from the Notice: (1) its application of forbearance to broadband
Internet access service; (2) the treatment of Internet traffic exchange (or IP interconnection); and (3) the
new definition of the statutory term “the public switched network.”
1. Forbearance Applied to Broadband Internet Access Service.—Consider the application of
forbearance to broadband Internet access service. To be sure, the Notice included three paragraphs
seeking comment on “the extent to which forbearance from certain provisions of the Act or our rules
would be justified in order to strike the right balance between minimizing the regulatory burden on
providers and ensuring that the public interest is served,”160 asked whether forbearance should differ for
mobile broadband services,161 and identified six sections of Title II that might be “excluded from
forbearance.”162 But as the courts have told us before, even if it was “clear from those sources, taken
together, that the Commission was” considering forbearance, “they did not contain enough information
about what it was planning to do, or the options it was considering, to provide the public with a
meaningful opportunity to comment.”163
For one, the Order’s forbearance decisions are expansive, encompassing at least 49 separate
decisions. The Order decides, for example, that sections 201 (in part), 202 (in part), 206, 207, 208, 209,
214(e), 216, 217, 222, 224 (including subsection (e)), 225 (but not subparagraph (d)(3)(B)), 229, 230,
251(a)(2), 254 (but not the first sentence of subsection (d) nor subsections (g) or (k)), 255, 257, 276, and
309(b) & (d)(1) of the Communications Act will apply to broadband Internet access service.164 That’s 20
separate sections that will apply in whole or part, 14 more than mentioned in the Notice. The Order then
goes on to temporarily forbear, in whole or part, from applying 15 sections165 and to permanently forbear,
159

See, e.g., Mario Trujillo, Dems to FCC: ‘Time for action’ on Web reclassification, The Hill (Dec. 18, 2014),
available at http://bit.ly/1GwPOTF; see also No December Vote: Obama Wants Title II; Wheeler Says There are
Issues to Be Resolved, Communications Daily (Nov. 12, 2014) (“Heartened by Obama’s statement, Title II
advocates pressed the agency to quickly move ahead with approving net neutrality rules involving
reclassification.”).
160

Notice, 29 FCC Rcd at 5615–16, para. 153.

161

Notice, 29 FCC Rcd at 5616, para. 155.

162

Notice, 29 FCC Rcd at 5616, para. 154.

163

Prometheus Radio Project v. FCC, 652 F.3d 431, 451 (3d Cir. 2011).

164

See Order at paras. 441 (sections 201 and 202); 453 (sections 206, 207, 208, 209, 216, and 217); 463 (section
222); 469 (section 225); 472 (sections 251(a)(2) and 255); 478 (section 224); 481 (section 224(e)); 486 (sections
214(e) and 254); 521 (section 276); 531 (section 257); 532 (section 230(c)); 533 (section 229); 535–36 (sections
309(b) and (d)(1)).
165

See Order at paras. 470 (section 225(d)(3)(B)); 488 (section 254(d)’s first sentence); 497 (section 203); 505
(section 204); 506 (section 205); 508 (sections 211, 213, 215, 218, 219, 220); 509–12 (section 214 except for
subsection (e)); 513 (section 251 except for subsection (a)(2), section 256); 515 (section 258). The Order makes
clear that forbearance from each of these provisions is only appropriate “at this time,” “for now,” or “on this
record.”

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in whole or part, from 14 more.166 And that’s just the provisions of the Act! The Order also forbears
from some of the Commission’s rules,167 applies others,168 forbears from conducting certain further
rulemakings,169 and commits to commencing still others.170 To suggest that any party could have or
should have anticipated the byzantine dictates that the Order takes 103 paragraphs over 62 pages to
explain,171 based on three high-level paragraphs in the Notice, is simply implausible.
For another, no party could have anticipated the Commission’s rationale for forbearing from
some provisions but not others based on the Notice.172 The Notice gave no rationale for when forbearance
might be appropriate under these particular circumstances. Instead, it asked commenters to provide a
“justification for the forbearance” and told commenters to “define the relevant geographic and product
markets in which the services or providers should receive forbearance.”173 In other words, this isn’t even
a case where the agency has “simply propose[d] a rule and state[d] that it might change that rule without
alerting any of the affected parties to the scope of the contemplated change, or its potential impact and
rationale, or any other alternatives under consideration.”174 Here, the Notice proposed nothing at all and
asked commenters for forbearance proposals—and the Order now adopts some but not all of those
proposals using a rationale never before explained.175 The “‘logical outgrowth’ doctrine does not extend
to a final rule that finds no roots in the agency’s proposal because ‘[s]omething is not a logical outgrowth
of nothing.’”176
And to put it lightly, this isn’t how forbearance usually works. When the Commission has
previously forborne as part of a rulemaking, the underlying notice has sought specific comment on
whether the FCC should forbear from applying a particular statutory provision to a particular class of
carriers and has specified why such forbearance may be appropriate.177 Indeed, when the FCC first
applied forbearance to commercial mobile services, it commenced that proceeding with a detailed notice
166

See Order at paras. 492 (sections 254(g), (k)); 507 (section 212); 517–18 (sections 271, 272, 273, 274, 275); 519
(sections 221, 259); 520 (sections 226, 227(c)(3), 227(e), 228, 260).
167

See Order at para. 522 (forbearing from applying the Commission’s truth-in-billing rules).

168

See Order at paras. 472–74 (declining to forbear from the Commission’s rules implementing section 255 except
“insofar as there is any conflict” with “sections 716–718 and our implementing rules”).
169

See Order at para. 451 (forbearing from applying sections 201 and 202 to the extent they would enable the
Commission to “adopt[] new ex ante rate regulation . . . in the future”).
170

See Order at para. 526 (committing “to commence in the near term a separate proceeding to revisit the data
roaming obligations of MBIAS providers in light of our reclassification decisions today”).
171

Order at paras. 434–536.

172

To be fair, the Order really doesn’t make the rationale clearer for many of its decisions. At most, it claims in a
footnote that the rationale for forbearance is to “protect and promote Internet openness.” Order at note 1673. But
like beauty or a public interest standard, what that means is in the eye of the beholder. If notice and comment is to
mean anything, commenters must be able to wrestle with a concrete rationale for action, not one so vague that no
one could anticipate how it might be applied in any particular circumstance.
173

Notice, 29 FCC Rcd at 5616, para. 154.

174

National Black Media Coalition v. FCC, 791 F.2d 1016, 1023 (2d Cir. 1986).

175

For more on this novel rationale, see infra Section III.D.

176

See Environmental Integrity Project v. EPA, 425 F.3d 992, 996 (D.C. Cir. 2005) (alteration in original) (quoting
Kooritzky v. Reich, 17 F.3d 1509, 1513 (D.C. Cir. 1994)).
177

See, e.g., Lifeline and Link Up Reform and Modernization et al., WC Docket Nos. 11-42, 03-109, CC Docket No.
96-45, Notice of Proposed Rulemaking, 26 FCC Rcd 2770, 2862–64, paras. 303–09 (2011) (seeking comment on
forbearing from the Act’s facilities requirement for resellers that want to participate in the FCC’s Lifeline program
since that requirement appeared only relevant to participants in the FCC’s high-cost program).

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of proposed rulemaking that examined its new forbearance authority under section 332(c)(1)(A). It
explained how the Commission’s view of competition affected its forbearance analysis. And it offered
rationales for forbearing or not forbearing from each statutory provision.178
The standard for petitioners seeking forbearance is equally high: Petitions must identify “[e]ach
statutory provision, rule, or requirement for which forbearance is sought” and “[e]ach geographic
location, zone, or area from which forbearance is sought,” must “contain facts and argument which, if true
and persuasive, are sufficient to meet each of the statutory criteria,” and must offer a “full statement of the
petitioner’s prima facie case for relief.”179 The FCC itself never seriously attempted to meet these
standards in the Notice, thus “present[ing] interested parties with a moving target, which frustrates their
efforts to respond fully and early in the process.”180 Or as one party to this proceeding put it: “In essence
the Commission is asking the public to shadowbox with itself.”181
2. Internet Traffic Exchange (also Known as IP Interconnection).—The Notice discussed Internet
traffic exchange in a single paragraph, tentatively concluding that the FCC should maintain the approach
it had previously taken so that the Part 8 “Open Internet” rules would not apply “to the exchange of traffic
between networks, whether peering, paid peering, content delivery network (CDN) connection, or any
other form of inter-network transmission of data, as well as provider-owned facilities that are dedicated
solely to such interconnection.”182 Today, the Order follows through on that tentative conclusion and
concludes that application of the Part 8 rules to Internet traffic exchanged “is not warranted.”183
But the Order then goes quite a bit further and adopts a “regulatory backstop prohibiting common
carriers from engaging in unjust and unreasonable practices,”184 subjecting Internet traffic exchange
arrangements like those mentioned immediately above to “sections 201 and 202 on a case-by-case
basis.”185 With this authority, the Commission can order an Internet service provider “to establish
physical connections with other carriers, to establish through routes and charges applicable thereto . . . ,
and to establish and provide facilities and regulations for operating such through routes.”186 In other
words, the Order classifies Internet traffic exchange as a Title II telecommunications service in
everything but name.
The Notice proposed nothing like this. As one commenter has observed: “Nowhere did the
Commission remotely indicate that it was considering classifying the distinct wholesale Internet trafficexchange services that ISPs provide to other network owners as Title II telecommunications services.”187

178

Implementation of Sections 3(n) and 332 of the Communications Act Regulatory Treatment of Mobile Services,
GN Docket No. 93-252, Notice of Proposed Rulemaking, 8 FCC Rcd 7988, 7998–8001, paras. 49–68 (1993).
179

See 47 C.F.R. § 1.54(a), (b), (e).

180

Petition to Establish Procedural Requirements to Govern Proceedings for Forbearance under Section 10 of the
Communications Act of 1934, as Amended, WC Docket No. 07-267, Report and Order, 24 FCC Rcd 9543, 9550,
para. 12 (2009).
181

Letter from Earl Comstock et al., Counsel for Full Service Network and TruConnect, to Marlene H. Dortch,
Secretary, FCC, GN Docket Nos. 10-127, 14-28, at 10 (Feb. 3, 2015), available at http://go.usa.gov/3aUDR.
182

Notice, 29 FCC Rcd at 5582, para. 59.

183

Order at para. 195; see Order at para. 206 (“To be clear, we are not applying the open Internet rules we adopt
today to Internet traffic exchange.”).
184

Order at para. 203.

185

Order at para. 205.

186

Communications Act § 201(a).

187

Letter from Matthew A. Brill, Counsel for the National Cable & Telecommunications Association, to Marlene H.
Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 8 (Jan. 14, 2015), available at http://go.usa.gov/3aUDF;
(continued….)

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To add to the list, nowhere did the Notice propose applying sections 201 or 202 of the Act to Internet
traffic exchange, and nowhere did the Notice suggest that the FCC might order physical connections,
through routes, or appropriate charges in response to an IP interconnection dispute.
And when the Commission adopted the Notice, the Chairman himself disclaimed that Internet
traffic exchange would be part of this proceeding: “Separate and apart from this connectivity is the
question of interconnection (‘peering’) between the consumer’s network provider and the various
networks that deliver to that ISP. That is a different matter that is better addressed separately. Today’s
proposal is all about what happens on the broadband provider’s network and how the consumer’s
connection to the Internet may not be interfered with or otherwise compromised.”188 When the Chairman
of the Commission—the agency’s “chief executive officer”189—says that the proposal is “all about”
something other than interconnection, why should parties have anticipated the opposite?
To claim, as the Order does, that these are just “regulatory consequences” flowing from other
decisions in the Order is no defense.190 Not once in the Notice did the Commission suggest that Internet
traffic exchange was a “component” of broadband Internet access service (as the Order now claims).191 If
anything, the Notice disclaimed that notion, tentatively concluding to “retain” the definition of broadband
Internet access service from the 2010 Open Internet Order “without modification.”192 As the Notice
stated, the rules based on that definition were “not intended ‘to affect existing arrangements for network
interconnection’” and “did not apply beyond ‘the limits of a broadband provider’s control over the
transmission of data to or from its broadband customers.’”193 The Notice then confirmed that any edgeprovider-facing service it recognized would “include the flow of Internet traffic on the broadband
providers’ own network[s], and not how it gets to the broadband providers’ networks.”194
Nor can the Order plausibly claim that “numerous submissions in the record . . . illustrate that the
Commission . . . gave interested parties adequate notice” of the Title II-based backstop adopted here.195
Although many parties discussed Internet traffic exchange during the comment period, they did so
because the Notice asked if the FCC should change course and apply the Part 8 rules to IP
interconnection, a proposal the Order squarely rejects today. The submissions during the comment period
say nothing about a Title II-based backstop—and even a cursory review of those filings shows that no
party anticipated the approach the Order now adopts.
3. Redefining the Public Switched Network.—Consider the Order’s new definition for the

(Continued from previous page)
see id. (“[T]he portions of the NPRM seeking comment on the application of Title II are focused on the potential
reclassification of retail broadband Internet access service as a telecommunications service.”).
188

Notice, 29 FCC Rcd at 5647 (Statement of Chairman Tom Wheeler).

189

Communications Act § 5(a).

190

Order at para. 206 (“[C]ertain regulatory consequences flow from the Commission’s classification of BIAS,
including the traffic exchange component, as falling within the ‘telecommunications services’ definition in the
Act.”).
191

See Order at note 521 (“Internet traffic exchange is a component of broadband Internet access service, both of
which meets the definition of ‘telecommunications service.’”).
192

Notice, 29 FCC Rcd at 5581, para. 55.

193

Notice, 29 FCC Rcd at 5582, para. 59 (quoting Preserving the Open Internet; Broadband Industry Practices, GN
Docket No. 09-191, WC Docket No. 07-52, Report and Order, 25 FCC Rcd 17905, 17944, n.209 (2010); id. at
17933, n.150).
194

Notice, 29 FCC Rcd at 5615, para. 151 (emphasis added).

195

Order at para. 206.

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statutory term “the public switched network.”196 As background, section 332 of the Communications Act
bars the FCC from treating any mobile service—such as mobile broadband Internet access service—as a
telecommunications service unless that mobile service is interconnected with the public switched
network.197 By redefining the term “the public switched network” to include services that use “public IP
addresses,”198 the Order argues that mobile broadband Internet access service now meets the definition
for commercial mobile service and thus can be treated as a telecommunications service.199
But the Notice never proposed a new definition for the public switched network. Appendix A of
the Notice did not include such a definition in the list of “proposed rules.”200 The text of the Notice did
not seek comment on redefining the term.201 Indeed, the Notice never even mentioned the term “the
public switched network” or the portion of the FCC rule that currently defines it. Instead, the new
definition came from Vonage Holdings Corp. in its comments two full months after the Commission
adopted the Notice.202 Although the Commission can address comments in the record (and must respond
to significant ones), an agency “must itself provide notice of a regulatory proposal. Having failed to do
so, it cannot bootstrap notice from a comment.”203
The Order attempts to establish notice for this new definition by pointing to several other
questions asked in the Notice,204 such as “whether the Commission should revisit its prior classification
decisions and apply Title II to broadband Internet access service”205 and “the extent to which forbearance
should apply, if the Commission were to classify mobile broadband Internet access service as a CMRS
service subject to Title II.”206 But even the most specific question the Order points to—“does [mobile
196

Order at para. 391; see also Order at Appendix A (amending the definition of “public switched network” in rule
20.3).
197

Communications Act § 332(c)(2) (“A person engaged in the provision of a service that is a private mobile service
shall not, insofar as such person is so engaged, be treated as a common carrier for any purpose under this Act . . . .”);
Communications Act § 332(d)(3) (“[T]he term ‘private mobile service’ means any mobile service . . . that is not a
commercial mobile service or the functional equivalent of a commercial mobile service . . . .”); Communications Act
§ 332(d)(1) (“[T]he term ‘commercial mobile service’ means any mobile service . . . that is provided for profit and
makes interconnected service available”); Communications Act § 332(d)(2) (“[T]he term ‘interconnected service’
means service that is interconnected with the public switched network . . . .”).
198

Order at para. 391.

199

Order at paras. 391–99, 402 (applying the new definition).

200

See Notice, 29 FCC Rcd at 5626–27 (Appendix A: Proposed Rules).

201

See Notice, 29 FCC Rcd at 5614, para. 150.

202

Vonage Comments at 43–44.

203

Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 549 (D.C. Cir. 1983) (emphasis in original);
see also Prometheus Radio Project v. FCC, 652 F.3d 431, 450 (3d Cir. 2011) (explaining that a proposal “not
published in the Federal Register” expressing the views of a party but “not the Commission” does not satisfy the
APA’s requirements).
204

See Order at para. 391. The Order also points to various questions in the 2010 NOI—but even that item did not
propose a new definition for the public switched network and used the term only once in an utterly unrelated
context. See 2010 NOI, 25 FCC Rcd at 7871, n.24. What is more, I do not see how the Order can credibly point to
the 2010 NOI for APA notice when it does not incorporate the record produced by that notice into this proceeding.
See Order at page 1 (listing GN Docket No. 14-28 (the docket of the Notice) but not GN 10-127 (the docket of the
2010 NOI)). The Commission cannot have it both ways: Either the 2010 NOI and its associated record is part of
this proceeding (and the agency must address the full record against reclassification compiled therein) or it is not
(and the agency cannot claim notice based on the 2010 NOI).
205

See Notice, 29 FCC Rcd at 5614, para. 149.

206

See Notice, 29 FCC Rcd at 5616, para. 155.

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broadband Internet access] service fit within the definition of ‘commercial mobile service’?”207—falls
short of putting the public on notice, since that question takes the definition of commercial mobile service
(and hence public switched network) as a given. As the courts have told us before, “[e]ven if this was the
FCC’s intent, ‘an unexpressed intention cannot convert a final rule into a ‘logical outgrowth’ that the
public should have anticipated.’”208
Notably, the Order relies on these same passages as providing notice that the FCC would amend
its rules to define mobile broadband Internet access service as the “functional equivalent of a commercial
mobile service.”209 But, again, the Notice never proposed to amend this rule. Appendix A of the Notice
did not include any change to this rule in the list of “proposed rules.”210 And the text of the Notice did not
mention the term “functional equivalent” even once in the context of classifying mobile broadband
Internet access service.211 Nor does the Notice anywhere mention the FCC rule that delineates the
framework that the agency has long used to determine whether a service is a “functional equivalent” of a
commercial mobile service.212 Yet today’s Order fashions and applies a novel and entirely different
framework for doing so.
With the Notice silent on all of these points, the first filing to address “functional equivalency”
came 32 days after the comment period had closed on the Notice, following a private meeting between
FCC officials and CTIA.213 Just as the Commission cannot “bootstrap notice from a comment,”214 it
cannot use ex parte meetings to inform select members of the public of the Commission’s thinking and
then claim notice from such meetings.215 The Administrative Procedure Act’s notice-and-comment
provisions were intended to ensure a robust debate among all parties, not just those invited to participate.
What is more, the lack of notice for these rule amendments prejudices even those who are not
party to this proceeding. After all, the statutory bar on common carrier treatment applies to any mobile
service not interconnected with the public switched network.216 Thus, before today, online innovators
could be sure that mobile applications that did not interconnect with the public switched telephone
network could not be regulated as telecommunications services. That statutory safe harbor is now gone,
207

See Notice, 29 FCC Rcd at 5614, para. 150.

208

Council Tree Communications v. FCC, 619 F.3d 235, 254 (3d Cir. 2010) (quoting Shell Oil Co. v. EPA, 950 F.2d
741, 751 (D.C. Cir.1991)).
209

See Order at paras. 404, 406; see also Order at Appendix A (amending the definition of “commercial mobile
radio service” to include mobile broadband Internet access service as a “functional equivalent” in rule 20.3).
210

See Notice, 29 FCC Rcd at 5626–27 (Appendix A: Proposed Rules).

211

See Notice, 29 FCC Rcd at 5614, para. 150.

212

See 47 C.F.R. § 20.9(a)(14).

213

Compare Letter from Scott Bergmann, Vice President – Regulatory Affairs, CTIA – The Wireless Association, to
Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-137 (Oct. 17, 2014), available at
http://go.usa.gov/3aUW9, with Wireline Competition Bureau Extends Deadline for Filing Reply Comments in the
Open Internet and Framework for Broadband Internet Service Proceedings, GN Docket Nos. 14-28, 10-127, Public
Notice, 29 FCC Rcd 9714 (Wireline Comp. Bur. 2014) (extending the close of the comment cycle to September 15,
2014).
214

Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 549 (D.C. Cir. 1983).

215

The Order specifically relies on a conversation the FCC’s general counsel had with Public Knowledge for its
contention that “Interested parties should have reasonably foreseen and in fact were aware that the Commission
would analyze the functional equivalence of mobile broadband . . . . Indeed, several parties have submitted
comments on this question.” Order at para. 406.
216

Communications Act § 332(c)(2) (“A person engaged in the provision of a service that is a private mobile service
shall not, insofar as such person is so engaged, be treated as a common carrier for any purpose under this Act . . . .”).

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even though the FCC never alerted those innovators that such a change could be coming.
D.
In sum, the Commission issued the Notice in May when it was heading in one direction (a section
706 solution). It shifted course in November after the President urged the agency to implement a very
different plan (a reclassification regime). Rather than following the proper procedure and issuing a
further notice, the FCC charged ahead at the behest of activists who were suspicious of the Commission’s
commitment to their cause and thus demanded that agency adopt rules without delay. That is not what the
Administrative Procedure Act demands nor what the American people deserve.
III.
The legal flaws with this Order are not limited to improper procedures; they extend into
substance as well.
A.
One of the most basic of those flaws is the FCC’s determination that it can reclassify broadband
Internet access service as a Title II telecommunications service. Neither the text of the Communications
Act nor our precedent condones such a decision. And while the Order invokes changed circumstances to
justify its reversal of course, the cited circumstances are neither changed nor otherwise adequate to justify
applying Title II to broadband Internet access services. In short, this decision is unlawful.
Start with the text of the Communications Act, and specifically the term “information service,”
which was added through the Telecommunications Act of 1996. Congress defined the term to mean:
[T]he offering of a capability for generating, acquiring, storing, transforming, processing,
retrieving, utilizing, or making available information via telecommunications, and
includes electronic publishing, but does not include any use of any such capability for the
management, control, or operation of a telecommunications system or the management of
a telecommunications service.217
Internet access service comfortably fits within this framework. Can an ISP’s subscriber generate,
store, and make available information via telecommunications? Of course—Internet users do that every
day on Facebook. Can such a subscriber acquire, retrieve, and process information via
telecommunications? Yes—just check out Google Translate. Can such a subscriber transform and utilize
information via telecommunications? Absolutely—just try one of the Internet’s hundreds of video editing
sites. Would such a subscriber have these capabilities without Internet access service? Obviously not.
Indeed, Congress itself called on the Commission to treat Internet access service as an
unregulated, information service elsewhere in the Communications Act.218 Section 230 established the
“policy of the United States . . . to preserve the vibrant and competitive free market that presently exists
for the Internet and other interactive computer services, unfettered by Federal or State regulation.”219
That section went on to define “interactive computer service” as “any information service . . . provider
that provides or enables computer access by multiple users to a computer server, including specifically a

217

Communications Act § 3(24).

218

Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2442 (2014) (“Thus, an agency interpretation that is
inconsistent with the design and structure of the statute as a whole . . . does not merit deference.” (internal quotation
marks and brackets omitted)).
219

Communications Act § 230(b)(2) (emphasis added); see also Communications Act § 230(a)(1), (a)(3), (a)(4),
(b)(1), (b)(3) (all using the phrase “Internet and other interactive computer services”).

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service or system that provides access to the Internet.”220 In other words, Congress directly addressed the
question of whether an ISP offered an information service—and answered with a resounding “Yes.”
So it’s no wonder that every time the Commission has previously confronted the question of
whether an Internet access service is an information service, it has answered yes.221 And it’s no wonder
that when the Supreme Court reviewed the FCC’s determination that broadband Internet access service
over cable facilities was an information service, that decision went “unchallenged.”222
1. The Stevens Report.—The Commission’s first major decision in this regard—1998’s Stevens
Report—is particularly instructive regarding why.223 That report came at the behest of Congress to
review “the definitions of ‘information service’ . . . [and] ‘telecommunications service,’” along with “the
application of those definitions to mixed or hybrid services . . . including with respect to Internet
access.”224 The Stevens Report then exhaustively reviewed the text and legislative history of the
Telecommunications Act, along with the agency’s own administrative precedent and the courts’
administration of antitrust law, to answer these questions. Here are the highlights:
First, the Stevens Report found that Congress intended to incorporate judicial precedent into the
term “information service”—specifically, the Modification of Final Judgment breaking up the Bell
system.225 The court had prohibited the Bell operating companies from providing any “information
service,”226 and the Telecommunications Act’s definition paralleled the court’s definition almost word for
word.227 Most relevant here, the court explained that the term covered “two distinctly different types” of
services: both “data processing and other computer-related services” and “electronic publishing services,”
such as news and entertainment.228
220

Communications Act § 230(f)(2) (emphasis added). To respond, as the Commission does, that section 230 does
not “classify broadband Internet access service, as we define that term herein, as an information service” misses the
point. Order at para. 386. When Congress adopted section 230 as part of the Telecommunications Act of 1996, of
course it did not anticipate the precise definition the FCC would adopt almost 20 years later—but it could and did
broadly define “interactive computer service” to envelop “any” information service provider, and “specifically a
service or system that provides access to the Internet.” Communications Act § 230(f)(2) (emphasis added). The
Order cannot and does not dispute that Internet service providers squarely fall within the definition. At most, it
argues that other services also fall within that definition, Order at note 1097, which seems rather obvious given how
broadly the statute is written.
221

See Stevens Report, 13 FCC Rcd at 11501; Cable Modem Order, 17 FCC Rcd at 4798; Wireline Broadband
Internet Access Services Order, 20 FCC Rcd at 14853; BPL Internet Access Order, 21 FCC Rcd at 13281; Wireless
Broadband Internet Access Order, 22 FCC Rcd at 5901.
222

National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967, 987 (2005).

223

Although the Order now claims the Stevens Report was “not a binding Commission order,” Order at para. 315,
our precedent has repeatedly treated it as such. See, e.g., Communications Assistance for Law Enforcement Act, CC
Docket No. 97-213, Second Report and Order, 15 FCC Rcd 7105, 7120, n.70 (1999); Cable Modem Order, 17 FCC
Rcd at 4799, n.2; Wireline Broadband Internet Access Services Order, 20 FCC Rcd at 14862, para. 12. Nor does the
Order offer any reason to dismiss the considered views of five Commissioners reporting to Congress about how to
construe the classification provisions of the Telecommunications Act.
224

Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, Pub. L.
No. 105-119, 111 Stat. 2440, 2521, § 623 (1998).
225

Stevens Report, 13 FCC Rcd at 11520, para. 39.

226

United States v. American Tel. & Tel. Co., 552 F. Supp. 131, 227 (D.D.C. 1982).

227

Compare Communications Act § 3(24), with United States v. American Tel. & Tel. Co., 552 F. Supp. 131, 229
(D.D.C. 1982). The only difference? The Telecommunications Act added the phrase “and includes electronic
publishing.”
228

United States v. American Tel. & Tel. Co., 552 F. Supp. 131, 179–80 (D.D.C. 1982) (capitalizations omitted).

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Second, the Stevens Report found that Congress intended to incorporate administrative precedent
into the term “information service”—specifically, the Commission’s development of the concept of
“enhanced service” in its Computer Inquiries proceeding.229 Under that precedent, the Commission had
eschewed the idea that it could divide up an integrated service into its component parts: “[N]o regulatory
scheme could ‘rationally distinguish and classify enhanced services as either communications or data
processing,’ and any dividing line the Commission drew would at best ‘result in an unpredictable or
inconsistent scheme of regulation’ as technology moved forward.”230 In other words, even though
enhanced services were “offered ‘over common carrier transmission facilities,’ [they] were themselves
not to be regulated under Title II of the Act, no matter how extensive their communications
components.”231
Third, the Stevens Report found that the “functions and services associated with Internet access,”
such as “the provision of gateways (involving address translation, protocol conversion, billing
management, and the provision of introductory information content) to information services” and
“[e]lectronic mail, like other store-and-forward services,” were all “classed as ‘information services’
under the [Modified Final Judgment].”232 Similarly, the “Commission has consistently classed such
services as ‘enhanced services.’”233
Fourth, the Stevens Report concluded that “address[ing] the classification of Internet access
service de novo” led to the same conclusion: Internet access service is an information service according
to the statute. The question was “whether Internet access providers merely offer transmission . . . or
whether they go beyond the provision of a transparent transmission path.”234 And the report concluded
that “the latter more accurately describes Internet access service”235 since Internet access services
“combine computer processing, information provision, and other computer-mediated offerings with data
transport.”236 The fact that data transport was a component of the service was irrelevant237—what
mattered was that “[s]ubscribers can retrieve files from the World Wide Web, and browse their contents,
because their service provider offers the ‘capability for . . . acquiring, . . . retrieving [and] utilizing . . .
information.”238

229

Stevens Report, 13 FCC Rcd at 11520, para. 39.

230

Id. at 11513, para. 27 (citations omitted) (quoting Amendment of Section 64.702 of the Commission’s Rules and
Regulations (Computer II), Final Decision, 77 FCC 2d 384, 425, 428, paras. 107–08, 113 (1980)).
231

Id. at 11514, para. 27 (emphasis added) (quoting Amendment of Section 64.702 of the Commission’s Rules and
Regulations (Computer II), Final Decision, 77 FCC 2d 384, 428, paras. 114 (1980)).
232

Id. at 11536–37, para. 75.

233

Id. (citing Amendment of Section 64.702 of the Commission’s Rules and Regulations (Computer II), Final
Decision, 77 FCC 2d 384, 420–21, paras. 97–98 (1980)).
234

Id. at 11536, para. 74; id. at 11520, para. 39 (finding a service to be a telecommunications service only if it offers
“a simple, transparent transmission path, without the capability of providing enhanced functionality”); id. at 11520–
21, para. 40 (“[A]n entity is not deemed to be providing ‘telecommunications,’ notwithstanding its transmission of
user information, in cases in which the entity is altering the form or content of that information.”); id. at 11511, para.
21 (“Congress intended to maintain a regime in which information service providers are not subject to regulation as
common carriers merely because they provide their services ‘via telecommunications.’”).
235

Id. at 11536, para. 74.

236

Id. at 11536, para. 73.

237

Id. at 11539–40, para. 80.

238

Id. at 11538, para. 76 (emphasis added); id. at 11537, para. 76 (“Internet access providers typically provide their
subscribers with the ability to run a variety of applications, including World Wide Web browsers, FTP clients,
Usenet newsreaders, electronic mail clients, Telnet applications, and others.” (footnotes omitted)).

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In other words, the Stevens Report endorsed the view of a bipartisan group of Senators—John
Ashcroft, Wendell Ford, John F. Kerry, Spencer Abraham, and Ron Wyden—that “[n]othing in the 1996
Act or its legislative history suggests that Congress intended to alter the current classification of Internet
and other information services or to expand traditional telephone regulation to new and advanced
services.”239 And it essentially agreed with Senator John McCain that “[i]t certainly was not Congress’s
intent in enacting the supposedly pro-competitive, deregulatory 1996 Act to extend the burdens of current
Title II regulation to Internet services, which historically have been excluded from regulation.”240
Indeed, the Stevens Report noted that while the 1996 Telecommunications Act’s “explicit
endorsement of the goals of competition and deregulation represents a significant break from the prior
statutory framework,”241 the Commission’s review of the statute and its legislative history revealed no
similar intent to effect a “major change” with respect to the regulatory treatment of enhanced services like
Internet access service.242 And if anything, it found the goals of the Telecommunications Act to “promote
competition and reduce regulation”243 supported the Commission’s classification decisions, since making
Internet access and other enhanced services “presumptively subject to the broad range of Title II
constraints[] could seriously curtail the regulatory freedom that the Commission concluded in Computer
II was important to the healthy and competitive development of the enhanced-services industry.”244
Indeed, in passing the 1996 Telecommunications Act, Congress made this clear by declaring it the policy
of the United States “to preserve the vibrant and competitive free market that presently exists for the
Internet and other interactive computer services, unfettered by Federal or State regulation.”245
2. Recent Developments.—Developments in the marketplace since the Stevens Report make it
even more clear that ISPs do not “merely offer transmission” between points of the user’s choosing but
instead offer a highly complex information service.
Take the most basic example of visiting a webpage via a browser. When the user types a domain
name into a browser, the browser typically queries the ISP’s Domain Name System (DNS) service for the
proper IP address to send that information. The DNS service determines whether that information is
stored on the local server; if so, it returns that IP address to the user, and if not, it queries another DNS
server. Such DNS servers are typically arranged in a hierarchy and searched recursively; once the URL is
found, the appropriate information is forwarded and stored by each DNS server in the chain. These
functionalities—caching information and storing and forwarding information—are classic enhanced
services.246
It gets even more complicated. For one, there is no necessary one-to-one correlation between
239

Id. at 11520, para. 38 (quoting Letter from Senators John Ashcroft, Wendell Ford, John Kerry, Spencer Abraham,
and Ron Wyden to the Honorable William E. Kennard, Chairman, FCC (Mar. 23, 1998) (Five Senators Letter),
available at http://apps.fcc.gov/ecfs/document/view?id=2038710001); see also Five Senators Letter (“[W]ere the
FCC to reverse its prior conclusions and suddenly subject some or all information service providers to telephone
regulation, it seriously would chill the growth and development of advanced services to the detriment of our
economic and educational well-being.”).
240

Stevens Report, 13 FCC Rcd at 11519, para. 37 (quoting Letter from Senator John McCain to the Honorable
William E. Kennard, Chairman, FCC).
241

Id. at 11511, para. 21.

242

Id. at 11524, para. 45.

243

Telecommunications Act of 1996, as amended, preamble.

244

Stevens Report, 13 FCC Rcd at 1524, para. 46.

245

Communications Act § 230(b)(2).

246

Amendment of Section 64.702 of the Commission’s Rules and Regulations (Computer II), Final Decision, 77 FCC
2d 384, 421, para. 97 & n.35 (1980).

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domain names and IP addresses.247 So if an Internet user in California and a user in New York City both
seek the IP address for www.yahoo.com, an ISP could return different IP addresses to each user. The
assignment could be random (to balance the load the server at each IP address must handle). Or the ISP
could make the decision based on any number of factors, such as the physical proximity of the servers to
the user (to reduce the latency of the connection).
For another, even with an IP address, an ISP may not connect a user with a particular end point.
Instead, ISPs regularly cache popular content—anything from simple text to streaming video—so that
when a subscriber requests such content it can be retrieved more quickly (and with less load on the
network) than would occur if the request were sent to its specified destination.248 And it’s not just an
ISP’s own servers that cache content; an entire industry of content delivery networks have sprung up to
move content closer to Internet users to improve performance.249
And there’s still more: ISPs are eliminating viruses and other malicious attacks on their
networks, including by (1) implementing DNS Security Extensions to verify the integrity of the DNS
information retrieved for subscribers, (2) erecting firewalls and other screening mechanisms to prevent
denial-of-service attacks and the effectiveness of botnets, and (3) monitoring network traffic patterns to
ensure early detection of security threats.250 They are using network address translation to establish nonpublic IP addresses for their subscribers.251 And they are processing protocols to bridge the gap between
IPv4 and IPv6.252
The end result of all this? Even for the most basic web browsing functions, an ISP is doing more
than merely offering transmission between points of the user’s choosing. Indeed, as one commenter put
it, “it is literally impossible for a broadband user to specify the ‘points’ of an Internet ‘transmission’ on
the web” since the user is really just “specifying the original source of the information the user wants to
retrieve” and the ISP then uses that information to choose the endpoint among several alternatives.253 Or
as the Stevens Report put it, Internet access service enables subscribers “to access information with no
knowledge of the physical location of the server where that information resides,”254 not “between or
among points specified by the user.”255
247

To rebut this point, the Order notes that it “is not uncommon in the toll-free arena for a single number to route to
multiple locations.” Order at para. 361. But the FCC expressly found that the management of toll-free numbers is
“not a common carrier service” in 1996 and that “Resporgs” that manage toll-free numbers “do not need to be
carriers.” 800 Data Base Access Tariffs and the 800 Service Management System Tariff; Provision of 800 Services,
CC Docket Nos. 93-129, 86-10, Report and Order, 11 FCC Rcd 15227, 15248–49, paras. 44–45 (1996) (emphasis
added).
248

AT&T Reply at 54; Bright House Reply at 6–7.

249

Akamai Comments at 3; see also Netflix, Netflix Open Connect Content Delivery for ISPs (“Unlike traditional
content caches which retrieve new content when a user requests an object that is not currently present in the cache,
new and popular content is pushed from Netflix to the [Netflix-supplied Open Caching Appliances at
interconnection points] on a nightly basis over peering or IP transit.”), available at http://nflx.it/1wpo0jw.
250

ACA Comments at 54–60; AT&T Comments at 48–49; CenturyLink Comments at 44–45; Charter Comments at
14–15; Comcast Comments at 57; NCTA Comments at 34–35; T-Mobile Comments at 20; Time Warner Cable
Comments at 12; USTelecom Comments at 26–27; USTelecom Reply at 29; Verizon Comments at 59–60.
251

See, e.g., Broadband Internet Technical Advisory Group, Report on Port Blocking at 6 (Aug. 2013), available at
http://www.bitag.org/documents/Port-Blocking.pdf.
252

Comcast Reply at 22; Verizon Comments at 60–61.

253

Fred B. Campbell, Center for Boundless Innovation in Technology, Broadband Transmissions Are Not
“Telecommunications,” GN Docket No. 14-28, at 30 (Feb. 18, 2014), available at http://go.usa.gov/3aUWA.
254

Stevens Report, 13 FCC Rcd at 11532, para. 64.

255

Communications Act § 3(50) (defining “telecommunications”).

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The contrary conclusion—that Internet access service is a telecommunications service and that
DNS service, caching, and “a variety of new network-oriented, security-related computer processing
capabilities”256 all fall within the telecommunications system management exception257—is in error.
These capabilities serve the interests of subscribers, not ISPs. For instance, DNS service doesn’t facilitate
an ISP’s “management . . . of a telecommunications system or . . . service”; it allows a subscriber’s
request for access to particular content to be translated into an IP address. And in any case, these
capabilities are not telecommunications services unless the underlying service itself is a
telecommunications service—which, as explained above, it is not.
Moreover, the notion that these capabilities might fall within the management exception to the
definition of information services would have been unthinkable to the Congress that enacted the
Telecommunications Act. Had Internet access service been a basic service, dominant carriers could have
offered it (and all related computer-processing functionality) outside the parameters of the Computer
Inquiries. Had Internet access service been a telecommunications service, Bell operating companies
could have offered it themselves under the Modified Final Judgment. But I cannot find a single
suggestion that anyone in Congress, anyone at the FCC, anyone in the courts, or anyone at all thought this
was the law during the passage of the Telecommunications Act.258 Statutory interpretation “must be
guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy
decision of such economic and political magnitude to an administrative agency.”259 And it is highly
unlikely that Congress drew upon historical sources to define a statutory term, but then intended to give
the FCC the discretion to reach the exact opposite result.260
Furthermore, given the increasing use of computer processing in the networking, I do not see how
“[c]hanged factual circumstances” could lead the FCC to revisit the classification of Internet access
service.261 Although the FCC’s prior determinations rested on “a factual record compiled over a decade
ago,”262 the Order does not identify any actual change.
First, the Order points to “consumer conduct”263 to show that consumers use the Internet “today
primarily as a conduit for reaching modular content, applications, and services that are provided by
unaffiliated third parties.”264 Examples include 350–400 million visits a day to Google and Yahoo!’s
“popular alternatives to the email services provided” by ISPs, Go Daddy providing “website hosting,” and

256

Order at para. 373.

257

Communications Act § 3(24) (defining the term “information service” and noting that it “does not include any
use of any such capability for the management, control, or operation of a telecommunications system or the
management of a telecommunications service”).
258

Despite the Order’s claim to the contrary, Order at note 975, this line of reasoning does not contradict the
Court’s holding in Brand X, since the last-mile transmission service discussed there (and which I discuss below) is
just not the same service as the Internet access service that the Order claims is a telecommunications service here.
And one need look no further than section 230 of the Communications Act along with the legislative history
reviewed in the Stevens Report—all described above—to find compelling evidence that Congress did in fact think
that Internet access service was an information service.
259

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000).

260

Cf. MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 231 (1994) (“It is highly unlikely that Congress
would leave the determination of whether an industry will be entirely, or even substantially, rate-regulated to agency
discretion.”).
261

Order at para. 330.

262

Order at para. 330.

263

Order at para. 330.

264

Order at para. 350.

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Apple, Dropbox, and Carbonite operating “‘cloud-based’ storage.”265
But the availability and popularity of third-party content is hardly new. Yahoo! Mail went online
in 1997.266 HoTMaiL (the original web-based email) launched in 1996.267 GeoCities, a website-hosting
service, launched in 1995 and was the third most-visited site on the web in 1999.268 And Amazon.com
was selling books, music, and videos before the turn of the century, and began offering cloud-based
Amazon Web Services in 2002.269 Were the most successful sites back then as large as the most
successful sites today? Of course not. The number of broadband Internet connections has skyrocketed
from 4.3 million in 2000 (at speeds of 200 kbps) to 122 million (at speeds of 10 Mbps)270—and a rising
tide lifts all ships (or most, alas for GeoCities).
And the FCC was certainly aware that consumers were visiting third-party sites and using thirdparty applications in its previous classification decisions. The Cable Modem Order itself noted that
“cable modem service subscribers, by ‘click-through’ access, may obtain many functions from companies
with whom the cable operator has not even a contractual relationship. For example, a subscriber to
Comcast’s cable modem service may bypass that company’s web browser, proprietary content, and email. The subscriber is free to download and use instead, for example, a web browser from Netscape,
content from Fox News, and e-mail in the form of Microsoft’s ‘Hotmail.’”271 So what has changed?
Nothing legally relevant. New automotive makes, models, and functions have arrived since 2005; that
doesn’t change the fact that what we are doing is driving. LED bulbs are replacing incandescent bulbs by
the millions; that doesn’t change the fact that we’re using something to light up a room. We access and
use the capabilities that Internet access service provides in new and novel ways; that doesn’t change the
fact that we’re accessing and using the Internet.
Next, the Order points to “broadband providers’ marketing and pricing strategies.”272 Some
“advertisements . . . emphasize transmission speed as the predominant feature that characterizes
broadband Internet access service offerings,” such as AT&T’s claim that it offers the “[n]ation’s most
reliable 4G LTE network” with “speeds up to 10x faster than 3G.”273 Others “link higher transmission
speeds and service reliability with enhanced access to the Internet at large,” such as RCN’s claim that its
“110 Mbps High-Speed Internet” offering is “ideal for watching Netflix.”274 And ISPs “price and
differentiate their service offerings on the basis of the quality and quantity of data transmission” with
higher prices for faster speeds.275
But again, this is nothing new. In 1999, Qwest asked customers “Could your business use the
265

Order at para. 348.

266

Internet Archive Wayback Machine: Yahoo!, http://bit.ly/18xSlB5 (Oct. 15, 1997).

267

Internet Archive Wayback Machine: HoTMaiL, http://bit.ly/1887bOB (Dec. 20, 1996).

268

Rosalie Marshall, Yahoo closing GeoCities web hosting service, vnunet.com (Apr. 24, 2009), available at
http://bit.ly/198SoVg; see also Internet Archive Wayback Machine: GeoCities, http://bit.ly/1B0pV9E (Feb. 22,
1997).
269

Internet Archive Wayback Machine: Amazon.com, http://bit.ly/198StZ0 (Oct. 13, 1999).

270

Compare FCC, High-Speed Services for Internet Access: Subscribership as of June 30, 2000, at 2 (Oct. 2000),
available at http://go.usa.gov/3aUZe, with FCC, Internet Access Services: Status as of December 31, 2013, at 4
(Oct. 2014), available at http://go.usa.gov/3aUBH.
271

Cable Modem Order, 17 FCC Rcd at 4816, para. 25.

272

Order at para. 330.

273

Order at para. 351 (citing Public Knowledge Comments Appendix at A-2).

274

Order at para. 352 (citing Public Knowledge Comments Appendix at A-3).

275

Order at para. 353 (citing Public Knowledge Comments Appendix at A-1).

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bandwidth to change everything?” and advertised service fast enough to access “every movie ever made
in any language anytime, day or night.”276 In 2001, Charter was offering “Internet Light” (256 kbps
service for $24.95 per month) and “Residential Classic” (1024 kbps for $39.95 per month) as part of its
“Charter Pipeline” service.277 Even America Online in 1999 was advertising how it “spent over $1 billion
to build the world’s largest high-speed network—now with 56k, connections are faster than ever!”278
And again, the FCC knew this when it decided the Cable Modem Order. In the Commission’s
Second Broadband Deployment Report in 2000, the FCC noted the prices for broadband Internet access
service, from “low-end ADSL service” priced at $39.95 to $49.95 per month, to “[f]aster ADSL services”
at $99.95 to $179.95 per month, and “symmetric DSL . . . well-suited to applications . . . such as
videoconferencing” and priced at $150 to $450 per month.279
But more to the point, contemporary marketing doesn’t suggest that a wheel’s been invented.
Deploying last-mile facilities generally has long been the biggest cost of broadband. As a result, the way
in which broadband providers have competed is product/service differentiation. So of course broadband
providers today advertise their speeds and their prices—that’s a large part of what makes each distinct.
But it doesn’t mean that their last-mile transmission service by itself is what they’re selling—I don’t know
many consumers lining up for fast transmission to a cable headend or central office but not actual access
to the Internet.
Lastly, the Order argues that “the predictive judgments on which the Commission relied in the
Cable Modem Declaratory Ruling anticipating vibrant intermodal competition for fixed broadband cannot
be reconciled with current marketplace realities.”280 One problem is that this argument doesn’t address
the reclassification question at all. The statute doesn’t classify a service based on the quantity of
providers, so it doesn’t matter whether there are 4,462 (like there are for Internet access service) or just
one (like there is for telegraph service).
The greater problem is this assertion comes up empty too.281 Alongside the high-speed
broadband Internet access service offered by cable operators and telephone companies, 98% of Americans
now live in areas covered by 4G LTE networks (i.e., networks capable of delivering 12 Mbps mobile
Internet access),282 wireless ISPs are using unlicensed spectrum to offer new, cheaper services, and new
entrants like Google are bringing 1 Gbps service to areas around the country. Indeed, it’s no wonder that
the Order offers no factual support for this assertion. To the contrary, the Commission itself has
repeatedly recognized that “current marketplace realities” reflect intermodal competition283—including in

276

Qwest, Qwest Commercial 1999 – Every Movie, https://www.youtube.com/watch?v=xAxtxPAUcwQ.

277

Charter, Charter Pipeline (2001), http://bit.ly/1EQV19H.

278

America Online, AOL Commercial from 1999, https://www.youtube.com/watch?v=MQcCnPWHlLk.

279

Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a
Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the
Telecommunications Act of 1996, CC Docket No. 98-146, Second Report, 15 FCC Rcd 20913, 20931, paras. 36–37
(2000).
280

Order at para. 330.

281

Despite the Order’s suggestion to the contrary, the Cable Modem Order did not limit its prediction to “fixed
broadband.”
282

2015 Broadband Progress Report at para. 109.

283

See 2015 Broadband Progress Report at paras. 15–16 (observing that “[p]rivate industry continues to invest
billions of dollars to expand America’s broadband networks” and explicitly comparing cable, telco, wireless, Google
Fiber, and municipal broadband investments).

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this very Order!284
In short, all the facts point in the same direction: Broadband Internet access service is an
information service.
3. Broadband Internet Access Transmission Services.—Nor can the Commission seek refuge in
the Commission’s past identification of a transmission service as a component of broadband Internet
access service. Even if a broadband Internet access service provider could be said to offer a separable
transmission service (and it can’t), the transmission service discussed in our precedent is very different
from the broadband Internet access service that the FCC classifies today.
Start with the precedent. In the Advanced Services Order, the Commission examined digital
subscriber line (DSL) technology, which allowed “transmission of data over the copper loop at vastly
higher speeds than those used for voice telephony or analog data transmission” between each
“subscriber’s premises” and “the telephone company’s central office.”285 For this service, a DSL access
multiplexer would direct the traffic onto a carrier’s packet-switched data network, where it could then be
routed to a “location selected by the customer” like a “gateway to a . . . set of networks, like the
Internet.”286 The FCC then classified only the last-mile transmission service between the end user and the
ISP as a telecommunications service, while observing that the Internet access service itself was still an
information service.287
Similarly, the Commission identified “broadband Internet access transmission service” as a
possible telecommunications service in the Wireline Broadband Internet Access Services Order.288
Again, however, that service was the last-mile transmission service between the end user and the ISP, and
one the carrier could choose to offer as common carriage or private carriage.289 And it is these last-mile
transmission services that many rural carriers still offer as a telecommunications service (in large part in
order to receive subsidies from our legacy universal service program, which funds the regulated costs of
high-cost loops used to provide telecommunications services).290
It was this potential last-mile transmission service that was at issue in the Brand X case. As the
Commission reasoned, this service was not a separable telecommunications service because the
“consumer uses the high-speed wire always in connection with the information-processing capabilities
provided by Internet access, and because the transmission is a necessary component of Internet access.”291
And it was this last-mile transmission service that Justice Scalia identified in his dissent as being
a telecommunications service. As he put it: “Since . . . the broad-band connection between the
284

Order at para. 76 & note 114 (noting “the remarkable increases in investment and innovation seen in recent
years” and citing as evidence of robust broadband infrastructure investment cable, telco, wireless incumbent
investment and new entrants like Google Fiber).
285

Deployment of Wireline Services Offering Advanced Telecommunications Capability, CC Docket No. 98-147,
Memorandum Opinion and Order and Notice of Proposed Rulemaking, 13 FCC Rcd 24012, 24026–27, para. 29
(1998).
286

Id. at 24027, paras. 30–31.

287

Id. at 24030, para. 36.

288

Wireline Broadband Internet Access Services Order, 20 FCC Rcd at 14899, para. 86.

289

Id. at 14899–900, paras. 86–88 (describing this as a service that both end users and ISPs would purchase).

290

Id. at 14900–03, paras. 89–95; NTCA Comments at 9. Notably, rural carriers exercising this option do not treat
the Internet access service itself as a Title II telecommunications service and generally offer that service through a
separate, affiliated ISP that purchases the last-mile transmission service from the carrier. To the extent the Order
suggests otherwise, see Order at para. 422, it is incorrect.
291

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 988 (2005).

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customer’s computer and the cable company’s computer-processing facilities[] is downstream from the
computer-processing facilities, there is no question that it merely serves as a conduit for the information
services that have already been ‘assembled’ by the cable company in its capacity as ISP.”292 He
analogized to a pizzeria, arguing that a delivery service was being offered after the pie was baked:
If, for example, I call up a pizzeria and ask whether they offer delivery, both common
sense and common “usage,” would prevent them from answering: “No, we do not offer
delivery—but if you order a pizza from us, we’ll bake it for you and then bring it to your
house.” The logical response to this would be something on the order of, “so, you do
offer delivery.”293
In contrast, consider the broadband Internet access service at issue in this proceeding. It is not
limited to the last-mile transmission service between a customer and an ISP’s point of presence. It
extends into the ISP’s network all the way to “the exchange of traffic between a last-mile broadband
provider and connecting networks”294—a scope that necessarily extends onto the Internet’s backbone,
since that’s where many networks interconnect. And the Order reclassifies Internet access service for “all
providers of broadband Internet access service . . . regardless of whether they lease or own the facilities
used to provide the service.”295
To extend the pizzeria analogy, this Order does not only cover the delivery of a baked pie.
Instead, the Order reaches the exchange of ingredients between a pizzeria and its suppliers, since all those
ingredients must be “delivered” to the pizzeria. To the extent a pizzeria stores popular ingredients, that’s
just an adjunct to the delivery services that came before and afterwards. To the extent a pizzeria
processes the ingredients, that’s just an adjunct too.296
In other words, when the Order claims that “[t]here is no disputing that until 2005, Title II
applied to the transmission component of DSL service,”297 it is being intentionally misleading. The
service being reclassified today is different in kind from the last-mile transmission services that were at
issue in prior FCC orders. And so the Order’s claim that it is just returning things to how they were ten
years ago is just wrong. In fact, the Order overturns three decades of precedent—indeed, all the
precedent we’ve ever had on the subject.298
292

Id. at 1010 (Scalia, J., dissenting).

293

Id. at 1007 (Scalia, J., dissenting).

294

Order at para. 204.

295

Order at para. 337.

296

Order at paras. 366–75. The Order misunderstands the analogy when it supposes that “the pizzeria owners
discovered that other nearby restaurants did not deliver their food and thus concluded that the pizza-delivery drivers
could generate more revenue by delivering from any neighborhood restaurant (including their own pizza some of the
time). Consumers would clearly understand that they are being offered a delivery service.” Order at para. 45. Of
course they would. And if someone offered a last-mile transmission service available to any ISP, of course that
would be a telecommunications service. But that’s not what any broadband Internet access service provider is
offering, and so the analogy utterly fails.
297

Order at para. 313.

298

The Order objects in a footnote that “the service we define and classify today is the same transmission service as
that discussed in prior Commission orders.” Order at note 1257. But it undermines that argument just one sentence
before, when it describes the service as one with “the capability to send and receive packets to all or substantially all
Internet endpoints.” Id. The transmission service the FCC previously recognized was not and is not so expansive—
it’s a last-mile transmission service connecting customers to computer-processing facilities for Internet access.
That’s why the Wireline Broadband Internet Access Services Order recognized that ISPs would be customers of
such service. See 20 FCC Rcd at 14902, para. 92 (describing the transmission service offered to “end user and ISP
customers”). And that’s why even today the tariffs of the National Exchange Carrier Association describe Digital
(continued….)

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4. Heightened Scrutiny.—Not only does the FCC lack the authority to classify broadband
Internet access service as a Title II telecommunications service; it also, in any event, fails to supply a
reasoned basis for departing from decades of agency precedent that determined it is an information
service.299
The agency faces one further obstacle in its quest to reclassify broadband Internet access service:
heightened judicial scrutiny. When an agency’s “new policy rests upon factual findings that contradict
those which underlay its prior policy; or when its prior policy has engendered serious reliance interests
that must be taken into account,”300 an agency decision to reverse course is subject to heightened or more
searching review.301 Both circumstances are present here.
First, as discussed above, the Commission’s decision to reclassify broadband Internet access
service rests upon a series of factual findings that run directly contrary to those it made in all prior
classification decisions.
Second, if there ever could be a case where an agency has engendered serious reliance interests,
this is it. After the passage of the 1996 Telecommunications Act and the confirmation that Internet access
service was an information service in the Stevens Report, the FCC trumpeted the multi-billion
investments that AT&T, MCI, Qwest, Level 3, UUNet Technologies, Sprint, and others were making in
the Internet backbone, noting that bandwidth on the backbone was doubling every four to six months.302
Starting the year after the Stevens Report, broadband providers have invested over $1.125 trillion in their
networks.303 To suggest these providers did not rely on the FCC’s decision not to subject Internet access
services—broadband or otherwise—to Title II is absurd.
Indeed, look just at the wireless industry as an example. In 2007, when the Commission
classified wireless broadband Internet access service as an information service, FCC Chairman Kevin
Martin stated that “[t]oday’s classification eliminates unnecessary regulatory barriers for wireless
broadband Internet access service providers and will further encourage investment and promote
competition in the broadband market.”304 It certainly did. Between that decision and now, wireless
providers alone have invested over $175 billion.
Regardless of whether the heightened or more traditional standard applies, the Order fails to offer
an adequate basis for changing course. Indeed, given that neither the material facts nor relevant laws
have changed, it is quite plain that the only reason the FCC is departing from prior precedent is because
(Continued from previous page)
Subscriber Line (DSL) as a local point-to-point service. See, e.g., NECA Tariff FCC No. 5, 20th Revised Page 8-1
http://bit.ly/1wkvPH8 (effective through Mar. 1, 2015) (describing DSL Access service as a transmission service
“over local exchange service facilities . . . between customer designated premises and designated Telephone
Company Serving Wire Centers”). To return to the pizzeria analogy: Before, the Commission regulated the
delivery from the pizzeria to the customer; now, the Commission wants to regulate that delivery plus the delivery of
all or substantially all of the ingredients to the pizzeria. The one thing is not like the other.
299

See, e.g., Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29
(1983).
300

FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (citing Smiley v. Citibank (South Dakota), N. A.,
517 U.S. 735, 742 (1996)).
301

Id. at 513–16.

302

Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a
Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the
Telecommunications Act of 1996, CC Docket No. 98-146, Report, 14 FCC Rcd 2398, para. 38 (1999).
303

See, e.g., USTelecom, Broadband Investment, Historical Broadband Provider Capex (2015) (data through 2013),
available at http://www.ustelecom.org/broadband-industry-stats/investment/historical-broadband-provider-capex.
304

Wireless Broadband Internet Access Order, 22 FCC Rcd at 5926 (Statement of Chairman Kevin J. Martin).

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the President told the agency to do so.305 But courts have been quite clear that this is not a lawful basis
for shifting course, with the D.C. Circuit stating that “an agency may not repudiate precedent simply to
conform with a shifting political mood.”306 As a result, the FCC’s attempt to offer a reasoned basis for
turning heel on decades of agency precedent falls far short of meeting APA requirements.
B.
Section 332 of the Communications Act independently bars the FCC from reclassifying mobile
broadband Internet access service as a Title II telecommunications service.
In section 332, Congress added a mobile gloss onto the definition of telecommunications service
originally formulated for wireline carriers. Pursuant to the statute, providers of “commercial mobile
service” are common carriers, and thus telecommunications carriers.307 By contrast, providers of “private
mobile service” are not.308
In order to understand why mobile broadband Internet access service is a private mobile service
and thus cannot be classified as a Title II service, it is necessary to begin by running through a number of
definitions. First, a “commercial mobile service,” in relevant part, is any mobile service that “makes
interconnected service available.”309 “[I]nterconnected service,” in turn, means a “service that is
interconnected with the public switched network”310 and “gives subscribers the capability to communicate
to or receive communication from all other users on the public switched network.”311 “[P]ublic switched
network,” for its part, means the public switched telephone network, i.e., the “common carrier switched
network . . . that use[s] the North American Numbering Plan in connection with the provision of switched
services.”312 And “private mobile service” is the reverse of commercial mobile service: “any mobile
service . . . that is not a commercial mobile service or the functional equivalent of a commercial mobile
service.”313
Given these definitions, it’s no surprise that the FCC back in 2007 classified mobile broadband
Internet access service as a private mobile service—and hence recognized that it could not be treated as a
common-carriage, telecommunications service.314 As the Commission put it: “[M]obile wireless
broadband Internet access service does not fit within the definition of ‘commercial mobile service’
because it is not an ‘interconnected service.’”315 That’s because it does not interconnect with the public
305

See supra Part I.

306

National Black Media Coalition v. FCC, 775 F.2d 342, 356 n.17 (D.C. Cir. 1985); see also Fox, 556 U.S. at 537
(Kennedy, J., concurring in part and concurring in the judgment) (“Congress passed the Administrative Procedure
Act (APA) to ensure that agencies follow constraints even as they exercise their powers. One of these constraints is
the duty of agencies to find and formulate policies that can be justified by neutral principles and a reasoned
explanation.”).
307

Communications Act § 332(c)(1)(A) (“A person engaged in the provision of a service that is a commercial
mobile service shall, insofar as such person is so engaged, be treated as a common carrier.”).
308

Communications Act § 332(c)(2) (“A person engaged in the provision of a service that is a private mobile service
shall not, insofar as such person is so engaged, be treated as a common carrier for any purpose.”).
309

Communications Act § 332(d)(1).

310

Communications Act § 332(d)(2).

311

47 C.F.R. § 20.3.

312

47 C.F.R. § 20.3.

313

Communications Act § 332(d)(3).

314

Wireless Broadband Internet Access Order, 22 FCC Rcd at 5901.

315

Id. at 5916, para. 41.

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switched telephone network but instead a different network—the Internet.316 The Commission reaffirmed
that finding four years later when it held that “commercial mobile data service,” which, as relevant here,
is the equivalent of retail mobile Internet access service, “is not interconnected with the public switched
network.”317
Courts have repeatedly confirmed this view. The D.C. Circuit in Cellco explained that,
“providers of ‘commercial mobile services,’ such as wireless voice-telephone service, are common
carriers, whereas providers of other mobile services are exempt from common carrier status.”318 The
court recognized what it described as Section 332’s “statutory exclusion of mobile-internet providers
from common carrier status.”319 And it noted that, when read in conjunction with the Communications
Act’s separate prohibition on treating information services providers as common carriers, mobile
broadband Internet access service providers are “statutorily immune, perhaps twice over, from treatment
as common carriers.”320 The D.C. Circuit in Verizon put it even more bluntly: The “treatment of mobile
broadband providers as common carriers would violate section 332.”321
This regulatory framework creates major problems for the task that President Obama specifically
assigned the Commission: reclassifying mobile broadband Internet access service as a Title II
telecommunications service.322 And so the Commission only makes a half-hearted attempt to work within
it. In two short paragraphs, the Order claims that because mobile broadband Internet access service
enables the use of VoIP and similar applications, it “gives subscribers the capability to communicate with
all NANP endpoints”323 and is thus an interconnected service, a commercial mobile service, and a
telecommunications service.
But this isn’t a new argument—the Commission squarely addressed it and rejected it seven years
ago.324 A service is classified based on its own functions and properties,325 and there is no question that a
subscriber to mobile broadband Internet access service, without interconnected VoIP service, cannot
reach the public switched telephone network. In other words, interconnected VoIP service and mobile
broadband are distinct services,326 so while VoIP might be an interconnected service, mobile broadband is
316

Id. at 5916, 5917, paras. 41, 45 & n.118.

317

Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers of
Mobile Data Services, WT Docket No. 05-265, 26 FCC Rcd 5411, 5431, para. 41 (2011).
318

Cellco Partnership v. FCC, 700 F.3d 534, 538 (D.C. Cir. 2012).

319

Id. at 548.

320

Id. at 538; see also id. (recognizing that the Communications Act’s definition of the term “common carrier” has
been “interpreted . . . to exclude providers of ‘information services’”).
321

Verizon v. FCC, 740 F.3d 623, 650 (D.C. Cir. 2014).

322

The White House, Net Neutrality: President Obama’s Plan for a Free and Open Internet
https://web.archive.org/web/20150204034321/http://www.whitehouse.gov/net-neutrality (Nov. 10, 2014) (“I believe
the FCC should make these rules fully applicable to mobile broadband as well.”).
323

Order at paras. 400–01.

324

Wireless Broadband Internet Access Order, 22 FCC Rcd at 5917–18, para. 45.

325

See, e.g., Time Warner Cable Request for Declaratory Ruling that Competitive Local Exchange Carriers May
Obtain Interconnection under Section 251 of the Communications Act of 1934, as Amended, to Provide Wholesale
Telecommunications Services to VoIP Providers, WC Docket No. 06-55, Memorandum Opinion and Order, 22 FCC
Rcd 3513, 3521–22, paras. 15–16 (Wireline Comp. Bur. 2007) (noting the “regulatory classification of the [VoIP]
service provided to the ultimate end user has no bearing on” the regulatory status of the entities “transmitting [the
VoIP] traffic”).
326

Wireless Broadband Internet Access Order, 22 FCC Rcd at 5918, para. 45 (stating that “users of a mobile
wireless broadband Internet access service need to rely on another service or application, such as certain voice over
Internet Protocol (VoIP) services . . . to make calls”).

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not.327
Today’s Order offers no reasoned basis for departing from these precedents, nor for concluding
that VoIP service and mobile broadband Internet access service are now a single, unified service. Yes,
mobile users can now communicate with different types of networks; but they could do that in 2007. Yes,
there are more subscribers to mobile broadband Internet access service now than in 2007; but that has
nothing at all to do with whether VoIP and mobile broadband are distinct services. And while the FCC
may assert that “changes in the marketplace have increasingly blurred the distinction between services
using NANP numbers and those using public IP addresses,”328 that’s just an ipse dixit; no consumer that I
know types a phone number into a web browser to make a call, and no one tries to dial a URL into their
phone.
What is more, the Order’s attempted conflation makes no sense. If mobile broadband Internet
access service could lose its status as a distinct service and blend into another merely because it enables
access to interconnected VoIP service, then it truly is a regulatory chameleon. Is it a cable service
because consumers can use apps to watch cable programming? Is it a radio service because people can
use apps to listen to an FM station? Is it food delivery service because some apps let you order pizza
from your phone? Obviously not.
Implicitly recognizing these problems with its approach, the Order next attempts to jettison the
whole regulatory framework and replace it with one far more amenable to the outcome it desires—first by
redefining the meaning of public switched network, next by redefining the meaning of functional
equivalence, and finally by summoning a “statutory contradiction” into being. None of these attempts
withstands scrutiny.
1. Redefining the Meaning of the Public Switched Network.—The Commission’s first move is to
broaden the definition of the public switched network to include not only services that use the North
American Numbering Plan but also those that use “public IP addresses.”329 In other words, the public
switched network would now encompass the Internet in addition to the traditional public switched
telephone network.
But that’s not what the statute allows. A “fundamental canon of statutory construction is that,
unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common
meaning.”330 In the case of a term of art, that ordinary meaning is determined based on common usage
among those practiced in the art.
And in the years preceding the passage of section 332(d)(2), the FCC and the courts repeatedly
used the term “the public switched network” to refer to the traditional, circuit-switched network that
AT&T and local exchange carriers had built to offer telephone service, i.e., the public switched telephone
network. In 1981, the Commission noted that “the public switched network interconnects all telephones
in the country.”331 In 1982, the D.C. Circuit noted that wide area telecommunications service “calls are
switched onto the interstate long distance telephone network, known as the public switched network, the
same network over which regular long distance calls travel.”332 In 1985, the Federal-State Joint Board on
327

Id. at 5917–18, paras. 45–46.

328

See Order at para. 401.

329

Order at para. 391.

330

Perrin v. United States, 444 U.S. 37, 42 (1979); see also Evans v. United States, 504 U.S. 255, 260 n.3 (1992)
(Where a “‘word is obviously transplanted from another legal source, whether common law or other legislation, it
brings the old soil with it.’” (quoting Justice Felix Frankfurter, Some Reflections on the Reading of Statutes, 47
COLUM. L. REV. 527, 537 (1947)).
331

Applications of Winter Park Tel. Co., Memorandum Opinion and Order, 84 FCC.2d 689, 690, para. 2, n.3 (1981).

332

Ad Hoc Telecommunications Users Committee v. FCC, 680 F.2d 790, 793 (D.C. Cir. 1982).

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Separations noted that the “costs involved in the provision of access to the public switched network[] are
assigned . . . on the same basis as . . . [t]he local loop used by subscribers to access the switched telephone
network.”333 And in 1992, the FCC characterized its cellular service policy as “encourag[ing] the creation
of a nationwide, seamless system, interconnected with the public switched network so that cellular and
landline telephone customers can communicate with each other on a universal basis.”334
So it’s no wonder that when the FCC first defined “the public switched network,” it expressly
rejected calls to decouple that concept from the traditional public switched telephone network.
Commenters had asked the Commission to broaden the scope of the term to include the then-emerging
“network of networks.”335 Still others teed up defining the term to “include all networks.”336 But the
Commission said no, and tied its definition of the public switched network to “the traditional local
exchange or interexchange switched network.”337 In other words, the agency recognized that “Congress
intended [the term] to have its established meaning,”338 which in this case means the public switched
telephone network—not the Internet.339
In the 20 years since the FCC defined the term, Congress has amended the Communications
Act—and section 332—numerous times.340 On every occasion, it has chosen not to disturb the
Commission’s interpretation. As the Supreme Court has explained, this “congressional failure to revise
or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by

333

MTS and WATS Market Structure; Amendment of Part 67 of the Commission’s Rules and Establishment of a
Joint Board, CC Docket Nos. 78-72, 80-286, Order Inviting Further Comments, 50 Fed. Reg. 31749, 41749 (Fed.State Jt. Bd. 1985).
334

Amendment of Part 22 of the Commission’s Rules Relating to License Renewals in the Domestic Public Cellular
Radio Telecommunications Service, CC Docket No. 90-358, Report and Order, 7 FCC Rcd 719, 720, para. 9 (1992);
see also Provision of Access for 800 Service, CC Docket No. 86-10, Memorandum Opinion and Order on
Reconsideration and Second Supplemental Notice of Proposed Rulemaking, 6 FCC Rcd 5421, 5421, n.3 (1991)
(“800 numbers generally must be translated into [plain old telephone service] numbers before 800 calls can be
transmitted over the public switched network.”); Telecommunications Services for Hearing-Impaired and SpeechImpaired Individuals, and the Americans with Disabilities Act of 1990, CC Docket No. 90-571, Notice of Proposed
Rulemaking, 5 FCC Rcd 7187, 7190, para. 20 (1990) (noting that “subscribers to every telephone common carriers’
interstate service, including private line, public switched network services, and other common carrier services, will
contribute”); Letter from Scott Bergmann, CTIA to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10137, at 7 n.2 (Dec. 22, 2014) (collecting authorities).
335

Implementation of Sections 3(n) and 332 of the Communications Act; Regulatory Treatment of Mobile Services,
GN Docket No. 93-252, Second Report and Order, 9 FCC Rcd 1411, 1434, para. 53 (1994) (CMRS Second Report
and Order).
336

Id.

337

Id. at 1436–37, para. 59. To support its action here, the Commission cites commenters that called on the FCC in
1994 to broaden the scope of the term “the public switched network” to include the “network of networks,” or
otherwise separate the term entirely from the traditional public switched telephone network. See Order at note 1145.
Again, this ignores that the Commission rejected those commenters’ calls to so fundamentally alter the term “the
public switched network” and made clear that, consistent with section 332, it was limiting the term to covering
services that are “interconnected with the traditional local exchange or interexchange switched network.” CMRS
Second Report and Order, 9 FCC Rcd at 1436–37, para. 59.
338

McDermott Intern., Inc. v. Wilander, 498 U.S. 337, 342 (1991).

339

Indeed, section 332’s legislative history confirms that Congress used the terms interchangeably. Although both
the House and Senate versions of the legislation used the term “the public switched network,” the Conference
Report characterized the House version as requiring interconnection with “the Public switched telephone network.”
H.R. Rep. 103-213, 103d Cong., 1st Sess. 495 (1993) (emphasis added).
340

See, e.g., Telecommunications Act § 704(b) (amending section 332 of the Communications Act).

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Congress.”341
And Congress itself has distinguished between “the public switched network” on the one hand
and the “public Internet” on the other. In the Spectrum Act of 2012, for example, Congress assigned the
First Responder Network Authority certain responsibilities, including developing for public safety users a
“core network” that “provides connectivity” to “the public Internet or the public switched network, or
both.”342 This provision makes clear that Congress knows the difference between “the public switched
network” and the “public Internet.” The Commission must respect that distinction.343
There’s another problem with the Commission’s attempt to expand the definition of “the public
switched network” to include the Internet: Congress used the definite article “the” and the singular term
“network” in section 332(d)(2)—suggesting Congress was referring to a single, integrated network. And
the Commission followed that lead when it defined interconnected service as giving “subscribers the
capability to communicate to or receive communication from all other users on the public switched
network.”344 Here, the Order impermissibly attempts to define “the public switched network” to be two
networks. Furthermore, expanding the definition of the public switched network to encompass two
distinct networks—the public switched telephone network and the public Internet—means that no mobile
service would be interconnected since no service offers interconnection with substantially all of each
network. For example, mobile voice service would no longer be an interconnected service nor a
commercial mobile service nor a telecommunications service since it unquestionably does not give
consumers a way of dialing up websites. And so the one service that everyone agrees Congress intended
to be a commercial mobile service would not be one.345
341

Commodity Futures Trading Com’n v. Schor, 478 U.S. 833, 846 (1986) (quoting NLRB v. Bell Aerospace Co.,
416 U.S. 267, 274–275 (1974)); see also Cottage Sav. Ass’n v. C.I.R. 499 U.S. 554, 561 (1991) (“‘[I]nterpretations
long continued without substantial change, applying to unamended or substantially reenacted statutes, are deemed to
have received congressional approval and have the effect of law.’” (quoting U.S. v. Correll, 389 U.S. 299, 305–06
(1967))); City of Pleasant Grove v. U.S., 479 U.S. 462, 468 (1987) (Where Congress is aware of an administrative
interpretation when it revises a statute, it “implicitly approve[s] it.”).
342

47 U.S.C. § 1422(b)(1).

343

See, e.g., Sullivan v. Stroop, 496 U.S. 478, 484 (1990) (applying the “normal rule of statutory construction that
identical words used in different parts of the same act are intended to have the same meaning” to a single term used
in two separate, but related, statutes (internal quotation marks omitted)).
344

47 C.F.R. § 20.3 (emphasis added).

345

In an effort to try to avoid this absurdity, the Order says in a footnote that it is making a “conforming change to
the definition of Interconnected Service in section 20.3 of the Commission’s rules.” Order at note 1175; see also 47
C.F.R. § 20.3 (defining interconnected service as one “[t]hat is interconnected with the public switched network, or
interconnected with the public switched network through an interconnected service provider, that gives subscribers
the capability to communicate to or receive communication from all other users on the public switched network”)
(emphasis added). That change? Deleting the word “all” from the definition of interconnected service! Order at
Appendix A. There are many words one could use to describe this amendment. “Conforming” (or “minor”) is not
one of them. Under this change, every user of Network A (say, the public switched telephone network) could lack
the capability to communicate with any user of Network B (say, the Internet) and vice-versa, but, because of the
FCC’s definitional change, Network A and Network B would now be a single, interconnected network. That is
plainly at odds with the entire structure of section 332 and any reasonable understanding of the concept of an
interconnected network and interconnected services.
Indeed, the FCC never proposed such a change, has no record on which to do so, and nowhere explains how the
change can be squared with the text, purpose, or history of section 332, including the Commission’s own view that
the purpose of the interconnected services definition is to ensure that those services are “broadly available.” See
Order at para. 402. Although the Order tries to bolster its approach by contending that the definition of
“interconnected service” and the CMRS Second Report and Order recognize that a service can be interconnected
even if access is limited in some ways, Order at para. 402 & note 1172, this effort fails because the FCC there was
focusing on phenomena such as service providers intentionally limiting users’ access to the public switched network
(continued….)

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In light of all this evidence that the term “the public switched network” in section 332(d)(2) does
not include the Internet, the Commission’s contrary interpretation is neither reasonable nor credible.
How does the Commission respond? The Order’s primary argument is that Congress “expressly
delegated authority to the Commission to define the term ‘public switched network,’” and that, in doing
so, “Congress expected the notion to evolve and therefore charged the Commission with the continuing
obligation to define it.”346 But that’s just wishful thinking. Nothing in the text of section 332 nor in its
legislative history supports the view that Congress intended the term “the public switched network” to be
capable of such an amazing feat of mutation that it could swallow today’s Internet.
The actual text makes that clear. The referenced delegation appears in section 332’s definition of
the term “interconnected service.”347 It states: “the term ‘interconnected service’ means service that is
interconnected with the public switched network (as such terms are defined by regulation by the
Commission) or service for which a request for interconnection is pending.”348
This language simply cannot bear the weight the Commission places on it. The idea that this
limited interpretative authority means that the Commission has the authority to redefine the traditional
public switched network as incorporating today’s Internet simply proves too much. Surely, the FCC
could not define the public switched network as something that is not the public switched network,
whether it be an apple or a turnip. Even when Congress delegates interpretive authority to an agency, that
agency must abide by traditional norms of statutory interpretation. So “[w]here Congress has established
a clear line, the agency cannot go beyond it; and where Congress has established an ambiguous line, the
agency can go no further than the ambiguity will fairly allow.”349
All this delegation recognizes is the uncontroversial notion that the Commission has some
authority to interpret the relevant terms. Indeed, the Commission previously exercised that limited
interpretive authority, and that precedent undermines the Commission’s position here. In the CMRS
Second Report and Order, for example, the Commission defined “the public switched network” as
including those switched common carrier services and networks that themselves interconnect with and are
thus part of the traditional public switched telephone network.350 In doing so, the Commission rejected all
calls to define the terms so expansively as to include the Internet or otherwise fundamentally alter
them.351
Relatedly, the Order suggests that the Commission’s decision in the CMRS Second Report and
(Continued from previous page)
to certain hours each day, for the sole purpose of avoiding classification as a commercial mobile service. See, e.g.,
CMRS Second Report and Order, 9 FCC Rcd at 1435, para. 55. That is the apple to the Order’s orange, given that
the Commission here is attempting to deem two networks and services “interconnected” even though they never
interconnect.
346

Order at para. 396.

347

Communications Act § 332(d)(2).

348

Communications Act § 332(d)(2). Compare, too, the parenthetical language in section 332(d)(2) with the parallel
statutory provisions that nest around the definition of “interconnected service.” In both section 332(d)(1), which
defines “commercial mobile service,” and section 332(d)(3), which defines “private mobile service,” the parallel
parentheticals state “(as defined in section 153 of this title).” So rather than providing evidence that the phrases are
not terms of art or that Congress was delegating the FCC unbounded discretion to define the relevant terms, it is
both a far more modest delegation, as explained above, and one that simply recognizes that Congress itself had not
codified the relevant terms.
349

City of Arlington, Tex. v. FCC, 133 S.Ct. 1863, 1874 (2013); see also Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842 (1984).
350

CMRS Second Report and Order, 9 FCC Rcd at 1436, para. 59.

351

See id. at 1433–34, para. 53.

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Order to codify the term “the public switched network,” rather than the “‘technologically based term
‘public switched telephone network,’” supports the agency’s position today.352 But this claim also misses
the mark. The FCC in 1994 was not broadening the scope of “the public switched network” beyond the
traditional local exchange or interexchange switched network. Instead, it was making clear that when a
provider offers a switched common carrier—yet, non-telephone—service that nonetheless interconnects
with the public switched telephone network, that service cannot avoid treatment as a commercial mobile
service simply because it is not offering “telephone” service.353 The Commission could have had any
number of non-“telephone” switched common carrier services or networks in mind. This becomes quite
plain when one reads this portion of the CMRS Second Report and Order in context, including its
statement that it was adopting an “approach to interconnection with the public switched network [that] is
analogous to the one” it used previously.354 Thus, this precedent undermines, rather than supports, the
Commission’s view that it can define the term “the public switched network” in a way that includes
services or networks that are not interconnected with the traditional public switched telephone network.
Indeed, the Commission does not really dispute this point.355 The FCC’s discretion to define nontelephone switched common carrier services as part of the public switched network, when those services
are interconnected with the network, is of no relevance here because mobile broadband Internet access is
not such a service. As explained above—and as the Order never seriously argues otherwise—mobile
broadband Internet access service itself is not a switched offering that interconnects with the traditional
public switched network.356
In sum, it is clear that the Commission lacks authority to define the public switched network as
352

Order at paras. 391, 396, & note 1145 (citing CMRS Second Report and Order, 9 FCC Rcd at 1436, para. 59).

353

See CMRS Second Report and Order, 9 FCC Rcd at 1431–37, paras. 50–60; id. at 1434, para. 54 (“The purpose
underlying the congressional approach, we conclude, is to ensure that a mobile service that gives its customers the
capability to communicate to or receive communication from other users of the public switched network should be
treated as a common carriage offering (if the other elements of the definition of commercial mobile radio service are
also present[.)]”); id. at 1433, para. 52 (“Several parties caution that making distinctions based on technologies
could encourage mobile service providers to design their systems to avoid commercial mobile radio service
regulation.”); see also Wireless Broadband Internet Access Order, 22 FCC Rcd at 5918, para. 45 n.119 (describing
the Second CMRS Report and Order and stating that, “[i]n fact, the Commission found that ‘commercial mobile
service’ must still be interconnected with the local exchange or interexchange switched network as it evolves”).
354

See CMRS Second Report and Order, 9 FCC Rcd at 1432, 1435, paras. 52, 57 (discussing Establishment of
Satellite Systems Providing International Communications, CC Docket No. 84-1299, Report and Order, 101 FCC 2d
1046, 1101, para. 114 (1985) (discussing various “switched message services such as MTS, telex, TWX, telegraph,
teletext, facsimile and high speed switched data services”); see also id.at 1454–59, paras. 100–15 (identifying thenexisting common carrier services).
355

See Order at note 1145 (noting that the Second CMRS Report and Order recognized that non-telephone common
carrier switched services and networks that themselves interconnect with the traditional public switched network are
considered part of that network for purposes of section 332).
356

The Order attempts to evade this argument when it contrasts the “millions of subscribers” to mobile broadband
Internet access service with the fact that private mobile service “includes services not ‘effectively available to a
substantial portion of the public.’” Order at para. 398. But the statute poses a three-part test: To be a commercial
mobile service, a service must be provided for a fee, available to the public, and an interconnected service. So a
service is a private mobile service if it isn’t interconnected with the public switched network—even if it’s provided
for a fee and made available to a substantial portion of the public (or even every single American). Any other
reading of the statute would render one part of the statutory test surplusage. Indeed, the Commission has made this
very point. See CMRS Second Report and Order, 9 FCC Rcd at 1450–51, paras. 88–93 (concluding that most
specialized mobile radio services meet the first two parts of the test so that the classification of any particular
specialized mobile radio service thus “turns on whether they do, in fact, provide interconnected service as defined by
the statute”). Again, the problem for the Order is that mobile broadband Internet access service falls squarely into
the non-interconnected camp and thus cannot be classified as a commercial mobile service.

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including the Internet.
2. Redefining the Meaning of Functional Equivalent.—Alternatively, the Commission claims that
it can classify mobile broadband Internet access as a commercial mobile service by finding that it is the
“functional equivalent” of that service.357 But as the Commission’s own decisions make clear, section
332(d)(3)’s functional equivalency standard does not give the Commission nearly enough leeway to make
that determination. Indeed, the Commission does not even attempt to satisfy the relevant standard.
Instead, it invents an entirely new method of determining functional equivalency that turns the statutory
framework on its head.
The Commission has an established framework for determining whether a service is the
functional equivalent of a commercial mobile service.358 What is the first tenet of that framework? A
mobile service that does not meet the literal definition of a commercial mobile service “is presumed to be
a private mobile service.”359
What is the one way that this presumption can be overcome? By showing, through a petitionbased process and specific allegations of fact supported by affidavits, that the mobile service in question
is the functional equivalent of a commercial mobile radio service based on an evaluation of a variety of
factors, expressly including: “consumer demand for the service to determine whether the service is
closely substitutable for a commercial mobile radio service; whether changes in price for the service
under examination, or for the comparable commercial mobile radio service would prompt customers to
change from one service to the other; and market research information identifying the targeted market for
the service under review.”360
So does the Order apply the required presumption when determining whether mobile broadband
Internet access service is the functional equivalent of commercial mobile service? No. Does the Order
evaluate the required factors? No. Did the Commission provide APA notice before jettisoning this
required framework? Of course not.
And why does the Commission fail to do any of this? The answer to that is clear. Because there
are no facts in the record—let alone ones supported by affidavit—that could overcome the presumption or
otherwise show that the two services are close substitutes. The Commission doesn’t apply the law
because the law prevents it from reaching the outcome demanded by the White House.
While not disputing any of this directly, the Order suggests that the two services are useful as
substitutes because consumers of mobile broadband Internet access service can use VoIP services to place
calls to the public switched telephone network.361 But at most, that observation goes to whether VoIP
services are the functional equivalent of commercial mobile services. It has nothing to do with whether
the separate mobile broadband Internet access service is.362
357

See Order at paras. 404–05.

358

See 47 C.F.R. § 20.9(14); see also CMRS Second Report and Order, 9 FCC Rcd at 1442–48, paras. 71–80
(adopting the current framework for determining whether a service may be deemed the functional equivalent of a
commercial mobile service).
359

See 47 C.F.R. § 20.9(14)(i).

360

See 47 C.F.R. § 20.9(14)(ii)(B).

361

See Order at paras. 400–01, 405, 407.

362

That the FCC classifies a service based on the nature of the service itself is well established. The Commission
has found as much in this very context. See, e.g., Wireless Broadband Internet Access Order, 22 FCC Rcd at 5917–
18, paras. 45–46 (recognizing that the regulatory classification of VoIP services is irrelevant to the regulatory
classification of the separate mobile broadband Internet access service); see also Time Warner Cable Request for
Declaratory Ruling that Competitive Local Exchange Carriers May Obtain Interconnection under Section 251 of the
Communications Act of 1934, as Amended, to Provide Wholesale Telecommunications Services to VoIP Providers,
(continued….)

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The fact that mobile broadband Internet access service does not meet the functional equivalency
test is not just some quirk in the law. The FCC has been clear that, in light of Congress’s determinations
in section 332, “very few mobile services that do not meet the definition of CMRS will be a close
substitute for a commercial mobile radio service.”363 But the Commission’s new test for determining
functional equivalency, which consist of just one question—namely, whether the new service “enables
ubiquitous access to the vast majority of the public”—completely eviscerates the statutory scheme.364
Sure, it’s more efficient to ask just one question, rather than applying the required framework. And it
does make it easier to reach predetermined outcomes. But it upends the statutory scheme Congress put in
place. And it’s also impermissible here because the Commission did not provide notice that it might
abandon that framework.
3. Statutory Contradiction.—Finally, the Commission trots out what it says is an independent
basis for reclassifying mobile broadband Internet access as a section 332 commercial mobile service.365
The Commission says that it must be able to reclassify the service because, if it were otherwise, there
would be a “statutory contradiction” between section 332(d)(2), which prohibits the Commission from
applying common carrier requirements to private mobile services, and the Commission’s decision today
to treat mobile broadband Internet access service as a telecommunications service subject to common
carriage requirements.366
But this argument is just silly. The Commission is simply complaining that it must be able to
interpret a statutory provision one way because otherwise it will not able to interpret a second statutory
provision as it would like. It is like saying that we must call all dogs “cats” because, if we did not, we
could not declare dogs to be feline. Any contradiction here does not lie with the statute. Rather, it is the
product of the Commission’s attempt to twist the statutory language into a pretzel in order to advance a
preferred policy outcome. But no matter how the Commission tries to manipulate the statute, one fact
remains: Section 332 prevents the Commission from treating providers of mobile broadband Internet
access service as providers of telecommunications services subject to common carriage requirements.367
C.
The Commission also relies on section 706 of the Telecommunications Act, claiming that
Congress expressly delegated authority to the FCC through this provision.368 This is simply wrong. The
text, statutory structure, and legislative history all make clear that Congress intended section 706 to be
hortatory—not delegatory—in nature.
In pertinent part, subsections (a) and (b) of section 706 read:
(a) . . . The Commission and each State commission with regulatory jurisdiction over
(Continued from previous page)
WC Docket No. 06-55, Memorandum Opinion and Order, 22 FCC Rcd 3513, 3520–21, paras. 15–16 (Wireline
Comp. Bur. 2007) (noting the “regulatory classification of the [VoIP] service provided to the ultimate end user has
no bearing on” the regulatory status of the entities “transmitting [the VoIP] traffic”).
363

CMRS Second Report and Order, 9 FCC Rcd at 1447, para. 79.

364

See Order at para. 407.

365

See Order at para. 403.

366

See Order at para. 403 (citing Communications Act § 332 (prohibiting the common carrier treatment of private
mobile service providers) and Communications Act § 3 (requiring the common carrier treatment of providers of
telecommunications services)).
367

Recall, too, that a provider of private mobile service “shall not . . . be treated as a common carrier for any
purpose.” Communications Act § 332(c)(2). One of those purposes is certainly treating it as such for the purpose of
avoiding manufactured “statutory contradictions.”
368

See, e.g., Order at paras. 275–82.

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telecommunications services shall encourage the deployment on a reasonable and timely
basis of advanced telecommunications capability to all Americans . . . by utilizing . . .
price cap regulation, regulatory forbearance, measures that promote competition in the
local telecommunications market, or other regulating methods that remove barriers to
infrastructure investment.
(b) . . . If the Commission’s determination [of whether advanced telecommunications
capability is being deployed to all Americans in a reasonable and timely fashion] is
negative, it shall take immediate action to accelerate deployment of such capability by
removing barriers to infrastructure investment and by promoting competition in the
telecommunications market.369
Although each of these subsections suggests a call to action (“shall encourage,” “shall take
immediate action”), neither reads like nor is a delegation of authority. For one, neither subsection
expressly authorizes the FCC to engage in rulemaking. Congress knows how to confer such authority on
the FCC and has done so repeatedly: It has delegated rulemaking authority to the FCC over both specific
provisions of the Communications Act (e.g., “[t]he Commission shall prescribe regulations to implement
the requirements of this subsection”370 or “the Commission shall complete all actions necessary to
establish regulations to implement the requirements of this section”371), and it has done so more generally
(e.g., “[t]he Commission[] may prescribe such rules and regulations as may be necessary in the public
interest to carry out the provisions of th[e Communications] Act”372). Congress did not do either in
section 706.
For another, neither subsection expressly authorizes the FCC to prescribe or proscribe the
conduct of any party. Again, Congress knows how to empower the Commission to prescribe conduct
(e.g., “the Commission is authorized and empowered to determine and prescribe what will be the just and
reasonable charge”373) and to proscribe conduct (e.g., “the Commission is authorized and empowered . . .
to make an order that the carrier or carriers shall cease and desist”374). And again, Congress has
repeatedly empowered the FCC to direct the conduct of particular parties (e.g., “[t]he Commission may at
any time require any such carrier to file with the Commission an inventory of all or of any part of the
property owned or used by said carrier,”375 or “the Commission shall have the power to require by
subpoena the attendance and testimony of witnesses”376). Congress did not do any of this in section 706.
For yet another, neither subsection expressly authorizes the FCC to enforce compliance by
ordering payment for noncompliance. Where Congress has authorized the Commission to impose
liability it has always done so clearly: For forfeitures, the Communications Act directs that “[a]ny person
who is determined by the Commission . . . to have . . . failed to comply with any of the provisions of this

369

Telecommunications Act § 706(a)–(b).

370

Communications Act § 227(b)(2).

371

Communications Act § 251(d)(1).

372

Communications Act § 201(b) (“The Commissioner [sic] may prescribe such rules and regulations as may be
necessary in the public interest to carry out the provisions of this Act.”); see also Communications Act § 303(r)
(“Except as otherwise provided in this Act, the Commission from time to time, as public convenience, interest, or
necessity requires shall— . . . [m]ake such rules and regulations and prescribe such restrictions, not inconsistent with
law, as may be necessary to carry out the provisions of this Act . . . .”).
373

Communications Act § 205(a).

374

Communications Act § 205(a).

375

Communications Act § 213(b).

376

Communications Act § 409(e).

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Act . . . shall be liable to the United States for a forfeiture penalty”377 and “[t]he amount of such forfeiture
penalty shall be assessed by the Commission . . . by written notice.”378 And for other liabilities, the
Communications Act directs that “the Commission shall make an order directing the carrier to pay to the
complainant the sum to which he is entitled.”379
The lack of express authority to issue rules, order conduct, or enforce compliance should be
unsurprising, however, since section 706’s subsections lay out precisely how Congress expected the FCC
to “encourage . . . deployment” and “take action”: Congress expected the FCC to use the authority it had
given the agency elsewhere. The FCC already had the authority to adopt “price cap regulation” since it
had started converting carriers from rate-of-return regulation to price-cap regulation in the early 1990s.380
The Telecommunications Act established the FCC’s “regulatory forbearance” authority.381 The
Telecommunications Act also authorized the FCC to “remove barriers to infrastructure investment,”
specifically barriers to entry created by state or local laws,382 and instructed it to identify and eliminate
market entry barriers.383 And as for “promoting competition in the telecommunications market,” the
Telecommunications Act added a whole second part to Title II of the Communications Act, titling it
“Development of Competitive Markets.”384 In other words, Congress did in fact “invest[] the
Commission with the statutory authority to carry out those acts” described in section 706385—it just did so
through provisions other than section 706.
The structure of federal law confirms this reading. Although Congress directed that many
provisions of the Telecommunications Act be inserted into the Communications Act,386 section 706 was
not one of them. Instead, it was left as a freestanding provision of federal law.387 As such, the provisions
of the Communications Act that grant rulemaking authority “under this Act” (like section 201(b)), that
grant prescription-and-proscription authority “[f]or purposes of this Act” (like section 409(e)), and that
grant enforcement authority for violations of “this Act” (like section 503) simply do not apply to section
706 of the Telecommunications Act. Indeed, the so-called subject-matter jurisdiction of the FCC under
section 2 applies, by its own terms, only to “provisions of this Act”388—and so the “most important[]”
377

Communications Act § 503(b)(1).

378

Communications Act § 503(b)(2)(E).

379

Communications Act § 209.

380

Policy and Rules Concerning Rates for Dominant Carriers, CC Docket No. 87-313, Second Report and Order, 5
FCC Rcd 6786 (1990).
381

Telecommunications Act § 401 (titled “Regulatory Forbearance” and inserting section 10 into Title I of the
Communications Act).
382

Telecommunications Act § 101 (inserting section 253 into Title II of the Communications Act).

383

Telecommunications Act § 101 (inserting section 257 into Title II of the Communications Act).

384

Telecommunications Act § 101 (inserting Part II, §§ 251–61, into Title II of the Communications Act).

385

Verizon v. FCC, 740 F.3d 623, 638 (D.C. Cir. 2014) (quoting Open Internet Order, 25 FCC Rcd at 17969, para.
120).
386

Telecommunications Act § 1(b) (“[W]henever in this Act an amendment or repeal is expressed in terms of an
amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or
other provision of the Communications Act of 1934 (47 U.S.C. 151 et seq.).”); see also Telecommunications Act
§ 101 (“Establishment of Part II of Title II. (a) Amendment.—Title II is amended by inserting after section 229 (47
U.S.C. 229) the following new part: . . . .”). Notably, all of the provisions at issue in the Supreme Court case AT&T
v. Iowa Utils. Bd. were in fact inserted into the Communications Act, and thus the Court could plausibly claim that
“Congress expressly directed that the 1996 Act . . . be inserted into the Communications Act.” AT&T v. Iowa Utils.
Bd., 525 U.S. 366, 377 (1999).
387

For other examples, see Telecommunications Act §§ 202(h), 704(c).

388

Communications Act § 2(a).

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limit the Verizon court thought applied to section 706 does not in fact exist.389 In other words, the
statutory superstructure that normally undergirds Commission action just does not exist for section 706 of
the Telecommunications Act.
What is more, reading section 706 as a grant of authority outside the bounds of the
Communications Act yields absurd results. As the Commission recognized in the Advanced Services
Order with respect to “regulatory forbearance,” reading section 706 as an “independent grant of
authority . . . would allow us to forbear from applying” certain provisions in the Act even when section 10
would not let us do so.390 That same logic applies to every “regulating method” specified in section 706.
If Congress had intended to grant the FCC almost limitless authority for “price cap regulation,”
“removing barriers,” or “promoting competition,” what was the point of specifying limited authority in
the Telecommunications Act’s actual amendments to the Communications Act?391
And the problems proliferate as you dig into each subsection. Subsection (a) is directed not just
at the FCC but also to “each State commission with regulatory jurisdiction over telecommunications
services.”392 So whatever authority subsection (a) grants the FCC, it also grants state commissions. Such
coterminous authority is a statutory oddity to say the least. The Communications Act draws lines
between interstate and intrastate regulatory authority.393 It empowers States to act but reserves authority
for the FCC when they fail to do so.394 It authorizes the FCC to preempt state authority.395 And it even
authorizes States to preempt the FCC.396 But nowhere does the Communications Act contemplate state
action coterminous with, or even at cross-purposes with, the FCC. And it is strange to think that a state
commission could forbear from the federal statutory scheme or price regulate broadband Internet access
service so long as it thought doing so would encourage broadband deployment.
Perhaps recognizing the problems such a reading would create, the Order does not read the
authority of state commissions this way—far from it. Instead, the Order suggests that States cannot
regulate broadband Internet access service because that service is “jurisdictionally interstate for regulatory
purposes”397 and that the Commission will preempt States that impose “obligations on broadband service
that are inconsistent with the carefully tailored regulatory scheme.”398 In other words, the Order seems to
389

Verizon v. FCC, 740 F.3d 623, 640 (D.C. Cir. 2014).

390

Deployment of Wireline Services Offering Advanced Telecommunications Capability, CC Docket No. 98-147,
Memorandum Opinion and Order and Notice of Proposed Rulemaking, 13 FCC Rcd 24012, 24046, para. 73 (1998)
(Advanced Services Order).
391

The Verizon court asked the wrong question when it noted that it “might well hesitate to conclude that Congress
intended to grant the Commission substantive authority in section 706(a) if that authority would have no limiting
principle.” Verizon v. FCC, 740 F.3d 623, 639 (D.C. Cir. 2014). The question is not whether section 706 of the
Telecommunications Act contains some “intelligible principle” and thus does not violate the non-delegation
doctrine. Cf. Whitman v. American Trucking Associations, 531 U.S. 457, 472 (2001). Instead, the question is one of
congressional intent: Did Congress really intend to put specific limits on the Commission’s forbearance authority in
one place (section 10 of the Communications Act) only to largely eliminate them in another (section 706 of the
Telecommunications Act)? Such an interpretation doesn’t make sense.
392

Telecommunications Act § 706(a).

393

See, e.g., Communications Act § 2(a) (“The provisions of this Act shall apply to all interstate and foreign
communication . . . .”); § 2(b) (“[N]othing in this Act shall be construed to apply or to give the Commission
jurisdiction with respect to . . . intrastate communication service . . . .”).
394

See Communications Act §§ 214(e)(6), 252(e).

395

See Communications Act §§ 10(e), 253(d).

396

See Communications Act § 224(c).

397

Order at para. 431.

398

Order at para. 433.

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suggest that section 706(a) gives state commissions no authority over broadband (or “advanced
telecommunications capability” to use the statutory term) at all!399 But the plain text of the statute does
not permit the Commission to have it both ways and invent a scheme that has no basis in the text of the
statute. Either subsection (a) delegates authority to the FCC and the state commissions or it does not.
Subsection (b) creates other problems. That subsection is triggered only if the FCC determines
that broadband is not being reasonably and timely deployed to all Americans in its annual report. So what
happens when the determination is affirmative? Poof—it’s gone.
The consequences of such a light-switch delegation of authority are hard to fathom. One would
assume that once the delegation switched off, any adjudications or enforcement actions being taken by the
FCC under that subsection would have to be dismissed, since we’d have lost the authority to prosecute
them. But if we’ve preempted a state law using subsection (b), would it still remain preempted? If we’ve
forborne from federal law using subsection (b), would we then need to start enforcing it again? Or if
we’ve adopted rules using subsection (b), would they remain on the books—unenforceable—until a
negative determination is again reached? Could we even repeal rules passed using subsection (b) during a
period in which subsection (b) has not been triggered? And how would our authority change if, as
happened last year, the FCC failed to issue a timely determination under section 706(b)?
Unsurprisingly, the Order does not attempt to answer these questions.400 Nor could it. Absurd
results lie behind every possible answer premised on subsection (b) being an independent grant of
authority.
Lastly, the history of section 706 confirms its hortatory nature. For years after 1998’s Advanced
Services Order, the Commission consistently interpreted the section to direct the agency to “use, among
other authority, our forbearance authority under section 10(a) to encourage the deployment of advanced
services.”401 And so the Commission has consulted section 706 in resolving one forbearance petition402
after another403 after another.404 The Commission has also looked to section 706 when employing its

399

To be fair, the Order suggests that States might have some role to play, at least with data collection, see Order at
notes 708 & 1276, but such a role hardly squares with hardy “regulating methods” like “price cap regulation” and
“regulatory forbearance” that the Commission claims for itself.
400

Relying on a statement contained in a dissenting opinion by a U.S. Supreme Court Justice, the Order speculates
that “Commission actions adopted pursuant to a negative section 706(b) determination would not simply be swept
away by a future positive section 706(b) finding.” Order at note 714. But what authority would the Commission
have to enforce a section 706(b) rule without section 706(b) authority? Indeed, if Congress gave the Federal
Emergency Management Agency (FEMA) authority to act during a hurricane, would anyone think that FEMA could
continue that course once the storm had passed, sunny skies had returned, and recovery efforts were over? Of
course not. So too here. But more to the point, even asking this question is sure to trap the agency in the labyrinth
of section 706(b)’s on-off authority; the only way to escape is not to enter. Here, that means not interpreting section
706 to provide the Commission with authority in the first place.
401

Deployment of Wireline Services Offering Advanced Telecommunications Capability, CC Docket No. 98-147,
Memorandum Opinion and Order and Notice of Proposed Rulemaking, 13 FCC Rcd 24012, 24047, para. 77 (1998).
402

Petition of Qwest Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Omaha Metropolitan
Statistical Area, WC Docket No. 04-223, Memorandum Opinion and Order, 20 FCC Rcd 19415, 19469, para. 107
(2005), aff’d by Qwest Corp. v. FCC, 482 F.3d 471 (D.C. Cir. 2007).
403

Petition of ACS of Anchorage, WC Docket No. 06-109, Memorandum Opinion and Order, 22 FCC Rcd 16304,
16356, para. 118 (2007).
404

Petition of the Embarq Local Operating Companies for Forbearance et al., WC Docket No. 06-147,
Memorandum Opinion and Order, 22 FCC Rcd 19478, 19503–04, para. 46 (2007), aff’d by Ad Hoc
Telecommunications Users Committee v. FCC, 572 F.3d 903 (D.C. Cir. 2009).

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authorities under the Communications Act to promote local competition405 and to remove barriers to
infrastructure investment (such as the Commission’s authority over pole attachments).406 In other words,
our own history shows that we can meet section 706’s goals without relying on it as an independent grant
of authority.
Section 706’s legislative history clinches the point. Recall that the Verizon court looked to the
Senate Report’s description of the provision as a “necessary fail-safe to ensure that the bill achieves its
intended infrastructure objective.”407 That was a mistake because the provision described in the Senate
Report was not the section 706 that Congress enacted. When the Senate passed in 1995 the bill that
became the Telecommunications Act of 1996, that legislation contained a precursor to section 706(b) that
authorized the FCC to “preempt State commissions that fail to act to ensure [the] availability [of advanced
telecommunications capability to all Americans].”408 In other words, the Senate version would have let
the FCC step into the shoes of the state commissions and exercise their authority under federal law if they
failed to act. That’s a “fail-safe.” But the enacted version contained, as the Conference Report dryly put
it, “a modification” to that section: This preemptory language was excised.409 In other words, Congress
contemplated giving the FCC fail-safe authority in section 706, but then expressly decided not to do so.
Whether one looks at the statute’s text, structure, or history, only one conclusion is possible:
Congress did not delegate substantive authority to the FCC in section 706 of the Telecommunications
Act. Instead, that statutory provision is a deregulatory admonition. Accordingly, the agency’s attempt to
adopt these Part 8 rules under section 706 must fail.
D.
The forbearance section of the Order most clearly reveals that the Commission’s decision today
is driven neither by the law nor the facts but rather by the need to reach certain predetermined policy
outcomes. Before the forbearance section, the Commission paints a dark and dreary portrait of the
broadband marketplace. It is one where broadband providers “hold all the tools necessary to deceive
consumers, degrade content, or disfavor the content that they don’t like.”410 It is one where consumers
largely have no “meaningful alternative broadband options,” and “45 percent of households have only
single provider option for these services.”411
After reading such bleak pronouncements, anyone familiar with the Commission’s forbearance
precedents and the Act’s statutory forbearance framework would approach the forbearance section with a
405

Implementation of the Local Competition Provisions of the Telecommunications Act of 1996, CC Docket No. 9698, Third Report and Order and Fourth Further Notice of Proposed Rulemaking, 15 FCC Rcd 3696, 3840, para. 317
(1999) (“Our overriding objective, consistent with the congressional directive in section 706, is to ensure that
advanced services are deployed on a timely basis to all Americans so that consumers across America have the full
benefits of the ‘Information Age.’”); Vonage Holdings Corporation Petition for Declaratory Ruling Concerning an
Order of the Minnesota Public Utilities Commission, WC Docket No. 03-211, Memorandum Opinion and Order, 19
FCC Rcd 22404, 22426–27, paras. 36–37 (2004).
406

Implementation of Section 224 of the Act; A National Broadband Plan for Our Future, WC Docket No. 07-245,
GN Docket No. 09-51, Report and Order and Order on Reconsideration, 26 FCC Rcd 5240, 5317, 5330, paras. 173,
208 (2011); Implementation of Section 224 of the Act; Amendment of the Commission’s Rules and Policies
Governing Pole Attachments, WC Docket No. 07-245, RM-11293, RM-11303, Notice of Proposed Rulemaking, 22
FCC Rcd 20195, 20209, para. 36 (2007).
407

S. Rep. No. 104-23 at 50–51 (1995); see Verizon v. FCC, 740 F.3d 623, 639 (D.C. Cir. 2014).

408

See S. 652 § 304(b) (104th Cong. 1995) (contained in “Title III—An End to Regulation”).

409

S. Rep. No. 104-230 at 210 (1996).

410

Order at para. 8; see also Order at paras. 78–101.

411

Order at note 134; see also Order at para. 81.

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sense for foreboding. How is the Commission possibly going to grant the amount of forbearance
promised earlier in the document? How can it create a “Title II tailored for the 21st century”?412 The
answer? By inventing out of whole cloth a new method of conducting a forbearance analysis that bears
little resemblance to either the terms of the Act or the Commission’s precedents.
Relying on dicta from the D.C. Circuit, the Order claims “‘significant, albeit not unfettered,
authority and discretion to settle on the best regulatory or deregulatory approach to broadband.’”413
Exercising that apparent discretion, the Order first labels a bevy of Title II requirements the “core
broadband Internet access service requirements” and applies them to the service. It then “grant[s]
extensive forbearance” from other Title II requirements based on a predictive judgment, but it does so
without ever finding that there is competition sufficient to ensure just and reasonable rates and
practices.414 That is not what the law allows.
In section 10, Congress set forth the three-part test for forbearance. First, we must find that
“enforcement of [a] regulation or provision [of the Act] is not necessary to ensure that the charges,
practices, classifications, or regulations . . . are just and reasonable and are not unjustly or unreasonably
discriminatory.”415 Next, we must find that “enforcement of such regulation or provision is not necessary
for the protection of consumers.”416 And finally, we must “consider whether forbearance from enforcing
the provision or regulation will promote competitive market conditions, including the extent to which
such forbearance will enhance competition among providers of telecommunications services,”417 and
determine whether forbearance is “consistent with the public interest.”418 Section 332(c)(1) lays out
largely the same criteria with respect to commercial mobile services.419
And there is no question how our precedents apply the statutory forbearance standard. Take just
the subset of our forbearance precedents that involve forbearance from economic regulations—such as ex
ante rate regulation under section 201, tariffing under section 203, rate prescription under section 205,
interconnection, resale, and unbundling regulation under section 251, or interconnection, resale, and
unbundling regulation under section 271. In every case where the Commission has eliminated economic
regulations, it has characterized market competition as the determining factor in assessing whether
forbearance was appropriate.420 As the Commission said not so long ago: “[I]n the context of its section
10(a)(1) analysis, ‘competition is the most effective means of ensuring that . . . charges, practices,
classifications, and regulations . . . are just and reasonable, and not unreasonably discriminatory.’”421
412

Order at para. 38.

413

Order at para. 437 (quoting Ad Hoc Telecommunications Users Committee v. FCC, 572 F.3d 903, 906-07 (D.C.
Cir. 2009)).
414

Order at para. 458.

415

Communications Act § 10(a)(1).

416

Communications Act § 10(a)(2).

417

Communications Act § 10(b).

418

Communications Act § 10(a)(3).

419

Communications Act § 332(c)(1)(A), (c)(1)(C).

420

Although I focus here on precedent related to section 10(a)(1)’s criterion for forbearance, our precedent uses this
same analysis when examining whether forbearing from an economic regulation would comply with section
10(a)(2)’s focus on protecting consumers.
421

Petition for Declaratory Ruling to Clarify 47 U.S.C. § 572 in the Context of Transactions Between Competitive
Local Exchange Carriers and Cable Operators; Conditional Petition for Forbearance From Section 652 of the
Communications Act for Transactions Between Competitive Local Exchange Carriers and Cable Operators, WC
Docket No. 11-118, Order, 27 FCC Rcd 11532, 11544, para. 27 (2012) (quoting Petition of U S WEST
Communications Inc. for a Declaratory Ruling Regarding the Provision of National Directory Assistance; Petition
(continued….)

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So when the Commission forbore from applying economic regulations to commercial mobile
services in 1994 (under section 332(c)(1)(A)), it concluded that “the most prudent approach for us to
follow in reaching decisions regarding forbearance in this Order must involve an examination of the
prevailing climate of competition.”422 That is because “in a competitive market, market forces are
generally sufficient to ensure the lawfulness of rate levels, rate structures, and terms and conditions of
service set by carriers who lack market power.”423 And so the FCC ultimately concluded that “the record
does establish that there is sufficient competition in this marketplace to justify forbearance from tariffing
requirements.”424
And when the Commission used forbearance to detariff the long-distance telephone market in
1996, market forces and competition lay at the center of the analysis: “Just as we believe that competition
is sufficient to ensure that nondominant interexchange carriers’ charges for interstate, domestic,
interexchange services are just and reasonable, and not unreasonably discriminatory, and to protect
consumers, we believe that competitive forces will ensure that nondominant carriers’ non-price terms and
conditions are reasonable.”425
And the Commission has analyzed competition every time it has granted relief from economic
regulations for dominant carriers. In the Qwest-Omaha Forbearance Order, the Commission reviewed
the local market and determined that “sufficient facilities-based competition for local exchange and
exchange access services exists in certain of Qwest’s Omaha MSA wire center service areas to justify
forbearance relief.”426 In the ACS of Anchorage Dominance Forbearance Order, the Commission could
only find “that enforcement of dominant carrier rate-of-return regulations and certain related tariffing and
pricing rules is not necessary” “[b]ased on the significant competition ACS faces for both mass market
and enterprise switched access services.”427 In the Qwest-Terry Forbearance Order, the Commission
noted the “showing of competition ensures that Qwest is unable to implement charges, practices,
classifications, or regulations that are not just and reasonable or that are unjustly or unreasonably
discriminatory in this exchange.”428
(Continued from previous page)
of U S WEST Communications, Inc., for Forbearance; The Use of N11 Codes and Other Abbreviated Dialing
Arrangements, CC Docket Nos. 97-172, 92-105, Memorandum Opinion and Order, 14 FCC Rcd 16252, 16270,
para. 31 (1999)).
422

CMRS Second Report and Order, 9 FCC Rcd at 1467, para. 136.

423

Id. at 1478, para. 173.

424

Id. at 1478, para. 175.

425

Policy and Rules Concerning the Interstate, Interexchange Marketplace; Implementation of Section 254(g) of the
Communications Act of 1934, as amended, CC Docket No. 96-61, Second Report and Order, 11 FCC Rcd 20730,
20752, para. 42 (1996). For those not steeped in Commission arcana, an interexchange carrier is a long-distance
carrier, and all interstate, interexchange carriers had been determined to be nondominant at the time of this decision.
426

Petition of Qwest Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Omaha Metropolitan
Statistical Area, WC Docket No. 04-223, Memorandum Opinion and Order, 20 FCC Rcd 19415, 19447, para. 64
(2005).
427

Petition of ACS of Anchorage, Inc. Pursuant to Section 10 of the Communications Act of 1934, as amended (47
U.S.C. § 160(c)), for Forbearance from Certain Dominant Carrier Regulation of Its Interstate Access Services, and
for Forbearance of Title II Regulation of Its Broadband Services, in the Anchorage, Alaska, Incumbent Local
Exchange Carrier Study Area, Memorandum Opinion and Order, WC Docket No. 06-109, Memorandum Opinion
and Order, 22 FCC Rcd 16304, 16330–31, para. 58 (2007); see also Petition of ACS of Anchorage, Inc. Pursuant to
Section 10 of the Communications Act of 1934, as Amended, for Forbearance from Sections 251(c)(3) and 252(d)(1)
in the Anchorage Study Area, WC Docket No. 05-281, Memorandum Opinion and Order, 22 FCC Rcd 1958, 1959,
para. 1 (2007) (eliminating other economic obligations “under comparable competitive conditions”).
428

Qwest Petition for Forbearance Under 47 U.S.C. § 160(c) from Resale, Unbundling and Other Incumbent Local
Exchange Requirements Contained in Sections 251 and 271 of the Telecommunications Act of 1996 in the Terry,
(continued….)

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And the Commission has not hesitated to find that a lack of competition makes forbearance from
economic regulations inappropriate. In the Verizon 6 MSA Forbearance Order, the Commission denied
forbearance because it found that “the evidence of competition in this record is insufficient . . . to ensure
that, in each of the 6 MSAs, charges, practices, classifications, or regulations for or in connection with
those services are just and reasonable and are not unjustly or unreasonably discriminatory.”429 In the
Qwest 4 MSA Forbearance Order, the Commission denied forbearance because “there is inadequate
evidence of facilities-based mass market competition and we are unable to conclude from the evidence in
the record that Qwest no longer holds a significant market share of the services at issue.”430 And in the
Qwest-Phoenix Forbearance Order, the Commission denied forbearance because the evidence “fails to
demonstrate that there is sufficient competition to ensure that, if we provide the requested relief, Qwest
will be unable to raise prices, discriminate unreasonably, or harm consumers.”431
What I cannot find—and what our precedent does not countenance—is any instance where the
FCC eliminated economic regulations without first performing any market analysis or finding
competition sufficient to constrain anticompetitive pricing and behavior.432 It’s easy to see why.
Economic regulations are designed to ensure just and reasonable rates and practices. Some do it directly
by capping rates,433 by requiring rates to be tariffed and approved by the FCC,434 or by letting the
Commission prescribe a rate for a particular carrier.435 Others do it indirectly by generating competition,
such as through mandating resale or network element unbundling.436 And so the FCC has not and, under
the statute, cannot forbear from any economic regulation on a whim or a lark. Instead, it must identify
something else that will constrain pricing, and that something else has always been—and can only be—
competition.
But in forbearing from economic regulations in today’s Order, the Commission doesn’t just fail
to find sufficient competition. It goes so far as to find that competition is lacking in the market for
(Continued from previous page)
Montana Exchange, WC Docket No. 07-9, Memorandum Opinion and Order, 23 FCC Rcd 7257, 7264, para. 13
(2008).
429

Petitions of Verizon Telephone Companies for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Boston, New
York, Philadelphia, Pittsburgh, Providence and Virginia Beach Metropolitan Statistical Areas, Inc., WC Docket No.
06-172, Memorandum Opinion and Order, 22 FCC Rcd 21293, 21311, para. 33 (2007), remanded, Verizon Tel. Cos.
v. FCC, 570 F.3d 294 (D.C. Cir. 2009).
430

Petitions of Qwest Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Denver, Minneapolis-St.
Paul, Phoenix, and Seattle Metropolitan Statistical Areas, WC Docket No. 07-97, Memorandum Opinion and Order,
23 FCC Rcd 11729, 11752, para. 31 (2008).
431

Petition of Qwest Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Phoenix, Arizona
Metropolitan Statistical Area, WC Docket No. 09-135, Memorandum Opinion and Order, 25 FCC Rcd 8622, 8623,
para. 2 (2010).
432

Rather than citing such precedent, the Order attempts to sweep aside all competition-focused precedent by
claiming it was “responding to arguments that competition was sufficient.” Order at note 1307. That’s no
coincidence. Until this Order, no Commission has ever found that it could forbear from economic regulation absent
competition—and so every Commission order and every commenter has focused on the presence or absence of
competition.
433

See, e.g., Rates for Interstate Inmate Calling Services, WC Docket No. 12-375, Report and Order and Further
Notice of Proposed Rulemaking, 28 FCC Rcd 14107 (2013) (establishing price caps for interstate inmate calling
services under section 201 of the Communications Act), pets. for review pending and pets. for stay granted in part
sub nom. Securus Techs. v. FCC, No. 13-1280 (D.C. Cir. Jan. 13, 2014).
434

Communications Act § 203.

435

Communications Act § 205.

436

Communications Act § 251(b)(1), (c)(3)–(4).

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broadband Internet access service: Competition “appears to be limited in key respects,”437 with
consumers facing “high switching costs . . . when seeking a new service,”438 and “broadband providers
hav[ing] significant bargaining power in negotiations with edge providers and end users.”439 Indeed,
“meaningful alternative broadband options may be largely unavailable to many Americans . . . . When
we look to the new standard articulated in the Broadband Progress Report, . . . 45 percent of households
have only single provider option for these services.”440 If that’s truly how the FCC sees the market, it
should go ahead and use the m-word—monopoly—and rely on the economic regulations of the
Communications Act that Congress designed to prevent a monopolist (back in 1934, it was Ma Bell) from
exercising market power to the detriment of consumers. I do not see how the Commission could possibly
forbear from economic regulations while at the same time finding that competition is so limited or nonexistent. Yet the Order does just that.
And lest there be any doubt that the Commission’s analysis here marks a dramatic departure from
that employed in prior forbearance decisions, consider this. In just 109 paragraphs, the Commission
purports to analyze whether to forbear from every statutory provision and regulation applicable to Title II
services on a nationwide basis for every broadband Internet service provider in the country.441 That is
substantially shorter than the 199 paragraphs than it took for the Commission to analyze whether to
forbear from applying a subset of Title II economic regulations to a single company in just two markets:
Omaha (99 paragraphs) and Phoenix (100 paragraphs).442
The Order offers several justifications for its approach; none are convincing. First, it notes “the
Commission has in the past granted forbearance . . . where it found the application of other requirements
(rather than marketplace competition) adequate to satisfy the section 10(a) criteria.”443 And that’s true but
only in a sense that’s not relevant to today’s item.
The FCC has used forbearance to make adjustments to ex ante rate regulation without looking to
marketplace competition. For example, in the cited Iowa Telecom Forbearance Order, the Commission
granted forbearance so that a dominant carrier could move from one form of ex ante rate regulation (a
price cap) to another (a forward-looking cost study).444 In the cited SMS/800 Refund Forbearance Order,
the Commission granted forbearance so that several dominant carriers could issue a one-time refund to
their customers while leaving all other ex ante rate regulation in place.445 And in the cited USTelecom
Forbearance Order, the Commission eliminated several accounting and reporting requirements while

437

Order at para. 501.

438

Order at para. 81.

439

Order at para. 80.

440

Order at note 134.

441

Order at paras. 434–542.

442

Petition of Qwest Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Omaha Metropolitan
Statistical Area, WC Docket No. 04-223, Memorandum Opinion and Order, 20 FCC Rcd 19415 (2005); Petition of
Qwest Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Phoenix, Arizona Metropolitan
Statistical Area, WC Docket No. 09-135, Memorandum Opinion and Order, 25 FCC Rcd 8622 (2010).
443

Order at para. 439; see also Order at note 1305 (citing cases).

444

Petition for Forbearance of Iowa Telecommunications Services, Inc. d/b/a/ Iowa Telecom Pursuant to 47 U.S.C.
§ 160(c) from the Deadline for Price Cap Carriers to Elect Interstate Access Rates Based on The CALLS Order or a
Forward Looking Cost Study, CC Docket No. 01-331, Order, 17 FCC Rcd 24319, 24325–26, paras. 18–19 (2002).
445

Petition for Forbearance from Application of the Communications Act of 1934, as Amended, to Previously
Authorized Services, Memorandum Opinion and Order, 12 FCC Rcd 8408, 8411–12, paras. 9–10 (Common Carrier
Bur. 1997).

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otherwise leaving intact all ex ante rate regulation and unbundling requirements.446
And it’s true that the FCC has used forbearance to eliminate non-economic regulations without
looking to marketplace competition. For example, in the cited Foreign Ownership Forbearance Order,
the Commission found “no evidence that the foreign ownership of a common carrier licensee, in and of
itself, is directly relevant” to whether rates and practices are “just and reasonable and not unjustly or
unreasonably discriminatory.”447 And in the cited USTelecom Forbearance Order, the Commission
eliminated several noneconomic regulations, such as a requirement to keep a paper copy of a longdistance carrier’s “rates, terms, and conditions available in at least one location during business hours.”448
But merely adjusting economic regulations while keeping most in place or eliminating
noneconomic regulations—as the Commission did in each of these cases—without conducting a
competitive analysis is hardly the same as what the Order purports to do. Namely, the Order eliminates
certain economic regulations entirely without finding competition sufficient to meet the concerns of
section 10(a)(1). That the Commission has never done.
Second, the Order cites its “predictive judgment that the statutory and regulatory requirements
that remain”—particularly section 201 and 202 of the Act—“are sufficient” to ensure just and reasonable
rates and practices.449 What’s the basis for this predictive judgment? The Order doesn’t say, although it
goes out of its way to “reject suggestions that market forces will be sufficient to ensure that providers of
broadband Internet access service do not act in a manner contrary to the public interest.”450
This is precisely the opposite tack of previous FCC forbearance decisions. The Commission has
reserved the “regulatory backstop” of sections 201 and 202 as a supplement to competition, not a
replacement for it. As the Commission’s CMRS Second Report and Order put it: Even though “there is
sufficient competition in this marketplace to justify forbearance,” “the continued applicability of Sections
201, 202, and 208 will provide an important protection in the event there is a market failure.”451 The
Order itself acknowledges as much elsewhere: “Of course, this regulatory backstop is not a substitute for
robust competition.”452 And yet the Order somehow concludes that forbearance from economic
regulations is warranted even though the Commission claims that competition is lacking.
Nor does the Commission explain how “recent experience” informs its predictive judgment.453 It
446

See, e.g., Petition of USTelecom for Forbearance Under 47 U.S.C. § 160(c) from Enforcement of Certain Legacy
Telecommunications Regulations, WC Docket No. 12-61, Memorandum Opinion and Order, 28 FCC Rcd 7627,
7675–76, para. 107 (2013) (finding that the data filed in ARMIS Report 43-01 “is not needed to ensure just and
reasonable rates, terms, and conditions” given the continuation of “price cap regulation”); id. at 7691, para. 142
(eliminating the “separate affiliate requirement” for non-Bell operating company dominant carriers while retaining
the remainder of ex ante rate regulation such as “dominant carrier regulation, Part 32 accounting rules, equal access
obligations” and “section 251 [unbundling and resale] obligations”).
447

Review of Foreign Ownership Policies for Common Carrier and Aeronautical Radio Licensees, IB Docket No.
11-133, First Report and Order, 27 FCC Rcd 9832, 9839, para. 15 (2012).
448

Petition of USTelecom for Forbearance Under 47 U.S.C. § 160(c) from Enforcement of Certain Legacy
Telecommunications Regulations, WC Docket No. 12-61, Memorandum Opinion and Order, 28 FCC Rcd 7627,
7671–72, paras. 94, 98 (2013).
449

Order at para. 458; see also Order at para. 497 (“[It] is our predictive judgment that other protections that remain
in place are adequate to guard against unjust and unreasonable and unjustly and unreasonably discriminatory rates
and practices in accordance with section 10(a)(1) . . . .”).
450

Order at para. 444.

451

CMRS Second Report and Order, 9 FCC Rcd at 1478–79, para. 175.

452

Order at para. 203.

453

Order at para. 499.

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would be one thing if the Order surveyed existing rates and practices and concluded that present rates and
practices were just and reasonable—that could be a “practical reference point” for considering the need
for economic regulation.454 But the Order doesn’t do that. If anything, it specifically calls into question
the reasonableness of common industry practices like usage-based pricing, data allowances, and
sponsored data plans.455 And it says the record “demonstrates that [carriers] have the ability to use terms
of interconnection to disadvantage edge providers and that consumers’ ability to respond to unjust or
unreasonable broadband provider practices are limited by switching costs.”456 And yet the Order
somehow concludes that forbearance from economic regulations is warranted.
And the Order never attempts to explain how it can possibly ensure just and reasonable rates and
practices nationwide through its case-by-case approach. The Final Regulatory Flexibility Analysis
attached to the Order estimates that it may need to adjudicate complaints against 4,462 separate
broadband Internet access service providers to ensure just and reasonable rates,457 each without the
presumption that marketplace competition will constrain anticompetitive pricing and practices. And
section 208(b)(1) gives the Commission only 5 months to resolve such complaints.458 It is simply
infeasible that our dedicated staff could process and investigate all such complaints in the statutory time
frame—and deploying economic regulations like ex ante rate regulation is precisely how the FCC
normally avoids this practical problem. And yet the Order somehow concludes that forbearance from
economic regulations is warranted.
Third, the Order claims that the “overlay of section 706 of the [Telecommunications] Act and our
desire to proceed incrementally” enable the Commission to forbear from large swaths of the
Communications Act, including its economic regulations, without a finding of sufficient competition.459
But neither section 706 nor the Commission’s desires allow it to ignore the plain terms of federal law.
For one, whatever direction section 706 gives to the Commission regarding forbearance, it does
not allow the FCC to forbear when the section 10(a) criteria are not met—and specifically, the FCC may
not grant forbearance where it cannot be assured of the justness and reasonableness of rates and practices.
In every case where the agency has incorporated section 706’s directive into its forbearance analysis to
repeal economic regulations, the FCC has first found sufficient competition to meet section 10(a)(1)’s
criterion.
So in the Triennial Review Order, the Commission found a sufficiently “competitive
environment” to forbear from uncertain unbundling obligations460—and the reviewing court agreed that
“that robust intermodal competition from cable providers . . . means that . . . mass market consumers will

454

Order at para. 499.

455

See Order at paras. 151–53.

456

Order at para. 205.

457

Order Appendix B at para. 19.

458

Communications Act § 208(b)(1) (“[W]ith respect to any investigation under this section of the lawfulness of a
charge, classification, regulation, or practice, issue an order concluding such investigation within 5 months after the
date on which the complaint was filed.”); see also Communications Act § 208(a) (“If [a] carrier or carriers shall not
satisfy the complaint within the time specified or there shall appear to be any reasonable ground for investigating
said complaint, it shall be the duty of the Commission to investigate the matters complained of in such manner and
by such means as it shall deem proper.”).
459

Order at para. 458.

460

Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, Implementation of the
Local Competition Provisions of the Telecommunications Act of 1996, Deployment of Wireline Services Offering
Advanced Telecommunications Capability, CC Docket Nos. 01-338, 96-98, 98-147, Report and Order and Order on
Remand and Further Notice of Proposed Rulemaking, 18 FCC Rcd 16978, 17151–52, paras. 292 (2003).

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still have the benefits of competition between cable providers and ILECs.”461 In the Qwest Enterprise
Forbearance Order and the Embarq/Frontier Enterprise Forbearance Order, the agency noted that “the
marketplace generally appears highly competitive” and found certain economic regulations “no longer
appropriate in light of the market conditions”462—and the reviewing court upheld the FCC’s findings on
the “feasibility of competitive self-deployment of special access lines—a development that both helps
justify and will be furthered by the FCC’s decision.”463 And in the Section 271 Forbearance Order, the
FCC specifically called out “the importance of competition in ensuring just, reasonable, and
nondiscriminatory charges and practices for broadband services”464—and the reviewing court agreed that
the carriers’ “secondary market position relative to cable internet providers tends to mitigate the impact of
forbearance on the state of competition in the broadband market, especially where cable internet providers
themselves are not required to unbundle.”465
To the extent the Order suggests otherwise (e.g., arguing that section 706 allows the Commission
“to balance the future benefits of encouraging broadband deployment against the short term impact from a
grant of forbearance”466), it is wrong.467 And though the Order cites the court reviewing the Section 271
Forbearance Order for this proposition, the court was actually making a point about competition. The
court first noted: “the FCC concluded that any short-term effects on competition are offset by the prospect
of additional intermodal competition and the benefits that forbearance will provide: incentives for both
ILECs and CLECs to invest in and deploy broadband facilities, which will increase competition going
forward and thereby keep rates reasonable, benefit consumers, and serve the public interest.”468 It then
upheld the FCC’s conclusion: “[T]he agency only needed to show that the positive short-term impact of
unbundling would be out-weighed by the longer-term positive impact that not unbundling would have on
rates, consumers, and the public interest. The record here is up to the task.”469 In contrast, the Order

461

United States Telecom Association v. FCC, 359 F.3d 554, 582 (D.C. Cir. 2004).

462

Qwest Petition for Forbearance Under 47 U.S.C. § 160(c) from Title II and Computer Inquiry Rules with Respect
to Broadband Services, WC Docket No. 06-125, Memorandum Opinion and Order, 23 FCC Rcd 12260, 12275,
12280, paras. 26, 34 (2008); Petition of the Embarq Local Operating Companies for Forbearance Under 47 U.S.C.
§ 160(c) from Application of Computer Inquiry & Certain Title II Common-Carriage Requirements; Petition of the
Frontier and Citizens ILECs for Forbearance Under Section 47 U.S.C. § 160(c) from Title II and Computer Inquiry
Rules with Respect to Their Broadband Services, WC Docket No. WC 06-147, Memorandum Opinion and Order, 22
FCC Rcd 19478, 19492, 19496, paras. 22, 30 (2007).
463

Ad Hoc Telecom. Users Committee v. FCC, 572 F.3d 903, 911 (D.C. Cir. 2009).

464

Petition for Forbearance of the Verizon Telephone Companies Pursuant to 47 U.S.C. § 160(c); SBC
Communications Inc.’s Petition for Forbearance Under 47 U.S.C. § 160(c); Qwest Communications International
Inc. Petition for Forbearance Under 47 U.S.C. § 160(c); BellSouth Telecommunications, Inc. Petition for
Forbearance Under 47 U.S.C. § 160(c), WC Docket Nos. 01-338, 03-235, 03-260, 04-48, Memorandum Opinion
and Order, 19 FCC Rcd 21496, 21507, para. 24 (2004).
465

EarthLink, Inc. v. FCC, 462 F.3d 1, 11 (D.C. Cir. 2006).

466

See, e.g., Order at para. 495 (internal quotation marks and brackets omitted) (“We note in this regard that when
exercising its section 10 forbearance authority ‘[g]uided by section 706,’ the Commission permissibly may ‘decide[]
to balance the future benefits’ of encouraging broadband deployment ‘against [the] short term impact’ from a grant
of forbearance.” (quoting EarthLink, Inc. v. FCC, 462 F.3d 1, 9 (D.C. Cir. 2006))).
467

Notably, the Order’s response studiously avoids using the statutory word “charges” in favor of the vaguer term
“conduct,” Order at para. 496 & note 1502, and does not explain what, if anything, will ensure just and reasonable
charges absent either competition or economic regulation.
468

EarthLink, Inc. v. FCC, 462 F.3d 1, 7 (D.C. Cir. 2006).

469

Id. at 11.

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blithely recognizes that “the record . . . does not provide a strong basis for concluding that the forbearance
granted in this Order is likely to directly impact the competitiveness of the marketplace.”470
For another, neither section 706 nor a desire to proceed incrementally can give the FCC carte
blanche to displace the reticulated economic regulatory regime Congress mandated in favor of its own,
largely boundless discretion.471 Sure, the FCC might prefer the “tailored framework” of section 201 over
“compliance with interconnection under section 251” because aspects of section 201 interconnection are
“at the Commission’s discretion” (e.g., the Commission can order through-routes), “rather than being
subject to mandatory regulation under section 251.”472 But such reasoning implies the FCC could have
pretty much ignored 90% of the Telecommunications Act—rejecting Congress’s entire framework for
opening local markets to competition—based on the forbearance authority Congress gave the agency in
that same act. That makes no sense whatsoever.
The only sensible way to reconcile the framework of the Telecommunications Act is to demand
something more from the FCC than its own “desire” before replacing the mandatory requirements of the
law with its own discretionary authority. That something more is today what is always has been: a
showing of marketplace competition.
Finally, I take issue with the Order’s repeated complaints about the state of the record. To wit:









“Nor do commenters adequately explain how forbearance could be tailored . . . .”473
“[C]ommenters . . . do not meaningfully explain what incremental benefit that would
achieve . . . .”474
“[C]ommenters do not meaningfully explain how these arguments impact the section 10
analysis here, given that the need to protect consumer privacy is not self-evidently linked to
such marketplace considerations.”475
“[C]ommenters do not meaningfully explain how these arguments impact the section 10
analysis here, given that the need to protect disability access is not self-evidently linked to
such marketplace considerations.”476
“[C]ommenters do not meaningfully explain how these arguments impact the section 10
analysis here, given that the need for regulated access to access to poles, ducts, conduit and
rights-of-way is not self-evidently linked to such marketplace considerations.”477
“[C]ommenters do not meaningfully explain how these arguments impact the section 10
analysis here, given that, even taken at face value, arguments based on such marketplace
considerations do not purport to sufficiently address the policy concerns underlying section
254 and our universal service programs.”478
“Commenters do not meaningfully explain why the transparency rule is inadequate, and thus
their arguments do not persuade us to depart from our section 10(a) findings above in the case
of section 203.”479

470

Order at para. 501.

471

Order at para. 458.

472

Order at para. 513.

473

Order at para. 450.

474

Order at note 1352.

475

Order at note 1390.

476

Order at note 1438.

477

Order at note 1447.

478

Order at note 1466.

479

Order at para. 503.

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






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“Commenters have not explained why we should not find the protections of section 201(b)
and antitrust law adequate here, as well.”480
“[C]ommenters fail to demonstrate at this time that other, applicable requirements or
protections are inadequate, for the reasons discussed below.”481
“[C]omments contending that the Commission should not forbear as to that provision do not
explain why the core broadband Internet access service requirements do not provide adequate
protection at this time.”482
“Given that decision [made elsewhere in the Order], commenters do not indicate what
purpose section 204 still would serve, and we thus do not depart in this context from our
overarching section 10(a) forbearance analysis above.”483
“[T]he record here does not demonstrate specific concerns suggesting that Commission
clarification of statutory terms as needed would be inadequate in this context.”484
“Commenters do not indicate, nor does the record otherwise reveal, an administrable way for
the Commission to grant the requested partial forbearance . . . .”485
“Bare assertions that the record here is inadequate to justify forbearance from certain
provisions from which we forbear above similarly are too conclusory to warrant deferring a
decision to a future proceeding.”486

Blaming the public rather than the agency itself for the state of the record should shock the
administrative conscience. It certainly takes chutzpah. If commenters did not explain how forbearance
could be adequately tailored to meet the FCC’s needs, it’s because the FCC never told commenters what
its needs were (at least until this Order) nor what forbearance was being contemplated (at least until
Chairman Wheeler’s Feb. 4, 2015 editorial) nor that forbearance was even necessary (at least until
President Obama’s Nov. 10, 2014 YouTube announcement). If commenters did not foresee how the FCC
would approach forbearance or how certain forbearance decisions would impact other forbearance
decisions, how can we possibly blame them?
IV.
At the beginning of this proceeding, I quoted Google’s former CEO, Eric Schmidt, who once
said: “The Internet is the first thing that humanity has built that humanity doesn’t understand.”487 This
proceeding makes abundantly clear that the FCC still doesn’t get it.
But the American people clearly do. The threat to Internet freedom has awakened a sleeping
giant. And I am optimistic that we will look back on today’s vote as an aberration, a temporary deviation
from the bipartisan path that has served us so well. I don’t know whether this plan will be vacated by a
court, reversed by Congress, or overturned by a future Commission. But I do believe that its days are
numbered.
For all of these reasons, I dissent.
480

Order at para. 507.

481

Order at para. 494.

482

Order at para. 512.

483

Order at para. 505.

484

Order at para. 466.

485

Order at para. 450.

486

Order at note 1660.

487

Notice, 29 FCC Rcd at 5653 (Dissenting Statement of Commissioner Ajit Pai) (quoting Jerome Taylor, Google
chief: My fears for Generation Facebook, The Independent (Aug. 18, 2010), available at http://ind.pn/1vWHCty).

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DISSENTING STATEMENT OF
COMMISSIONER MICHAEL O’RIELLY
Re:

Protecting and Promoting the Open Internet, GN Docket No. 14-28.

Today a majority of the Commission attempts to usurp the authority of Congress by re-writing the
Communications Act to suit its own “values” and political ends. The item claims to forbear from certain
monopoly-era Title II regulations while reserving the right to impose them using other provisions or at
some point in the future. The Commission abdicates its role as an expert agency by defining and
classifying services based on unsupported and unreasonable findings. It fails to account for substantial
differences between fixed and mobile technologies. It opens the door to apply these rules to edge
providers. It delegates substantial authority to the Bureaus, including how the rules will be interpreted
and enforced on a case-by-case basis. And, lest we forget how this proceeding started, it also reinstates
net neutrality rules. Indeed, it seems that every bad idea ever floated in the name of net neutrality has
come home to roost in this item.1
To read public statements over the last few weeks, one might think that this item uses Title II in
some limited way solely to provide support for net neutrality rules and to protect consumers. And a
casual observer might be misled to believe that the ends justify the means.
Along the way, however, the means became the end. Net neutrality is now the pretext for
deploying Title II to a far greater extent than anyone could have imagined just months ago. And that is
the reality that the Commission tried to hide by keeping the draft from the public and releasing a carefully
worded “fact” sheet in its place.
While I see no need for net neutrality rules, I am far more troubled by the dangerous course that
the Commission is now charting on Title II and the consequences it will have for broadband investment,
edge providers, and consumers. The Commission attempts to downplay the significance of Title II, but
make no mistake: this is not some make believe modernized Title II light that is somehow tailored to
preserve investment while protecting consumers from blocking or throttling. It is fauxbearance: all of
Title II applied through the backdoor of sections 201 and 202 of the Act, and section 706 of the 1996 Act.
Moreover, all of it is premised on a mythical “virtuous cycle”—not actual harms to edge providers or
consumers.
In some ways, this evolution is not surprising. I have consistently expressed concerns, across a
number of proceedings—tech transitions, text-to-911, over-the-top video, VoIP symmetry, etc.—that this
Commission has been slowly but steadily attempting to bring over-the-top and other IP services within its
reach. Now the Commission goes all in and subjects broadband networks—the foundation of the
Internet—to Title II itself. Furthermore, because there is no limiting principle, other providers will
eventually be drawn in as well. I cannot support this monumental and unlawful power grab.
The Proceeding Did Not Provide Sufficient Notice and Opportunity for Comment
Last year, the Commission seemed on track to reinstate net neutrality rules under section 706.
The D.C. Circuit provided a roadmap for the Commission and, while I strongly disagree with the court’s
analysis of section 706,2 a number of providers appeared ready to accept the new regime.
1

Perhaps not every bad idea. At least the Commission won’t be separately classifying and regulating “broadband
subscriber access service,” which was widely regarded to be an imaginary service.
2

See, e.g., The Free State Foundation, Section 706, Wild Assumptions, and Regulatory Restraint (Mar. 31, 2014),
http://freestatefoundation.blogspot.com/2014/03/section-706-wild-assumptions-and.html.

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Hardly anyone at the time thought that the Commission would seriously consider applying Title
II. And truth be told, the Commission did not give it much thought either, as is evident from the NPRM.
Outside parties warned the Commission to take a few months to seek further comment, but the
Commission was not operating on its own timetable because it has to be responsive to the political winds
and views of the perpetually outraged. As a result, the item is highly vulnerable because the Commission
did not provide adequate notice and opportunity to comment as required by the Administrative Procedure
Act (APA).
To put it plainly, this is not the order that the NPRM envisioned. While the item claims that the
decisions are a logical outgrowth of a few open ended questions tacked on the NPRM, that argument is
not at all persuasive. This is a clearly a situation where “interested parties would have had to divine the
agency’s unspoken thoughts, because the final rule was surprisingly distant from the proposed rule.”3
In fact, even within the agency, staff and Commissioners were left to guess at the ultimate
conclusions and reasoning because most of the substance was still “in flux” just a week prior to
circulation. A number of critical decisions and rationales were not apparent until I read the circulated
draft. It is a page turner—not because it is well written but because I literally could not predict what
would come next or why, and when I did arrive at the conclusionary paragraphs, they often lacked
foundation and sufficient justification.
Interested parties effectively had no notice or opportunity to respond to the vast evolution that
took place from NPRM to final order. Key points include: the scope of the newly defined services,
including how they relate to each other; the legal analysis underlying the classification or reclassification
of each service; how forbearance would apply in the context of these newly defined services; and the
theory underlying forbearance, including using sections 201, 202, and 706 to backfill other provisions.4
3

Agape Church, Inc. v. FCC, 738 F.3d 397, 411 (D.C. Cir. 2013).

4

See, e.g., Letter from Henry G. Hultquist, AT&T to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 & 10-127 at
2 (filed Feb. 19, 2015) (AT&T Feb. 19, 2015 Ex Parte Letter),
http://apps.fcc.gov/ecfs/document/view?id=60001031079 (“The Commission’s failure to provide adequate notice for
a number of the proposals under consideration has resulted in a record that is bereft of support for the Commission's
actions. For example, the Commission has no record basis on which it could determine that every ISP holds itself
out as a common carrier. To give just one example, AT&T does not offer its GigaPower service indifferently to the
public, and there is no basis in the record on which the Commission could mandate that AT&T do so.”); Letter from
William H. Johnson, Verizon to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 &10-127 at 4 (filed Feb. 19,
2015) (Verizon Feb. 19, 2015 Title II Ex Parte Letter), http://apps.fcc.gov/ecfs/document/view?id=60001031374
(“For starters, the Open Internet NPRM did not even mention “adjunct-to-basic” services, so the Commission cannot
justify its action on that rationale.”); Letter from Scott K. Bergmann, CTIA to Marlene H. Dortch, FCC, GN Docket
Nos. 14-28 & 10-127 at 6 (filed Dec. 22, 2014) (CTIA Dec. 22, 2014 White Paper),
http://apps.fcc.gov/ecfs/document/view?id=60001014008 (“[T]he Notice asked only whether mobile broadband
Internet access service ‘fit[s] … the definition of ‘commercial mobile radio service.’” ... “It never asked whether ‘the
definition’ – set out in Section 20.3 – should be changed, or provided notice that it might be.”)(internal citation
omitted); Letter from Kathryn A. Zachem, Comcast to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 & 10-127
at 6 (filed Jan. 30, 2015) (Comcast Jan. 30, 2015 Ex Parte Letter),
http://apps.fcc.gov/ecfs/document/view?id=60001024748 (“As an initial matter, the Open Internet NPRM gave no
notice of any proposal to reclassify Internet traffic exchange as a Title II service. Although the NPRM raised the
prospect that the FCC could depart from its historical approach of excluding interconnection issues from open
Internet rules – asking whether it “should expand the scope of the open Internet rules to cover issues related to
traffic exchange” – it nowhere suggested that the Commission might reclassify ISPs’ interconnection-related
services to achieve that end.”) (internal citation omitted); Letter from Matthew A. Brill, Counsel to National Cable
& Telecommunications Association, to Marlene H. Dortch, FCC, GN Docket Nos. 14-28, 10-127 (Jan. 14, 2015)
(NCTA Jan. 14, 2015 Ex Parte Letter).

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Moreover, major changes were made during the waning hours of the Sunshine Period, including the
elimination of broadband subscriber access service, which required staff to overhaul the discussions of
broadband Internet access service and Internet traffic exchange. Parties had no opportunity to weigh in
on these changes.
The Findings are Not Supported by Evidence of Actual Harms
Even after enduring three weeks of spin, it is hard for me to believe that the Commission is
establishing an entire Title II/net neutrality regime to protect against hypothetical harms.5 There is not a
shred of evidence that any aspect of this structure is necessary. The D.C. Circuit called the prior, scaleddown version a “prophylactic” approach. I call it guilt by imagination.
Tellingly, although we received a record-breaking number of comments, those comments did not
reveal any additional instances of actual harm to consumers. The item is sprinkled with references to
what an ISP “may”, “could”, “might”, or “potentially” to do to block or degrade applications, services, or
content, but no new tangible violations. To be sure, the item selectively quotes a statement that a provider
was interested in exploring commercial arrangements. Yet those “arrangements” were sponsored data
plans—something that the Commission has not (as of yet) determined to be a net neutrality violation.6
Moreover, the Commission, once again, takes a pass on performing a market power analysis in
favor of repetitive invocation of the “virtuous cycle” nonsense. That may have been good enough to
narrowly survive review when all that was at stake was net neutrality rules. But that’s no guarantee that
such flimsy reasoning will withstand another round (or two) of scrutiny now that all of Title II hangs in
the balance as well.
The APA requires an agency to “examine the relevant data and articulate a satisfactory
explanation for its action including a ‘rational connection between the facts found and the choice made.’”7
These rules, however, are not based on facts or data but on unsubstantiated fears of future wrongdoing.
The item regurgitates the theory that ISPs act as “gatekeepers” between edge providers and consumers.
Specifically, as the provider of access to end users, an ISP supposedly has the ability and incentive to
disadvantage other network providers, edge providers, and end users. But while the item makes an
economic argument, it does not back it up with economic analysis. The theory that rests on claims that
consumers might not switch providers because consumers “may experience” switching costs, that bundled
pricing “can also play a role” in reducing churn, and that consumers “may be confused” about their
service.8 Difficulty switching providers “is certainly a factor that might contribute to a firm’s having
market power, but that itself is not market power.”9
5

Nat’l Fuel Gas Supply Corp. v. FERC, 468 F.3d 831, 844 (D.C. Cir. 2006) (finding that “if [an agency] chooses to
rely solely on a theoretical threat, it will need to explain how the potential danger …unsupported by a record of
abuse, justifies such costly prophylactic rules”).
6

Letter from William H. Johnson, Verizon to Marlene H. Dortch, FCC, GN Docket No. 14-28 at 1-2 (filed Feb. 11,
2015) (Verizon Feb. 11, 2015 Ex Parte Letter), http://apps.fcc.gov/ecfs/document/view?id=60001028587. In a
single footnote, the item trots out the same three outdated examples it has cited in the past. It does not cite any other
subsequent examples.
7

Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting
Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).
8

Supra para. 81.

9

Verizon v. FCC, 740 F.3d 623, 664 (D.C. Cir. 2014) (Silberman, J., concurring in part and dissenting in part).

Moreover, there is a “significant rate of switching by wireless broadband subscribers.” Letter from Kathleen Grillo,
Verizon to Marlene H. Dortch, FCC, GN Docket No. 14-28 (filed Jan. 15, 2015) (Verizon Jan. 15, 2015 Ex Parte
Letter), http://apps.fcc.gov/ecfs/document/view?id=60001013599 (attaching Andres V. Lerner and Janusz A.
(continued….)

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Moreover, the theory breaks down completely when it comes to small ISPs.10 Many small
providers—including WISPs, small cable providers, and municipal broadband providers—have made the
case that they do not have the leverage to interfere with edge providers. As one group put it, “These ISPs
cannot compel payments for unblocking, non-discriminatory treatment or paid prioritization services
because each serves too few Internet subscribers to matter to edge providers such as Netflix, Amazon or
Hulu, who have hundreds of millions of subscribers combined in the U.S. and internationally.”11
Moreover, it is simply not in the interest of small providers that are trying to grow their businesses and
compete against larger providers to block or degrade their customers’ connections.
While “an agency’s predictive judgments about the likely economic effects of a rule” are entitled
to deference, “deference to such ... judgment[s] must be based on some logic and evidence, not sheer
speculation.”12 The predictions in this item are based on pure conjecture and deserve no deference.
Title II is an Extreme Solution to an Imaginary Problem
While some providers may have been willing to live with net neutrality rules under section 706
based on nothing more than speculative harms, it is an entirely different matter to impose Title II without
concrete evidence that doing so is absolutely necessary. The item supposedly invokes Title II in order to
(Continued from previous page)
Ordover, “Terminating Access Monopoly” Theory and the Provision of Broadband Internet Access, at 10-11 (Jan.
15, 2015) (“Wireless subscriber monthly churn rates in the third quarter of 2014 were 1.0% for Verizon and AT&T,
1.6% for T-Mobile, and 2.2% for Sprint, which means that 12 percent of Verizon and AT&T customers, 19 percent
of T-Mobile customers, and 26 percent of Sprint customers, churn each year.”). Additionally, “[a]ll four nationwide
carriers offer pro-rated ETF policies that lower the costs to consumers who transfer services.” Letter from William
H. Johnson, Verizon to Marlene H. Dortch, FCC, GN Docket No. 14-28 at 5 (filed Feb. 19, 2015) (Verizon Feb. 19,
2015 Wireless Ex Parte Letter), http://apps.fcc.gov/ecfs/document/view?id=60001031470.
“Nor could the Commission find that any participant in the marketplace for Internet interconnection has market
power, including those that also provide broadband Internet access.” Letter from Gary L. Phillips, AT&T to
Marlene H. Dortch, FCC, GN Docket Nos. 14-28 &10-127 at 9 (filed Feb. 2, 2015) (AT&T Feb. 2, 2015 Common
Carrier Ex Parte Letter), http://apps.fcc.gov/ecfs/document/view?id=60001025387. See also infra note 37.
10

The only concession to small providers is a temporary reprieve from the enhanced disclosure requirements. There
is no relief from Title II. Moreover, ACA, NCTA and WISPA pointed out that the Commission did not adequately
address the impact of Title II on small providers in the NPRM and Initial Regulatory Flexibility Act (IRFA)
analysis. See, e.g., Letter from Ross Lieberman, ACA, Lisa Schoenthaler, NCTA, and Stephen Coran, WISPA, to
Tom Wheeler, FCC, GN Docket No. 14-28 at 4 (filed Jan. 9, 2015) (“The proposal of the most concern and potential
significant negative impact on small broadband providers – whether wireline and wireless, fixed or mobile – is the
FCC’s proposal to regulate information services under Title II. However, there is no discussion in the NPRM nor
IRFA of the major changes that a Title II regulatory scheme will impose on small broadband providers.”).
11

Matthew M. Polka, American Cable Association, FCC Must Address Harm to Small and Medium-Sized ISPs from
Title II Regulation (Feb. 9, 2015), http://americancable.org/node/5189; Letter from Barbara S. Esbin, Counsel to
American Cable Association, to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 & 10-127 at 3-4 (filed Feb. 2,
2015), http://apps.fcc.gov/ecfs/document/view?id=60001025667.
“Indeed, across the broad array of broadband providers that USTelecom represents, the vast majority pay to request
and receive Internet traffic. It belies common sense and economics to suggest that a broadband provider that is
paying to receive Internet traffic has a meaningful ‘terminating access monopoly.’” Letter from Jonathan Banks,
USTelecom to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 & 10-127 at 3 (filed Feb. 18, 2015) (USTelecom
Ex Parte Letter).
12

Sorenson Communications Inc. v. F.C.C., 755 F.3d 702, 708 (D.C. Cir. 2014) (quoting Nat'l Tel. Coop. Ass'n v.
FCC, 563 F.3d 536, 541 (D.C. Cir. 2009); Verizon v. FCC, 740 at 663 (Silberman, J., concurring in part and
dissenting in part)).

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put the net neutrality rules on the firmest legal footing. But Title II is far more than a convenient legal
theory—it is a comprehensive set of regulations designed to rein in monopoly telephone companies.13
And it is laden with decades of precedent that cannot be shrugged off with simple incantations like, “To
the extent our prior precedents suggest otherwise, for the reasons discussed in the text, we disavow such
an interpretation as applied to the open Internet context.”14
There is a reason that Title II has been called the nuclear option. No matter what the FCC tries to
do to limit the fallout (and it is not trying very hard to do that here) the decision will still impact
investments. As one analyst reportedly wrote just last week, “terminal growth rate assumptions need to
be lowered…Title II is about price regulation. It would be naïve to believe that the imposition of a regime
that is fundamentally about price regulation, in an industry that the FCC has now repeatedly declared to
be non-competitive, wouldn’t introduce risk to future pricing power.”15
While the FCC tailors certain statements from providers to reject assertions that Title II will
“substantially diminish overall broadband investment”, that doesn’t give me a lot of comfort.16 Even a
modest reduction is too great a price to pay when weighed against purely speculative harms. Moreover,
the harms to small ISPs will be disproportionately severe and the FCC gives them no reprieve from Title
II whatsoever.
Incredibly, the item gives significant weight to a theoretical cost of forgone innovation but gives
essentially no weight to the cost of forgone investment. I am far more concerned about the Americans
that will remain unserved as a result of our rules. Forget about an open Internet; they have no Internet.
We need to be focused on ways to promote deployment, and not in some roundabout virtuous cycle way,
but through proven deregulatory measures. I am very concerned that, far from a virtuous cycle, we are
creating a vicious cycle where regulation deters investment in broadband and that begets more regulation
to stimulate competition and deployment that will further deter investment. In other words, the beatings
will continue until morale improves.
The item trots out three examples of Title II “success stories” but they are all inapposite. First, it
notes that during the time that mobile voice service has been subject to Title II, investment has flourished.
But that assumes that companies were investing in their mobile networks for the sake of voice service.
That is plainly not the case. That investment was made to improve the capacity of the networks to handle
mobile broadband traffic.17
Second, it points to rural carriers that opted to provide a transmission service on a common
carriage basis. Many did so, but not for the sake of Title II. They did so to participate in the NECA tariff
13

Letter from Berin Szoka, Tech Freedom et al. to Chairman Wheeler, FCC, GN Docket No. 14-28 at 2 (filed Sept.
15, 2014), http://apps.fcc.gov/ecfs/document/view?id=7522679800. Moreover, “Title II would undermine 15 years
of American insistence around the world that the Internet shouldn’t be regulated under traditional telecom rules.”
Id. at 1.
14

See, e.g., supra note 753.

15

Kery Murakami, Wheeler Defends Proposed Net Neutrality Rules at NARUC, COMM. DAILY at 4, 6 (Feb. 18,
2015) (quoting Craig Moffett).
16

Supra para. 414.

17

Verizon Feb. 19, 2015 Wireless Ex Parte Letter at 1-2 (“Chairman Wheeler, for example, has written that ‘[o]ver
the last 21 years, the wireless industry has invested almost $300 billion’ under rules ‘similar’ to those he is
proposing for broadband Internet access, ‘proving that modernized Title II regulation can encourage investment and
competition.’ This analogy is misplaced. The wireless industry’s capital expenditures have been driven not primarily
by CMRS voice service offerings, but by Title I mobile broadband services offered over 3G and 4G platform.”)
(internal citation omitted).

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and pooling process, which helps stabilize cost recovery and reduce administrative costs.18
Third, it points to forbearance from certain provisions of Title II as applied to enterprise
broadband. In that situation, a heavily regulated service was granted some measure of relief, improving
the case for investment. Here we would be subjecting services to greater regulation, which is another
matter entirely. Furthermore, if enterprise broadband forbearance is such a success story, then why has it
taken the Commission so long to act on a pending “me too” enterprise forbearance petition?
The Commission’s Decision to Classify Broadband Internet Access Service as a Telecommunications
Service is Contrary to Law and Fact
Notably, the item not only reverses its decision to treat broadband Internet access service as an
information service, but it also determines, for the first time, that Title II applies to the entire service—not
just a transmission component. As one provider put it, “the conclusion that retail ‘broadband Internet
access’ is a telecommunications service is contrary to the plain text of multiple provisions of the
Communications Act, decades of Commission decisions, and the views of all nine Supreme Court
Justices in [Brand X].”19
The item also gives short shrift to the argument that prior decisions to classify broadband Internet
access service as an information service “engendered serious reliance interests that must be taken into
account.”20 For example, one White Paper noted, “the Commission expressly invited the reliance at issue
here: When it classified mobile broadband as an integrated information service more than seven years
ago, it explained that ‘[t]hrough this classification, we provide the regulatory certainty needed to help
spur growth and deployment of these services.’”21 Under these circumstances, the Commission must
“provide a more detailed justification” for changing course “than what would suffice for a new policy
created on a blank slate.”22
The item utterly fails that test. It counters that a few carefully selected statements by providers
and investors show that classifications have an indirect impact on investment. It does not respond at all to
the White Paper and, as noted above, this type of reasoning doesn’t account for foregone investment.
Moreover, statements from 2010 are inapposite because the reclassification under discussion at the time
concerned a transmission component. Here we are talking about reclassifying the entire retail broadband
service and regulating Internet traffic exchange to boot. There’s simply no comparison. Additionally,
arguing that providers should have known since 2000 that this was a real possibility is disingenuous to the
extreme given that the FCC leadership itself did not know if or how it would use Title II almost up until
18

Letter from Richard A. Askoff, NECA et. al to Marlene H. Dortch, FCC, CC Docket No. 02-33 & WC Docket
No. 04-36 (July 26, 2005), http://apps.fcc.gov/ecfs/document/view?id=6518022135 (“Over 900 small telephone
companies currently offer Digital Subscriber Line (DSL) transmission services under NECA’s tariff and participate
in associated revenue pools. Existing NECA tariff and pooling arrangements permit these companies to offer new
services in an efficient and timely manner, while providing stable monthly cash flows and protection against
unexpected demand reductions or increased costs. Absent pooling, for example, the potential loss of only one large
customer could make a significant difference in whether a rural company can risk investments in new service
deployments.”).
19

Letter from Gary L. Phillips, AT&T to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 &10-127 at 1 (filed Feb.
18, 2015) (AT&T Feb. 18, 2015 Fact Sheet Ex Parte Letter),
http://apps.fcc.gov/ecfs/document/view?id=60001030836.
20

FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).

21

CTIA Dec. 22, 2014 White Paper at 21 (citing Appropriate Regulatory Treatment for Broadband Access to the
Internet Over Wireless Networks, WT Docket No. 07-53, Declaratory Ruling, 22 FCC Rcd 5901, 5911 ¶ 27 (2007)).
22

FCC v. Fox Television Stations, Inc., 556 U.S. at 515.

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today’s vote. And saying that the forbearance keeps reclassification within the bounds of Title I is
laughable given that the relief is really fauxbearance.
The significant legal infirmities, which have been persuasively demonstrated in the record and by
my colleague Commissioner Pai, are enough to overturn the decision. Yet I am just as troubled by the
substantial factual errors underlying the decision. Adherence to “factually unsupportable assertion[s]”
shows that the Commission has “abdicate[d] its role as the expert federal agency on communications
networks and services, and ignore[d] the administrative record in this proceeding.”23
Once again, the item relies heavily on providers’ advertisements—this time to claim that the
broadband Internet access service that they are offering is merely “a conduit for the transmission of data
across the Internet.”24 But that is no basis for changing the classification now; speeds have always been
the focus of broadband ads.25 Moreover, as one provider observed, “when consumers use broadband,
their goal is not simply to ‘send’ and ‘receive’ information from one end point to another. Rather, they
aim to acquire, retrieve, and manipulate information located on remote servers. These are all fundamental
attributes of information services: the driver is the information, not the transportation of the
information.”26
Conveniently, the item also determines that other functionalities of Internet access, such as DNS
and caching, that were previously considered enhanced services or information services, now fall within
the telecommunications management exception to the definition of information services or do not affect
the fundamental nature of broadband Internet access service. As such, the item claims that they do not
turn broadband Internet access service into a functionally integrated information service. This is absurd.
The very essence of functionalities like DNS and caching is to provide the “capability for generating,
acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via
telecommunications.”27 Thus, these ISP functions do not exist solely to “facilitate” transmission or make
23

Letter from Austin H. Schlick, Google to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 &10-127 at 3 (filed
Feb. 20, 2015) (Google Feb. 20, 2015 Ex Parte Letter), http://apps.fcc.gov/ecfs/document/view?id=60001032150.
24

Supra para. 354. The item also points to the ads to determine that ISPs holds themselves out to serve the public
indifferently. Supra note 965. A smattering of general advertisements, however, is not a substitute for a reasoned
analysis, nor does it establish that each and every ISP has made “a conscious decision” to hold itself out to serve the
public indifferently. Southwestern Bell Tel. Co. v. FCC, 19 F.3d 1475, 1481 (D.C. Cir. 1994). Moreover, the
Commission itself has recognized that ISPs may “decide case-by-case basis whether to serve a particular end user,
what connection speed(s) to offer, and at what price” and this “flexibility to customize service arrangements for a
particular customer is the hallmark of private carriage, which is the antithesis of common carriage.” Preserving the
Open Internet, GN Docket No. 09-191, WC Docket No. 07-52, Report and Order, 25 FCC Rcd 17905, 17951, ¶ 79
(2010) (2010 Open Internet Order), aff’d in part, vacated and remanded in part sub nom. Verizon v. FCC, 740 F.3d
623 (D.C. Cir. 2014) (citing Sw. Bell Tel. Co. v. FCC, 19 F.3d at 1481 (“If the carrier chooses its clients on an
individual basis and determines in each particular case whether and on what terms to serve and there is no specific
regulatory compulsion to serve all indifferently, the entity is a private carrier for that particular service and the
Commission is not at liberty to subject the entity to regulation as a common carrier.”) (internal quotation marks
omitted)). Indeed, “[t]aking advantage of this flexibility, AT&T, for example, reserves the right to refuse to provide
its wireline broadband Internet access service to potential customers that it perceives as credit risks.” AT&T Feb. 2,
2015 Common Carrier Ex Parte Letter at 7.
25

See Verizon Feb. 19, 2015 Title II Ex Parte Letter at Appendix 1.

26

Id. at 2.

27

47 U.S.C. § 153(20) (defining an “information service”). Accordingly, these functionalities do not merely
“facilitate establishment of a basic transmission path”. Implementation of the Non-Accounting Safeguards of
Sections 271 and 272 of the Communications Act of 1934, as Amended, CC Docket No. 96-149, First Report and
Order and Further Notice of Proposed Rulemaking, 11 FCC Rcd 21905, 21958, ¶ 107 (1996).

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it more “useful”;28 they are “what allow consumers to interact with and obtain information, as well as to
make their own information available.”29 Indeed, the item points out that CDN caching remains an
information service, thereby undercutting the classification of ISP caching, because the only difference
between the two, according to the item, is the extent to which CDN caching is deployed within networks.
Accordingly, contrary to the item, all services that include such functions also must meet the statutory
definition of an information service.30
The item also emphasizes that consumers increasingly use third parties for services such as email,
website hosting, DNS, newsgroups, and video streaming. Yet that ignores the Commission’s prior
determinations that “[t]he information service classification applies regardless of whether subscribers use
all of the functions and capabilities provided as part of the service (e.g., e-mail or web-hosting), and
whether every wireline broadband Internet access service provider offers each function and capability that
could be included in that service.”31
The Commission Cannot “Subsume” Internet Traffic Exchange into Broadband Internet Access Service
to Regulate it Under Title II
The record is replete with evidence that content providers and network operators enter into
interconnection relationships with ISPs through individually negotiated private agreements.32 Regardless
of the form they take—“peering,” “transit,” or “on-net-only”—providers do not hold themselves out to
serve the public indifferently.33 When considering whether to enter into these “voluntary, market-based
agreements,” providers “independently make decisions about interconnection by weighing the benefits
and costs on a case-by-case basis.”34 As one provider stated, “the exchange of Internet traffic invariably
entails arrangements between sophisticated commercial parties with very large amounts of traffic and
28

Supra paras. 370, 372.

29

Letter from Christopher Heimann, AT&T to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 & 10-127 at 7
(filed Feb. 2, 2015) (AT&T Feb. 2, 2015 Brand X Ex Parte Letter),
http://apps.fcc.gov/ecfs/document/view?id=60001025378.
30

See id. at 1-2, 6-8. See also AT&T Feb. 18 Fact Sheet Ex Parte Letter at 5 (“As long as the offering contains more
than what the Commission has called a ‘pure transmission path’ — broadband Internet access is an information
service.”) (internal citation omitted).
31

Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities et al., CC Docket Nos. 0233, 01-337, 95-20, 98-10, WC Docket Nos. 04-242, 05-271, Report and Order and Notice of Proposed Rulemaking,
20 FCC Rcd 14853, ¶ 15 (2005) (WBIAS Order) (citing Inquiry Concerning High-Speed Access to the Internet Over
Cable and Other Facilities; Internet Over Cable Declaratory Ruling; Appropriate Regulatory Treatment for
Broadband Access to the Internet Over Cable Facilities, GN Docket No. 00-785, CS Docket No. 02-52, Declaratory
Ruling and Notice of Proposed Rulemaking, 17 FCC Rcd 4798, ¶ 38 (2002), aff’d, Nat’l Cable & Telecomms. Ass’n
v. Brand X Internet Servs., 545 U.S. 967 (2005)). The WBIAS Order also observed, “This classification appears
consistent with Congress’s understanding of the nature of Internet access services. Specifically, in section 230(f)(2)
of the Act, Congress defined the term ‘interactive computer service’ to mean ‘any information service, . . . including
specifically a service or system that provides access to the Internet….’” WBIAS Order at fn. 41 (citing 47 U.S.C.
§ 230(f)(2)).
32

See Google Feb. 20, 2015 Ex Parte Letter at 1. See also, e.g., Letter from William H. Johnson, Verizon to
Marlene H. Dortch, FCC, GN Docket Nos. 14-28 &10-127 at 1, 4-5 (filed Dec. 17, 2014) (Verizon Dec. 17, 2014
Interconnection Ex Parte Letter), http://apps.fcc.gov/ecfs/document/view?id=60001010005; AT&T Feb. 2, 2015
Common Carrier Ex Parte Letter at 7-8; Comcast Jan. 30, 2015 Ex Parte Letter at 2-6.
33

AT&T Feb. 2, 2015 Common Carrier Ex Parte Letter at 7-8.

34

Federal Trade Commission, Broadband Connectivity Competition Policy at 25 (June 2007),
http://www.ftc.gov/sites/default/files/documents/reports/broadband-connectivity-competitionpolicy/v070000report.pdf.

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their own network facilities – parties that directly connect only when they perceive mutual value in doing
so.”35 Indeed, another provider noted that providers reserve the right not to enter into agreements even
where guidelines are met.36 This “flexibility to customize service arrangements for a particular customer
is the hallmark of private carriage, which is the antithesis of common carriage.”37 As such, these
arrangements, which some mistakenly refer to as “interconnection”, have never been regulated as
common carriage services subject to Title II.38
Undeterred by this long history, the item concocts a novel service laundering scheme. It attempts
to transform this “interconnection” into a telecommunications service by “subsuming” it into another
service—broadband Internet access service. Specifically, because providers supposedly hold themselves
out to provide broadband Internet access service, that includes a “representation” to customers that they
will be able to reach “all or substantially all Internet endpoints”, and that representation necessarily
includes the “promise” to make the interconnection arrangements necessary to allow that access.39 And
just like that, retail broadband Internet access service is no longer a last mile service; it is the entire
“Internet traffic path”, including all Internet traffic relationships.
This approach is riddled with holes. First, such “interconnection” has always been understood to
be distinct from the last mile, including in this proceeding.40 Second, the item does not show how this
service laundering scheme is consistent with precedent. Third, it depends on broadband Internet access
service being a telecommunications service, which it is not. Fourth, there was absolutely no notice for
this novel approach. Even parties that guessed that interconnection might be subject to Title II (despite
35

Comcast Jan. 30, 2015 Ex Parte Letter at 3.

36

See AT&T Feb. 2, 2015 Common Carrier Ex Parte Letter at 8 (“For example, AT&T’s peering policy expressly
states that “[m]eeting the peering guidelines set forth herein is not a guarantee that a peering relationship with
AT&T will be established,” that AT&T will “evaluate a number of business factors” before entering into a peering
agreement, and “reserves the right not to enter into a peering agreement with an otherwise qualified applicant.”)
(citing AT&T Global IP Network Settlement-Free Peering Policy, http://www.corp.att.com/peering).
37

Open Internet Order, 25 FCC Rcd at 17951, ¶ 79. Moreover, this market is highly competitive. See, e.g., AT&T
Feb. 2, 2015 Common Carrier Ex Parte at 9 (“At the same time that transit rates are declining rapidly, the volume of
Internet traffic flowing over peering and transit arrangements has been growing at a remarkable pace. This
combination of falling prices and increased output is exactly the opposite of what occurs where providers have
market power, which is the ability ‘to raise price and restrict output.’ On the contrary, these facts lead inexorably to
the conclusion that there is robust competition among competing networks of all types, fueled by massive continuing
investments in fiber and IP platforms — investments that were made in reliance on the Commission’s long-standing,
hands-off policy with respect to Internet access services and Internet interconnection arrangements.”) (internal
citations omitted); Comcast Jan. 30, 2015 Ex Parte Letter at 5 (“Thanks to fierce competition, unit prices for transit
services have dropped over 99% in the past 15 years.”).
38

See, e.g., Verizon Communications Inc. and MCI, Inc. Applications for Approval of Transfer of Control, WC
Docket No. 05-75, Memorandum Opinion and Order, 20 FCC Rcd 18433, ¶ 133 (2005) (“[I]nterconnection between
Internet backbone providers has never been subject to direct government regulation.”); Connect America Fund et al.,
WC Docket No. 10-90 et al., Report and Order and Further Notice of Proposed Rulemaking, 26 FCC Rcd 17663,
17663, ¶ 1338 (2011) (USF/ICC Transformation Order), aff’d sub nom. In re FCC 11-161, 753F.3d 1015 (10th Cir.
2014).
39

Supra para. 204.

40

See, e.g., Verizon Dec. 17, 2014 Interconnection Ex Parte Letter at 1 (“Both the previous Open Internet rules and
the Notice of Proposed Rulemaking in this proceeding focused on concerns relating to the management of traffic
within a broadband provider’s local network and over the last-mile connection to a subscriber. By contrast,
interconnection agreements inherently involve routing traffic between networks. Issues surrounding these
agreements, which relate to the physical connections between networks, are “very distinct” from issues concerning
the management of traffic over the last-mile….”) (internal citation omitted).

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the lack of notice) clearly did not understand that the primary mechanism for doing so would be to reinterpret broadband Internet access service to include interconnection.41
Moreover, this shift to regulate Internet traffic exchange highlights that the Commission’s real
end game has become imposing Title II on all parts of the Internet, not just setting up net neutrality rules.
Parties noted that interconnection arrangements are unrelated to last-mile net neutrality concerns.42 But
the item doesn’t attempt to apply the net neutrality rules to Internet traffic exchange; it applies Title II.
To be sure, it does so under the guise of net neutrality. But the market for Internet traffic exchange serves
a far broader purpose than ensuring that retail consumers are able to reach points on the Internet.43 In
subjecting a thriving, competitive market to regulation in the name of net neutrality, the Commission is
trying to use a small hook and a thin line to reel in a very large whale. This line will surely break.
Mobile broadband services warrant different regulatory treatment
Similarly, this item, for the first time, subsumes mobile broadband services under Title II
common carrier regulation, reversing decades of precedent. Until now, the Commission has followed
Congress’s mandate under section 332 of the Communications Act and has correctly exercised regulatory
restraint by classifying mobile broadband as an information service free from common carrier regulation
as required by the statute.44 Yet today, we use sleight of hand to change our definitions so that overnight
41

See, e.g., Comcast Jan. 30, 2015 Ex Parte Letter at 6 (“As an initial matter, the Open Internet NPRM gave no
notice of any proposal to reclassify Internet traffic exchange as a Title II service. Although the NPRM raised the
prospect that the FCC could depart from its historical approach of excluding interconnection issues from open
Internet rules – asking whether it ‘should expand the scope of the open Internet rules to cover issues related to traffic
exchange’ – it nowhere suggested that the Commission might reclassify ISPs’ interconnection-related services to
achieve that end.”). As a backstop, the item notes in passing that BIAS provider practices with respect to such
interconnection are “for and in connection with” the BIAS service. This last second addition based on a last minute
ex parte filing cannot salvage this effort because there is no notice for this theory either.
42

See id. at 1-3 (“These [traffic exchange] arrangements are distinct from the issues that are the subject of the
Commission’s open Internet rules, such as the ability of end-users to access particular content or the priority with
which content might be delivered to end-users over an ISP’s last-mile network.”). See also, e.g., Verizon Dec. 17,
2014 Interconnection Ex Parte at 1 (“[I]nterconnection agreements involve issues that are distinct from net
neutrality, which has always focused on broadband Internet access providers’ handling of traffic over the last-mile
connection to consumers.”).
43

Comcast Jan. 30, 2015 Ex Parte Letter at 2-3 (“Traffic-exchange arrangements concern the transport of Internet
traffic across the increasingly complex and dynamic backbone architecture of the Internet, and are negotiated based
on the amounts of traffic – not the type, content, or source of traffic – being delivered to each party’s network by the
other.”).
44

47 U.S.C. § 332. In 1993, Congress codified section 332(c) differentiating between commercial and private
mobile services. Compare 47 U.S.C. § 332(c)(1) with id. § 332(c)(1); see also id. § 332(d) (providing definitions);
Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66, 107 Stat. 312. Under the law, mobile broadband
has been treated as a “private mobile service” as opposed to a “commercial mobile service or the functional
equivalent of a commercial mobile service.” A “commercial mobile service” interconnects with the public switched
telephone network; whereas, a “private mobile service” does not. Because mobile broadband is not interconnected
and, therefore, a “commercial mobile service,” Section 332 of the Communications Act prevents the Commission
from regulating mobile broadband under Title II. Instead, mobile broadband is a “private mobile service” free from
common carrier regulation. See, e.g., Implementation of Sections 3(n) and 332 of the Communications Act,
Regulatory Treatment of Mobile Services, 9 FCC Rcd 1411, 1434 ¶ 54 (1994); Appropriate Regulatory Treatment
for Broadband Access to the Internet over Wireless Networks, Declaratory Ruling, 22 FCC Rcd 5901, 5915–21 ¶¶
37–56 (2007); Cellco Partnership v. FCC, 700 F.3d 534, 538 (D.C. Cir. 2012); Verizon v. FCC, 740 F.3d at 650; see
also Testimony of Robert M. McDowell, Partner, Wiley Rein LLP & Senior Fellow, Hudson Institute, before the
Senate Committee on Commerce, Science & Transportation, at 14-15,
http://www.commerce.senate.gov/public/?a=Files.Serve&File_id=14755dd8-95c7-45e0-a7b9-bfb33f222f45.

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mobile broadband magically falls under the confines of Title II.
In subjecting wireless broadband to Title II, the majority ignores fundamental differences
between the wireless and fixed broadband industries and technologies. Unlike last century’s voice-only
telephone service, the wireless sector has developed and flourished in a fiercely competitive
environment.45 Wireless consumers have ample choices and can readily switch between offerings.46 This
competition has yielded unparalleled investment and innovation, lower prices, higher speeds and product
differentiation as sector participants vie for an edge to attract and retain subscribers.47 Applying a
regulatory regime established for monopoly voice service to the dynamic mobile sector defies logic.
The majority also flagrantly ignores the fundamental technical and operational requirements
necessary for mobile broadband networks. Unlike fixed systems, mobile network capacity is constrained
by the relative scarcity of spectrum resources. Given this unique limitation, wireless providers must
maintain their ability to vigorously and nimbly mitigate the congestion inherent to wireless networks.48 I
expect that the rigid Title II rules adopted today will hamstring the smooth functioning of these networks.
Although some may argue that the exception for reasonable network management will allow such
flexibility, a case-by-case approach whereby a wireless provider’s congestion management practices are
judged after the fact by the Commission’s Enforcement Bureau is unlikely to provide much comfort to
wireless providers.
Finally, the majority defines mobile broadband as a telecommunications service without
adequately explaining its rationale for the drastic change of course.49 In addition, there has been no
meaningful opportunity for public comment on this change of definition.50 This action is nothing less
than an attempt to improperly capture mobile broadband under Title II, in direct contravention of

45

See, e.g., Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993, Annual Report
and Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile
Services, WT Docket No. 13-135, Seventeenth Report, 29 FCC Rcd 15311, 15336 Chart III.2.A (WTB 2014)
(stating that approximately 99 percent of consumers have a choice of two or more competitors and more than 82
percent of Americans today have a choice of four or more mobile providers).
46

Now more than any time in history, wireless consumers have the freedom to take advantage of myriad incentives
to switch providers, whether through early termination fee buyouts, unlocking, or one of various options to buy or
finance the latest mobile devices. See, e.g., Letter from Scott K. Bergmann, CTIA – The Wireless Association, to
Marlene H. Dortch, FCC, GN Docket Nos. 14-28 & 10-127, at 3-5 (Feb. 10, 2015) (CTIA Feb. 10, 2015 Ex Parte
Letter).
47

And, to remain competitive, carriers will continue to deploy new technologies, upgrade current networks, improve
service offerings, and evolve to consistently meet or exceed consumer expectations. See, e.g., Testimony of
Meredith Attwell Baker, President and CEO, CTIA – The Wireless Association, before the House Energy &
Commerce Subcommittee on Communications and Technology, at 5 (Jan. 21, 2015),
http://docs.house.gov/meetings/IF/IF16/20150121/102832/HHRG-114-IF16-Wstate-BakerM-20150121-U1.pdf.
48

See, e.g., id. at 4 (stating that a single strand of fiber can carry more traffic than the entirety of spectrum allocated
for commercial wireless use); Letter from Scott Bergman, CTIA – The Wireless Association, to Marlene H. Dortch,
FCC, GN Docket Nos. 14-28 & 10-127 (Oct. 6, 2014).
49

By doing so, my colleagues in the majority bring an end to the regulatory approach established by Congress,
implemented by the Commission and relied upon by the wireless sector. See CTIA Feb. 10, 2015 Ex Parte Letter at
5-10.
50

See, e.g., Letter from Gary L. Phillips, AT&T, to Marlene H. Dortch, FCC, at 3 (Feb. 2, 2015) (AT&T Feb. 2,
2015 Ex Parte Letter); CTIA Feb. 10, 2015 Ex Parte Letter at 13-14; CTIA Dec. 22, 2014 White Paper at 6; Letter
from William H. Johnson, Verizon, to Marlene H. Dortch, FCC, at 5-6 (Verizon Dec. 24, 2014 Ex Parte Letter).

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congressional intent,51 and it is not likely to survive judicial scrutiny.
The Promised Forbearance is Fauxbearance
Perhaps the most surprising—and troubling—aspect of the item is that it promises forbearance
from most of Title II but does not actually forbear from the substance of those provisions. Instead, the
item intends to provide the same protections using a few of the “core” Title II provisions that are retained:
chiefly, sections 201, 202, and 706. I call this maneuver fauxbearance.
The item is quite candid about this strategy, stating, “[A]pplying [sections 201 and 202] enables
us to protect consumers of broadband Internet access service from potentially harmful conduct by
broadband providers both by providing a basis for our open Internet rules and for the important statutory
backstop they provide regarding broadband provider practices more generally.”52 Indeed, in section
after section, the item claims to forbear from a provision but then quickly points to available protections
in other provisions that effectively gut the forbearance. It’s an end run for purposes of spin and allows
proponents to claim that it’s a new “modern Title II” when really it only would exclude 56 percent
directly and even then allow the inexcusably broad language of certain sections to govern. Suffice it to
say, the majority seems to be comfortable with suggesting that they can forbear from parts of Title II
because section 201 does it all anyway. I will highlight a just few examples to make my point:
Fauxbearance from Tariffing (sections 203, 204): To quote the item, “It is our predictive
judgment that [the protections in sections 201 and 202 of the Act] will be adequate to protect the interests
of consumers—including the interest in just, reasonable, and nondiscriminatory conduct—that might
otherwise be threatened by the actions of broadband providers. Importantly, broadband providers also are
subject to complaints and Commission enforcement in the event that they violate sections 201 or 202 of
the Act, the open Internet rules, or other elements of the core broadband Internet access requirements.”53
This is backdoor rate-setting authority.
Fauxbearance from Information Collection and Reporting (sections 211, 213, 215, 218-20):
“[S]ection 706 of the 1996 Act, along with other statutory provisions, give the Commission authority to
collect necessary information.” (Citing as one example the Special Access Data Collection, which relied
on sections 201 and 202 of the Act and section 706 of the 1996 Act).54
Fauxbearance from Discontinuance Approval (section 214(a)): “Further, the conduct standards in
our open Internet rules provide important protections against reduction or impairment of broadband
Internet access service short of the complete cessation of providing that service.”55
Fauxbearance from Duty to Maintain Adequate Facilities (section 214(d)): “In practice, we
expect that the exercise of this duty here would overlap significantly with the sorts of behaviors we would
expect providers to have marketplace incentives to engage in voluntarily as part of the ‘virtuous cycle.’
Beyond that...it is our predictive judgment that other protections will be sufficient to ensure just,
reasonable, and nondiscriminatory conduct by providers of broadband Internet access service and to

51

See, e.g., AT&T Jan. 8, 2015 Ex Parte Letter; AT&T Feb. 2, 2015 Ex Parte Letter; CTIA Feb. 10, 2015 Ex Parte
Letter at 14-16; CTIA Dec. 22, 2014 White Paper at 2-19; Verizon Dec. 24, 2014 Ex Parte Letter.
52

Supra para. 446 (emphasis added).

53

Supra para. 499.

54

Supra para. 509.

55

Supra para. 510.

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protect consumers....”56
Fauxbearance from Interconnection and Market-Opening (sections 251, 252, 256): “The
Commission retains authority under sections 201, 202 and the open Internet rules to require a provider of
broadband Internet access to address interconnection issues should they arise, including through
evaluating whether broadband providers’ conduct is just and reasonable on a case-by-case basis. We
therefore conclude that these remaining legal protections that apply with respect to providers of
broadband Internet access service will enable us to act if needed to ensure that a broadband provider does
not unreasonably refuse to provide service or interconnect.”57
Section 201 is apparently so broad that it is even a backstop for section 202. Several commenters
had pointed out that the Commission has interpreted Title II—specifically, section 202(a)—to allow
carriers to engage in reasonable discrimination, including by charging certain customers more for better
or faster service.58 But we are told that is longer an obstacle because the Commission can simply ban
service differentiation as an unjust and unreasonable practice under section 201(b).59 While courts have
determined that sections 201 and 202 afford the Commission with substantial discretion, it is not
unbounded. This statutory shell game seems to be height of arbitrary and capricious rulemaking.
Yet even if one were to buy the story that the Commission is granting broad forbearance, that
only serves to undercut the argument for Title II in the first place. Broad forbearance would prove that
Title II is ill-suited for the dynamic broadband market. As one provider stated, “The very fact that the
Commission feels the need to re-work so many provisions of Title II is proof that Congress never
intended for Title II to apply to broadband providers.”60 It would be evident that the Commission is
merely engaging in an end-run around the statute in order to advance its own vision.
The Commission Does Not Have Authority to Re-Write the Act
The Supreme Court has made clear that “an agency has no power to ‘tailor’ legislation to
bureaucratic policy goals” by interpreting a statute to create a regulatory system “unrecognizable to the
Congress that designed it.”61 Yet the item attempts to do just that by engaging in a wholesale re-write of
the Communications Act to advance its own vision for the Internet.
The item casts its re-write as a “modernized” version of Title II. In doing so, the Commission
forgets that “it may not exercise its authority in a manner that is inconsistent with the administrative
structure that Congress enacted into law.”62 Congress gave us 48 provisions in Title II, but apparently all
we really need is section 151 (which establishes the FCC and gives it authority over all interstate service)
56

Supra para. 513 (internal citation omitted).

57

Supra para. 514.

58

See, e.g., NCTA Comments 27-29; TWC Comments 14-16; Letter from William L. Kovacks, Chamber of
Commerce to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 & 10-127, at 3, n.13 (filed July 15, 2014); ITIF
Comments at 9.
59

Supra para. 292 (“In light of our discretion in interpreting and applying sections 201 and 202 and insofar as
section 706(a) is ‘a ‘fail-safe’ that ‘ensures’ the Commission’s ability to promote advanced services,’ we decline to
interpret section 202(a) as preventing the Commission from exercising its authority under sections 201(b) and 706 to
ban paid prioritization practices that harm Internet openness and deployment.”) (internal citation omitted).
60

Verizon Feb, 19, 2015 Title II Ex Parte Letter at 7.

61

Util. Air Reg. Grp. v. EPA, 134 S. Ct. 2427, 2444, 2445 (2014).

62

Ragsdale v Wolverine World Wide, Inc., 535 U.S. 81, 91 (2002) (internal quotation marks omitted).

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and 201 (which provides the substantive basis for all FCC rules). Or, to put it another way: “Presto, we
have a new statute”.63 It is the unified theory of communications law.
Moreover, the Commission cannot cast aside specific provisions in favor of more general
provisions of the Act. If Congress had thought that sections 201 and 202 provided the authority necessary
to regulate interconnection, for example, then why was it compelled to add section 251 in 1996? The fact
that Congress added more specific provisions is, by itself, evidence that the Commission does not have
sufficient authority to do what the item envisions with the “core” Title II provisions. Indeed, “such an
argument implies that the provision being forborne is redundant or surplus.”64 And it is axiomatic that
statutes should be construed “so as to avoid rendering superfluous” any statutory language.65
Additionally, the fact that the agency has forbearance authority does not justify the re-write.
Using Title II combined with forbearance to cherry pick its preferred provisions is an egregious abuse of
forbearance authority. As the D.C. Circuit has explained, “To further the deregulatory aims underlying
the 1996 overhaul of the Communications Act, Congress provided the FCC with the unusual authority to
forbear from enforcing provisions of the Act as well as its own regulations.”66 That is, forbearance was
intended to relieve carriers of existing regulations during a time of regulatory transition. It was not meant
to be used as a tool to selectively subject new services to previously inapplicable provisions.
This deregulatory objective is reinforced by other provisions enacted at the same time. For
example, in the same Title of the 1996 Act, Congress directed the Commission to engage in a biennial
review of regulations adopted under the Act and remove regulations that were no longer justified.67
Therefore, increasing regulation would run counter to this plain intent.
Congress was even clearer with respect to the minimal regulatory treatment it expected for the
Internet and Internet access services. In section 230(b)(2), Congress stated that it is the policy of the
United States “to preserve the vibrant and competitive free market that presently exists for the Internet
and other interactive computer services, unfettered by Federal or State regulation”.68 Congress defined an
“interactive computer service” as “any information service, system, or access software provider that
provides or enables computer access by multiple users to a computer server, including specifically a
service or system that provides access to the Internet and such systems operated or services offered by
libraries or educational institutions.”69 Accordingly, applying new rules to broadband would be contrary
to the Act, even if one was to accept the misguided premise that this hortatory language provides any
authority.
This usurpation of Congressional authority is especially troubling given that Congress started the
process to legislate in this space. The FCC leadership did not even consider a brief pause to see that
process play out. Instead, they invited Congress to supplement the FCC’s re-write. Not surprisingly, the
FCC’s arrogance has already invited greater Congressional scrutiny and the FCC ultimately could see its
63

Verizon v. FCC, 740 F.3d at 662 (Silberman, J., concurring in part and dissenting in part).

64

Letter from Earl W. Comstock, Counsel to Full Service Network and TruConnect, to Marlene H. Dortch, FCC,
GN Docket Nos. 14-28 & 10-127 at 4 (filed Feb. 20, 2015),
http://apps.fcc.gov/ecfs/document/view?id=60001031994.
65

Astoria Federal Savings & Loan Ass’n v. Solimino, 501 U.S. 104, 112 (1991).

66

Verizon and AT&T Inc. v. FCC, 770 F.3d 961, 964 (D.C. Cir. 2014).

67

47 U.S.C. § 161.

68

47 U.S.C. § 230(b)(2).

69

47 U.S.C. § 230(f)(2).

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authority curtailed in many areas.
Case-by-case Enforcement Will be a Trap for the Unwary
The FCC “fact” sheet promised bright line rules, but the reality is that the bulk of this rulemaking
will be conducted through case-by-case adjudication, mostly at the Bureau level and in the courts. To be
sure, there are three bright line rules: no blocking, no throttling, and no paid prioritization. But those are
mere needles in a Title II haystack.
Many practices will be reviewed under the general conduct standard that will be, quite literally, a
catch-all. Moreover, charges, practices, and classifications will also be reviewed under the amorphous
just and reasonable standard in sections 201 and 202. Parties will have no way of knowing, in advance,
how a Bureau or the Commission—much less courts acting pursuant to sections 206 and 20770—will rule
on a particular matter. There will be no certainty. Indeed, one public interest group called the catch-all a
“recipe for overreach and confusion”.71
The item notes that parties may seek an advisory opinion, which appears utterly useless: they are
only available in certain circumstances and are not binding. (I’m also not sure why any party would want
to refer itself to the Enforcement Bureau when its request could be used against it later.)
Those that haven’t monitored enforcement actions should take heed: the Commission has
enforced statutory provisions even where it has not “give[n] fair notice of conduct that is forbidden or
required.”72 This happened in the Terracom Notice of Apparent Liability for Forfeiture where the
Commission determined, for the first time—during an enforcement action—that sections 201 and 222
cover data protection.73 As I explained at length in my dissent, the Commission had never adopted any
rules to that effect. To the contrary, prior orders had made clear that the Commission viewed section 222
as being limited to CPNI.74 Moreover, if data protection falls within the ambit of 201(b), then I can only
imagine what else might be a practice “in connection with” a communications service. There is no
limiting principle. I would also note that this was a situation where the provider voluntarily disclosed the
data breach to the Enforcement Bureau and Wireline Competition Bureau.
This is Just the Beginning
70

Letter from Matthew A. Brill, NCTA to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 & 10-127 at 5 (filed
Feb. 20, 2015) (NCTA Feb. 20, 2015 Ex Parte Letter), http://apps.fcc.gov/ecfs/document/view?id=60001031778
(“Private suits and damages awards have never been necessary to protect broadband consumers in the past, and
leaving these two provisions in place would be immensely destabilizing to the broadband industry.…The
Commission is all too familiar with the growing trend of class action lawsuits that aim to capitalize on ambiguities
in the Commission’s rulings—most notably in the context of the Telephone Consumer Protection Act (‘TCPA’). A
regime that exposes the broadband industry to similar threats of abusive litigation would be anything but ‘light
touch,’ and could be particularly devastating for smaller ISPs, many of which cannot afford the cost of litigating or
settling class action lawsuits.”) (internal citation omitted).
71

Electronic Frontier Foundation, Dear FCC: Rethink The Vague “General Conduct” Rule (Feb. 24, 2015),
https://www.eff.org/deeplinks/2015/02/dear-fcc-rethink-those-vague-general-conduct-rules.
72

FCC v. Fox Television Stations, Inc., 132 S.Ct. 2307, 2317 (2012) (citing Connally v. General Constr. Co., 269
U.S. 385, 391 (1926)).
73

TerraCom, Inc. and YourTel America, Inc., Apparent Liability for Forfeiture, File No.: EB-TCD-13-00009175, 29
FCC Rcd 13325 (2014), https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-173A1_Rcd.pdf. The NAL also
wrongly suggested that section 201(b) covers cybersecurity.
74

Id. at 13351 (dissenting Statement of Commissioner Michael O’Rielly),
https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-173A5.pdf.

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Although there are many caveats about what “this item” does, the Commission’s path forward is
clear. For example, the Commission claims that this item does not require broadband providers to
contribute to the federal universal service fund at this time. But that’s because it defers that decision to a
pending proceeding which is likely to result in new fees on broadband service.
Nor can providers take any comfort in the item’s other promises to refrain from further
regulation. In particular, the item repeatedly disavows any present intent to adopt ex ante rate regulation.
Banning paid prioritization is, itself, a form of ex ante rate regulation. Additionally, the Commission
fully intends to review rates after the fact. As one group noted, “[A]llowing post hoc scrutiny of
broadband rates through the filing of complaints (either before the Commission or in federal court) is
“rate regulation” in the purest sense—no less so than ex ante requirements to file tariffs or to seek
Commission approval for rate changes.”75 The Commission expressly contemplates examining, on a
case-by-case basis, whether interconnection agreements are just and reasonable under sections 201 and
202. That necessarily includes an evaluation of the rates, terms, and conditions of such arrangements.
The Commission also intends to review data allowances and usage-based pricing plans on a case-by-case
basis.
Moreover, last-mile ISPs aren’t the only ones that should be concerned by today’s actions. The
item attempts—albeit in a failed way—to carve out, for now, CDNs, transit providers, backbone
providers, edge providers, and certain specialized services, including e-readers. But the new legal
framework for telecommunications services has let the proverbial genie out of the bottle. As one
association observed, “the Commission should not and cannot legally or logically distinguish between
kinds of broadband transmission (e.g., last-mile, middle-mile, etc.) in classifying broadband as a
telecommunications service. If data are conveyed from points A to Z or exchanged between networks of
any kind, those functions are broadband transmission – and the mere location of that transmission at a
given point in the network ecosystem is irrelevant by itself to regulatory classification.”76 In other words,
the decisions made today will necessarily impact future decisions. The fact that certain decisions will
happen later does nothing to diminish the culpability of the current majority.
For all of these reasons, I dissent.

75

Letter from Matthew A. Brill, Counsel to National Cable & Telecommunications Association, to Marlene H.
Dortch, FCC, GN Docket Nos. 14-28, 10-127 at 2 (Feb.11, 2015) (NCTA Feb. 11, 2015 Ex Parte Letter),
http://apps.fcc.gov/ecfs/document/view?id=60001028642.
76

Letter from Michael R. Romano, NTCA to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 &10-127, at 1 (filed
Feb. 19, 2015) (NTCA Feb. 19, 2015 Ex Parte Letter), http://apps.fcc.gov/ecfs/document/view?id=60001031424.

400