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Federal Communications Commission

Washington, D.C. 20554


November 7, 2014

VIA ELECTRONIC MAIL


Jason Leopold

Re:

Freedom oflnformation Act Request Control No. 2014-400

Dear Mr. Leopold:


This letter is a further response to your Freedom of Information Act (FOIA) request,
identified by FCC Control No. 2014-400, which, as revised, seeks records of internal and
external communications involving Commission personnel and regarding open Internet/net
neutrality during the period February 1, 2014 to May 15, 2014, excluding any publicly available
records.
As discussed more fully below, we are further granting your request in part and denying
it in part by providing you with an additional 406 pages of documents in response to your
request. We have redacted certain information in these documents that is not responsive to your
request or that falls within the scope ofFOIA Exemptions 4, 5 and 6. 1
Also in this response, we are denying your request in part by determining to withhold
additional documents in their entirety, based on FOIA Exemptions 4, 5 and 6? In making this
determination, Commission staff reviewed approximately 4,600 separate records, including
approximately 3,000 emails, of varying size identified as responsive to your request. In addition
to emails, these records comprise internal drafts, memoranda, charts, outlines, notes, outside
publications and filings in Commission dockets. We are still processing an additional set of
records and will attempt to provide you with a final response to your request by November 14,
2014.
Discussion
FOIA Exemption 4
Exemption 4 to the FOIA applies to "trade secrets and commercial or financial
information obtained from a person and privileged or confidentia1." 3 Pursuant to Exemption 4,
we have redacted from the attached, or are withholding in their entirety, copyrighted or otherwise
1

5 U.S.C. 552(b)(4), 552(b)(5) and 552(b)(6).


Id
3
5 u.s.c. 552(b)(4).
2

proprietary materials relating to the topic of open Internet. Also pursuant to Exemption 4, we
have redacted from certain meeting schedulers access codes and call-in numbers issued by the
Commission's telecommunications provider. We find that these materials constitute commercial
or financial information the release of which would cause competitive harm to the parties
creating them.
FOIA Exemption 5
FOIA Exemption 5 protects from disclosure "inter-agency or intra-agency memorandums
or letters which would not be available by law to a party other than an agency in litigation with
the agency." 4 Determining availability by law is governed by whether or not the documents or
information are normally privileged in the civil discovery context 5 Exemption 5 therefore
covers communications that are protected by legal privileges, such as the attorney-client
privilege, attorney work-product privilege, or communications reflecting the agency's
deliberative process (e.g., internal recommendations and drafts of agency decisions). 6 Records
of internal communications are privileged in the civil discovery context under the deliberativeprocess privilege to the extent that they reflect pre-decisional, deliberative discussions that lead
to a formal decision, where disclosure of such information would harm the deliberative process. 7
The records, and portions of records, that we are withholding on the basis of Exemption 5
include inter and intra-agency drafts, emails, outlines, memoranda, charts, outlines, notes and
other documents that reflect the agency's deliberative process in connection with the open
Internet rulemaking. We conclude that release of these records would have the effect of
inhibiting the free exchange of ideas within the agency that the deliberative process privilege is
designed to protect 8 Consequently, we find that these records fall within the scope of the
deliberative-process privilege and are exempt from disclosure under FOIA Exemption 5. We are
withholding them on that basis.
FOIA Exemption 6
Exemption 6 to the FOIA permits the Commission to withhold information in order to
protect individuals' personal privacy. 9 Pursuant to this exemption, we have redacted from the
attached records individual contact information, including personal telephone numbers and email
addresses. We have also redacted certain names and statements of a personal or business nature
that are unrelated to open Internet or GN Docket 14-28. We find that there are substantial
5 u.s.c. 552(b)(5).
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see FTCv. Grolier Inc., 462 U.S. 19,26 (1983);
Martin v. Office of Special Counsel, 8 I 9 F.2d I I 8 I (D.C. Cir. I 987); see also Attorney General Memorandum
for Heads of All Federal Departments and Agencies Regarding the Freedom of Information Act (Oct. 12, 2001),
reprinted in FOIA Post (posted I 0/I 5/0 I) (highlighting importance of protecting privileged information).
6 !d.
7
See e.g. Nat'! Wildlife Fed'n v. U.S. ForestServ., 861 F.2d I I 14, I I 19 (9th Cir. 1988) ("[T]he ultimate
objective of exemption 5 is to safeguard the deliberative process, not the paperwork generated in the course of
that process."); Schell v. HHS, 843 F.2d 933, 940 (6th Cir. 1988) ("Because Exemption 5 is concerned with
protecting the deliberative process itself, comts now focus less on the material sought and more on the effect of
the material's release.").
8
See, e.g., Kiddv. DOJ, 362 F. Supp. 2d 291,296 (D.D.C. 2005).
9
5 U.S.C. 552(b)(6) (Exemption 6 protects records if their disclosure "would constitute a clearly unwananted
invasion of personal privacy").
4

privacy interests at stake in connection with this information and that releasing it would not serve
the public interest. We therefore find that the disclosure of this information would constitute an
unwarranted invasion of personal privacy and we are withholding it on that basis. 10

Segregation/Review for Discretionary Release


The redactions made to the records released to you are consistent with our responsibility
under the FOIA to review records to determine if any portions can be further segregated and
released. 11 We have determined that no additional materials may be segregated and released.
Finally, we have reviewed the withheld documents, and portions of documents, to
determine if discretionary release of any of them is appropriate. 12 "Even when particular
information falls within the scope of a FOIA exemption, federal agencies generally are afforded
the discretion to release the information on public interest grounds." 13 Based on our review, we
do not discern any overriding public interest in releasing the material that we have determined is
exempt from disclosure under FOIA Exemptions 4, 5, and 6, given the substantial competitive
harm, harm to the integrity of the Commission's processes, or harm to the privacy interests at
stake, respectively, that would result from release of those records. 14
Pursuant to Section 0.461(j) ofthe Commission's rules, you may file an application for
review of this decision with the Commission's Office of General Counsel within 30 days ofthe
date of this letter. I5 Any such application must contain "Review of Freedom of Information Act
Action" in its caption and on the transmitting envelope,I 6 and should reference FOIA Control
Number 2014-400.
Sincerely,

Wireline Competition Bureau


Federal Communications Commission

IO See Moorev. Bush, 601 F. Supp. 2d 6, 13-14 (D.D.C. 2009) and Electronic Frontier Foundation, 26 FCC Red
13812, 13816, n. 13 (201 I) (personal email addresses and telephone numbers redacted pursuant to Exemption 6).
II 5 USC 552(b).
IZ See Memorandum for the Heads of Executive Departments and Agencies, Freedom of Information Act, 74 FR
4683 (2009) (President Obama's memorandum concerning the FOIA); The Freedom ofInformation Act (FOJA),
available at <http://www.usdoj.gov/ag/foia-memo-march2009.pdt> (Attorney General Holder's FOIA Memo). See
also Reporters comm. For Freedom ofthe Press, 489 U.S. 749,773 (1989) ("the purpose [ofFOIA] ... is not fostered
by disclosure of information about private citizens that is accumulated in various governmental files but that reveals
little or nothing about an agency's own conduct").
3
I Examination of Current Policy Concerning the Treatment of Confidential Information Submitted to the
Commission, 13 FCC Red 24816, 24818 (1998), citing Chrysler Corp., 441 U.S. 28 I, 292-94 (1979).
4
I See Warren Havens, 24 FCC Red 12308, 12319 22 (2009) (declining to make discretionary release of material
exempt under deliberative process privilege); see also L. Lloyd Morgan, 26 Red 13823, 13826 (201 1).
5
I See 47 C.F.R. 0.4610).
IG !d.

cc:

FOIA Officer, FCC

Federal Communications Commission


Washington, D.C. 20554
September 26, 2014

VIA ELECTRONIC MAIL

Re:

Freedom oflnformation Act Request Control No. 2014-400

Dear Mr. Leopold:


This letter is a further response to your Freedom oflnformation Act (FOIA) request,
identified by FCC Control No. 2014-400, which, as revised, seeks records of internal and
external communications involving Commission personnel and regarding open Internet/net
neutrality during the period February 1, 2014 to May 15, 2014, excluding any publicly available
records.
As discussed more fully below, we are providing you with an additional65 pages of
documents in response to your request. We have redacted certain information in these
documents that is not responsive to your request or that falls within the scope ofFOIA
Exemptions 5. 1 We are continuing in our efforts to review and analyze additional documents for
potential release and expect to supplement this response again on October 3, 2014.

Discussion
FOIA Exemption 5 protects from disclosure "inter-agency or intra-agency memorandums
or letters which would not be available by law to a party other than an agency in litigation with
the agency." 2 Determining availability by law is governed by whether or not the documents or
information are normally privileged in the civil discovery context. 3 Exemption 5 therefore
covers communications that are protected by legal privileges, such as the attorney-client
privilege, attorney work-product privilege, or communications reflecting the agency's

5 U.S.C. 552(b)(5).

NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see FTC v. Grolier Inc., 462 U.S. 19, 26 (1983);
Martin v. Office of Special Counsel, 819 F.2d 1181 (D.C. Cir. 1987); see also Attorney General Memorandum
for Heads ofAll Federal Departments and Agencies Regarding the Freedom ofInformation Act (Oct. 12, 2001),
reprinted in FOIA Post (posted 10/15/01) (highlighting importance of protecting privileged information).

deliberative process (e.g., internal recommendations and drafts of agency decisions). 4 Records
of internal communications are privileged in the civil discovery context under the deliberativeprocess privilege to the extent that they reflect pre-decisional, deliberative discussions that lead
to a formal decision, where disclosure of such information would harm the deliberative process. 5
The portions of records that we are withholding on the basis of Exemption 5 include
intra-agency emails and notes that reflect the agency's deliberative process in connection with
the open Internet rulemaking. We conclude that release of these records would have the effect of
inhibiting the free exchange of ideas within the agency that the deliberative process privilege is
designed to protect. 6 Consequently, we find that these records fall within the scope of the
deliberative-process privilege and are exempt from disclosure under FOIA Exemption 5. We are
withholding them on that basis.
We have reviewed the withheld portions to determine if discretionary release of any of
the portions being withheld is appropriate. 7 "Even when particular information falls within the
scope of a FOIA exemption, federal agencies generally are afforded the discretion to release the
information on public interest grounds." 8 Based on our review, we do not discern any
overriding public interest in releasing the material that we have determined is exempt from
disclosure under FOIA Exemption 5, given the substantial harm to the integrity of the
Commission's processes that would result from release of those records. 9

See e.g. Nat'! Wildlife Fed'n v. US. Forest Serv., 861 F.2d 1114, 1119 (9th Cir. 1988) ("[T]he ultimate
objective of exemption 5 is to safeguard the deliberative process, not the paperwork generated in the course of
that process."); Schell v. HHS, 843 F.2d 933, 940 (6th Cir. 1988) ("Because Exemption 5 is concerned with
protecting the deliberative process itself, courts now focus less on the material sought and more on the effect of
the material's release.").
6

See, e.g., Kidd v. DOJ, 362 F. Supp. 2d 291,296 (D.D.C. 2005).

See Memorandum for the Heads ofExecutive Departments and Agencies, Freedom ofInformation Act, 74 FR 4683
(2009) (President Obama's memorandum concerning the FOIA); The Freedom ofInformation Act (FOIA), available
at <http://www.usdoj.gov/ag/foia-memo-march2009.pdf> (Attorney General Holder's FOIA Memo).
8

Examination of Current Policy Concerning the Treatment of Confidential Information Submitted to the
Commission, 13 FCC Red 24816, 24818 (1998), citing Chrysler Corp., 441 U.S. 281, 292-94 (1979).

See Warren Havens, 24 FCC Red 12308, 12319 22 (2009) (declining to make discretionary release of material
exempt under deliberative process privilege); see also L. Lloyd Morgan, 26 Red 13823, 13826 (2011).

Pursuant to Section 0.461(j) of the Commission's rules, you may file an application for
review ofthis decision with the Commission's Office of General Counsel within 30 days ofthe
date of this letter. Io Any such application must contain "Review of Freedom of Information Act
Action" in its caption and on the transmitting envelope,u and should reference FOIA Control
Number 2014-400.
Sincerely,

Wireline Competition Bureau


Federal Communications Commission

cc:

FOIA Officer, FCC

Io

See 47 C.F.R. 0.461(j).

II

Jd.

Federal Communications Commission


Washington, D.C. 20554
October 3, 2014

VIA ELECTRONIC MAIL

Re:

Freedom oflnformation Act Request Control No. 2014-400

Dear Mr. Leopold:


This letter is a further response to your Freedom of Information Act (FOIA) request,
identified by FCC Control No. 2014-400, which, as revised, seeks records of internal and
external communications involving Commission persmmel and regarding open Internet/net
neutrality during the period February 1, 2014 to May 15, 2014, excluding any publicly available
records.
As discussed more fully below, we are providing you with an additional 65 pages of
documents in response to your request. We have redacted certain information in these
documents that is not responsive to your request or that falls within the scope ofFOIA
Exemptions 5 and 6. 1 We are continuing in our efforts to review and analyze additional
documents for potential release and expect to supplement this response again on October 10,
2014.
Discussion

FOIA Exemption 5 protects from disclosure "inter-agency or intra-agency memorandums


or letters which would not be available by law to a party other than an agency in litigation with
the agency." 2 Determining availability by law is governed by whether or not the documents or
information are normally privileged in the civil discovery context. 3 Exemption 5 therefore
covers communications that are protected by legal privileges, such as the attorney-client
privilege, attorney work-product privilege, or communications reflecting the agency's
1

5 U.S.C. 552(b)(5); 5 U.S.C. 552(b)(6).

NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see FTCv. Grolier Inc., 462 U.S. 19,26 (1983);
Martin v. Office ofSpecial Counsel, 819 F.2d 1181 (D.C. Cir. 1987); see also Attorney General Memorandum
for Heads ofAll Federal Departments and Agencies Regarding the Freedom of Information Act (Oct. 12, 2001),
reprinted in FOIA Post (posted 10/15/0 1) (highlighting importance of protecting privileged information).

deliberative process (e.g., internal recommendations and drafts of agency decisions). 4 Records
of internal communications are privileged in the civil discovery context under the deliberativeprocess privilege to the extent that they reflect pre-decisional, deliberative discussions that lead
to a formal decision, where disclosure of such information would harm the deliberative process. 5
The portions of records that we are withholding on the basis of Exemption 5 include
intra-agency emails and notes that reflect the agency's deliberative process in connection with
the open Internet rulemaking. We conclude that release of these records would have the effect of
inhibiting the free exchange of ideas within the agency that the deliberative process privilege is
designed to protect. 6 Consequently, we find that these records fall within the scope of the
deliberative-process privilege and are exempt from disclosure under FOIA Exemption 5. We are
withholding them on that basis.
We have also redacted portions of the records we are producing on the basis ofFOIA
Exemption 6, which covers "personnel and medical files and similar files." 7 We find that the
disclosure ofthis information would constitute an unwarranted invasion of personal privacy. 8
We have reviewed the withheld portions to determine if discretionary release of any of
the portions being withheld is appropriate. 9 "Even when particular information falls within the
scope of a FOIA exemption, federal agencies generally are afforded the discretion to release the
information on public interest grounds." 10 Based on our review, we do not discern any
overriding public interest in releasing the material that we have determined is exempt from
disclosure under FOIA Exemptions 5 and 6, given the substantial harm to the integrity of the
Commission's processes, or the privacy interests involved, that would result from release of those
records. 11

See e.g. Nat'! Wildlife Fed'n v. U.S. ForestServ., 861 F.2d 1114, 1119 (9th Cir. 1988) ("[T]he ultimate
objective of exemption 5 is to safeguard the deliberative process, not the paperwork generated in the course of
that process."); Schell v. HHS, 843 F.2d 933, 940 (6th Cir. 1988) ("Because Exemption 5 is concerned with
protecting the deliberative process itself, courts now focus less on the material sought and more on the effect of
the material's release.").
6

See, e.g., Kidd v. DOJ, 362 F. Supp. 2d 291, 296 (D.D.C. 2005).

5 U.S.C. 552(b)(6) (Exemption 6) (protects records if their disclosure "would constitute a clearly unwarranted
invasion ofpersonal privacy").

See also Moore v. Bush, 601 F. Supp. 2d 6, 13-14 (D.D.C. 2009) and Electronic Frontier Foundation, 26 FCC Red
13812, 13816, n.13 (2011) (personal email addresses and telephone numbers redacted pursuant to Exemption 6).

See Memorandum for the Heads of Executive Departments and Agencies, Freedom ofInformation Act, 74 FR 4683
(2009) (President Obama's memorandum concerning the FOIA); The Freedom ofInformation Act (FOIA), available
at <http://www.usdoj.gov/ag/foia-memo-march2009.pdf> (Attorney General Holder's FOIA Memo).
10

Examination of Current Policy Concerning the Treatment of Confidential Information Submitted to the
Commission, 13 FCC Red 24816, 24818 (1998), citing Ch1ysler Corp., 441 U.S. 281,292-94 (1979).
11

See Warren Havens, 24 FCC Red 12308, 12319 22 (2009) (declining to make discretionary release of material
exempt under deliberative process privilege); see also L. Lloyd Morgan, 26 Red 13823, 13826 (2011).

Pursuant to Section 0.461G) ofthe Commission's rules, you may file an application for
review ofthis decision with the Commission's Office of General Counsel within 30 days ofthe
date of this letter. 12 Any such application must contain "Review of Freedom of Information Act
Action" in its caption and on the transmitting envelope, 13 and should reference FOIA Control
Number 2014-400.
Sincerely,

Wireline Competition Bureau


Federal Communications Commission

cc:

FOIA Officer, FCC

12

See 47 C.F.R. 0.461G).

13

Id

Federal Communications Commission


Washington, D.C. 20554
September 19, 2014

VIA ELECTRONIC MAIL

Re:

Freedom of Information Act Request Control No. 2014-400

Dear Mr. Leopold:


This letter responds to your Freedom of Information Act (FOIA) request, identified by
FCC Control No. 2014-400, and revised by you in a June 2, 2014 telephone call involving you,
LaiTY Schecker of the FCC's Office of General Counsel, and Jocelyn Frye and myself of the
Wireline Competition Bureau. 1 As revised, your request seeks records of internal and external
communications involving Commission personnel and regarding open Internet/net neutrality
during the period February 1, 2014 to May 15, 2014. Such records/discussions are to include
those involving the Office of the Chairman, Commissioners, the Wireline Competition Bureau
and any other bureau(s) deemed appropriate within the parameters of our search. You indicated
you are not seeking any publicly available records.
As discussed more fully below, we are granting your request in part by providing you
with 55 pages of documents. We have redacted certain information in these documents that is
not responsive to your request or that falls within the scope of FOIA Exemptions 5 and 6.Z We
are continuing in our efforts to review and analyze additional documents for potential release and
expect to supplement this response initially on September 26, 2104.

Discussion
FOIA Exemption 5 protects from disclosure "inter-agency or intra-agency memorandums
or letters which would not be available by law to a party other than an agency in litigation with
the agency." 3 Determining availability by law is governed by whether or not the documents or
1

In response to the Bureau's requests, you consented to extensions of the deadline for responding to your FOIA
Request, resulting in the current due date of September 19, 2014. See E-mails from Jocelyn Frye, FCC, to Jason
Leopold dated June 10, 2014 and July 18, 2014. See also, E-mails from KirkS. Burgee, FCC, to Jason Leopold
dated August 12, 2014, August 15, 2014, and August 29, 2014.
2

5 U.S.C. 552(b)(5); 5 U.S.C. 552(b)(6).

information are normally privileged in the civil discovery context.4 Exemption 5 therefore
covers communications that are protected by legal privileges, such as the attorney-client
privilege, attorney work-product privilege, or communications reflecting the agency's
deliberative process (e.g., internal recommendations and drafts of agency decisions). 5 Records
of internal communications are privileged in the civil discovery context under the deliberativeprocess privilege to the extent that they reflect pre-decisional, deliberative discussions that lead
to a formal decision, where disclosure of such information would harm the deliberative process. 6
The portions of records that we are withholding on the basis of Exemption 5 include
intra-agency emails and notes that reflect the agency's deliberative process in connection with
the open Internet rulemaking. We conclude that release of these records would have the effect of
inhibiting the free exchange of ideas within the agency that the deliberative process privilege is
designed to protect. 7 Consequently, we find that these records fall within the scope of the
deliberative-process privilege and are exempt from disclosure under FOIA Exemption 5. We are
withholding them on that basis.
We have also redacted portions of the records we are producing on the basis of FOIA
Exemption 6, which covers "personnel and medical files and similar files." 8 We find that the
disclosure of this information would constitute an unwarranted invasion of personal privacy. 9
Finally, we have reviewed the withheld portions to determine if discretionary release of
any of the portions being withheld is appropriate. 10 "Even when particular information falls
within the scope of a FOIA exemption, federal agencies generally are afforded the discretion to

NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see FTC v. Grolier Inc., 462 U.S. 19,26 (1983);
Martin v. Office of Special Counsel, 819 F.2d 1181 (D.C. Cir. 1987); see also Attorney General Memorandum
for Heads of All Federal Departments and Agencies Regarding the Freedom of Information Act (Oct. 12, 2001),
reprinted inFO/A Post (posted 10/15/01) (highlighting importance of protecting privileged information).

See e.g. Nat'/ Wildlife Fed'n v. U.S. Forest Serv., 861 F.2d 1114, 1119 (9th Cir. 1988) ("[T]he ultimate
objective of exemption 5 is to safeguard the deliberative process, not the paperwork generated in the course of
that process."); Schell v. HHS, 843 F.2d 933, 940 (6th Cir. 1988) ("Because Exemption 5 is concerned with
protecting the deliberative process itself, courts now focus less on the material sought and more on the effect of
the material's release.").
7

See, e.g., Kidd v. DOJ, 362 F. Supp. 2d 291,296 (D.D.C. 2005).

5 U.S.C. 552(b)(6) (Exemption 6) (protects records if their disclosure "would constitute a clearly unwarranted
invasion of personal privacy").

See also Moore v. Bush, 601 F. Supp. 2d 6, 13-14 (D.D.C. 2009) and Electronic Frontier Foundation, 26 FCC Red
13812, 13816, n.13 (2011) (personal email addresses and telephone numbers redacted pursuant to Exemption 6).

10

See Memorandum for the Heads of Executive Departments and Agencies, Freedom of Information Act, 74 FR
4683 (2009) (President Obama's memorandum concerning the FOIA); The Freedom of Information Act (FO/A),
available at <http://www.usdoj.gov/ag/foia-memo-march2009.pdf> (Attorney General Holder's FOIA Memo).

release the information on public interest grounds." 11 Based on our review, we do not discern
any overriding public interest in releasing the material that we have determined is exempt from
disclosure under FOIA Exemption 5 or 6, given the substantial harm to the integrity of the
Commission's
or to the privacy interests involved, that would result from release of

those records. 1
Pursuant to Section 0.461(j) of the Commission's rules, you may file an application for
review ofthis decision with the Commission's Office of General Counsel within 30 days of the
date of this letter. 13 Any such application must contain "Review of Freedom of Information Act
Action" in its caption and on the transmitting envelope, 14 and should reference FOIA Control
Number 2014-400.
Sincerely,

Wireline Competition Bureau


Federal Communications Commission

cc:

FOIA Officer, FCC

11

Examination of Current Policy Concerning the Treatment of Confidential


Submitted to the
Commission, 13 FCC Red 24816,24818 (1998), citing Chrysler Corp., 441 U.S. 281, 292-94 (1979).
12

See Warren Havens, 24 FCC Red 12308, 12319122 (2009) (declining to make discretionary release of material
exempt under deliberative process privilege); see also L. Lloyd Morgan, 26 Red 13823, 13826 (2011 ).
13

See 47 C.F.R. 0.4610).

14

/d.

From: Dave Burstein [mailto:daveb@dslprime.com]

Sent: Wednesday, May 07, 2014 7:47 PM


To: work@dslprime.com
Subject: Do glance: A Billion Homes towards a gigabit Webinar tomorrow

Gov and policy people: You can't understand the net neutrality debate without the best
data on whether networks are really congested. Dave Clark of MIT has the facts and
they are very different from what most of Washington believes. Dave is a net neutrality
skeptic, I believe, but facts are facts. Cioffi and Clark will also explain why the engineers
think 100 megabits and more is becoming practical and affordable. Do join or ask me for
a transcript after. db Here's the invite.
FolksTwo world class experts will point to the way to affordable Internet gigabits and the
Internet soon to come. Internet Hall of Famers John Cioffi of Stanford and MIT?s Dave
Clark lead a Marconi Society Expertise webinar. P'm moderating and guarantee it will be lively.

Thursday May 8 10 a.m. California, 1 p.m. New York, 6 p.m. London


No charge; just register at http://bit.ly/1cNGfTK
Short presentations and plenty of time for questions. Do join us.
Cioffi is working on ways to combine advanced DSL and WiFi to inexpensively deliver
hundreds of megabits and even a gigabit. Vectored DSL, Cioffi?s invention, is now
proven to deliver 100 megabits over a short loop. Gigabit WiFi chips are now shipping.
Combine the 10 or 30 WiFis visible in most urban areas and a gigabit is in reach. He?s
CEO of ASSIA, developing some of the systems needed for this and managing DSL.
(Marconi fellow Cioffi also will speak at a very strong Upperside event in Paris May 2122 on fast DSL. I?ll be speaking as well. Say hello to the round fellow with a beard.)
http: //bit.ly/1c8GXwP
Clark has recently done empirical work on network congestion - or lack thereof. ?Can
1

the Internet keep up with hundreds of gigabits to homes?? Clark has done seminal work
on the design of the future Internet. He was Chair of what?s now called the Internet
Architecture Board ..
Dave Burstein
Moderator for the Marconi Society, sponsor of this email
More, including biographies, http://bit.ly/1hye6ip
Mailing sponsored by The non-profit Marconi Society. Reply "un" to be removed from
the list

From: Latoya Toles On Behalf Of WCBChief


Sent: Thursday, May 08, 2014 3:12PM
To: Julie Veach; Matthew DelNero; Michael Jacobs; Randy Clarke; carol Simpson; Kristine Fargotstein
Subject: Meeting on behalf of Hagon Lovells & Roku re: to discuss Roku's interest in the net neutrality proceedin
When: Wednesday, May 21, 2014 10:00 AM-11:00 AM (UTC-05:00) Eastern Time (US & canada).
Where: 5-8142

Good afternoon,
We would like to schedule a meeting with Chief Veach and the Bureau front office and Division staff working
on the Open Internet proceeding, who we understand includes the following people:

Matthew DelNero, Deputy Bureau Chief


Michael Jacobs, front office legal advisoi
Randy Clark, Acting Chief of Competition Policy Division
Carol Simpson, Deputy Chief of Competition Policy Division
Kristine Fargotstein, Attorney Advisor in the Competition Policy Division

The topic of discussion will be Roku' s interest in the net neutrality proceeding, as it relates to MVPD
authorization ofRoku's over-the-top streaming set-top box platform. Please let me know if any of these slots
are available on May 21st:

12: 15p- 12:45p


1:00p- 1:30p
1:45p- 2:15p
4:45p-5:15

In attendance, will be the following people:

Roku:
Stephen Kay, SVP and General Counsel
Steve Shannon, General Manager of Content and Services
Hogan Lovells:
Michele Farquhar
Praveen Goyal
Many thanks, in advance, for your time.
Kind regards,
Penny Johnakin
Assistant to P. Goyal, Esq.

Penny Johnakin
Assistant
Columbia Square
555 Thirteenth Street. NW
Washington, DC 20004
Tel:
Direct:
Fax:
Email:

+1 202 637 5600


+ 1 202 637 7188
+1 202 637 5910
penny,johnakin@ hoganlovells,com

Please consider the environment before printing this e-mail.

From:

Sent:
To:
Cc:
Subject:

Roisman, Natalie <NRoisman@wbklaw.com>


Monday, May 12, 2014 10:51 PM
Jonathan Chambers
Howard Symons; rbender@mobilefuture.org; Julie Veach
Re: Your panel at the FCBA Annual Seminar, May 17

Thanks- we will be sure not to direct any of those questions to you. Appreciate the feedback!
Natalie
Sent from my iPad
On May 12, 2014, at 6:15PM, "Jonathan Chambers" <Jonathan.Chambers@fcc.gov> wrote:
For my part, I have not involved myself in the Open Internet item, so I'd prefer staying on the
sideline for those questions. Thanks
-----Original Message----From: Howard Symons
Sent: Monday, May 12,2014 06:11PM Eastern Standard Time
To: 'Roisman, Natalie'; rbender@mobilefuture.org
Cc: Jonathan Chambers; Julie Veach
Subject: RE: Your panel at the FCBA Annual Seminar, May 17

Natalie,

Could I ask you to strike the "biggest worry" question? I'm open to another idea if you want to propose it. I also
don't think I can opine on the Chairman's general wireless goals- that's really a Wireless Bureau matter.

Thanks in advance. Looking forward to the panel. Thanks for inviting me.

Howard

From: Reisman, Natalie [mailto:NRoisman@wbklaw.com]


Sent: Monday, May 12, 2014 12:11 PM
To: Julie Veach; Jonathan Chambers; Howard Symons
Cc: rbender@mobilefuture.org
Subject: RE: Your panel at the FCBA Annual Seminar, May 17
1

Hello, all. Apologies for bombarding you with another email in what I'm sure is a very busy
week for you. Rachael and I wanted to share with you the draft list of potential questions that
we've developed for Saturday's panel. As you might imagine, there are some placeholders that
we expect to be filled in based on this week's developments in the building. But in the
meantime, if you want us to strike or modify (or add) any questions, please don't hesitate to let
us know. It sounds like a call won't be necessary, but we remain available to chat with you if
you feel it would be beneficial.

Best regards,
Natalie

<imageOO l.jpg>
NATALIE

G.

ROISMAN

PARTNER
2300 N STREET, NW
SUITE700
WASHINGTON, DC20037-1128
MAIN 202.783.4141
DIRECT 202.383.3398
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This electronic message transmission contains information from the law firm of Wilkinson Barker Knauer, LLP
which may be confidential or privileged. The information is intended to be for the use of the individual or entity
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by telephone at 202.783.4141 or by electronic mail administrator@wbklaw.com immediately.

From: Roisman, Natalie

Sent: Wednesday, May 07, 2014 8:40PM


To: Julie Veach (julie.veach@fcc.gov); jonathan.chambers@fcc.gov; howard.symons@fcc.gov
Cc: rbender@mobilefuture.org

Subject: Your panel at the FCBA Annual Seminar, May 17

Dear Julie, Jonathan, and Howard:

Thank you so much for your willingness to participate in the FCBA's upcoming Annual Seminar
at the Homestead in Hot Springs. Your panel, titled "Competition, Competition, Competition ...
And Other Priorities: A Discussion With Chairman Wheeler's Senior Staff," will be Saturday
morning, May 17, at 11 a.m. I will be co-moderating the discussion with Rachael Bender of
Mobile Future. Unfortunately, we are the last panel before lunch, but on the bright side, we are
not the 8 a.m. panel! The full conference agenda is available here:
http://www .fcba.org/wp-content/uploads/20 14/05/DRAFT-Agenda-5-04-14.pdf

If you have any questions regarding travel, lodging, or other logistics, I am happy to try to

answer them or can refer them to the FCBA staff. Alternatively, you can always contact Stan
Zenor directly (stan @fcba.org or 202-293-4000).

With respect to our panel, Rachael and I plan to send around a draft list of potential questions by
the end of this week. We are happy to delete or add questions/topics at your request. You can
also feel free to suggest question topics in response to this email, if you would like. As you
likely are aware, the Annual Seminar need not be a place for "heavy lifting" in panel
presentations and discussions. You do not need to prepare powerpoints or opening remarks, and
Rachael and I promise not to surprise you (although we cannot guarantee the same from the
audience). We'll give you bonus points for humor, and extra bonus points if you bring funny
props.

The panel is scheduled to last an hour, and we are assuming it will be more like 50-55 minutes
since the earlier sessions are likely to run long, and we'll need to wrap up exactly at noon. We
anticipate leaving 10-15 minutes at the end for audience questions, although we'll be prepared to
fill that time with our own questions if the audience is unexpectedly shy.

We propose to have a brief 10-15 minute conference call early next week to discuss the logistics
of the panel and go over the topics/format. Or, since you all are in the same building, we can
come to you and meet briefly in person if you would prefer. Of course, if your schedules will
not permit, we can get by without the call -it is only to ensure that you are comfortable with the
plan, and if you'd prefer not to do it, we are happy to skip.

Assuming we want to have a call, please let me know your availability for a call next
Monday or Tuesday. Please also let me know if there is someone in your office who should
be added to this email chain to assist with substance/logistics.

I know that the audience will enjoy hearing from all of you, and the FCBA and the Annual
Seminar planning committee tremendously appreciate your willingness to join us at the
Homestead (I'm told it's fabulous, but it's still a schlep, so thanks).

Rachael and I look forward to working with everyone and to having a great discussion!

Best regards,
Natalie

From:

Stephens/ Karen <kstephens@ustelecom.org>


Wednesday/ May 14, 2014 12:38 PM
Daniel Alvarez; Rebekah Goodheart; Amy Bender; Nicholas Degani; Priscilla Argeris
Title II Ex Parte -- AS FILED
Title_II_ExParte_Finai_05.14.14.pdf

Sent:
To:

Subject:
Attachments:

I::' d. .
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1()14
see t 1Je atrac JTea d.tOCU11."lenr s L.!...e
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Associ: tton.

DJ ease
1

If you have any questions, please feel free to contact me,

Karen
Karen Stephens
Law and Policy
USTelecom Association
(p) 202.326.7273
kstephens@ ustelecom.org

cV1c( __,Ortrl..1ck",

1 .

. Ch.. 'L .S'T'e1econ1


_;r.,

WALTER B. MCCORMICK. JR.


President and Chief Execllfive Officer

May 14,2014
The Honorable tom Wheeler
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

The Honorable Ajit Pai


Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

The Honorable Mignon Clyburn


Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

The Honorable Jessica Rosenworcel


Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

The Honorable Michael O'Rielly


Federal Communications Commission
445 12th Street, SW ...
Washington, DC 20554
Re:
Open Internet Order Remand Proceeding, GN Docket No. 14-28
;
Dear Mr. Chairman and Members of the
We are deeply concerned by calls for regulation of broadband internet access as Title II
service. As the Commission is aware, Title II has its roots in 1880s railroad regulation a regulatory regime that bankrupted the railroads, left communities without s.ervice, led to
the nationalization of rail carriers in the Northeast, and was repealed by the Congress in
order to save the nation's railroad networks and stimulate investment iii railroad
infrastructure. Indeed, Congress repealed similar regulatory regiffies for air carriers and
motor carriers more than 30 years ago. It is .ironic that more than three decades after
Congress recognized the failure of this regulatory model for the railroads and adopted a
to encourage investment in infrastructure- much like the Clinton FCC did
new
for the Internet- some are calling for this anachronistic 19th Century regulatory regime to
be applied to the 21st Century Internet
Nothing could be more antithetical to the Administration's and the Commission's
interests in broadband investment and deployment, job creation, and economic
growth. In addition, reversing the course the Commission plotted more than a decade ago
by which broadband Internet access service is classified as an infonnation service under
Title I of the Communications Act would pose insurmountable legal hurdles. Finally,
even after the years of litigation that would undoubtedly ensue if the Commission were to
attempt to subject high-speed broadband to a regulatory regime designed in the era of
steam locomotives, Title II would not achieve the pmported.goals identified by advocates
of this approach.
607 14th Stnlet NW, Suite 400 Washington, DC 20005-2051 202.326.7244 T 202.315.3347 F
president@ustelecom.org .

Chairman Wheeler
Commissioner Clyburn
Commissioner O'Rielly
Commissioner Pai
Commissioner Rosenworcel
May 14,2014
Page2

Negative Impact on Investment


Lost in calls to classifY broadband Internet access service as a Title II service is the
negative effect such classification would have on continued broadband investment. In
response to the Commission's decisions treating broadband Internet access service as a
Title I information service subject to a "light regulatory touch," broadband providers
have invested billions of dollars in expanding their networks -a level of investment that
dwarfs that of other industries. In 2013 alone, broadband providers invested more than
$70 billion dollars in broadband infrastructure; over the past decade, investment in
broadband networks totals more than $670 billion.
Proponents of subjecting broadband to Title II regulation !llUSt answer the following
questions: (i) why would broadband network investment and innovation continue under a
Title II regime; and (ii) what incentives would broadband providers have to expand their
infrastructure in the face of regulatory overhang and uncertainty?' Google, for example,
has invested in deploying Title I broadband networks to homes in Kansas City and
elsewhere but has elected not to invest in or provide Title II telephone service to those
same homes. Proponents of Title II also should explain how reclassification would aid in
efforts to promote broadband adoption. For example, under a Title II regime, programs
offering discounted broadband for disadvantaged students, promotional pricing on
and broadband service with added free security software or storage
broadband
capabilities would be jeopardized if subject to tariffing and cost support requirements.

Legal Obstacles to Reclassification


Even assuming broadband network investment and broadband adoption programs would
continue in the face of Title II regulation - a dubious assumption- classifying broadband
service WOUld fOSe significant legal
Internet access service a
.
challenges that proponents of Title II regulation largely ignore.

as

Many of the legal issues that prevent the Commission from lawfully subjecting
broadband Internet access service to Title II regulation have been discussed at length
previously. See, e.g., Letter to Julius Genachowski, Chairman, FCC, from Seth Waxman,
Counsel for the United States Telecom Association, GN Docket No. 09-51 (April 28,
2010); Reply Comments of the United States Telecom Association, GN Docket 10-127
(Aug. 12, 2010). Advocates of Title II regulation have not made any serious attempt to
address these issues.

Chairman Wheeler
Commissioner Clyburn
Commissioner O'Rielly
Commissioner Pai
Commissioner Rosenworcel
May 14,2014
Page3
Although administrative agencies have the discretion to change their policies so long as
they acknowledge and give a reasonable explanation for the change, agencies have a
heightened burden to explain a reversal of course where the ''new policy rests upon
factual findings that contradict those which underlay its prior policy" or its ''prior _policy
has engendered serious reliance interests that must be taken into account. " 2
Classifying broadband Internet access as a Title II telecommunications service would
trigger this heightened burden. The Commission's detennination that broadband Internet
access service constitutes a Title I information service turned on the agency's factual
findings about the way in which broadband providers offer a functionally integrated
service to the public. Reversing that classification decision would necessarily require a .
revised view of the facts and a detailed justification for rejecting the Commission's prior
factual fmdings. This would pose an insunnountable hurdle given that the underlying
facts upon which the
initial classification decision was premised have not
changed.
Indeed, the Commission could not plausibly :find that broadband providers are today
ten. years ago. Broadband providers are still
offering a different service than they
offering Internet access as a functionally" integrated service without a separate
transmission component If anything, Internet access is even more of an integrated
service offering today because broadband providers currently offer their customers -even
more ways to store and retrieve infonnation than ten years ago. Put simply, the
Commission would not have any factual basis to find that
Internet access is
anything other than an information service.
Furthermore, there are serious legal and equitable interests at stake based upon the fact
that, for more than IOyears, broadband internet service providers and investors have
relied upon the Commission's light regulatory touch in making decisions regarding
investment and deployment. As noted above, the industry has invested billions of dollars
in networ.k infrastructure in reliance on the Commission s classification of Internet access
as an information service regulated under Title 1 This has led to a broadband "arms
race," as providers have deployed robust networks in an effort to keep up with their
competitors and offer faster broadband speeds and greater network coverage in an
attempt to secure a competitive advantage.
The network infrastructure required to deliver robust broadband service to millions of
homes and business is not cheap, requiring far more every year than the United States
spent as a country to put a man on the moon or to build the entire interstate highway

FCCv. Fox Television Stations, Inc., 129 S. Ct. 1800, 1811 (2009).

Chairman Wheeler
Commissioner Clyburn
Commissioner O'Rielly
Commissioner Pai
Commissioner Rosenworcel
May 14,2014
Page4
system. 3 The degree to which broadband providers commit their resources to investment
in infrastructure is indicated by the comparatively low levels of cash m$tained by these
companies as compared to Internet edge providers that rely on broadband networks. 4
These investments have driven innovative broadband services such as FiOS, U-:.Yerse,
DOCSIS 3.0, L1E, and Gigabit Ethernet; improved-DSL technologies inc1uding ADSL2+
and VDSL; faster satellite broadband; and numerous new Wi-Fi hotspots and cell towers.
Reversing regulatory course at this juncture would upset the reasonable reliance interests
of broadband providers in deploying. these services and guarantee that a reviewing court
would view skeptically any effort to regulate broadband Internet access under Title II.
Even if the Commission were determined to change the way the Internet is regulated, it
would be estopped from changing the facts to .fit its preferred policy goal. Judicial
estoppel bars a party from changing its position after prevailing in an earlier case simply
because its interests have changed. 5 The Commission represented to the Supreme Court
in the Brand X case that broadband Internet access serviCe is a functionally integrated
service and that broadband providers do not offer a separate transmission component 6
The Supreme Court relied upon these representations in upholding the Commission's
classification of broadband Internet access as an information service and not a
telecommunications service. Having convinced the Supreme Court that broadband
providers offer a functionally integrated service without a separate transmission
component, the Commission could not lawfully take a different factual position now.

Title II Would Fail to Achieve the Objectives Sought by its Proponents


Finally, Title IT also is not the absolute bar on "discrimination" that advocates claim.
Because 47 U.S.C. 202 only prohibits "unjust and unreasonable" discrimination, it
would not prevent a broadband provider from offering different service arrangements to
customers, provided these differences were reasonable and such arrangements were made
available to other similarly situated customers.

In addition, Title IT regulation would not cover a telecommunication carrier's dealings


with Internet edge providers (except to the extent those providers chose to purchase the
canier's tariffed transmission services under the Computer Inquiry framework, which
3

http://w,,w.ustelecom.orwbroadband-industry/broadband-industry-stals

The Wall Street Journal, Cash and Equivalents Table, B 1 (Jan. 3, 2011).

Comcast Corp. v. FCC, 600 F.3d 642, 647 (D.C. Cir. 2010) (citing New
Hampshire v. Maine, 532 U.S. 742, 749 (2001).
6

NCTA v. Brand X Internet Servs., 545 U.S. 967,991 (2005).

Chainnan Wheeler
Commissioner Clyburn
Commissioner O'Rielly
Commissioner Pai
Commissioner Rosenworcel
May 14,2014
Page5
they rarely, if ever, did). This is because "the focus of a 202 inquiry is on
discrimination among custoll,lers" purchasing telecommunications service from a
common carrier. 7 Thus, even if broadband Internet access service were classified as a
telecommunications service under Title IT, Section 202 would not apply to a carrier's
business relationships with a third party purchasing non-telecommunications services,
such as a paid prioritization arrangement with an edge provider. That Section 202 would
not prohibit, let alone even address, the alleged evil about which advocates of Title IT
regulation are allegedly concerned is fatal to this proposed regulatory approach.
The Commission should reject calls to regulate broadband internet access under Title II
as being inconsistent with national objectives, established law, and the public interest.
Sincerely,

c: Daniel Alvarez
Rebekah Goodheart
Amy Bender
Nicholas Degani
Priscilla Delgado Argeris

Z-Tel Communications, Inc. v. SBC Commwdcations Inc., 331 F. Supp.2d 513,


556 (B.D. Tex. 2004); accord Sixth Memorandum Opinion and Order, Petition for
Forbearance ofthe Indep. Tel. & Telecomms. Alliance, 14FCC Red 10840, C)[ 10 (1999)
("section 202 of the Act ... prohibits unreasonable discrimination among customers and
rates that are unjust and unreasonable"); Notice of Proposed Rule Making, Bundling of
Cellular Customer Premises Equip. and Cellular Serv., 6 FCC Red 1732, C)[ 2 n.2 (1991)
("Section 202(a) of the Act prohibits carriers from discriminating unreasonably among
customers in the 'charges, practices, classifications, regulations, facilities, or services' for
'like' communication service.'').

From:

Sent:
To:

Subject:
Attachments:

MCKOY, GLENIS <gm909g@att.com>


Wednesday, May 14, 2014 11:02 AM
Jonathan Sallet; Daniel Alvarez; Nicholas Degani; Amy Bender; Rebekah Goodheart;
Priscilla Argeris
AT&T Open Internet Ex Parte
5-14-14 Ex Parte Letter Confirmation.pdf

Good Morning All:


Attached please find AT& T's Ex Parte Letter filed this morning with the FCC regarding Open Internet. If you have
questions, please contact Robert Quinn at 202-457-3851. Thanks!

Glenis McKoy
Executive Assistant
Office of the Senior Vice PresidentFederal Regulatory and Chief Privacy Officer
AT&T Services, Inc.
1120 20th Street, NW Suite 1000
Washington, DC 20036
Phone-202-457-2080
Fax-202-457-2020
This e-mail and any files transmitted with it are AT&T property, are confidential, and are intended solely for the
use of the individual or entity to whom this email is addressed. If you are not one of the named recipient(s) or
otherwise have reason to believe that you have received this message in error, please notify the sender and
delete this message immediately from your computer. Any other use, retention, dissemination, forwarding,
printing, or copying of this e-mail is strictly prohibited.

Robert W. Quinn, Jr.


Senior Vice President
Federal Regulatory and

Chief Privacy Officer

AT&T Services, Inc.


1120 201h St. NW, Suite 1000
Washington, D.C. 20036
Phone 202 457-3851
Fax 202 457-2020

May 14,2014
VIA ELECTRONIC SUBMISSION
Marlene H. Dortch
Secretary
Federal Communications Commission
44512th Street S.W.
Washington, D.C. 20554
Re:

Open Internet, GN Docket No. 14-28

Dear Ms. Dortch:


Last Friday, AT&T filed an ex parte identifying some
many issues raised by, and
risks and harms that could result from, reclassification of broadband Internet access services as a
Title ll telecommunications services. 1 We
pointed out the folly of running these risks
insofar as reclassification would not prevent paid prioritization arrangements, which
reclassification proponents have seized upon to generate hysteria and support for their cause.
Instead of engaging on the substance of these concerns, Free Press and others attempt to brush
them under the carpet with the facile.claim that forbearance can fix everything. 2 But as AT&T
noted, the prospect of countless, reversible forbearance determinations- not to mention .
litigation over these decisions and over reclassification itself- would create massive ongoing
uncertainty that would fly in the face of tl1e Administration's goal of promoting broadband
investment. And in all events, forbearance would not adqress the many serious implications of
reclassification.
For example, if the FCC found that broadband Internet access contains a separate
telecommunications service component, what would be the logical or legal basis on which the
Commission could distinguish that information service from other information services
provided in the Internet ecosystem or otherwise? If broadband Internet access providers offer
1 Letter of Robert W. Quinn, Jr., AT&T, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 (filed May 9,
2014) (May gth Ex Parte).
2 Jon Brodkin, AT&T claims common carrier rules would ruin the wlwle Internet, Ars Technica (May 9, 2014) ("'As
usual, AT&T' s positions are laughable at best-though disingenuous is more like it,' Matt Wood, policy director of ..
consumer advocacy group Free Press, told Ars. 'Nothing in Title II says that every last provision has to apply to any ./
Title II service. That's the whole point of forbearance. The fact that broadband providers could be entitled to
j
something doesn't mean they actually are entitled to it, or that AT&T' s cost-causation story is true."'), available at'

htlp:/larstecbnica.com/tech-policy/20 14/05/att-claims-common-carrier-rulcs-would-min-the-whole-internet! (last

checked May 13, 2014). !d. ("Public Knowledge Senior VP Harold Feld agreed. 'To a large extent, this is just
scary mumbo-jumbo to make Title II loop big and complicated,' Feld told Ars.").

telecommunications services to consumers, why don't other entities that combine transmission
with information processing or storage likewise provide telecommunications services? This is
no idle co:qcern. The Commission itself, in its seminal Stevens Report, noted this very issue:
"[I]f we interpreted the statute as breaking down the distinction between information services
and telecommunications services, so that some information services were classed as
telecommunications services, it would be difficult to devise a sustainable rationale under which
all. or essentially all, information services did not fall into the telecommunications service
category. " 3 Thus a broad array of entities that provide transmission over the Internet as a
component of what is today considered only an information service might find themselves
subject to Title II to the same extent as providers of mass market broadband Internet access
services. This includes entities that provide Internet connectivity to application and content
providers, content dellvery networks, transit providers, providers of services over connected
devices, like Amazon, General Motors and others, search engines connecting an advertising
network to a search request, and email providers and social networks that enable chat or
messaging sessions. 4 Anyone concerned with "saving the Internet" should be alanned by that
sobering possibility.
Although this particular consequence alone should stop consideration of reclassification
in its tracks, it is by no
the only issue of concern raised by the possibility of
reclassification. AT&T's May gth Ex Parte attempted to identify some of the other issues to
point out that reclassifying broadband Internet access as a Title II service would open a
regulatory Pandora's box. But, this was not even a definitive list of issues; there are many others
that warrant consideration. For example, as tlie Commission noted in the Stevens Report, "[t]he
classification of informatiO"n service providers as telecommunications carriers ... could
encourage states to impose common-carrier regulation on such pr.oviders. Although section
10(e) of the Act precludes a state from applying or enforcing provisions of federal law where the
Com:Cnission has determined to forbear, it does not preclude a state from imposing requirements
derived from state law."5 Moreover, as the Commission further noted, "while it has authority to
forbear from unnecessary regulation, foreign regulators may not have comparable deregulatory
authority to avoid imposing the full range of telecommunications regulation on information
services.'' 6

There are also issues as to how forbearance could be implemented. For example,' can the
Commission forbear from substantially all of Title ll on a blanket basis, or would the
Commission have to separately iaentify each and every statutory provision and regulation under
3 Federal-State

Joint Board on Universal Service, CC Docket No. 96-45, Report to Congress, 13.FCC Red 11501,

11529, para. 51 (1998) (Stevens Report).

It would be no answer to claim that some of these entities do not provide telecommunications "for a fee." In
interpreting the phrase "for a fee" in the definition of "telecommunications service," the Commission haS concluded
that the plain language of the statute means services rendered in exchange for something of value or a monetary
payment Federal-State Joint Board on Universal Service, CC Docket No. 96-45, First Report and Order, 12 FCC
Red 8776, 9177, para. 784 (1997). Every commercial entity offering services or content over the Internet does so
for something of value, whether it's a cash payment or the ability to obtain and monetize data about its customer or
their usage of the Internet.
4

5 Stevens Report at para.

48 .

. 6 Jd.

Title II and separately apply the three-part forbearance test to each. We note, in this regard, that
the Commission requires precisely that level of disaggregation in forbearance petitions.
To the extent the Commission is not closing the door to Title II reclassification in its
NPRM, the Commission must ask questions and obtain a record regarding these and other
implications of reclassificaqon and what all this means for the future of the Internet and the goal
of promoting broadband investment and deployment. The Commission also should seek
comment on how Title II reclassification could possibly even prevent paid prioritization. As we
noted in our May 9 Ex Parte, even dominant carriers have long been pennitted to provide paid
no theory under which section 202 could be
prioritization under Title II, and AT&T is
stretched to provide a basis for a blanket ban on paid prioritization. Even Free Press appears to
concede that, although Free Press claims that section 201 could accomplish through the back
door what section 202 cannot. That argument, however, is frivolous: section 202 specifically
addresses what types of discrimination are pennitted and what types are not by a
telecommunications service provider. Wholly apart from the fact that it would be impossible to
show that paid prioritization arrangements are inherently (or even generally) unreasonable, a
general prohibition on unreasonable practices in section 201 cannot trump the more specific
language in section 202.
These issues are just the tip of the iceberg of those raised by Title II reclassification. It is
imperative that the Commission fully explore all of these issues if it is to give any further '
consideration to reclassification proposals. Proponents of reclassification have been effective in
stirring up mass hysteria with misleading pronouncements, and dismissing skeptics with derisive
comments and loose rhetoric. But the issues presented are too important to be trumped by
politics and protestors banging pots and pans in front of the FCC. Real engagement on real
issues is necessary, and if this issue is to be revived, the NPRM must set that process in motion.
Respectfully Submitted,
/s/ Robert W. Quinn, Jr.
cc:
Jonathan Sallet
Daniel Alvarez
Priscilla Delgado Argeris
NickDegani
Amy Bender
Rebekah Goodheart

....

Page 1 of 1

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1-E-GFs...Filfng-Re :,.
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2014514562017
I ....

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14-28

Subject
Protecting and Promoting the Open
Internet

III,I

Contact Info
Name of Filer: AT&T Services, Inc.
Email Address: shandee.r.parran@att.com
Attorney/Author Name: Robert W. Quinn, Jr.

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Suit!:l 1000
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DISTRICT OF COLUMBIA
20036

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5/14/2014

..

[mallto:politicoemail@oo!lticopro.coml
Sent: Wednesday1 May 14, 2014 1:25PM
To: Rebekah Goodheart
subject: AT&T issues new warning to FCC on net neutrality
5/14114 1:24PM EDT
AT&T is warning the FCC not to be swayed by "mass hysteria" from groups that want the agency to reclassify
broadband as a utility. .

"Proponents of reclassification have been effective in stirring up mass hysteria with misleading
pronouncements, and dismissing skeptics with derisive comments and loose
wrote AT&T
Regulatory Vice President Robert Quinn in a Jetter to the agency today. "But the issues presented are too
important to oe trumped by politics and protestors banging pots and pans in front of the
Wheeler's latest net neutrality proposal would seek public comment on treating broadband as a utility, an option
known in FCC jargon as Title 1!. AT&T joined other major telecoms in a letter Tuesday warning the FCC to
avoid that option.
Reclassification "would create massive ongoi,ng uncertainty that would fly in the face of the Administration's
goal of promoting broadband investment," Quinn said, noting "even dominant carriers have long been permitted
to provide paid prioritization under" the Communications Act.

-Brooks Boliek
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at&t

Robert W. Quinn, Jr.


Senior Vice President
Federal Regulatory and
Chief Privacy Officer

AT&T Services, Inc.


1120 20th St NW, Suite 1000
Washington, D.C. 20036
Phone 202 457-3851
Fax 202

May 14,2014
. VIA ELECTRONIC SUBMISSION
Marlene H. Dortch
Secretary
Federal Coiomunications Commission
445 12th Street S.W.
Washington, D.C. 20554

Re:

Open lntemet, GN Docket No. 14-28

Dear Ms. Dortch:


Last Friday, AT&T filed an ex parte identifying some of the many issues raised by, and
risks and harms that could result from, reclassification of broadband Internet access services as a
Title II telecommunications services. 1 .We further pointed out the folly of
these risks
insofar as reclassification would not prevent paid prioritization arrangements, which
reclassification proponents have seized upon to generate hysteria and support for their cause.
Instead of engaging on the substance of these concerns, Free Press and others attempt to brush
them under the caxpet with the facile claim that forbearance can fix everything. 2 But as AT&T
noted, the prospect of countless, reversi-ble forbearance determinations- not to mention
litigation over these decisions and over reclassification itself- would create massive ongoing
uncertainty that would fly in the face of the Administration's goal of promoting broadband
investment. And in aiJ events, forbea.rance would not address the many serious implications of
reclassification.
For example, if the FCC found that broadband Internet access contains a separate
telecommunications service component, what would be the logical or legal basis on whicp the
Commission could distinguish that information service from other information services
provided in the Internet ecosystem or otherwise? If broadband Internet access providers offer
l Letter of Robert W. Quinn, Jr., AT&T, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 (filed May 9,
2014) (May 9'h Ex Parte).
2 Jon

Brodkin,AT&Tclairrzs common carrier rules would ruin. the whole Internet, Ars Technica (May 9, 2014) ("'As
usual, AT&T's positions are laughable at best-though disingenuous is more like it,' Matt Wood, policy director of
consumer advocacy group Free Press, told Ars. 'Nothing in Title II says that every last provision has to apply to any
Title TI service. That's the whole point of forbearance. The fact that broadband providers could be entitled to
something doesn't mean they actually are entitled to it, or that AT&T's cost-causation story is true.'"), available at
htto://arstechnica.com/tech-policy/2014/05/att-claims-common-cnrrier-rules-would-ruin-the-whole-internetl (last
checked May 13, 2014). ld. ("Public Knowledge Senior VP Harold Feld agreed. 'To a large extent, this is just
scary mumbo-jumbo to make Title II loop big and complicated,' Feld told A:rs.").

telecommunications services to consumers, why don't other entities that combine transmission
with information processing or storage likewise provide telecommunications services? This is
no idle concern. The Commission itself, in its seminal Stevens Report, noted this very issue:
"[l]f we interpreted the statute as breaking down the distinction between information services
and telecommunicatidns services, so that some information services were classed as
telecommunications services, it would be difficult to devise a sustainable rationale under which
ali, or essentially all, information services did not fall into the tele.communications service
category.''3 Thus a broad array of entities that provide transmission over the Internet as a
component of what is today considered only an information servi_ce might find themselves
subject to Title 1I to the same extent as providers of mass market broadband Internet access
services. This includes entities that provide Internet connectivity to application and content
providers, content delivery networks, transit providers, providers of services over connected
devices, like Amazon, General Motors and others, search engines connecting an advertising
network to a search request, and email providers and social networks that enable chat or
messaging sessions. 4 Anyone concerned with "saving the Internet'' should be alarmed by that
sobering possibility.
Although this particular consequence alone should stop consideration of reclassification
in its tracks, it is by no means the only issue of concern raised by the possibility of
reclassification. AT&T's May!!" Ex Parte attempted to identify some of the other issues to
point out that reclassifying broadband Internet access as a Title IT service would open a
regulatory Pandora's box. But, this was not even a definitive list of issues; there are many others
that warrant consideration. For example, as $e Commission noted in the Stevens Report, "[t]he
classification of infonnation service providers as telecommunications carriers ... could
encourage states to impose common-carrier regulation on such providers. Although section
IO(e) of the Act precludes a state from applying ot enforcing provisions of federal law where the
Commission has detennined to forbear, it does not preclude a state from imposing requirements
derived. from state law .''5 Moreover, as the Commission further noted, "while it has authority to
forbear from unnecessary regulation, foreign regulators may not have comparable deregulatory
authority to avoid imposing the full range of telecortununications regulation on infonnation
services.'' 6
There are also issues as to how forbearance could be implemented. For example, can the

Commission forbear from substantially all of Title on a blanket basis, or would the
Commission have to separately identify each and every statutory provision .and regulation under

Federal-State Joint Board on. Universal Senice, CC Docket No. 96-45, Report to Congress, 13 FCC Red 11501,
l 1529, para. 57 (1998) (Stevens Report).

4 It would be no answer to claim that some of these entities do not provide telecommunications "for a fee.'! In
interpreting tbephrase "for a fee" in the definition of"telecommunications service,'; the Commission has concluded
that the plain language of the statute means services rendered in exchange for something of value or a monetary
payment Federal-State Join! Board on Universal
CC Docket No. 9645, First Report and Order, 12 FCC
Rcd8776, 9177, para. 784 (1997). Every commercial entity offering services or content over
Internet does so
for something of value, whether it's a cash payment or the ability to obtain and monetize data about its customer or
their usage of the Internet

5 Stevens Report at para.

4S.

6 Id.

Title 1I and separately apply the three-part forbearance test to each. We note, in this regard, that
in forbearance petitions.
the Commission requires precisely that level of
To the extent the Commission is not closing the door to Title 1I reclassification in its
NPRM, the Commission. must ask questions and obtain a record regarding these and other
implications of reclassification and what all this means for the future of the Internet arid the goal
of promoting broadband investment and deployment The Commission also should seek
possibly even prevent paid prioritization. As we
comment on how Title II reclassification
noted in our May 9 Ex Parte, even dominant carriers have long been permitted to provide paid
prioritization under Title IT, and AT&T is aware of no theory under which section 202 could be
stretched to provide a basis for a blanket ban on paid prioritization. Even Free Press appears to
concede that, although Free Press claims that section 201 could accomplish through the back
door what section 202 cannot. That argument, however, is frivolous: section 202 specifically
addresses what types of discrimination are permitted and what types are not by a
telecommunications service provider. Wholly apart from the fact that it would be impossible to
show that paid prioritization arrangements are inherently (or even' generally) unreasonable, a
general pr.ohibition on unreasonable practices in section 201 cannot trump the more specific
language in section 202.
These issues are just the tip of the iceberg of those raised by Title II reclassification. It is
imperative that the Commission fully explore all of these issues if it is to give any further
consideration to reclassification proposals. Proponents of reclassification have been effective in
stirring up mass hysteria with misleading pronouncements. and dismissing skeptics with derisive
comments and loose rhetoric. But the issues presented are too important to be trumped by
politics and protestors banging pots and pans in front of the FCC. Real engagement on real
issues is necessary, and if this issue is to be revived, the NPRM must set that process in motion.
Respectfully Subrni tted,
/s/ Robert W.. Quinn, Jr.

cc:
Jonathan Sallet
Daniel Alvarez
Argeris
Priscilla
NickDegani
Amy Bender
Rebekah Goodheart

Page 1 of 1

Confirmation Page

Your submission has been_ accepted


Confirmation number:

20.14514562017
J:

M.

Subject
Protecting and Promoting the Open
14-28'
Internet

Name

Contact Info

Name of Filer: AT&T Services, Inc.


Email Address: shandee.r.parran@att.com
Attorney/Author Name: Robert W. Quinn, Jr.

Address

Address For:
Address Line 1:
Address line 2:
City:
State:

I'
I

Details

.....

(s)

Filer
1i 20 20th Street, NW
Suite 1000
Washington
DISTRICT OF COLUMBIA
Zip: 20036

exparte: YES
Type of Filing: NOTICE OF EXPARTE

File Name
51414 Ex Parte Letter.pdf

Custom Description

Size
26KB

I Disclaimer ]

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5/14/2014

From:
MICHAEL F [mailto!mb8156@att.com]
Sent: Thursday1 May 151 2014 2:41PM
To: BALMORIS1 MICHAEL F
AT&T Open Internet Statement

. , ::-:.:'s . .c . . ...
.)-

Posted by:

. r

........

T Blog Team on Ma}t '15, 2014 at 2:38pm

The following may be attributed to Jim Cicconi, AT&T Senior ExecutiVe Vice President of External and
Legislative Affairs:

"AT&T is committed to an Open Internet. We supported the Commission's 2005 Open lntemet Policy
Statement, as weff as the Commission's 2010 Open Internet Rules whiph codified that policy. Our network
management practices are designed to comply with those rules. Those practices are described on our website
today, in accordance with FCC rules that were not vacated by the DC
and are still today fully
enforceable by the FCC. In short, broadband customers throughout the United States have access to A.T&T's
open b/'oadband networks which comply fulfy with Open Internet principles that have been In place for almost a
decade.
'The framework adopted by the Commission in 2010 achieved a delicate balance that ensures openness, while
m$intaining a stable environment for investment. As a
infrastructure providers have invested hundreds of
billfons of dollars to provide American consumers with the most robust wiretine and wireless broadband
networks in the world.

uThis debate has been falsely labeled as a debate over fast lanes and slow lanes. It is not about that at all. This
debate is over whether we will continue to foster an
environment that has allowed US companies to
build the world's best networks so that all c:onsumers can have the fastest Internet lanes in the world.
"Going backwards 80 years to the world of utility regulation would represent a tragic step in the wrong direction.
Utility regulation would strangle Investment, hobble innovation, and put government regulators in charge of
nearly every aspect of Internet-based services. It would deprive America of the world's most robust broadband
infrastructure, and place a cloud over every application or website that delivers products and content to
consumers. In short. it would place government in control of the Internet at U;e expense of private companies,
inventors and entrepreneurs, and ultimately at the expense of the American peopre.
an approach would also send an afarming message to the rest of the world-a message that says the
United States believes it is appropriate for governments to place onerous regulations on the lntemet. This could
encourage other countries to pursue their own goals, whether to suppress 'dangerous' speech or extract
economic value from American Internet and content companies.
1

Zachem, Kathy < Kathy_Zachem@Comcast.com>


Thursday, April 24, 2014 11:37 AM
Philip VeNeer
Fw: TOMORROW: Discussion with Brad Burnham of USV re: Network Neutrality]

From:

Sent:
To:

Subject:

Fyi- please do not forvvard with my e-mail reference thanks


Kathy

From: Dickinson, Lindsey


Sent: Thursday, April 24, 2014 11:31 AM Eastern Standard Time
To: Zachem, Kathy; Maxfield, Melissa
Subject: TOMORROW: Discussion with Brad Burnham of USV re: Network Neutrality]

Dear Republican Telecommunications Staffers:


Tomorrow, I would like invite you to a discussion with Brad Burnham, a co-founder of and partner at
venture capital fund Union Square Ventures. He and Fred Wilson, his co-founder and partner at USV,
were early investors in Twitter, Tumblr, !<ickstarter, Zynga, Foursquare, Boxee and other Internet
household names.
Brad and Fred are heroes in the entrepreneurship community, and their yvord carries enormous
weight. Brad and Fred have been very vocal supporters of network neutrality. You can read some of
their writing on the topic here: https://www.usv.com/posts/internet-access-should-be-applicationagnostic and http://avc.com/2014/01 /vc-pitches-in-a-year-or-two/.
Brad and his partners, along with many in the entrepreneurial and startup world, are very concerned
about the FCC's current plans related to the network neutrality framework. I am planning to visit with
them but I also wanted to extend the offer to other staffers. Senator Moran, Brad and I met a few
years back at SXSW.
Please forward this to whomever might be interested in the discussion. Also, please RSVP to me via
calendar invite if you would like to join.

Discussion with Brad Burnham, Union Square Ventures


Re: network neutrality and economic growth
Location: Russell 361A (Sen. Jerry Moran's office)
Time: 3:30pm to 4:30pm
RSVP: Mark Colwell- mark colwell@moran.senate.gov (I will send a calendar invite around to
make it easier)
Thanks,

uVI!ark CouweH
Legislative Assistant
U.S. Senator Jerry fVJoran, Kansas
361A Russell Senate Office Building
Phone (202) 224-6521 I Fax (202) 228-6966

rtf

..

'You

,,

lil:]t . .:
1

From:

Sent:
To:

Subject:

Zachem, Kathy < Kathy_Zachem@Comcast.com>


Thursday, April 24, 2014 3:24 PM
Philip Verveer
Fyi

This to go out from upton and walden shortly:


"We have said repeatedly that the Obama administration's net neutrality rules are a solution in search of a problem. The
marketplace has thrived and will continue to serve customers and invest billioi1s annually to meet Americans' broadband
needs without these rules. Chairman Wheeler's approach to regulation seeks to freeze current market practices, which will
cast a chill on technological breakthroughs and cause American consumers to lose out."
Upton and Walden continued, "Further underscoring the needlessness of the rules, Internet service providers have made
clear they will continue to adhere to the spirit of the rules that were already struck down by the courts. It is well past time
for the commission to focus on areas where its work will foster new innovation, competition, and job creation."

1 .

From:

Sent:
To:
Subject:

Zachem, Kathy <Kathy_Zachem@Comcast.com>


lylonday May 12 2014 10:15 AM
Zachem/ Kathy
Open Internet/ GN Docket No. 14-28
1

FYI. Please call if you have any questions.


Kathy
Kathryn A Zachem
Senior Vice President, Regulatory & State Legislative Affairs
Comcast Corporation
300 New Jersey Avenue, NW, Suite 700
Washington, DC 20001
Phone: 202-379-7134
Fax:
202-379-7149
Kathy Zachem@Comcast.com
Assistant: Donna Crichlow- 202-379-7118- Donna Crichlow@Comcast.com

From:

Sent:
To:

Subject:
Attachments:

Zachem, Kathy <Kathy_Zachem@Comcast.com>


Monday, May 12, 2014 10:13 AM
Priscilla Argeris; Amy Bender; Nicholas Degani; Rebekah Goodheart; Diane Cornell;
Matthew DelNero; Ruth Milkman; Jonathan Sallet; Gigi Sohn; Philip Verveer; Stephanie
Weiner
Open Internet, GN Docket No. 14-28
5 12 14 Open Internet FCC Ltr.pdf

FYI. Please ca II if you have any questions.


Kathy
Kathryn A. Zachem
Senior Vice President, Regulatory & State Legislative Affairs
Comcast Corporation
300 New Jersey Avenue, NW, Suite 700
washington, DC 20001
Phone: 202-379-7134
Fax:
202-379-7149
Kathy Zachem@Comcast.com
Assistant: Donna Crichlow- 202-379-7118- Donna Crichlow@Comcast.com

Kathryn A Zachem
Comcast Corporation
.300 New Jersey Avenue, NIN
Suite 700
\fi!ashing!on. DC 20001

COM CAST

202.379.7134

May 12,2014

Marlene H. Dortch
Secretary
Federal Communications Commission
445 12th Street S.W.
Washington, D.C. 20554

Re:

Protecting and Promoting the Open Internet, GN Docket No. 14-28

Dear Ms. Dortch:


Com cast has been a strong proponent of Internet openness, and, indeed, is the only broadband
provider subject to a legally binding obligation to refrain from blocking consumers' access to lawful
web content and services or from engaging in unreasonably discriminatory conduct. 1 While Comcast
continues to be a steadfast supporter of openness and remains confident that the Commission can
appropriately balance consumer protection with the need to allow network operators to manage their
networks reasonably, we believe that any proposal by the FCC to reclassify broadband Internet access
as a telecommunications service subject to Title II of the Communications Act would be a
destabilizing and counterproductive means of pursuing those important objectives.
Starting with the Cable Modem Declaratory Ruling in 2002, the Commi.ssion has consistently
ruled that broadband Internet access services inextricably combine transmission and information
processing, such that they are properly characterized as information services. without any severable
telecommunications service component. 2 In the wake of those decisions, and in express reliance on
the Commission's determination that common carrier regulation does not (and should not) apply, cable
operators and other Internet service providers have invested hundreds of billions of dollars to deploy
increasingly robust broadband networks, laying the groundwork for an explosion of innovation in the
1

Applications of Comcast Corporation, General Electric Company, and NBC Universal, Inc. for Consent to Assign
Licenses and Transfer Control of Licensees, Memorandum Opinion and Order, 26 FCC Red 4238, 94 (2011).
Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities, Declaratory Ruling and
Notice ofProposed Rulemaking, 17 FCC Red 4798 (2002); see also, e.g., Appropriate Framework for Broadband
Access to the Internet over Wireline Facilities, Report and Order and Notice ofProposed Rulemaking, 20 FCC
Red 14853 (2005) (classifying wireline broadband services as information services); Appropriate Regulatory
Treatment for Broadband Access to the Internet Over Wireless Networks, Declaratory Ruling, 22 FCC Red 5901
(2007) (classifying wireless broadband services as information services).

Ms. Marlene H. Dortch


May 12,2014
Page2

Internet ecosystem. This is the foundation on which the extraordinary Internet economy that is the
envy of the world emerged and thrived. Any effort to upend that settled legal framework-which has
been supported by Commissions and Administrations led by both parties-would be enormously
disruptive: It would deter the many billions in additional investment required to connect all Americans
and to continue increasing speeds, while subjecting the industry and the Commission to years of
debilitating litigation and resulting uncertainty. Just ten years ago, the Commission and the
Department of Justice expressly recognized these risks and went to considerable lengths to avoid the
imposition of common carrier regulation precisely because "[t]he effect of the increased regulatory
burdens" likely would have been to prompt ISPs to "postpone or forego plans to deploy new
broadband infrastructure, particularly in rural or other underserved areas." 3 The last thing the
Commission should do at this stage is to break from the long bipartisan approach that has borne such
fruit to date and radically shift to an approach that would curtail broadband investment and impede
adoption. 4
Fortunately, risking such harms is entirely unnecessary. The D.C. Circuit has now confirmed
the Commission's power to prohibit blocking and to ensure commercially reasonable business
arrangements between access providers and edge providers pursuant to Section 706 of the
Telecommunications Act of 1996, ending a sustained period of uncertainty regarding the
Commission's authority to adopt rules to enforce Internet openness. 5 While the Commission
understandably had contemplated reclassification theories before the court upheld its authority to
regulate information services, it would make no sense to pursue such a high-risk path now that the
D.C. Circuit has validated the Commission's analysis of potential threats to Internet openness and held
that the Commission has ample power to prohibit anticompetitive conduct and prevent harm to
consumers.
Moreover, even apart from the substantial legal impediments to abandoning classification
decisions grounded in factual findings on which the industry has relied for more than a decade, the
purported benefits of invoking Title II as compared to relying on Section 706 are illusory. There is no
way to predict how a court would rule on a challenge to imposing Title II, and, in any event, Title II
would not necessarily support greater constraints on Internet practices. Common carriers are
prohibited only from engaging in unreasonable discrimination, 6 and the relevant precedent makes
clear that this standard entails substantial flexibility to differentiate among customers for legitimate
Petition for Writ of Certiorari, U.S. Dept. of Justice and FCC, FCC v. Brand X Internet Servs., No. 04-277, at 2526 (Aug. 27, 2004). The Department of Justice and the Commission further recognized that the Commission's
"forbearance authority is not in this context an effective means ofremov[ing] regulatory uncertainty that in itself
may discourage investment and innovation"). Jd at 28 (internal quotation marks omitted).
See, e.g., Progressive Policy Institute, America's Digital Policy Pioneers, video recording at
http://www. progressivepolicy .org/20 13/12/americas-digital-policy-pioneers/ (including former Chairman
Kennard's endorsement of bipartisan commitment to avoiding heavy-handed regulation of broadband Internet
access services).
5

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


47 U.S.C. 202(a).

Ms. Marlene H. Dmich


May 12, 2014
Page 3
business reasons. 7 Thus, to the extent that fears about "paid prioritization" arrangements are driving
calls for Title II reclassification, such arrangements would have to be assessed on a case-by-case basis
(iikely subject to general standards promulgated by the Commission) under Title II, just as under
Section 706.
At the same time, reclassifying broadband Internet access services under Title II would risk a
host of unintended consequences that proponents of such regulation have scarcely contemplated. For
example, as others have pointed out, reclassification could subject a broad range of currently
unregulated parties to burdensome obligations designed for monopoly telephone companies, import the
dysfunctional access charge regime to the exchange of Internet traffic, and halt the sharing of
infonnation necessary to many. edge providers' business models, among various other problems. 8
As Chairman Wheeler has recognized, the Verizon decision offers the Commission an ideal
opportunity to devise judicially sustainable, consensus-driven Open Internet rules pursuant to Section
706. In stark contrast, any effort to reclassify broadband Internet access (in whole or in part) under
Title II would spark massive instability, create investor and marketplace uncertainty, derail planned
investments, and slow broadband adoption. It is hard to imagine a more perilous recipe for pursuing
the critical national objectives set forth in the National Broadband Plan. The Commission should not
put at risk a rare bright spot in the American economy that has been a key engine of economic and jobs
growth. Comcast urges the Commission to propose rules that will safeguard the Open Intemet
pursuant to the authority upheld by the D.C. Circuit, rather than pursuing an approach that would only
undermine the public interest objectives at stake.
Sincerely,

Is/ Kathryn A. Zachem


Kathryn A. Zachem
Senior Vice President,
Regulatory and State Legislative Affairs
Comcast Corporation

See, e.g., Orloffv. FCC, 352 F.3d 415 (D.C. Cir. 2003) (upholding carriers' ability to offer differential discounts to
retail customers); Southwestern Bell Tel. Co. v. FCC, 19 F.3d 1475, 1481 (D.C. Cir. 1994) (upholding carriers'
ability to enter into individualized contracts); Ameritech Operating Cos. Revisions to Tariff FCC No. 2, Order, DA
94-1121 (CCB 1994) (upholding reasonableness of rate differentials based on cost considerations).
See, e.g., Letter ofRobert W. Quinn, Senior Vice President, AT&T, to Marlene H. Dortch, Secretary, FCC, GN
Docket No. 14-28, at 4-5 (May 9, 2014).

Ms. Marlene H. Dortch


May 12,2014
Page4
cc:

Priscilla Argeris
Amy Bender
Nicholas Degani
Rebekah Goodheart
Diane Cornell
Matthew DelNero
Ruth Milkman
Jonathan Sallet
Gigi Sohn
Philip Verveer
Stephanie Weiner

From:

Sent:
To:

Subject:

Zachem, Kathy < Kathy_Zachem@Comcast.com >


Thursday, May 15, 2014 12:36 PM
Jonathan Sallet;
Sohn; Philip Verveer; Ruth Milkman
FW: Comcast Blog: FCC Begins Open Internet Rule Process

fyi

From: Fitzmaurice, Sena

Sent: Thursday, May 15, 2014 12:12 PM


To: Fitzmaurice, Sena

Subject: Comcast Slog: FCC Begins Open Internet Rule Process

FCC Begins Process to Establish Strong, legally Enforceable Open Internet Rules
By David L. Cohen, Executive Vice President
Today, the FCC voted to take the first step in what will be a months long comment and review process to establish
strong, legally enforceable Open Internet rules. As Commissioners noted, this Notice of Proposed Rulemaking (NPRM) is
just an initial step to examine what the rules should ultimately be, and there will be significant time to study the NPRM,
and for public input and comment before the final rules are voted on by the Commission later this year.
Comcast remains committed to a free and open Internet and working with the FCC on appropriate rules for all players
across the industry. Currently, Comcast is the only company in America that is legally bound by the FCC's now vacated
Open Internet rules. And we've promised to extend the Open Internet rules to millions of new customers in cities from
New York to Los Angeles through our transaction with Time Warner Cable.
A free and open Internet stimulates competition, promotes innovation, fosters job creation, and drives business. We
supported the FCC's 2010 Open Internet rules because they struck the appropriate balance between consumer
protection and reasonable network management rights for ISPs. Our customers want a secure and open Internet, we
are committed to delivering on our promise to ensure that experience, and we are comfortable supporting appropriate,
legally enforceable open Internet rules.
We remain confident that the Commission will continue to appropriately balance its strong commitment to consumer
protection with the need to allow network operators to manage their networks reasonably and to continue to
encourage private investment in our nation's broadband infrastructure. As strongly as we believe in the propriety of
legally enforceable open Internet rules, however, we have an equally strong belief that any proposal to reclassify
broadband Internet access as a telecommunications service subject to Title II of the Communications Act would spark
massive instability, create investor and marketplace uncertainty, derail planned investments, slow broadband adoption,
and kill jobs in America.
For over a decade, Commissions and Administrations led by both parties have consistently ruled that common carrier
regulation does not (and should not) apply to the broadband Internet industry. As a result, cable operators and other
Internet service providers have invested hundreds of billions of dollars to deploy increasingly robust broadband
networks, laying the groundwork for an explosion of innovation in the Internet ecosystem, and fostering the creation of
millions of jobs. Any effort to upend this legal framework would most certainly be subject to years of litigation with
uncertain outcomes that would risk decreased investment and derail the American economic success story.
1

We look forward to working with Chairman Wheeler and the Commissioners to play a constructive role in finding an
appropriate regulatory balance going forward that will ensure the internet remains vibrant and open for all Americans.
For more information about Comcast's commitment to net neutrality visit:
http://corporate.comcast.com/twctransaction/net-neutrality-together

From:

To:

Cc:
Subject:

Date:

...
'

mko(a)nct?t.corn11

Ruth Milkmim

Remarks
Wednesday, April 30, 2014 11:04:22 AM

Ruth is going to send you the speech . It follows the message of yesterday's blog so shouldn't be a
surprise.
As I told you Yesterday, I Intend to be direct. If you want to talk about these points in our discussion
that's fine with me.

From:

To:
subject:
Date:
Attachments:

Fw: Fwd: NCTA President & CEO Michael Powell"s Keynote Remarks at The Cable Show 2014
Tuesday, April 29, 2014 4:34:16 PM
5CF955p2-BF68-426C-AD27200CD3E3306S.ong
5Cf956D2BF68426CAD27200CD3E33068.ono

------------ -- -- .... - -
MichaelGreat speech! Very statesmanlike challenge to your industry while putting things in perspective.
FYI, I'm going to get pretty direct about the Open Internet tomorrow. The press is full of misinformation
andl'm going to use the visit to the largest broadband providers to deliver a message that shows that
the perception th.at we're gutting Open Internet is wrong.

From: Maria Kirby


April29, 2014 04:03PM
T
Ruth Milkman; Jonathan Sallet; Philip Verveer; Shannon Gilson; Gigi Sohn; Neil Grace
Su
Fw: Fwd: NCTA President & CEO Michael Powell's Keynote Remarks at The Cable Show 2014

From: James Assey [mailto:JAssey@NCTA.com]

Sent: Tuesday, April 29, 2014 03:44PM


To: Maria Kirby

Subject: Fwd: NCTA President & CEO Michael Powell's Keynote Remarks at The Cable Show 2014

FYI. Michael's keynote delivered today.

Begin forwarded message:

From: Media Outreach <MediaOutreach@NCTA.com>


Date: April 29, 2014 at 10:57:32 AM PDT
Subject: NCTA President & CEO Michael Powell's Keynote Remarks
at The Cable Show 2014

cid:3C6A8E8C-9806-4FF9-9CD6-FAA7E8437860

CONTACT: Brian Dietz/Joy Sims

FOR IMMEDIATE RELEASE

April 29, 2014

202-222-2350

NCTA President & CEO Michael Powell's Keynote Remarks at The Cable Show

2014
April29, 2014

Good Morning.
The world is an ailing place.
Too many people live in poverty. Too many are hungry. And too many are receiving inadequate
Nation is a land of opportunity is being threatened
education. The core American ideal that
because our economy is not producing the jobs Americans need to get ahead.
In Washington-t11e seat of our federal government-our leaders struggle to make this country a
better place.
mix of ideas and
But rather than compromise, we see conflict as warring sides battle over
policies are best, causing most legislative efforts to whither.
I am not wise enough to know what cocktail of policies will take us forward. I do know, however,
that whatever the path is to a better society, it will ride on the bedrock of strong communities.
It is shared experience, collective consciousness and mutual destiny that drives a people forward.
These forces trigger transformative movements-whether the civil rights movement or the rapid
change in attitudes toward gay marriage.
"One nation under God, indivisible" is the pledge of a people that knows its destiny lies in its
unity and not in its divisions.
What distinguishes the human race is our ability to communicate with one another and to feel
the pain and emotions of one another.
You might say we talk; therefore we are, with all apologies to Descartes.
What does any of this have to do with all of us assembled here today? It's the fact that
community, building a community of shared values requires a network. Communal cohesion
needs a fabric that empowers and enables the best nature of man to discover, connect and act
Tying nodes together ties families together, ties communities together and even ties nations
together.
There is an experiment underway called the Global Consciousness Project. The Project has set up
random number generators all around the world. Scientists have observed that when there are

major world events that focus the thoughts of the world's population, like the attacks of 9/11,
the numbers stop being random and instead show clear patterns. Evidence of multiple minds
thinking as one.
Sounds fascinating. And if really true, it sure blows away Facebook and Twitter for sharing
thoughts, and the billions spent for "Whatsapp" seems like money down the drain!
Wow, maybe someday these experiments will prove our ability to communicate directly through
our thoughts. But, for now, at least, we lack the ability to harness telepathic communications.
Instead we rely on man-made networks, with its wires, fiber strings, towers, poles, routers and
airwaves that our companies provide.
When we deploy networks to our citizens, we strengthen the bonds of families and communities.
We lay the platform for collaboration and collective learning. We spark the cylinders of
innovation. And, to be dramatic, we help light the lamp of hope that "We the People" can find
solutions to the problems that plague our society.
Around the 1500s, ships began to cross the seas. The oceans and waterways accelerated the flow
of information. From horse carriage, to steam engines, to the telegraph, and to fiber optics
today, the power of networks has grown exponentially.
The human voice can qnly travel 600 feet, but with technology it can now travel the globe at the
speed of light, carrying the word of commerce, the learnings of academia, the sadness of a loved
one's passing, and the joy of a baby's birth.
In the Industrial Age, human knowledge doubled every 150 years. Today it doubles every two
years. By 2020 it is expected to double every 72 hours. As we accelerate human knowledge and
learning, the potential for a vibrant, just and inclusive society grows.
Everyone sees the power, potential and importance of the Internet. It is the Internet's essential
nature that fuels a very heated policy debate that the network cannot be left in private hands
and should instead be regulated as a public utility; following the example of the interstate
highway system, the electric grid and drinking water. The intuitive appeal of this argument is
understandable, but the potholes visible through your windshield, the shiver you feel in a cold
house after a snowstorm knocks out the power, and the water main breaks along your commute
should restrain one from embracing the illusory virtues of public utility regulation.
These systems were built with the help of government, as was the Internet. But they have
suffered terribly chronic underinvestmimt:
One in three major U.S. roads are in poor or mediocre condition, and one in four bridges are
either functionally obsolete or structurally deficient The Federal Highway Administration
estimates that $170 billion is needed annually just to fix our congested and crumbling roads.
Most of America's drinking water infrastructure is nearing the end of its useful life. There are an
estimated 240,000 water main breaks per year and reports say the water system needs $1

trillion in improvement.
America's electric grid is suffering and desperately needs a $768 billion shot in the arm by 2020
to keep it from failing and the number of massive blackouts ... has increased.
In 2007, there were 76 major blackouts. In 2011, there were 307. Can you imagine if the Internet
blacked-out 300 times a year?
No, because it doesn't. Because the Internet is not regulated as a public utility it grows and
thrives, watered by private capital and a light regulatory touch. It does not depend on the
political process for its growth, or. the extended droughts of public funding. This is why
broadband is the fastest deploying technology in world history, reaching nearly every citizen in
our expansive country.
Broadband speeds have increased 1SOOpercent in the last decade.
America's Internet providers have invested $1.3 trillion dollars since 1996 to make America's
Internet world class.
Our country has 4 percent of the world's population, but attracts 25 percent of all global
broadband investment.
Regulators overseas envy this level investment. Nellie Kroes, the EU Digital Agenda
Commissioner has said, "The writing is on the wall, and many EU leaders are abandoning their
approach and looking to the American broadband model of infrastructure-based competition and
private investment."
The contrast is striking when you compare the crisis in public utility infrastructure, with the
dynamism and stable investment in broadband Internet services.
We should not be complacent, however. We must continually prove that the private sector can
achieve public good.
We need to continue to continue to build a faster and open Internet. We need to continue to
produce content that entertains, informs and delights. We need to keep
prices reasonable and the value of our services high. We need to deliver second-to-none
customer service. And we need to be good corporate citizens.
But pipes are not enough to move people. The content those pipes carry is an essential
ingredient to progress. We are all sitting here in the land of television and movie magic.
We know storytelling is a deeply human need as well as a powerful tool; not just to entertain, but
also to raise consciousness, to find communion with our fellow man, to move us to empathize
with the plight of others.
Visual art opens our senses. Today, writers, actors and directors are at the very top of their
game. As one magazine put it, television has become literature in our modern society.

rn our
we knit together these two very powerful human forces: Network and Story. It's
a spectacular combination that too many take for granted. We spend time talking and fighting
about regulatory gains and losses. We spend so much energy debating how the spoils of profit
are divided. All necessary of course, but there is a higher value in what we do.
We weave the webs of wonder and possibility and provide the tools for people to come together
and to make change.
I believe the cable industry can and does make the world a better place. I believe our work is a
good business but it also serves a higher purpose.
We nurture the soil of modern community, and therein lays the hope and opportunity of a better
future. We are able stewards of that future. Much is being asked of us and we strive rightfully
and earnestly to answer that call.
At this show we celebrate our achievements and opportunities. But we also congregate. I urge
you to talk to one another and challenge one another. Discover new ways to bring communities
even closer together.
If we remain faithful to this mission, policymakers will always understand that cable is a critical
part of the solution to what ails us.
They will see us for what we are-a stalwart partner in pursuit of a better America.
Thank you.
It##

NCTA is the principal trade association for the U.S. cable industry, representing cable
operators serving more than 90 percent of the nation's cable television households and
more than 200 cable program networks. The cable industry is the nation's largest
broadband provider of high-speed Internet access, serving more than 52 million customers,
after investing $210 billion since 1996 to build two-way interactive networks with fiber
optic technology. Cable companies also provide state-of-the-art digital telephone service to
more than 27 million American consumers.

National Cable & Telecommunications AssociatiOit

I Phorita:

(202)

From:
To:
Subject:
Date:

to the Chairman
Thursday, April 24, 2014 11:32:44 AM

TW - Good to see you all over the news taking lead on


things progressing well. - LM

hope

>-----Original Message---->From: Laurence Master [mailto:laurence.master@nbcuni.com]


>Sent: Thursday1 March 13, 2014 3:36 PM
>To: Tom Wheeler
>Subject: Comments to the Chairman

>
>Laurence Master (laurence.master@nbcuni.com) writes:

>

>Hey Mr. Chairman, I sincerely hope this note (from the public domain)
>makes its way to your desk. Just want to tip my hat and say kudos for all
>that's going on in your life1
like it has been a long time coming.
> Ironically1 I find myself on the other side of the fence these days1 as
>Director, Digital Distribution, NBC Sports, go figure 1 fill in the blanks
>(espedally with the TW/Comcast merger and net neutrality filling you
>inbox) ... I hope carol and family are all well. 'If you still stay in
>touch with Stamberger1 please pass along my best wishes to him as well. >Laurence

> ----------------------------------------------------------->Server protocol: HTTP/1.1


>Remote host: 192.168.199.1?
>Remote IP address: 192.168.199.16

From:
To:
Subject:

Date:

Re: COmments to the Chairman


Friday, April 25, 2014 7:19:47 AM

...

From everything I'm reading, sounds like you have your hands full ... If anyone can handle this ride,
you're certainly one of them ... as someone in charge of NBCS streaming partnership distribution,
you bet I'm paying attention ... good luck Tom, hang in there

Sent:

Pacific Standard Time

To: Master, Laurence (NBCUniversal)


Subject: RE: Comments to the Chairman

Thanks Lawrence. These are interesting times

-----Original Message----From: Master, Laurence (NBCUniversal) [Laurence.Master@nbcuni.com]


Sent: Thursday, April 24, 2014 11:32 AM Eastern Standard Time

To:l
Subject: Re: Comments to the Chairman

TW - Good to see you all over the news taking lead on net-neutrality, hope
things
well. - LM

>-----Original Message-----

> From: Laurence Master [mailto:laurence.master@obcunl.com]


>Sent: Thursday, March 13, 2014 3:36PM
>To: Tom Wheeler
>Subject: Comments to the Chairman

>

>Laurence Master (laurence.master@nbcuni.com) writes:

>
>Hey Mr. Chairman, I sincerely hope this note {from the public domain)
>makes its way to your desk. Just want to tip my hat and say kudos for all
>that's going on in your life, seems like It has been a long time coming.
>Ironically, I find myself on the other side of the fence these days, as
>Director, Digital Distribution, NBC Sports, go figure, fill in the blanks
>(especially with the TW/Comcast merger and net neutrality filling you
>inbox) . I hope Carol and family are all werr. If you still stay in
>touch with Stamberger, please pass along my best wishes to him as well.>Laurence

>------------------------------------------------------------

>Server protocol: HTTP/1.1


>Remote host: 192.168.199.16
>Remote IP address: 192.168.199.16

From:
To:
Subject:

Date:

...

Master. Laurence CN8CUniversal)

Re: Comments to the Chairman

Tuesday, May 13, 2014 10:40:52 AM .

>From: urence Master (mailto:laurence.master@nbcunl.corri]


>Sent: Thursday, March 13, 2014 3:36 Pf\1
>To: Tom Wheeler
>Subject: Comments to the Chairman

>

>Laurence Master (laurence.master@nbcuni.com) writes:

>

>Hey Mr. Chairmari1 I sincerely hope this note (from the public domain)
>makes its way to your desk. Just want to tip my hat and say kudos for all
>that's going on in your life, seems like it has been a long time coming.
>Ironically1 I finq myself on the other side of the fence these days, as
>Director, Digital Distribution/ NBC Sports, go figure, fill in the blanks
>(especially with tlie TW/Comcast merger and net neutrality filling you
>inbox) , I hope Carol and family are all well. If you still stay in
>touch with Stambetger, please pass along my best wishes to him as well.>Laurence

> --------------------------------------------------------->Server protocol: HTTP/1.1


>Remote host: 192.168.199.16
>Remote IP address: 192.168.199.16

,,

Matthew.Murchison@lw.com
Wednesday, May 14, 2014 2:42 PM
Nicholas Degani; Amy Bender; Rebekah Goodheart; Daniel Alvarez; Priscilla Argeris;
Matthew DelNero; Stephanie Weiner; Carol Simpson; Kristine Fargotstein; Claude Aiken
Matthew.Brill@lw.com; RChessen@NCTA.com
NCTA letter, GN Docket No. 14-28
NCTA Title II letter 5-14-14.pdf

From:

Sent:
To:

Cc:
Subject:
Attachments:

All: Please find the attached letter submitted earlier today by the National Cable & Telecommunications Association in
GN Docket No. 14-28.

Matthew T. Murchison
LATHAM

&

WATKINS

LLP

555 Eleventh Street, NW


Suite 1000
Washington, D.C. 20004-1304
Direct Dial: +1.202.637.2136
Fax: +1.202.637.2201
Email: matthew.murchison@ lw.com
http://www.lw.com
To comply with IRS regulations, we advise you that any discussion of Federal tax issues in this e-mail was not intended or
written to be used, and cannot be used by you, (i) to avoid any penalties imposed under the Internal Revenue Code or (ii).
to promote, market or recommend to another party any transaction or matter addressed herein.
This email may contain material that is confidential, privileged and/or attorney work product for the sole use of the
intended recipient. Any review, reliance or distribution by others or forwarding without express permission is strictly
prohibited. If you are not the intended recipient, please contact the sender and delete all copies.
Latham & Watkins LLP

cable
National Cable&: Telecommunications Association

Rick Ch"ss"n
Senior Vice President
Law and RegulatoJyPolicy

zs Massachusetts Avenue, NW, Suite 100

Washington, DC 20001-1431
(202) 222-2300

(202) 222-2445
(202) 222-2448 Fax

rchessen@lncta.com

May14,2014
Marlene H. Dortch
Secretary
Federal Communications Commission
445 12th Street, S.W.
. Washington, D.C. 20554
Re:

Protecting and Promoting the Open Internet, GN Docket No. 14-28

Dear Ms. Dortch:


Oil behalf of the National Cable & Telecommunications Association (''NCTA"), I write
to underscore our deep concerns regarding recent proposals to reclassify broadband Internet
access services (or some component thereof) as telecommunications services subject to Title II
of the Communications Act As explained in NCTA' s prior comments in this
the
existing transparency rules provide a strong foundation for promoting Open Internet principles,
and, to the extent the Commission determines that additional safeguards are necessary, the
Verizon decision provides ample leeway to adopt such measures pursuant to Section 706 of the
Telecommunications Act.2 In light of that recently confirmed authority, it is wholly unnecessary
to pursue a Title n reclassification theory. It also would be immensely destabilizing. Indeed,
any effort to subject broadband Internet access services to common canier regulation would do
far more harm than good, as such a heavy-handed framework would discourage network
investment necessary to fuel the "virtuous cycle" of deployment, innovation, and adoption that
the Commission has long sought to promote under Section 706.
As the
and numerous stakeho+ders have recognized, cable operators. and
telecommunications companies have made massive private investments in broadband networlcs,
unleashing innovation and dramatically increased consumer welfare. 3 The Commission's 2002
determination and subsequent reaffirmations that broadband Internet access is an integrated
information service without any severable telecommunications service component were a critical
factor in creating the stable regulatory climate that attracted investment and enabled the Internet

Comments of the National Cable & Telecommunications Association, GN Docket No.


14-28 (filed Mar. 26, 2014).

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

Federal Communications Commission, Connecting America: The National Broadband


Plan, at XI (2010).

Ms. Marlene Dortch


May 14,2014
Page2
to become a key driver of our economy and a central aspect of our lives. 4 In fact, the
Commission and the Department of Justice ("DOJ") sought Supreme Court review in the Brand
X case to prevent the imposition of common cattier regulation on broadband services based in
large part on the concern that such regulation would entail significant burdens that could prevent
or delay the deployment of "new broadband infrastructure, particularly in rural or other
underserved areas.''5 The Court upheld the Cominission' s information-service classification
based on the "factual particulars of how Internet technology works and how it is provided."6
As a threshold matter, it is far from clear that the Commission could simply abandon the
fact-based classification it adopted and repeatedly confirmed over the past 12 years. The
classification of broadband Internet access ''turns on the nature of the functions that the end user
is offered,"7 and those functions have not materially changed since the Commission analyzed
them in its previous orders. Notably, c.able operators have never provided broadband
transmission as common caniers. Moreover, where, as here, such a classification has
engendered "serious reliance interests," and any effort to reclassify broadband Internet access
would contradict "factual findings ... which underlay [the FCC's] prior policy," the Commission
would need to "provide a more detailed justification than what would suffice for a new policy
created on a blank slate. " 8 At a minimum, pursuing Title li reclassification would plunge the
broadband industry into a lengthy period of uncertainty while a new round of appellate
proceedings ran its course-a process that can be easily avoided by relying on the roadmap
provided by the Verizon court
But even assuming the Commission cpuld lawfully reclassify broadband services, it
would be profoundly corinterproductive to do so. The burdens and uncertainty associated with
Title rr regulation (or even the threat of such regulation) would deter broadband providers from
making the substantial additional investments required to deploy new and upgraded broadband
infrastructure. As noted, the Commission and DOJ emphasized that very risk in their petition in

Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities,
Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCC Red 4798 (2002)
("Cable Modem Declaratory Ruling"); see also, e.g., Appropriate Framework for
Broadband Access to the Internet over Wire!ine Faeilities, Report and Order and Notice
of Proposed Rulemaking, 20 FCC Red 14853 (2005) (classifying wireline broadband
services as information services); Appropriate Regulatory Treatme'ntfor Broadband
Access to the Internet Over Wireless Networks, Declaratory Ruling, 22 FCC Red 5901
(2007) (classifying wireless broadband services as information services).

Petition for Writ of Certiorari, U.S. Dept. ot Justice and FCC, FCC v. Brand X Internet
Servs., No. 04-277, at 25-26 (Aug. 27, 2004) ("Brand X CertPetition").

Nat'! Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 991 (2005).

Cable Modem Declaratory Ruling CJ[ 38.

FCCv. Fox Television Stations, Inc., 556 U.S. 502,515 (2009).

/-

Ms.
Dortch
May 14, 2014
Page3

the Brand X case, 9 and it remains just as serious today. The Commission has
that
reaching the broadband deployment goals set forth in the National Broadband Plan could require

as much as $350 billion in private investment,10 but the specter of Title IT regulation would
significantly diminish network providers' ability to attract that level of investment. A wide array
of financial analysts and industry observers have reached the same conclusion, arguing
emphatically that the threat of Title II reclassification would damage broadband providers,
discourage infrastructure investment, stifle job growth, and harm consumers. 11
Indeed, in other contexts where the goyemment has imposed public utility-style
regulation, such an approach has led to chronic under-investment in basic infrastructure. One
need only examine our nation's ailing public infrastructure to appreciate the potential dangers to
the continued expansion and growth of broadband networ.ks. 12 The contrast is str:iking when one
compares the crisis in public utility infrastructure with the dynamism and stable investment in
broadband Internet services. 13
9

Brand X Cert Petition at 25-26.

10

See FCC Staff Presentation, September 2009 Commission Meeting, at45 (Sep. 29, 2009),
http://hraunfoss.fcc.gov/edocs__public/attachmatch/DOC-293742Al.l'df.

11

See, e.g., Anna-Maria Kovacs, The Intemet Is Not a Rotary Phone, Re/code, May 12,
2014, available at http:l/recode.net/2014/05/12/the-internet-is-not-a-rotary-phone/
(comparing robust investment in broadband in the U.S. to diminished investment in
Europe, which "has continued to regulate its telecommunications industry along the lines
of Title ll"); Bret Swanson, Title II Communications Is the 'Slow Lane', Tech Policy
Daily, May 13, 2014, available at http://www.techpolicydaily.com/communications/titleii-communications-slow-lane/ (explaining that"[ a]s the mostly unregulated Internet piles
success upon success, boosting bandwidth and transforming each industry it touches,
with no end in sight, the old, heavily regulated, Title II network is barely an afterthought
and is rapidly approaching full retirement''); see also Letter of Robert Vf. Quinn,. Senior
Vice President, AT&T, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at
2-4 (May 9, 2014) ("AT&T May 9 Letter'')
other analysts' commentary on
the risks of Title ll reclassification theories).

12

A recent study found that most of America s drinking water infrastructure is nearing the
end of its useful life and will need $1 trillion in investment in the coining decades, and
that America's electric grid will require a $736 billion shot in the arm by 2020 to keep it
from failing. See American Society of Civil Engineers, 2013 j?.eport Card for America's
Infrastructure, available at http://www.infrastructurereportcard.org. The same study
found that one in three major U.S. roads is in poor or mediocre condition and that
repairing and maintaining these roads will require an estimated $170 billion in annual
investment, and that one in four bridges is either functionally obsolete or structurally
deficient. ld

13

Broadband speeds have increased 1500 perc.ent in the last decade. Michael Powell,
Keynote Remarks: 2014 Cable Show (Apr. 29, 2014), at 3, available at
https://www.ncta.com/sites/prod/files/NCTA-MichaeiPowellKeynoteRemar.ks_O.pdf.

,.
Ms. Marlene Dortch
May 14,2014
Page4
And the risks as.sociated with Title II regulation would extend far beyond the chilling of
investment and innovation by broadband Internet access providers. If the transmission
component(s) of broadband Internet access were to be treated as distinct telecommunications
services, there is no sound principle that would justify limiting such a classification to last-mile
providers; to the contrary, other entities that provide transmission (such as backbone providers
and content delivery networks) could become subject to Title 1!. 14
Nor could the Commission overcome such obstacles by forbearing from unwanted and
overbroad aspects of Title II. Any such undertaking would be massively complex and
contentious, given the myriad provisions that are included in Title rrand relevant CQmmission
precedent. As a result, the forbearance process itself would engender enormous uncertainty, as
.the Commission has PJ;:eviously recognized. 15 And any grant of forbearance would be subject to
judicial challenge and/or potential revocation by a later Commission.
Moreover, subjecting broadband access providers to regulation under Title 1I would not
even accomplish the goal that reclassification proponents apparently seek. Reclassification
would not support a categorical prohibition on Internet "fast lanes" any more than Section 706
would. Section 202 of the Act does not impose a duty of "nondiscrimination," but rather
proscribes only "unjust" or ''unreasonable" discrimination. 16 The relevant precedent makes clear
that caniers subject to this standard l;lave considerable flexibility to differentiate among
customers for various legitimate business reasons. 17 Accordingly, whatever the Commission's
ultimate judgment about the potential benefits and harms associated with paid prioritization and
Moreover, as the Commission is aware, America's Internet providers have invested well
over $1 trillion dollars since 1996 to make America's Internet world-class. See Inquiry
Concerning the Deployment ofAdvanced 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 Broadbahd Data Improvement Act, Eighth Broadband Progress Report, 27 FCC
Red 10342 (2012).
]4

As AT&T has pointed out, reclassification of last-mile transmission under Title ll also
could import the broken intercarrier compensation scheme to the exchange of Internet
traffic, among various other unintended and disruptive consequences. See AT&T May 9
Letter at5.

15

See Brand X Cert Petition at 28 (explaining that "forbearance authority is not in this
context an effective. means of remov[mg] regulatory uncertainty that in itself may
discourage investment and innovation").

16

47 U.S.C. 202(a).

17

See, e.g., Orlojfv. FCC, 352 F.3d 415 (D.C. Cir. 2003) (upholding carriers' ability to
offer differential discounts to retail customers); Southwestern Bell Tel. Co. v. FCC, 19
F.3d 1475, 1481 (D.C. Cir. 1994) (upholding carriers' ability to enter into individualized
contracts); Ameritech Operating Cos. Revisions to Tariff FCC No. 2, Order, DA 94-1121
(CCB 1994) (upholding reasonableness of rate differentials based on cost considerations).

Ms. Marlene Dortch


May 14,2014
Page5
similar arrangements, any such practices will have to be reviewed on a case-by-case basis
to general standards promulgated by the Commission, regardless of whether the
Commission seeks to rely on Section 706 or Title n.
As reflected in our recent comments, NCTA seeks to be a constructive partner in any new
dialogue about new Open Internet rules. While the substance of proposed rules can be fairly
debated, there is no sound reason to pursue reclassification under Title II.
Sincerely,
Is/ Rick Chessen
Rick Chessen

,.

From:

Sent:
To:
Cc:

Subject:
Attachments:

Matthew.Murchison@lw.com
Wednesday, May 14, 2014 2:46 PM
Nicholas Degani; Amy Bender; Rebekah Goodheart; Daniel Alvarez; Matthew DelNero
Matthew.Brill@lw.com; RChessen@NCTA.com
NCTA ex parte notification, GN Docket No. 14-28
NCTA NN ex parte 5-14-14.pdf

All: In addition to the letter just circulated, the National Cable & Telecommunications Association also has submitted the
attached ex parte notification in GN Docket No. 14-28. regarding our meetings with you
on Monday.

all

Matt
Matthew T. Murchison
LATHAM & WATKINS LLP
555 Eleventh Street, NW
Suite 1000
Washington, D.C. 20004-1304
Direct Dial: +1 .202.637.2136
Fax: +1.202.637.2201
Email: matthew. murchison@ lw.com
http://www.lw.com
To comply with IRS regulations, we advise you that any discussion of Federal tax issues in this e-mail was not intended or
written to be used, and cannot be used by you, (i) to avoid any penalties imposed under the Internal Revenue Code gr (ii)
to promote, market or recommend to another party any transaction or matter addressed herein.
This email may contain material that is confidential, privileged and/or attorney work product for the sole use of the
intended recipient. Any review, reliance or distribution by others or forwarding without express permission is strictly
prohibited. If you are not the intended recipient, please contact the sender and delete all copies.
Latham & Watkins LLP

Matthew A. BriO
Dillie! Dial: +1.202.637,1095
matthew.brfii@Jw.com

LATHAM & wATKINs LLP

May 14,2014
Marlene H. Dortch
Secretary
Federal Communications Commission
445 12th Street, S.W
Washington, DC 20554

Re:

SSS Eleventh Street, N.W. Suite 1000


Washington, D.C. 20004-1304
Tel:+ 1.202.637.2200 Fax: +1.202.637.2201
www.lw.com
FIRM I AFFILIATE OFFICES
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Washington, D.C.

Notification of Ex Parte Presentaf;ions of the National Cable &


Telecommunications Association, GN Docket No. 14-28

Dear Ms. Dortch:


On May 12, 2014,.Rick Chessen of the National Cable & Telecommunications
Association (''NCTA"), along with the undersigned and Matthew Murchison, both of Latham &
Watkins LLP, met with the following people in connection with. the above-referenced
proceeding: Nicholas Degani and Daniel Graulich from Commissioner Pai' s office; Amy Bender
Goodheart from Commissioner Clyburn's office;
from Commissioner O'Rielly' s office;
and Daniel Alvarez from Chairman Wheeler's office together with.Matthew DelNero of the
Wireline Competition Bureau.
At these meetings, we reiterated that the Commission's consideration of further Open
Internet rules in light of the Verizon decision 1 should be guided by the basic principles set forth
inNCTA's comments in this proceeding. 2 In particular, we urged the Commission to reject
proposals seeking to reclassify any component of broadband Internet access under Title TI,
especially now that the Verizon court has clarified the Commission's authority under Section
706. We explained, consistent withNCTA's opening comments and its ex parte letter submitted

Verizon v. FCC, 749 F.3d 623 (D.C. Cir. 2014), affinning in part, vacating and
remanding in part, Preserving the Open Internet; Broadband Industry Practices, Report
and Order, 25 FCC Red 7905 (2010)
2

See Comments of the National Cable & Telecommunications Association, GN Docket


No. 14-28 (filed Mar. 46, 2014) (calling, among other things, for a balanced examination
of the broadband ecosystem that avoids an exclusive focus.on wireline ISPs).

..
May14,2014
Page2

LATHAM&WATKI NSuP

earlier today, 3 that a Title II reclassification theory would be immensely destabilizing and would
undermine the ongoing network investment necessary to fuel the "virtuous cycle" of deployment,
innovation, and adoption that the Commission has long sought to promote. We also noted that
such an approach would be wholly unnecessary to achieve the Commission's regulatory
objectives, and that, as a legal matter, it is far from clear that theCommission could simply
abandon its prior classification determinations.
Please contact the undersigned if you have any questions regarding these issues.

Sincerely,
Is/ Matthew A. Brill

Matthew A. Brill
Counsel for the National Cable &
Telecommunications Association

See id. at 20-22; Letter of Rick Chessen, National Cable & Telecommunications
Commission, to Marlene H. Dortch, Secretary, Federal Communications Commission,
GN Docket No. 14-28 (filed May 14, 2014).

Sent: Thursday, May 01, 2014 11:13 PM


To: Gigi Sohn

Subject: Please see this ex parte

.Attached please find my ex parte on the Open Internet Order. Please particuarly note the two pages of argument
refuting the "urban rumor" that Title II mandates rather than permits discrimination under Title II.

Harold Feld, Senior VP


202-861-0020 I @haroldfeld
Public Knowledge I @publicknowledge I www.publicknowledge.org
1818 N St. NW, Suite 410 IWashington, DC 20036
Promoting a Creative & Connected Future.

Public Knowledge
May 1, 2014
Marlene H. Dortch
Secretary
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554
Re: Open Internet Remand, GN Docket No. 14-28

Dear Ms. Dortch:


On April29, 2014, Harold Feld, Senior Vice President, Public Knowledge (PK), met with
Rebekah Goodheart, Legal Advisor on Wireline to Commissioner Clyburn, with regard to the
above captioned proceeding.
PK expressed grave concerns with regard to the press reports that the Commission would
propose paid prioritization under a "commercially reasonable" standard. PK repeated its
concerns with the commercially reasonable standard as set forth in the comments filed by PK on
March 21, 2014. 1
PK went on to recommend, consistent with the March 21 comments, that the Commission
seek comment on whether (a) the Commission must consider whether the common carrier
prohibition prevents the FCC from adequately addressing the concerns the Commission
identified in the 2010 Open Internet Order, which the Verizon court explicitly found (a)
reasonable, and (b) adequately supported by the record. The Commission should make
abundantly clear that if it finds that it cannot adequately address these concerns because of the
limitations of Section 706 or the limitations of the "common carrier prohibition," then the
Commission will reclassify broadband access as a Title II service.
In this regard, PK notes that while the Chairman is correct that Title II would permit
reasonable discrimination, it does not, as some seem to insist, require reasonable discrimination
and therefore Title II would require paid prioritization. To the contrary, where the Commission
has found conduct inherently unjust, unreasonable, or subject to abuse, it has affirmatively
prohibited this conduct with no allowance for exception.
For example, in Carterfone, the FCC found that it was inherently unjust and
unreasonable to permit a carrier to interfere with the ability of a subscriber to attach a device to a
network. Because it determined that it was impossible to adequately police discriminatory
conduct by the network operator, the FCC established Part 68 and affirmatively prohibited
common carriers offering residential telephone service from ever discriminating under any

http://apps.fcc.gov/ecfs/document/view?id=7521 094713

Public Knowledge, 1818 N Street NW, Suite 410, Washington DC 20036

i!i Public Knowledge


circumstance between devices or ever varying from the Part 68 standard because discriminating
between devices would never be 'just and reasonable.'

Similarly, in the Computer I proceeding, the Commission initially permitted Common


Carriers to offer "hybrid services" under a set of safeguards designed to protect against anticompetitive conduct. Only a few years later, the Commission concluded in the Computer II
proceeding that it was inherently impossible to pem1it common carriers to offer "enhanced
services" except through complete structural separation. Judge Green, in applying the antitrust
laws, reached a similar conclusion with regard to the provision of long distance services by local
networks. Only complete structural separation and a complete prohibition on the practice could
prevent anticompetitive and anti-consumer conduct.
In short, the oft repeated statement that Title II would require the Commission to permit
paid prioritization is little more than a pernicious urban myth. Sadly, it has been repeated often
enough that, in the words of Stephen Colbert, it has become "factesque." Accordingly, PK urges
that the NPRM explicitly seek comment on the following.
A. Is the practice of paid prioritization intrinsically incompatible with the Chairman's stated
goal of providing "to ensure that everyone has access to an Internet that is sufficiently
robust to enable consumers to access the content, services and applications they demand,
as well as an Internet that offers innovators and edge providers the ability to offer new
products and services. " 2
B. Specifically, does the ability to offer paid prioritization present the same detection and
enforcement problems that prompted the Commission to declare other practices
inherently unjust and unreasonable?
C. Are there alternative reasons why permitting paid prioritization under any circumstances
would frustrate the goals of the Communications Act or create a disincentive to
investment contrary to the requirement of the Commission to facilitate investment in
infrastructure under 47 U.S.C. 1302. Specifically, the Verizon court found the
Commission's concern that paid prioritization would frustrate the "virtuous cycle" that
has, until now, forced providers to invest in enhanced capacity as a means of generating
revenue both reasonable and supported by the evidence in the record. How can the
Commission adequate address these concerns given the common carrier prohibition
identified by the court.
D. Alternatively, should the Commission follow the same course it followed in the Cable
Modem Declaratory Ruling when it expressly determined that the Ninth Circuit had erred
2

Chairman Tom Wheeler, "Finding the Best Path Forward To Protect An Open Internet,"
http://www.fcc.gov/blog/finding-best-path-forward-protect-open-internet

: Public Knowledge
in defining cable modem service as a "telecom service" and found- in direct
contravention of the Ninth Circuit- that cable modem service was an "information
service." Given that the Supreme Court upheld this exercise of statutory interpretation in
both Brand X and City ofArlington, the FCC should expressly solicit comment on the
meaning and scope of the "common carrier prohibition."
E. The Commission should expressly solicit comment on how it will ensure, if it permits
paid prioritization, that carriers continue to invest in their networks. Given that
Commission has already found- and the D.C. Circuit found this conclusion both
reasonable and supported by record evidence -that the ability to monetize scarcity
creates an incentive to defer investment in actual deployment, how will the Commission
ensure that investment in infrastructure continues pursuant to 47 U.S. C. 1302? Should the
Commission prohibit prioritization if the rate of investment in infrastructure declines? If
the Commission cannot adequately address this concern, it should explicitly state that it
will classifY broadband access as a Title II telecommunications service on a finding that
permitting paid prioritization is intrinsically contrary to the purposes of the
Communications Act and that only by exercise of Title II authority can the Commission
prohibit paid prioritization.

Enforcement and Market Definition


The Commission should explicitly solicit comment on whether insertion of monitoring devices,
similar to those voluntarily used in the Sam Knows study, should be mandatory so that the
Commission and users can guarantee that service is not artificially degraded.
PK also urged the Commission to consider whether to permit prioritization when only a single
wireline provider serves the relevant market. In such a case, edge providers could be foreclosed
from the market because the single provider could refuse service. Similarly the Commission
should consider whether to permit prioritization where only two wireline providers serve a
geographic market. lfyes, should different rules apply to the dominant wireline provider? To the
extent parties argue that wireless providers offer acceptable alternatives, then wireless providers
should be subject to the same rules on the offering of prioritized service. To the extent the
Commission continues to differentiate wireless from wireline, it cannot simultaneously maintain
that wireless provides an acceptable alternative for reaching customers.

Virtual Redling

Public Knowledge
PK notes that the debate has assumed that providers will offer prioritization to all customers.
From a technological standpoint, however, there is no reason why providers cannot sell
prioritization in smaller increments or target- at the request of edge providers -more
"desirable" customers. For example, a service provider may wish to market prioritized markets
only in the top urban markets. In addition, history teaches us that providers of goods and services
have often used zip codes or other apparently neutral proxies to bypass poor urban
neighborhoods or market to minority communities based on stereotypes.
Over time this could potentially lead to certain prioritized services becoming available only in
urban areas, or being unavailable to poor and minority communities. At the same time, however,
there are many reasons why an edge provider may wish to discriminate with regard to which
customers on a particular broadband access network it desires to reach. For example, providers
of local news content might rationally conclude that only subscribers local to the events would
want prioritized access, and paying for system-wide prioritization would be unduly costly for
small, local providers.
Nevertheless, the potential for "virtual redlining" implicates the policies of 4 7 U .S.C. 151,
254(b)(3), 257, and 1302. Nor could the Commission require broadband access providers to offer
prioritization only on an "all or nothing" basis to ensure uniform service to all subscribers, since
the Verizon court explicitly found that a mandate to serve all customers identically is "the
essence of common carrier obligation."
Accordingly, PK suggests that the Commission solicit comment on the following:

A.

In light ofthe Commission's past experience with discriminatory deployment of services,


should the Commission regard the potential for "virtual redlining" -either on the basis of
an urban/rural divide or on some other basis - as a concern.

B.

If so, how would the Commission monitor to determine whether virtual redlining was
occurring?

C.

Finally, even if the Commission determined that virtual redlining was occurring at a level
as to significantly impact rural or minority communities, what authority would the
Commission have to remedy to problem in light of the common carrier prohibition?

Classification of Prioritized Service.


As conceived by the Verizon court, broadband service necessarily encompasses a two-sided
market in which the broadband access provider sells service to both the residential customer on
one side and the edge provider the subscriber has downloaded content from on the other. As the
Commission declined to appeal this finding, it is now stuck with it.
However, as the D.C. Circuit has previously observed, see Ad Hoc Telecoms Users Comm. v.
FCC, 572 F.3d 903 (D.C. Cir. 2009), there are significant differences between the residential
broadband market and the business broadband market. The service which the D.C. Circuit

;& Public Knowledge


envisions as being "sold" to edge providers is different and distinct from the service "sold" to
subscribers.
PK agrees with the April 14 ex parte filed by Professors Tejas N. Narechania and Tim Wu
arguing that this prioritization service is clearly a Title II service.3 The Commission should seek
comment on the classification of the prioritization service. PK notes that the service does not
come bundled with any of the information services identified by the Commission in the Cable
Modem Order as included in the "offer" to residential subscribers. Indeed, because the offer to
prioritize does not even begin until the edge provider delivers traffic to the last mile provider's
network, the !at mile provider does not even offer independent DNS routing.

In accordance with Section 1.1206(b) of the Commission's rules, this letter is being filed
with your office. If you have any further questions, please contact me at (202) 861-0020.
Respectfully submitted,

Is/ Harold Feld


Senior Vice President
PUBLIC KNOWLEDGE

cc: Rebekah Goodheart

http://apps. fcc.gov/ecfs/document/view?id=7521 098085

From:
Sent:
To:

Cc:
Subject:
Attachments:

Matthew.Murchison@lw.com
Wednesday, May 14, 2014 2:46 PM
Nicholas Degani; Amy Bender; Rebekah Goodheart; Daniel Alvarez; Matthew DelNero
Matthew.Brill@lw.com; RChessen@NCTA.com
NCTA ex parte notification, GN Docket No. 14-28
NCTA NN ex parte 5-14-14.pdf

All : In addition to the letter just circulated, the National Cable & Telecommunications Association also has submitted the
attached ex parte notification in GN Docket No. 14-28 regarding our meetings with you all on Monday.
Matt
Matthew T. Murchison

LATHAM & WATKINS LLP


555 Eleventh Street, NW
Suite 1000
Washington, D.C. 20004-1304
Direct Dial: + 1.202.637.2136
Fax: + 1.202.637.2201
Email: matthew.murchison@lw.com
http://www.lw.com
To comply with IRS regulations, we advise you that any discussion of Federal tax issues in this e-mail was not intended or
written to be used, and cannot be used by you, (i) to avoid any penalties imposed under the Internal Revenue Code or (ii)
to promote, market or recommend to another party any transaction or matter addressed herein.
This email may contain material that is confidential, privileged and/or attorney work product for the sole use of the
intended recipient. Any review, reliance or distribution by others or forwarding without express permission is strictly
prohibited. If you are not the intended recipient, please contact the sender and delete all copies.
Latham & Watkins LLP

Matthew A. Brill

555 Eleventh Street, N.W., Suite 1000

Direct Dial:+ 1.202.637.1095

Washington, D.C. 20004-1304

matthew.brill@lw.com

Tel:+ 1.202.637.2200 Fax:+ 1.202.637.2201


www.lw.com

LATHAM&WATKI NSLLP

May 14,2014

Marlene H. Dortch
Secretary
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

Re:

FIRM I AFFILIATE OFFICES


Abu Dhabi

Milan

Barcelona

Moscow

Beijing

Munich

Boston

New Jersey

Brussels

New York

Chicago

Orange County

Doha

Paris

Dubai

Riyadh

Dusseldorf

Rome

Frankfurt

San Diego

Hamburg

San Francisco

Hong Kong

Shanghai

Houston

Silicon Valley

London

Singapore

Los Angeles

Tokyo

Madrid

Washington, D.C.

Notification of Ex Parte Presentations of the National Cable &


Telecommunications Association, GN Docket No. 14-28

Dear Ms. Dortch:


On May 12, 2014, Rick Chessen of the National Cable & Telecommunications
Association ("NCTA"), along with the undersigned and Matthew Murchison, both of Latham &
Watkins LLP, met with the following people in connection with the above-referenced
proceeding: Nicholas Degani and Daniel Graulich from Commissioner Pai' s office; Amy Bender
from Commissioner O'Rielly's office; Rebekah Goodheart from Commissioner Clyburn's office;
and Daniel Alvarez from Chairman Wheeler's office together with Matthew DelNero of the
Wireline Competition Bureau.
At these meetings, we reiterated that the Commission's consideration of further Open
Internet rules in light of the Verizon decision t should be guided by the basic principles set fmth
in NCTA's comments in this proceeding. 2 In particular, we urged the Commission to reject
proposals seeking to reclassify any component of broadband Internet access under Title II,
especially now that the Verizon court has clarified the Commission's authority under Section
706. We explained, consistent with NCTA's opening comments and its ex parte letter submitted

Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014), affirming in part, vacating and
remanding in part, Preserving the Open Internet; Broadband bzdust1y Practices, Report
and Order, 25 FCC Red 7905 (2010)
2

See Comments of the National Cable & Telecommunications Association, GN Docket


No. 14-28 (filed Mar. 26, 2014) (calling, among other things, for a balanced examination
of the broadband ecosystem that avoids an exclusive focus on wireline ISPs).

May 14,2014
Page 2

LATHAM&WATKINSttP
earlier today, 3 that a Title II reclassification theory would be immensely destabilizing and would
undermine the ongoing network investment necessary to fuel the "virtuous cycle" of deployment,
innovation, and adoption that the Commission has long sought to promote. We also noted that
such an approach would be wholly unnecessary to achieve the Commission's regulatory
objectives, and that, as a legal matter, it is far from clear that the Commission could simply
abandon its prior classification determinations.
Please contact the undersigned if you have any questions regarding these issues.

Sincerely,
Is/ Matthew A. Brill
Matthew A. Brill
Counsel for the National Cable &
Telecommunications Association

See id. at 20-22; Letter of Rick Chessen, National Cable & Telecommunications
Commission, to Marlene H. Dortch, Secretary, Federal Communications Commission,
GN Docket No. 14-28 (filed May 14, 2014).

From:

Sent:
To:

Cc:
Subject:
Attachments:

Matthew.Murchison@lw.com
Wednesday, May 14, 2014 2:42 PM
Nicholas Degani; Amy Bender; Rebekah Goodheart; Daniel Alvarez; Priscilla Argeris;
Matthew DelNero; Stephanie Weiner; Carol Simpson; Kristine Fargotstein; Claude Aiken
Matthew.Brill@lw.com; RChessen@NCTA.com
NCTA letter, GN Docket No. 14-28
NCTA Title II letter 5-14-14.pdf

All: Please find the attached letter submitted earlier today by the National Cable & Telecommunications Association in
GN Docket No. 14-28.
Matthew T. Murchison
LATHAM & WATKINS LLP
555 Eleventh Street, NW
Suite 1000
Washington, D.C. 20004-1304
Direct Dial: +1 .202.637.2136
Fax: + 1.202.637.2201
Email: matthew.murchison@ lw.com
http://www.lw.com
To comply with IRS regulations, we advise you that any discussion of Federal tax issues in this e-mail was not intended or
written to be used, and cannot be used by you , (i) to avoid any penalties imposed under the Internal Revenue Code or (ii)
to promote, market or recommend to another party any transaction or matter addressed herein.
This email may contain material that is confidential, privileged and/or attorney work product for the sole use of the
intended recipient. Any review, reliance or distribution by others or forwarding without express permission is strictly
proh ibited. If you are not the intended recipient, please contact the sender and delete all copies.
Latham & Watkins LLP

National Cable & Telecommunications Association


25 Massachusetts Avenue, NW, Suite 100
Washington, DC 20001-1431
(202) 222-2300

Rick Chessen
Senior Vice President
Law and Regulatory Policy
(202) 222-2445

(202) 222-2448 Fax


rchessen@ncta.com

May 14,2014
Marlene H. Dortch
Secretary
Federal Communications Commission
445 12th Street, S.W.
Washington, D.C. 20554

Re:

Protecting and Promoting the Open Internet, GN Docket No.14-28

Dear Ms. Dortch:


On behalf of the National Cable & Telecommunications Association ("NCTA"), I write
to underscore our deep concerns regarding recent proposals to reclassify broadband Internet
access services (or some component thereof) as telecommunications services subject to Title II
of the Communications Act. As explained in NCTA's prior comments in this docket, 1 the
existing transparency rules provide a strong foundation for promoting Open Internet principles,
and, to the extent the Commission determines that additional safeguards are necessary, the
Verizon decision provides ample leeway to adopt such measures pursuant to Section 706 of the
Telecommunications Act? In light of that recently confirmed authority, it is wholly unnecessary
to pursue a Title II reclassification theory. It also would be immensely destabilizing. Indeed,
any effort to subject broadband Internet access services to common carrier regulation would do
far more harm than good, as such a heavy-handed framework would discourage network
investment necessary to fuel the "virtuous cycle" of deployment, innovation, and adoption that
the Commission has long sought to promote under Section 706.
As the Commission and numerous stakeholders have recognized, cable operators and
telecommunications companies have made massive private investments in broadband networks,
unleashing innovation and dramatically increased consumer welfare.3 The Commission's 2002
determination and subsequent reaffirmations that broadband Internet access is an integrated
information service without any severable telecommunications service component were a critical
factor in creating the stable regulatory climate that attracted investment and enabled the Internet

Comments of the National Cable & Telecommunications Association, GN Docket No.


14-28 (filed Mar. 26, 2014).
2

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

Federal Communications Commission, Connecting America: The National Broadband


Plan, at XI (2010).

Ms. Marlene Dortch


May 14,2014
Page2
to become a key driver of our economy and a central aspect of our lives. 4 In fact, the
Commission and the Department of Justice ("DOJ") sought Supreme Court review in the Brand
X case to prevent the imposition of common carrier regulation on broadband services based in
large part on the concern that such regulation would entail significant burdens that could prevent
or delay the deployment of "new broadband infrastructure, patticularly in rural or other
underserved areas." 5 The Court upheld the Commission's information-service classification
based on the "factual particulars of how Internet technology works and how it is provided."6
As a threshold matter, it is far from clear that the Commission could simply abandon the
fact-based classification it adopted and repeatedly confirmed over the past 12 years. The
classification of broadband Internet access "turns on the nature of the functions that the end user
is offered,"7 and those functions have not materially changed since the Commission analyzed
them in its previous orders. Notably, cable operators have never provided broadband
transmission as common carriers. Moreover, where, as here, such a classification has
engendered "serious reliance interests," and any effort to reclassify broadband Internet access
would contradict "factual findings ... which underlay [the FCC's] prior policy," the Commission
would need to "provide a more detailed justification than what would suffice for a new policy
created on a blank slate." 8 At a minimum, pursuing Title II reclassification would plunge the
broadband industry into a lengthy period of uncertainty while a new round of appellate
proceedings ran its course-a process that can be easily avoided by relying on the roadmap
provided by the Verizon court.
But even assuming the Commission could lawfully reclassify broadband services, it
would be profoundly counterproductive to do so. The burdens and uncertainty associated with
Title II regulation (or even the threat of such regulation) would deter broadband providers from
making the substantial additional investments required to deploy IJ.ew and upgraded broadband
infrastructure. As noted, the Commission and DOJ emphasized that very tisk in their petition in

Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities,
Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCC Red 4798 (2002)
("Cable Modem Declaratory Ruling"); see also, e.g., Appropriate Framework for
Broadband Access to the Intemet over Wireline Facilities, Report and Order and Notice
of Proposed Rulemaking, 20 FCC Red 14853 (2005) (classifying wireline broadband
services as information services); Appropriate Regulatmy Treatment for Broadband
Access to the Internet Over Wireless Networks, Declaratory Ruling, 22 FCC Red 5901
(2007) (classifying wireless broadband services as information services).

Petition for Writ of Certiorari, U.S. Dept. of Justice and FCC, FCC v. Brand X Internet
Servs., No. 04-277, at 25-26 (Aug. 27, 2004) ("Brand X Cert Petition").

Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 991 (2005).

Cable Modem Declaratmy Ruling <J[ 38.

FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).

From: Chang, Shawn [mailto:Shawn.Chang@mail.house.gov]

Sent: Wednesday, May 14, 2014 1:31 PM


To: Sara Morris
Subject: Waxman letter

Shawn H. Chang
Chief Counsel
Communications and Technology Policy
Committee on Energy and Commerce
u.s. House of Representatives
H2-564 Ford House Office Building
Washington, DC 20515
0: 202-226-3400 F: 202.225-1690

FRED UPTON, MICHIGAN

HENRY A. WAXMAN, CALIFORNIA

CHAIRMAN

RANKING MEMBER

ONE HUNDRED THIRTEENTH CONGRESS

(!Congress of tbe
J!}ouse of l\epresentaUbes
COMMITTEE ON ENERGY AND COMMERCE
2125 RAYBURN HousE OFFICE BuiLDING
WASHINGTON, DC 20515-6115
Majority (202) 225--2927
Minority (202) 225--3641

May 14,2014
The Honorable Tom Wheeler
Chairman
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554
Dear Chairman Wheeler:
We spoke last month about the importance of network neutrality and my support for
strong, enforceable rules of the road to protect the free and open Internet. I appreciate your
commitment to reinstate open Internet rules based on a solid legal framework that preserves
innovation, competition, and consumer choice online. And I support your decision to ask the
Commissioners of the Federal Communications Commission to vote on these proposed rules on
May 15,2014.
Since our discussion, I understand you have further modified your proposal to ensure the
Commission's new rules will not legalize segregation of the Internet into fast and slow lanes
under a "paid prioritization" arrangement between broadband providers and content companies.
These schemes have always been antithetical to the principles of an open Internet, and I
commend you for taking this step.
I also support your efforts to reinstate the no-blocking and nondiscrimination rules.
This proceeding will be the FCC's third attempt to establish open Internet rules. The
difficulty in establishing these rules has not been their substance. In 20 l 0, I led legislative
negotiations that produced the Open Internet Act of2010, which would have prohibited blocking
of websites and unjust or unreasonable discrimination by wireline broadband Internet service
providers. This legislation was endorsed by all sides of the open Internet debate, including open
Internet advocates like Public Knowledge and the Consumer Federation of America and the
major Internet service providers including AT&T, Verizon, and cable companies represented by
the National Cable and Telecommunications Association. The policies embodied in the

The Honorable Tom Wheeler


May 14,2014
Page 2
legislation were codified in the FCC's 20 l 0 open Internet mles. They remain a sound foundation
tor the rules you are considering.
The difficulty has also not been the FCC's legal authority. There is legal consensus that
the FCC has the authority to adopt these mles if the FCC reclassified broadband Internet
connectivity as a telecommunications service under Title II of the Communications Act. Even
the D.C. Circuit decision in Verizon v. FCC recognized that the open Intemet rules would have
been upheld if the FCC had not "chosen to classifY broadband providers in a mmmer that
exempts them fiom treatment as common caniers." 1
Instead, the difficulty that the FCC has repeatedly encountered has been justifying the
open Intemet mles without taking the step of classifying broadband Intemet service as a
telecommunications service. The large service providers have fought regulation under Title II
because it would carry with it the authority of the FCC to regulate rates in a future proceeding.
The providers have maintained this opposition even when the FCC suggested using its authority
to forbear from applying most of the requirements of Title II to broadband service, including
forbearing from rate regulation.
The D.C. Circuit's decision in Veri::on undercuts the providers' position because the
court held that the FCC has authotity to regulate broadband under section 706 of the
Telecommunications Act without Title II reclassification. Section 706 expressly provides that
the FCC can utilize "price cap regulation" and other measures to remove barriers to
infrastructure investment and promote broadband deployment. 2 This means that broadband
Internet service providers are subject to potential rate regulation whether they are regulated
under Title II or section 706. Avoiding the remote possibility of rate regulation is no longer a
persuasive rationale for avoiding the invocation of the Commission's Title II authority.

I believe the time has come for the FCC to stop putting vitally important open Internet
rules in jeopardy through legal gymnastics. I have no objection to the agency's proceeding under
section 706 as the prefenecl basis of authority, as this may generate less opposition from some
quarters than proceeding under Title II. But the FCC should also use its undisputed Title II
authority as additional authority. There are a number of ways the FCC could mandate automatic
reinstatement of the no-blocking and nondiscrimination protections under Title II of the
Communications Act in the event that the courts once again invalidate the strong open Internet
rules under section 706. These could include using Title II as "backstop authority," issuing one
order under section 706 and a contingent order under Title II, or reclassifying broadband fntemet
service as a telecommunications service and forbearing the no-blocking and nondiscrimination
requirements while the section 706 mles remain in effect. This approach will allow the FCC to

Veri::o/1 v. FCC, 740 F.3d 623 (D.C. Cir. 2014).


See 47 U.S.C. 1302(a).

The Honorable Tom Wheeler


May 14,2014
Page3
get the policy right and avoid the need to water down essential open Internet protections out of a
concern about inadequate authority.
The Internet service providers have been litigating the open Internet rules for too long.
They lobby the FCC to avoid using its strongest legal authority for the open Internet rules. Then
when the FCC agrees with them, they sue the agency on the basis that the FCC lacks the power
to protect an open Internet. The approach I suggest would stop these legal games.
I was pleased to read that Professor Tim Wu of Columbia Law School recently made a
similar proposal in the New Yorker. As he wrote, "the Commission's best course is to pass tough
rules under 706 with Title II as the backup, to insure the rules survive a court challenge. This
strategy may actually ward off court challenges.... Attempting to invalidate the rules with
lawsuits could well reactivate the full authority of the Commission over broadband, with the
carriers unable to blame anyone but themselves."3
The Internet is a great American success story thanks to our longstanding national
commitment to communications policies that prevent broadband providers from acting like
gatekeepers online. I urge you and your colleagues to move forward with your Notice of
Proposed Rulemaking later this week and to incorporate a Title II backup proposal as part of the
item.
Sincerely,

Ranking Member

cc:

The Honorable Mignon Clyburn


Commissioner
Federal Communications Commission
The Honorable Jessica Rosenworcel
Commissioner
Federal Communications Commission
3 The

New Yorker, The Solution to the F. C. C.'s Net-Neutrality Problems (May 9, 2014)
(online at www .newyorker.com/online/blogs/elements/20 14/05/tom-wheeler-fcc-net-neutralityproblems.htrnl).

The Honorable Tom Wheeler


May 14,2014
Page4

The Honorable Ajit Pai


Commissioner
Federal Communications Commission
The Honorable Michael O'Rielly
Commissioner
Federal Communications Commission

From: Chang, Shawn [mailto:Shawn.Chang@mail.house.gov]

Sent: Wednesday, May 14, 2014 1:53 PM


To: Chang, Shawn

Subject: FYI, Ranking Member Waxman on FCC Open Internet NPRM


Let me know if you have any questions.
Shawn H. Chang
Chief Counsel
Communications and Technology Policy
Committee on Energy and Commerce
U.S. House of Representatives
H2- 564 Ford House Office Building
Washington, DC 20515
0 : 202- 226-3400 F: 202.225-1990

FRED UPTON, MICHIGAN

HENRY A. WAXMAN, CALIFORNIA

CHAIRMAN

RANKING MEMBER

ONE HUNDRED THIRTEENTH CONGRESS

of tbe Wntteb
j!}oust of Jt\tprtsentatibts
COMMITTEE ON ENERGY AND COMMERCE
2125

RAYBURN HousE OFFICE BuiLDING

WASHINGTON,

DC 20515-6115

Majority 1202) 22!>-2927


Minority 1202) 22!>-3641

May 14,2014
The Honorable Tom Wheeler
Chairman
Federal Communications Commission
445 121h Street, SW
Washington, DC 20554
Dear Chairman Wheeler:
We spoke last month about the importance of network neutrality and my support for
strong, enforceable rules of the road to protect the free and open Internet. I appreciate your
commitment to reinstate open Internet rules based on a solid legal framework that preserves
innovation, competition, and consumer choice online. And I support your decision to ask the
Commissioners of the Federal Communications Commission to vote on these proposed rules on
May 15,2014.
Since our discussion, I understand you have further modified your proposal to ensure the
Commission's new rules will not legalize segregation of the Internet into fast and slow lanes
under a ''paid prioritization" arrangement between broadband providers and content companies.
These schemes have always been antithetical to the principles of an open Internet, and I
commend you for taking this step.
I also support your efforts to reinstate the no-blocking and nondiscrimination rules.
This proceeding will be the FCC's third attempt to establish open Internet rules. The
difficulty in establishing these rules has not been their substance. In 20 l 0, I led legislative
negotiations that produced the Open Internet Act of2010, which would have prohibited blocking
ofwebsites and unjust or unreasonable discrimination by wireline broadband Internet service
providers. This legislation was endorsed by all sides of the open Internet debate, including open
Internet advocates like Public Knowledge and the Consumer Federation of America and the
major Internet service providers including AT&T, Verizon, and cable companies represented by
the National Cable and Telecommunications Association. The policies embodied in the

The Honorable Tom \v11eeler


May 14,2014
Page2
legislation were codified in the FCC's 20 l 0 open Internet rules. They remain a sound foundation
for the rules you are considering.
The difficulty has also not been the FCC's legal authority. There is legal consensus that
the FCC has the authority to adopt these rules if the FCC reclassified broadband Internet
connectivity as a telecommunications service under Title II of the Communications Act. Even
the D.C. Circuit decision in Verizon v. FCC recognized that the open Internet rules would have
been upheld if the FCC had not "chosen to classify broadband providers in a manner that
exempts them fiom treatment as common ca!1'iers." 1
Instead, the difficulty that the FCC has repeatedly encountered has been justifying the
open Internet rules without taking the step of classifying broadband Internet service as a
telecommunications service. The large service providers have fought regulation under Title II
because it would cmTy with it the authority of the FCC to regulate rates in a future proceeding.
The providers have maintained this opposition even when the FCC suggested using its authority
to forbear fiom applying most of the requirements ofTitle II to broadband service, including
forbearing tlom rate regulation.
The D.C. Circuit's decision in Veri::on undercuts the providers' position because the
court held that the FCC has authority to regulate broadband under section 706 of the
Telecommunications Act without Title II reclassification. Section 706 expressly provides that
the FCC can utilize "price cap regulation" and other measures to remove baniers to
infrastructure investment and promote broadband deployment. 2 This means that broadband
Internet service providers are subject to potential rate regulation whether they are regulated
under Title II or section 706. A voiding the remote possibility of rate regulation is no longer a
persuasive rationale tor avoiding the invocation of the Commission's Title II authority.

I believe the time has come tor the FCC to stop putting vitally important open Internet
rules in jeopardy through legal gymnastics. I have no objection to the agency's proceeding under
section 706 as the prefened basis of authority, as this may generate less opposition fiom some
quarters than proceeding under Title II. But the FCC should also use its undisputed Title ll
authority as additional authority. There are a number of ways the FCC could mandate automatic
reinstatement of the no-blocking and nondisciimination protections under Title ll of the
Communications Act in the event that the courts once again invalidate the strong open Intcmct
rules under section 706. These could include using Title IT as "backstop authority," issuing one
order under section 706 and a contingent order under Title II, or reclassifying broadband Internet
service as a telecommunications service and forbearing the no-blocking and nondiscrimination
requirements while the section 706 rules remain in effect. This approach will allow the FCC to

Veri::on v. FCC, 740 F.3d 623 (D.C. Cir. 2014).


See 47 U.S.C. 1302(a).

The Honorable Tom Wheeler


May 14,2014
Page3
get the policy right and avoid the need to water down essential open Internet protections out of a
concern about inadequate authority.
The Internet service providers have been litigating the open Internet rules for too long.
They lobby the FCC to avoid using its strongest legal authority for the open Internet rules. Then
when the FCC agrees with them, they sue the agency on the basis that the FCC lacks the power
to protect an open Internet. The approach I suggest would stop these legal games.
I was pleased to read that Professor Tim Wu of Columbia Law School recently made a
similar proposal in the New Yorker. As he wrote, "the Commission's best course is to pass tough
rules under 706 with Title II as the backup, to insure the rules survive a court challenge. This
strategy may actually ward off court challenges.... Attempting to invalidate the rules with
lawsuits could well reactivate the full authority of the Commission over broadband, with the
carriers unable to blame anyone but themselves." 3
The Internet is a great American success story thanks to our longstanding national
commitment to communications policies that prevent broadband providers from acting like
gatekeepers online. I urge you and your colleagues to move forward with your Notice of
Proposed Rulemaking later this week and to incorporate a Title II backup proposal as part of the
item.
Sincerely,

Ranking Member

cc:

The Honorable Mignon Clyburn


Commissioner
Federal Communications Commission
The Honorable Jessica Rosenworcel
Commissioner
Federal Communications Commission
3

the New Yorker, The Solution to the F. C. C.'s Net-Neutrality Problems (May 9, 2014)
(online at www.newyorker.com/onlinelblogs/elements/2014/05/tom-wheeler-fcc-net-neutralityproblems.html).

The Honorable Tom Wheeler


May 14,2014
Page4

The Honorable Ajit Pai


Commissioner
Federal Communications Commission
The Honorable Michael O'Rielly
Commissioner
Federal Communications Commission

From: info=ppionline.orq@mail.salsalabs.net [info=ppionline.org@mail.salsalabs.net] on behalf of Progressive Policy


Institute [info@ppionline.org]
Sent: Thursday, February 27, 2014 4:07PM
To: John B. Adams
Subject: RSVP Today: New Principles for a Progressive Broadband Policy

John -Please join us for our upcoming panel: New Principles for a Progressive
Broadband Policy on March 13th at the Mayflower Renaissance Hotel to
discuss the recent FCC broadband regulation proposals.
The regulatory landscape governing the arrangements between broadband
providers and content providers is in flux. The D.C. Circuit recently struck down
certain portions of the FCC's Open Internet Order, and
this weekend
Netflix reportedly agreed to pay Comcast pursuant to a "peering arrangement"
to ensure Netflix's online videos are streamed smoothly.
In the wake of these developments, the FCC is contemplating the design of an
adjudication regime under its section 706 authority to resolve potential disputes
in the Internet space. PPI will host a panel of legal and economic experts to
offer their advice on (1) the proper objective of the case-by-case regime, and
(2) how enforcement of that regime would work in practice . Panelists will asked
to explain how their proposed solutions are consistent with stimulating
1

broadband deployment and innovation among content providers.

New Principles for a Progressive Broadband


Policy
March 13, 2014
9-11 a.m.
at
The Mayflower Renaissance Washington
Chinese Ballroom
1127 Connecticut Ave. NW

RSMP to attend tliis eve11t:


Featured Event Speakers
Stuart Benjamin, Duke Law School
Kevin Werbach, Wharton School, University of Pennsylvania
Hal Singer, Progressive Policy Institute
Ev Ehrlich, Progressive Policy Institute
Michael Mandel, Progressive Policy Institute (Moderator)
Breakfast will be served at 9 a.m. and the panel will begin promptly at 9:30
a.m.
Make sure you follow the conversation on Twitter with #Open Internet. If you
are unable to join us in person, watch the live webcast of the event.
Regards,
Progressive Policy Institute

Instantly.

From: MCKOY, GLENIS [mailto:qm909q@att.com]

Sent: Wednesday, May 14, 2014 11:02 AM


To: Jonathan Sallet; Daniel Alvarez; Nicholas Degani; Amy Bender; Rebekah Goodheart; Priscilla Argeris

Subject: AT&T Open Internet Ex Parte


Good Morning All:
Attached please find AT&T's Ex Parte Letter filed this morning with the FCC regarding Open Internet. If you have
questions, please contact Robert Quinn at 202-457-3851. Thanks!

Glenis McKoy
Executive Assistant
Office of the Senior Vice PresidentFederal Regulatory and Chief Privacy Officer
AT&T Services, Inc.
1120 20th Street, NW Suite 1000
Washington, DC 20036
Phone-202-457-2080
Fax-202-457-2020
This e-mail and any files transmitted with it are AT&T property,.are confidential, and are intended solely for the
use of the individualor entity to whom this email is addressed. If you are not one of the named recipient(s) or
otherwise have reason to believe that you have received this message in error, please notify the sender and
delete this message immediately from your computer. Any other use, retention, dissemination, forwarding,
printing, or copying of this e-mail is strictly prohibited.

at&t

Robert w. Quinn, Jr.


Senior Vice President
Federal Regulatory and
Chief Privacy Officer

AT&T Services, Inc.


1120 20th St. NW, Suite 1000
Washington, D.C. 20036
Phone 202 457-3851

Fax 202 457-2020

May 14,2014
VIA ELECTRONIC SUBMISSION
Marlene H. Dortch
Secretary
Federal Communications Commission
445 12th Street S.W.
Washington, D.C. 20554

Re:

Open Internet, GN Docket No. 14-28

Dear Ms. Dortch:


Last Friday, AT&T filed an ex parte identifying some of the many issues raised by, and
risks and harms that could result from, reclassification of broadband Internet access services as a
Title II telecommunications services. 1 We further pointed out the folly of running these risks
insofar as reclassification would not prevent paid prioritization arrangements, which
reclassification proponents have seized upon to generate hysteria and support for their cause.
Instead of engaging on the substance of these concerns, Free Press and others attempt to brush
them under the carpet with the facile claim that forbearance can fix everything. 2 But as AT&T
noted, the prospect of countless, reversible forbearance determinations - not to mention
litigation over these decisions and over reclassification itself- would create massive ongoing
uncertainty that would fly in the face of the Administration's goal of promoting broadband
investment. And in all events, forbearance would not address the many serious implications of
reclassification.

For example, if the FCC found that broadband Internet access contains a separate
telecommunications service component, what would be the logical or legal basis on which the
Commission could distinguish that information service from other information services
provided in the Internet ecosystem or otherwise? If broadband Internet access providers offer
1
Letter of Robert W. Quinn, Jr., AT&T, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 (filed May 9,
2014) (May 9'h Ex Parte).
2

Jon Brodkin, AT&T claims common carrier rules would ruin the whole /ntemet, Ars Technica (May 9, 2014) ("'As
usual, AT&T's positions are laughable at best-though disingenuous is more like it,' Matt Wood, policy director of
consumer advocacy group Free Press, told Ars. 'Nothing in Title II says that every last provision has to apply to any
Title II service. That's the whole point of forbearance. The fact that broadband providers could be entitled to
something doesn't mean they actually are entitled to it, or that AT&T' s cost-causation story is true."'), available at
http://arstechnica.com/tech-policy/2014/05/att-claims-common-carrier-rules-would-ruin-the-whole-intemet/ (last
checked May 13, 20 14). !d. ("Public Knowledge Senior VP Harold Feld agreed. 'To a large extent, this is just
scary mumbo-jumbo to make Title II loop big and complicated,' Feld told Ars.").

telecommunications services to consumers, why don't other entities that combine transmission
with information processing or storage likewise provide telecommunications services? This is
no idle concern. The Commission itself, in its seminal Stevens Report, noted this very issue:
"[I]f we interpreted the statute as breaking down the distinction between information services
and telecommunications services, so that some information services were classed as
telecommunications services, it would be difficult to devise a sustainable rationale under which
all, or essentially all, information services did not fall into the telecommunications service
Internet as a
category ."3 Thus a broad array of entities that provide transmission over
component of what is today considered only an information service might find themselves
subject to Title II to the same extent as providers of mass market broadband Internet access
services. This includes entities that provide Internet connectivity to application and content
providers of services over connected
providers, content delivery networks, transit
devices, like Amazon, General Motors and others, search engines connecting an advertising
network to a search request, and email providers and social networks that enable chat or
messaging sessions.4 Anyone concerned with "saving the Internet" should be alarmed by that
sobering possibility.
Although this particular consequence alone should stop consideration of reclassification
in its tracks, it is by no means the only issue of concern raised by the possibility of
reclassification. AT&T' s May 9 11 Ex Parte attempted to identify some of the. other issues to
point out that reclassifying broadband Internet access as a Title II service would open a
regulatory Pandora's box. But, this was not even a definitive list of issues; there are many others
that warrant consideration. For example, as the Commission noted in the Stevens Report, "[t]he
classification of information service providers as telecommunications carriers ... could
encourage states to impose common-carrier regulation on such providers. Although section
lO(e) of the Act precludes a state from applying or enforcing provisions of federal law where the
Commission has determined to forbear, it does not preclude a state from imposing requirements
derived from state law."5 Moreover, as the Commission further noted, "while it has authority to
forbear from unnecessary regulation, foreign regulators may not have comparable deregulatory
authority to avoid imposing the full range of telecommunications regulation on information
services." 6
There are also issues as to how forbearance could be implemented. For example, can the
Commission forbear from substantially all of Title II on a blanket basis, or would the
Commission have to separately identify each and every statutory provision and regulation under
3

Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Report to Congress, 13 FCC Red 11501,
11529, para. 57 (1998) (Stevens Report).

It would be no answer to claim that some of these entities do not provide telecommunications "for a fee." In
interpreting the phrase "for a fee" in the definition of "telecommunications service," the Commission has concluded
that the plain language of the statute means services rendered in exchange for something of value or a monetary
payment. Federal-State Joint Board on Universal Service, CC Docket No. 96-45, First Report and Order, 12 FCC
Red 8776, 9177, para. 784 (1997). Every commercial entity offering services or content over the Internet does so
for something of value, whether it's a cash payment or the ability to obtain and monetize data about its customer or
their usage of the Internet.
5

Stevens Report at para. 48.

6/d.

Title II and separately apply the three-part forbearance test to each. We note, in this regard, that
the Commission requires precisely that level of disaggregation in forbearance petitions.
To the extent the Commission is not closing the door to Title II reclassification in its
NPRM, the Commission must ask questions and obtain a record regarding these and other
implications of reclassification and what all this means for the future of the Internet and the goal
of promoting broadband investment and deployment. The Commission also should seek
comment on how Title II reclassification could possibly even prevent paid prioritization. As we
noted in our May 9 Ex Parte, even dominant carriers have long been permitted to provide paid
prioritization under Title II, and AT&T is aware of no theory under which section 202 could be
stretched to provide a basis for a blanket ban on paid prioritization. Even Free Press appears to
concede that, although Free Press claims that section 201 could accomplish through the back
door what section 202 cannot. That argument, however, is frivolous: section 202 specifically
addresses what types of discrimination are permitted and what types are not by a
telecommunications service provider. Wholly apart from the fact that it would be impossible to
show that paid prioritization arrangements are inherently (or even generally) unreasonable, a
general prohibition on unreasonable practices in section 201 cannot trump the more specific
language in section 202.
These issues are just the tip of the iceberg of those raised by Title II reclassification. It is
imperative that the Commission fully explore all of these issues if it is to give any further
consideration to reclassification proposals. Proponents of reclassification have been effective in
stirring up mass hysteria with misleading pronouncements, and dismissing skeptics with derisive
comments and loose rhetoric. But the issues presented are too important to be trumped by
politics and protestors banging pots and pans in front of the FCC. Real engagement on real
issues is necessary, and if this issue is to be revived, the NPRM must set that process in motion.
Respectfully Submitted,
/s/ Robert W. Quinn, Jr.
cc:
Jonathan Sallet
Daniel Alvarez
Priscilla Delgado Argeris
NickDegani
Amy Bender
Rebekah Goodheart

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Subject
Protecting and Promoting the Open
Internet

I Contact Info .I
Name of Filer: AT&T Services, Inc.
Email Address: shandee.r.parran@ att.com
Attorney/Author Name: Robert W. Quinn, Jr.

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5/14/2014

From: Cavender, Joseph [ mailto:Joseph.cavender@Level3.com]

Sent: Friday, February 21, 2014 4:51PM


To: Tim Brennan; Robert cannon; Jonathan Sallet; carol Simpson; Stephanie Weiner
Cc: Nixon, Marcellus
Subject: Level 3 ex parte
All,
Thank you very much for meeting with us today. Attached please find an ex parte covering our meeting, as filed this
afternoon. Please feel free to contact us if you have any questions.
Best,
Jo e

Joseph C. Cavender
Vice President, Federal Affairs
Level 3 Communications, LLC
1220 L Street, NW, Suite #660
Washington, DC 20005
(571) 730-6533

TH IS MESSAGE M AY BE ATIORNEY-CLIENT OR OTHERWISE PRIVILEGED. IF YOU BELIEVE YOU RECEIVED THIS MESSAGE IN ERROR,
PLEASE DELETE IT AND NOTIFY ME. THANK YOU.

Joseph C. Cavender
Vice President
Federal Affairs

Levei(3X

Tel: (571) 730-6533


joseph.cavender@ level3.com

February 21, 2014

Ex Parte
Ms. Marlene H. Dortch
Secretary
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554
Re:

Protecting and Promoting the Open Internet, GN Docket No. 14-28; Preserving
the Open Internet, GN Docket No. 09-191

Dear Ms. Dortch:


On February 21, 2014, Marcellus Nixon and I, on behalf of Level 3 Communications,
LLC ("Level 3"), met with Jon Sallet and Stephanie Weiner of the Office of General Counsel;
Carol Simpson of the Wireline Competition Bureau; Robert Cannon of the Office of Strategic
Planning & Policy Analysis; and Tim Brennan, Chief Economist. The attached presentation was
provided to the Commission participants in the meeting.
During the conversation, the Level 3 representatives explained that Level 3 has observed
that consumer demand for video is driving significant growth in overall traffic volume on the
Internet. The same demand for streaming video, including consumer demand to stream video to
multiple devices, is driving consumers to purchase: i) Internet connections from their ISPs that
offer higher and higher advertised speeds, and ii) Internet connections with download speeds that
are much greater than upload speeds. The fact that more data today flows towards as opposed to
away from consumers is because the ISPs facilitate it, and the ISPs' customers demand it. 1
The Level 3 representatives further explained that while content providers such as
streaming video services have multiple competitive options for delivering their content to the ISP
whose end users have requested it, the ISP itself offers the only path for that content to reach the
end user. And some, though not all, large ISPs-which notably offer their own, competing video
services-are leveraging that bottleneck control over access to their users, demanding arbitrary
tolls from providers like Level3 who carry Internet traffic requested by the ISPs' end users to
the ISPs' own networks. This is content the ISPs have committed to make available to their
consumers, but which the ISPs alone cannot provide.
1

Notably, traffic direction on the Internet has nothing to do with network costs. Costs are impacted by
the volume of traffic and the distance it is carried.

Marlene H. Dortch
February 21, 2014
Page2

If Level 3 will not pay these arbitrary and discriminatory tolls, these ISPs refuse to
augment interconnection capacity that is congested to a degree that any network engineer would
agree must be augmented for the Internet to function properly. As a result, the interconnection
ports between these ISP networks and the Level 3 network remain congested, resulting in
dropped packets and a degraded consumer experience. While the effects of. this congestion vary
from application to application, VoiP calls and speed-sensitive online streaming applications are
likely the most significantly impacted, widely-used applications. For millions of consumers,
they may become virtually unusable. Of course, the ISPs' own, competing video service will be
unaffected.
These tolls are pernicious and unwarranted. Aside from being a flagrant example of
monopoly rent-seeking, they are a direct threat against the promise and potential value of the
Internet, and particularly the potential value of competing video services. First, it is difficult to
envision how a toll on- third-party-provided video content can be assessed in a nondiscriminatory way against video services provided by the ISP itself, which would amount to the
ISP "paying itself' the toll. Further, even if these tolls are imposed in a facially neutral way, any
toll that applies "equally" to all traffic will have a disproportionate effect on online video
services, which transmit larger amounts of data (roughly 4GB for an HD movie) than, say, email
service. And again, online video is also much more sensitive to the effects of congestion if the
toll is not paid: buffering, stopping and starting, and pixilated video may render such services
essentially unusable, while an email that takes even a minute longer to arrive than it otherwise
would is unlikely to cause a user much frustration. ISPs that are attempting to charge these tolls
are leveraging their bottleneck control to advantage their own video services and to increase their
rivals' costs while pocketing a tidy monopoly profit all at the same time-all at significant cost
to consumers and harm to the value of the Internet.
The Level3 representatives further observed that, in Level3's view; the Commission's
Open Internet rules, by failing to address peering, had failed to address these serious problems.
Increased consumer demand for online video services, the fact that online video services are such
a large fraction of online traffic, and the fact that online video services are particularly vulnerable
to the effects of congestion mean that there is functionally little difference between the type of
"discrimination" addressed by the Commission's former rules and the type of behavior actually
practiced by some ISPs but arguably permitted under those rules.
Level 3 stands ready to work with ISPs to ensure that their users can access the Internet
content they wish with acceptable performance. And many ISPs, to their credit, are investing to
expand interconnection capacity rather than leveraging their users' increased demand as an
excuse to exploit their bottleneck control over those users. But the Commission should ensure
that it doesn't make the same mistake again. It should ensure that it protects against abuses by
bottleneck ISPs no matter whether those abuses come in the form of explicit discrimination or
the kind of anticompetitive, monopoly rent-seeking conduct Level 3 has observed, and that it
continues to observe today.

Marlene H. Dortch
February 21, 2014
Page3
Please do not hesitate to contact me if you should have any questions.

Sincerely,

Is/ Joseph C. Cavender


Joseph C. Cavender
cc:

Tim Brennan
Robert Cannon
Jon Sallet
Carol Simpson
Stephanie Weiner

i
"
"

By 2017, average global broadband speed will


grow 3.5-fold, from 11.3 Mbps (2012) to 39
Mbps (2017).

Consumer Internet video will be 69%) of all consumer traffic in 2017, up from 57o/o
in 2012. All video, including peer-to-peer (e.g., BitTorrent), will be 80-90o/o of
consumer traffic.

Content Delivery Networks (CONs) will deliver almost 2/3rds of all video traffic and
over half of all Internet traffic by 2017.

2014 Level 3 Communications, LLC. All Rights Reserved.

Busy-hour traffic is growing faster than


average traffic; will increase 3.5x 2012-2017
compared to 2.9x for average traffic.

Source: Cisco VNI Report 2013

By 2017, global traffic will reach 1.4 zettabytes


annually, up from 523 exabytes in 2012
(equivalent to 350 billion HD movies in 2017).

Consumer Video Demand Driving Internet Traffic Growth

J!.l!rl.oi'tl'itrt':Xi<1 b!li'+l>tm.

WebMD

Internet Content
Companies

ly

... ...

ISP

' ..... , ....

-Content Delivery Network

2014 Level 3 Communications, LLC. All Rights Reserved.

.... .... .... ....... __

Option 3: Purchase CDN services

Option 2: Purchase IP transit

Build own backbone over fiber or


transport purchased from third party

.. .. .

<

Reach Consumer's
the Consumer

Option 1: Build or buy backbone and peer directly

Fol
Path from

Residential
End User

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2014 Level 3 Communications, LLC. All Rights Reserved.

Consumers are trying to access content, and Level 3 is ready and willing to augment interconnection capacity to deliver
it, but the ISP refuses to deploy the infrastructure necessary to meet its own users' demand unless Level 3 pays a toll

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leverage that bottleneck

typical Level 3 interconnection port with one ISP that has its own video service

have decided

11

11

icati

But ISP tolls that facially apply equally to all traffic are effectively tolls on the most
bandwidth-intensive services - video services that compete with the ISP's own video
services.

An ISP intent on discriminating against competing video services doesn't need to do


anything -the ports are already congesting, and demand is just increasing.

2014 Level 3 Communications, LLC. All Rights Reserved.

This is a problem today. And failing to address it will mean less innovation,
less competition, and less consumer benefit from the Internet.

From the consumer's perspective, the effects of an ISP actively discriminating


against competing video services are similar to the effects of an ISP refusing to
supply interconnection
capacity
to meet
the consumer's
demand.
.
.
.
.
.
.
.

ISP tolls that would apply only to competing video services would run afoul of the
Open Internet Order.

The FCC's Open Internet Order addressed "discrimination" issues but not
"peering" issues. But they are related.

li

FOIA Exemption 5

From: Neil, Mark [mailto:MNeii@NMG.ORG]


Sent: Thursday, April 03, 2014 11:11 AM
To: Emmitt carlton
.
Cc: Rashatwar, Rupalee <rrashatwar@NMG.ORG>
2

Subject: NAAG Spring Consumer Protection conference


Emmitt,
I wanted to follow up on our conversation back in February about the NAAG Spring Consumer Protection conference .
here in Washington. I wanted to see if someone from the FCC might like to make a short (no more than 30 minutes)
presentation on net neutrality or anything else you think might be of interest to the consumer protection folks. The
opening I have would be sometime in the morning on Tuesday May 20.
I look forward to hearing from you.
Mark
Mark M. Neil
NAGTRI Program Counsel
National Association of Attorneys General
2030 M Street, NW
Washington, DC 20036
202.326.6019
www.naag.org
Email: mneil@naag.org

IJ

From: Dave Burstein [ mailto:daveb@dslprime.com]

Sent: Wednesday, May 07, 2014 7:47PM


towards a gigabit Webinar tomorrow

Gov and policy people: You can't understand the net neutrality debate without the best
data on whether networks are really congested. Dave Clark of MIT has the facts and
they are very different from what most of Washington believes. Dave is a net neutrality
skeptic, I believe, but facts are facts. Cioffi and Clark will also explain why the engineers
think 100 megabits and more is becoming practical and affordable. Do join or ask me for
a transcript after. db Here's the invite.
FolksTwo world class experts will point to the way to affordable Internet gigabits and the
Internet soon to come. Internet Hall of Famers John Cioffi of Stanford and MIT?s Dave
Clark lead a Marconi Society Expertise webinar. P'm moderating and guarantee it will be lively.

Thursday May 8 10 a.m. California, 1 p.m. New York, 6 p.m. London


No charge; just register at http://bit.ly/1cNGfrK
Short presentations and plenty of time for questions. Do join us . .
Cioffi is working on ways to combine advanced DSL and WiFi to inexpensively deliver
hundreds of megabits and even a gigabit. Vectored DSL, Cioffi?s invention, is now
proven to deliver 100 megabits over a short loop. Gigabit WiFi chips are now shipping.
Combine the 10 or 30 WiFis visible in most urban areas and a gigabit is in reach. He?s
CEO of ASSIA, developing some of the systems needed for this and managing DSL.
(Marconi fellow Cioffi also will speak at a very strong Upperside event in Paris May 2122 on fast DSL. 1?11 be speaking as well. Say hello to the round fellow with a beard.)
http://bit.ly/1c8GXwP

Clark has recently done empirical work on network congestion - or lack thereof. ?Can
t he Internet keep up with hundreds of gigabits to homes?? Clark has done seminal work
on the design of the future Internet. He was Chair of what?s now called the Internet
Architecture Board.
Dave Burstein
Moderator for the Marconi Society, sponsor of this email
More, including biographies, http://bit.ly/lhye6ip
Mailing sponsored by The non-profit Marconi Society. Reply "un" to be removed from
the list

From:
Sent:
To:
Subject:

Congressional Internet Caucus AC <icac@netcaucus.org>


Thursday, May 15, 2014 11:53 AM
Claude Aiken
Rayburn Debate on FCC Net Neutrality I Spectrum Plans- Lunch Friday 5/16

Dear Claude,
You are invited to Friday's lunch briefing on ....

The FCC's Grand Internet Plans: "Net Neutrality .. and Massive Mobile Spectrum
Auctions: What Do You Need to Know?
Today the Federal Communications Commission (FCC) unveiled two major plans that may significantly affect the growth
and vibrancy of the Internet (FCC announcement here). You have undoubtedly heard about "Net Neutrality," also called
Open Internet, and the broadcast Spectrum auctions.
We have assembled a balanced panel of experts to explain these FCC plans and to provide some analysis on what
Members of Congress need to know and what they expect will happen next (boxed lunch will be served). Join this
important briefing on Friday, May 16 at 12:00 pm in the Rayburn House Office Building. The FCC's actions include 1) The
agency's new "Open Internet" Rules and 2) The auctioning of the prime slice of broadcast spectrum necessary to the
Mobile Internet.
Together with the Congressional internet Caucus we share the fervent belief that the internet is a powerful platform for
communications, commerce and democracy. These two issues are extremely important to the evolution of the Internet
and the FCC's plans will generate a lot of discussion.
Date: Friday, May 16, 2014
Time: 12:00 pm - 1 :20 pm
Location: Rayburn House Office Building, Room 2226
RSVP: Register via EventBrite (Please: Only RSVP if you will attend)
Speakers on the Open Internet/Net Neutrality Plan

Matthew Brill, Partner, Latham & Watkins [Bio]


Markham Erickson, Partner, Steptoe & Johnson [Bio]
Gus Hurwitz, Assistant Professor of Law, University of Nebraska College of Law [Bio]
Sarah Morris, Senior Policy Counsel New America Foundation [Bio]

Speakers on the Spectrum Auction Plan

"

Allison Remsen, Executive Director, Mobile Future [Bio]


Tim Donovan, Competitive Carriers Association [Bio forthcoming]

This widely attended educational briefing is hosted by the Congressional Internet Caucus Advisory Committee (/GAG),
part of a 501 (c)(3) charitable organization. Congressional staff and members of the press welcome. The !GAG is a private
sector organization comprised of public interest groups, trade associations, non-profits, and corporations. The /GAG takes
1

no positions on legislation or regulation. Rather, it's a neutral platform where thought leaders debate important technology
issues that shape legislative and administration policy in an open forum. We vigilantly adhere to our mission to curate
balanced and dynamic debates among Internet stakeholders. Our volunteer board members ensure that we dutifully
execute that mission. More information on the !GAG is available at www.netcaucus.org.

This e-mail was sent from Internet Education Foundation (Congressional Internet Caucus AC ) to claude.aiken @fcc.gov.

To unsubscribe, please click on this link and follow the instructions: Unsubscribe
. Internet Education Foundaiion.1634 I Street NW Suite i 1Oi Washinaton DC 20006. Phone Number:202-638-43f'O ext. 318, Fax Numbr,w , E:m,'1
Address: cmatsuda@ neted.onJ. Website : http://www.neted.org/

From:

Sent:
To:

Subject:
Attachments:

Tasha Kinney
Thursday, May 01, 2014 12:16 PM
Jonathan Sallet; Julie Veach; Stephanie Weiner; Matthew DelNero
Attendees List for today's meeting at 1:00pm
PublicinterestOI.docx

Public Interest Open Internet Meeting (May 1st at 1:00PM)

Attending

Matt Wood, Free Press


Craig Aaron, Free Press
Andy Schwartzman, Georgetown University
Cheryl

United Church of Christ

Todd O'Boyle, Common Cause


Barbara Van Schewick, Stanford (By Phone) 650-561-4539
John Vezina, WGAW (By Phone) 323-782-4875
Sarah Morris, New America Foundation
Ellen Stutzman, WGA W (By Phone) 323-782-4875
Gabe Rottman, ACLU
Chris Calabrese, ACLU (By Phone)
David Sohn, CDT
Corrine Yu, Leadership Conference for Civil Rights
Michael Weinberg, Public Knowledge
Chris Riley, Mozilla, By Phone
Hazeen Ashby, National Urban League
Michael Scurato, National Hispanic Media Coalition
Tim Wu (By Phone) 415-690-0688
Sandra Fulton, ACLU
Mark Cooper, Consumer Federation of America

Not attending

Gene Kimmelman, Public Knowledge


Alan Davidson, New America Foundation
Michael Copps, Common Cause
Amalia Deloney, Center for Media Justice
Rashad Robinson, Color of Change
Kevin Werbach, University of Pennsyvlania
Susan Crawford, Harvard University
Kim Gandy, National Organization for Women
Mark Cooper, Consumer Federation of America
Delara Derakshani, Consumers Union
Marvin Vargas, WGAW (By Phone)
Malkia Cyril, Center for Media Justice (By Phone)
Chris Calabrese, ACLU (By Phone)

From:

Sent:
To:

Cc:
Subject:
Attachments:

Hanser, Russell <RHanser@wbklaw.com>


Monday, April 21, 2014 5:18 PM
Jonathan Sallet; Henning Schulzrinne; Matthew DelNero; Claude Aiken
Tramont, Bryan; Jeffrey Campbell (campbell@cisco.com); Mary Brown
(marybrow@cisco.com)
Cisco Systems Ex Parte Letter
Cisco WBK Ex Parte Letter 042114 FINAL. pdf

All,
Attached please find the ex parte letter that Cisco Systems, Inc. filed today in connection with the
April 17 meeting regarding the Open Internet Remand matter.
Best regards,
Russ Hanser

WI LK. I NS O N) BARKER) KNA UJ; R) LLP


RUSSELL

P.

HANSER

PARTNER
2300 N STREET, NW
SUITE700
WASHINGTON, DC 200371128
MAIN 202.783.4141
DIRECT 202.383.3408
FAX 202.783.5851
RHANSER@WBKLAW.COM
WWW.WBKLAW.COM

Thi s electronic message transmission contains information from the law firm of Wilkinson Barker Knauer, LLP which may be
confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the
intended recipient, be aware that any disclosure, copying, distribution, or use of the contents of this information is prohibited. If you
have received this electronic transmission in error, please notify us by telephone at 202.783.4141 or by electronic mail
administrator@wbklaw.com immediately.

WILKINSON) BARKER) KNAUER) LLP

2300

N STREET, NW

SUITE

700

WASHINGTON,

DC 20037

TEL

202.783.4141

FAX

202.783.5851

WWW.WBKLAW.COM
RUSSELL P. HANSER

April21, 2014

VIAECFS
Marlene H. Dortch, Secretary
Federal Communications Commission
445 12th Street SW
Washington, DC 20554
Re:

Open Internet Order Remand Proceeding (GN Dkt. No. 14-28)

Dear Ms. Dortch:


I am writing pursuant to Section 1.1206(b)(2) of the Commission's Rules to notify the
Commission that on Thursday, April 17, Mary Brown and Jeffrey Campbell, both of Cisco
Systems, Inc. ("Cisco"), as well as Bryan Tramont and the undersigned, both of Wilkinson
Barker Knauer, LLP, met with Jonathan Sallet, Henning Schulzrinne, and Claude Aiken of the
Office of General Counsel and Matthew DelNero ofthe Wireline Competition Bureau to discuss
the above-referenced matter.
During the meeting, Cisco noted that recent decisions made by foreign governments
threaten to undercut innovation and investment in the broadband Internet ecosystem. These
governments will be closely watching this proceeding as it unfolds in the United States. Cisco
emphasized that the "specialized services" exemption was an extremely important component of
the balance struck by Commission's 2010 Open Internet Order, and should be retained in any
future regime. Further, Cisco urged the Commission not to pursue a constricting definition of
"specialized services." Rather, in order to accommodate the quickly evolving and still-nascent
market for managed offerings, the Commission should focus on an approach that promotes the
development and deployment of specialized services that will benefit consumers without
impacting broadband Internet access services. Finally, Cisco discussed a proposal raised by staff
during the meeting that "specialized services" might be defined to include any IP-based services
that are not broadband Internet access service. Cisco stated that this approach could be workable
so long as it was applied flexibly to accommodate ongoing technological and market
developments.

WILKl N SON) BARKER) KNAUER) LLP

Marlene H. Dortch
April21, 2014
Page2
Respectfully submitted,

Is/ Russell P. Hanser


Russell P. Hanser

cc:

Jonathan Sallet
Henning Schulzrinne
Claude Aiken
Matthew DelNero

From:

Sent:
To:

Subject:
Attachments:

Barbara van Schewick"<schewick@stanford.edu>


Wednesday, March 05, 2014 1:17 AM
Carol Simpson; Claude Aiken; Henning Schulzrinne; Jonathan Sallet; Mark Stone;
Matthew DelNero; Rosemary McEnery; Stephanie Weiner; Thomas Spavins; Tim Brennan;
Aaron Garza; Peter Trachtenberg
Ex parte for meeting last Thursday
Parsons 2009 CRTC Summary of January 13 2009 ISP filings with February 9 2009
updates (for web).pdf; VON EU- Identified restrictions -on Internet access by mobile
operators .... pdf; Cooper 2013 How competition drives discrimination an analysis of
broadband traffic management in the UK. pdf; BEREC 2012 A view of traffic management
and other practices resulting Network Neutrality BoR 12_30.pdf; van Schewick 2014 FCC
ex parte 20140303.pdf

Dear all,
Thanks a lot for taking the time to meet with me on Thursday. I very much enjoyed our conversation. I attach the ex
parte letter and the attachments that I filed with it. As you will see, I included footnotes with references for most of the
issues we discussed, so that you can read more if you are interested.
Alissa Cooper did not want me to submit the chapters of her PhD as attachments to my ex parte, but she put them
online so that you can access and download them if you are interested. When I discuss her work in the ex parte, I cite to
the chapter and to the page numbers, so you should be able to find the relevant parts easily.
All insights from her thesis that I discussed during our meeting were from chapters 5-7 of her dissertation. They are
worth reading in ful l. You can download the chapters here: http://www.alissacooper.com/phd-thesis/, and you can find
the full bibliographic information for the thesis in the list of references of the ex parte.
1 hope

you find this helpful. Please let me know if you have any questions. I'm always happy to talk.

Best,
Barbara
Barbara van Schewick
Associate Professor of Law and (by Courtesy) Electrical Engineering Helen L. Crocker Faculty Scholar Director, Center for
Internet and Society Stanford Law School
Author of "Internet Architecture and Innovation," MIT Press 2010 www.netarchitecture.org
Crown Quadrangle
559 Nathan Abbott Way
Stanford, CA94305-8610
Phone: 650-723 8340
E-Mail: schewick@stanford.edu

Barbara van Schewick


Associate Professor of Law
Helen L. Crocker Faculty Scholar
Crown
559 Nathan Abbott Way
Stanford, CA 94305-8610
Tel

650 723. 8340

Fax

650 725.0253

schewick@stanford.edu

March 3, 2014

ELECTRONIC FILING

Marlene H. Dortch, Secretary


Federal Communications Commission
445 12th Street, SW
Washington, DC 20554
Re: Notice of Ex Parte Meetings, GN Docket No. 09-191, GN Docket No . 14-28
Dear Ms. Dortch:
On February 27, 2010, I, Barbara van Schewick, had several meetings at the FCC.
GROUP MEETING

I met with Carol Simpson, Wireline Competition Bureau (WCB); Claude Aiken, Office of
General Counsel (OGC); Henning Schulzrinne, Chief Technology Officer; Jonathan Sallet,
Acting General Counsel; Mark Stone, Consumer and Government Affairs Bureau (CBG);
Matthew DelNero, WCB; Rosemary McEnery, Enforcement Bureau (EB); Stephanie Weiner,
OGC; Thomas Spavins, EB; Tim Brennan, Chief Economist; Aaron Garza, CGB and Peter
Trachtenberg, Wireless Telecommunications Bureau.
The discussion covered the following topics .

Evidence of Blocking or Discrimination


Opponents of network neutrality rules in the US often claim that network neutrality rules are a
solution in search of a problem. If network providers really do have an incentive to block or
discriminate against applications, content or services ("applications"), they argue, there would
have been a lot more instances of discrimination in the US.
This argument neglects that since the early 2000s, Internet service providers in the US
have been on notice that the FCC would intervene if they violated certain principles related to
network neutrality, and the FCC intervened (in Madison River and in the Comcast case) when
instances of blocking or discrimination occurred. Until 2005, many telephony network
providers were subject to non-discrimination requirements under Title II of the

lmjlire. Innovate. !.<'ad.

van Schewick ex parte Letter- March.J, 2014

Communications Act. AT&T and Verizon were subject to merger conditions related to network
neutrality. As Alissa Cooper shows in her recent PhD thesis, this regulatory context led the
providers of US telephony networks to establish organizational structures and processes that
ensured that technical decisions did not expose the companies to the risk of regulatory
enforcement of network neutrality principles. 1 After the FCC's Order against Com cast, US cable
operators adopted similar approaches. 2
Thus, instances of blocking and discrimination in the US market for wireline broadband
Internet access occurred in the presence of strong regulatory policies suppotiing network
neutrality. They do not tell us what happens in the absence of network neutrality rules.
In this respect, the experience of Europe and Canada (before 2009), which do not have
similar network neutrality policies, is much more relevant.

Evidence of Blocking or Discrimination in Europe


The European legal framework for network neutrality does not prohibit restrictions on the end
users' use of applications or services, but requires Internet access service providers to disclose
them. Still, many Internet service customers in the European Union are subject to restrictions on
their fixed or mobile Internet services. During the meeting, I summarized and discussed evidence
of blocking and discrimination contained in the following documents, which are attached to this
ex pmie letter:

The results of a survey of European Internet service providers by the Body of European
Regulators BEREC:
Body of European Regulators for Electronic Communications. 2012. A View of Traffic
Management and Other Practices Resulting in Restrictions to the Open Internet in
Europe. Body of European Regulators for Electronic Communications. BoR (12) 30.
A Paper by Alissa Cooper that contains detailed descriptions of discriminatory broadband
traffic management practices in the UK, based on interviews with the providers:
Cooper, Alissa. 2013. "How Competition Drives Discrimination: An Analysis of
Broadband Traffic Management in the UK." Paper presented at 41st Research
Conference on Communication, Information and Internet Policy (TPRC 41). Arlington,
Virginia, USA.
A non-exhaustive identification of restriction on Internet access by mobile networks by
the Voice on the Net (VON) Coalition Europe, mainly based on the operators' terms and
conditions, dated February 23, 2012
Voice on the Net (VON) Coalition Europe. 2012. Non-exhaustive Identification of
Restrictions on Internet Access by Mobile Operators

We also discussed the experience of the Netherlands and the blocking of ads by Free, the
second largest French ISP.
1
2

Cooper (2013b), Chapter 5, pp. 118-129.


Cooper (2013b), Chapter 5, pp. 123-129.

-2-

van Schewick ex parte Letter- March 3, 2014

In 2011, the dominant provider of wireline and wireless Intemet services m the
Netherlands KPN announced plans to introduce packets for wireless Intemet service that blocked
the use of Intemet telephony and instant messaging applications like WhatsApp in KPN's basic
Intemet service offerings, but allowed users to pay an extra fee to KPN to be able to use these
applications. These plans led to a public outcry and motivated the Netherlands to adopt the first
network neutrality law in Europe. 3
In January 2013, the second largest French Intemet service provider Free introduced a
software update to its router that automatically blocked ads in Intemet traffic delivered to the
subscriber. While the motivations are unclear, press repmis indicated that the move was intended
to put pressure on Google to compensate Free for the traffic created by YouTube. Free removed
the block after the French minister for the digital economy intervened. 4

Evidence of Blocking or Discrimination in Canada


In Canada, the 2009 investigation of the Canadian Regulatory Agency CRTC into Intemet
service providers' network management practices showed that at the time, many Canadian
providers were singling out peer-to-peer file-sharing applications for special treatment, throttling
the bandwidth available to them or interfering with these applications in other ways. 5
As part of its proceeding regarding Intemet traffic management practices, CRTC required
all providers to answer a detailed set of questions regarding their traffic management practices.
The filings are all part of the public record on the CRTC website. The attached document by
Christopher Parsons, a PhD student at the time, summarizes the filings.

Parsons, Christopher. 2009. Summary of January 13, 2009 CRTC Filings by Major ISPs
in Response to Interrogatory PN 2008-19 with February 9, 2009 Updates.

Evidence of Blocking or Discrimination in the US


We also discussed the practice of search query hijacking in the US, a practice that was
discovered and investigated by a group of researchers from the Intemational Computer Science
Institute in Berkeley, Califomia, together with Peter Eckersley from the Electronic Frontier
Foundation in 2011. 6 In August 2011, the practice was described in a press repoti as follows: 7
"Searches made by millions of intemet users are being hijacked and redirected by some
intemet service providers in the US. [ ... ]The hijacking seems to target searches for certain wellknown brand names only. Users entering the term "apple" into their browser's search bar, for
3

See, e.g., Sterling (2011).


See, e.g., Farivar (2013); Pfanner (2013).
5
For an overview of Canadian providers network management practices as disclosed during the proceeding, see
Parsons (2009). Since then, most of the larger Canadian Internet service providers, most recently Bell Canada and
Bell Aliant, have changed their practices in response to the regulations regarding network management that the
CRTC adopted following its investigation. In January 2012, Rogers remained the only larger Canadian provider that
was still engaging in discriminatmy network management. Schmidt (2012); Geist (2011).
6
Kreibich, et al. (20 11 b); Kreibich, et al. (20 11 a).
7
Giles (2011).
4

- 3-

van Schewick ex parte Letter- March 3, 2014

example, would normally get a page of results from their search engine of choice. The ISPs
involved in the scheme intercept such requests before they reach a search engine, however. They
pass the search to an online marketing company, which directs the user straight to Apple's online
retail website.
More than 10 ISPs in the US, which together have several million subscribers, are
redirecting queries in this way (see below for a complete list)."
The practice was designed to increase Internet service providers' revenue by allowing
them to collect refenal fees. 8
Impact of Application-Specific Traffic Management on Application Providers

Alissa Cooper's PhD thesis provides interesting data regarding the impact of application-specific
traffic management on application providers, which I summarized in the meeting. 9 In the UK,
application-specific traffic management not only negatively affected targeted applications, but
often adversely affected applications (e.g., gaming applications) that the Internet service
providers did not intend to target. This created considerable performance problems for affected
applications. In response, application developers and network operators often had to expend
significant resources to address these problems, and had to do so on an ongoing basis.
The limits of Section 706 as a basis for network neutrality rules

We also discussed the limits of Section 706 as a basis for network neutrality mles.
Rules Focusing on Anticompetitive Blocking or Discrimination

Network neutrality proponents often think of discriminatory conduct that favors an application
over others as a distortion of competition and, therefore, as "anticompetitive," and assume such
behavior would be captured by an antitmst framework. This assumption is not conect. As I
discuss in detail elsewhere, the term "anticompetitive" has a much nanower scope in antitmst
law than an intuitive interpretation of the tenn would suggest: 10
First, US antitmst law only condemns a network provider's discriminatory behavior that
affects the market for a specific application, content, or service, if the network provider
participates in that market or is affiliated with a participant in that market. By contrast, network
neutrality proponents are also concerned about discrimination in application markets in which
the network provider does not participate.
Second, US antitmst law only condemns vertical leveraging or ve1tical foreclosure as
monopolization or attempted monopolization under Section 2 of the Sherman Act, if they are
reasonably capable of monopolizing the primary market or the secondary market. Thus, to be
classified as socially harmful under an antitmst framework, a network provider's discriminatory
8

Giles (2011).
Cooper (2013b), chapter 7, pp. 197-210.
1
For a detailed analysis with references to the literature, see van Schewick (2012b), Section "Ban Discrimination
that Violates an Antitrust Framework," pp. 17-22.
9

-4-

van Schewick ex parte Letter- March 3, 2014

behavior in the market for a specific application must be reasonably capable of creating,
increasing or maintaining monopoly power in the market for that application or in the market for
Internet access services. By contrast, network neutrality proponents may classify discriminatory
behavior as socially harmful even if the behavior is unlikely to monopolize the application
market or the market for Internet access services.

Third, US antitrust law usually has very stringent requirements about the degree of
market power in the primary market that is required for vertical exclusionary conduct to be
considered problematic. By contrast, network neutrality proponents are also concerned about a
network provider's discriminat01y behavior if that network provider does not have a dominant
position in the local or nationwide market for Internet services.
Fourth, under an antitrust framework, discriminatory conduct that is justified by a
legitimate business purpose would be classified as socially beneficial. By contrast, network
neutrality proponents often classify discriminatory behavior as socially harmful even if it 1s
motivated by the network provider's desire to increase its own efficiency.
More generally, while an antitrust framework focuses on a narrow set of economic
harms, the theoretical framework underlying calls for network neutrality regulation addresses a
broader range of economic and non-economic harms. As a result, rules that ban behavior that is
anticompetitive or violates an antitrust framework would often classify differential treatment as
socially beneficial that network neutrality proponents would consider socially harmful, making it
impossible to successfully challenge behavior that network neutrality are concerned about.
The Open Internet Order embraced these arguments. Like most network neutrality
proposals, the FCC's Open Internet rules are based on the broader theoretical framework that
considers a broad range of economic and non-economic harms. 11 During the Open Internet
Proceeding, some commenters had supp01ied using an antitrust framework to distinguish socially
beneficial from socially harmful discrimination. The order explicitly rejected the view that the
non-discrimination rule should only prohibit discrimination that is "anticompetitive." 12
Problems with Case-by-Case Adjudication

We discussed the merits of adopting standards that specify criteria that will be used to judge
discrimination in the future. Whether certain discriminatory conduct meets these criteria would
be determined by the agency in future case-by-case adjudications.
11

Federal Communications Commission (2010), pp. 4-11, paras 11-19, pp. 45-46, para 78 and 47 C.F.R. 8.1.
Federal Communications Commission (2010), pp. 45-46, para 78: "We also reject the argument that only
"anticompetitive" discrimination yielding "substantial consumer harm" should be prohibited by our rules. We are
persuaded those proposed limiting terms are unduly narrow and could allow discriminatory conduct that is contrary
to the public interest. The broad purposes of this rule-to encourage competition and remove impediments to
infrastructure investment while protecting consumer choice, free expression, end-user control, and the ability to
innovate without permission-cannot be achieved by preventing only those practices that are demonstrably
anticompetitive or harmful to consumers. Rather, the rule rests on the general proposition that broadband providers
should not pick winners and losers on the Internet-even for reasons that may be independent of providers'
competitive interests or that may not immediately or demonstrably cause substantial consumer harm." (references
omitted)
12

- 5-

van Schewick ex parte Letter- March 3, 2014

As I have explained elsewhere, 13 such approaches leave all decisions over the legality of
specific discriminatory conduct to future adjudications. This creates considerable social costs.
Case-by-case approaches fail to provide much-needed certainty to industry participants. Network
providers will not know which forms of network management are acceptable, which constrains
the evolution of the network more than necessary. Application developers will not know in
advance against which discriminatory conduct they are protected. This decision will only be
made after they have been discriminated against and gone through a long and expensive process.
The resulting uncertainty reduces their incentives to innovate and their ability to get funding.
Moreover, case-by-case approaches create high costs of regulation and tilt the playing field
against those -end users, low-cost application developers and stmi-ups - who do not have the
resources to engage in extended fights over the legality of specific discriminations in the future.
Finally, deciding the legality of specific discriminatory conduct in individual adjudications is
unlikely to lead to decisions that adequately protect the values network neutrality rules are
intended to protect.
The Role of Competition in the Market for Internet Services

We discussed how competition in the market for Internet services affects the need for network
neutrality rules.
Commenters often assume that competition in the market for Internet services will
remove any incentives to engage in blocking or discrimination. 14' 15 If there is competition and a
network provider discriminates against an application that users would like to use, they argue,
users can switch to another network provider that does not discriminate against the application,
and this threat of switching will discipline providers.
As I have explained elsewhere, these arguments fail to recognize that the market for
Internet service is characterized by incomplete customer information, product differentiation in
the market for Internet access and for wireless and wireline bundles, switching costs, and, in
some countries, a concentrated market structure in the market for Internet services. These factors
limit the effectiveness of competition, even in markets with several competing Internet service
providers, and reduce consumers' willingness to switch Internet service providers in response to
discriminatory conduct, giving network providers a degree of market power that enables them to
impose restrictions on their Internet service customers that they would not be able to impose in a
perfectly competitive market.

13

van Schewick (2012b), Section "Problems with Case-by-Case Approaches," pp. 25-32.
See, e.g., Litan & Singer (2007), pp. 552-554; Yoo (2007), pp. 504, 506, 511-515; Becker, Carlton & Sider
(2010). p. 505; Cave, et al. (2009), pp. 1-2.
15
The following two paragraphs are adopted from van Schewick (2012b), pp. 32-38. For a full discussion with
detailed references to the literature, see ibid., pp. 20, 32-38. For an earlier discussion, see van Schewick (2010a), pp.
259-264.
14

- 6-

van Schewick ex parte Letter- March 3, 2014

In addition, relative to markets in which Internet service providers do not face any
competitors, competition in the market for Internet services may even increase Internet service
providers' incentives to block or discriminate. 16
In line with these theoretical arguments, network providers in markets that are more
competitive than the market for wireline, fixed Internet service in the US have engaged in
blocking or discrimination. 17 This evidence suggests that at least in the market for wireline
Internet service in Europe and Canada and in the market for mobile Internet service in the US,
competition does not prevent Internet service providers from interfering with applications,
content or services on their networks, even if, as in the US and in the European Union, network
providers are required to disclose any discriminatory conduct that occurs. 18
Alissa Cooper's recent PhD thesis provides additional insights into the limited ability of
competition to discipline Internet service providers. 19 First, she explains how competition in the
market for Internet services actually increased incentives to engage in discriminatory network
management among Internet service providers in the UK. 20 Second, the thesis highlights the
limited effectiveness of disclosure rules in educating consumers about traffic management
practices. In particular, although disclosures related to traffic management had been standardized
and Internet service providers expended considerable efforts to translate traffic management
measures into a language that consumers can understand, most subscribers did not understand
traffic management disclosures. 21 Third, the economic literature on switching costs often assumes
that sophisticated consumers who switch in response to discriminatory conduct will protect
unsophisticated consumers. Cooper shows that in the context of traffic management practices,
this assumption is not conect. 22 Fourth, she summarizes a large number of studies by OFCOM
that explored barriers to switching Internet service providers. 23
MEETING WITH COMMISSIONER CLYBURN AND STAFF

I also met with Commissioner Mignon Clyburn, Rebekah Goodheart, Legal Advisor- Wireline,
and Stefanie Frank, Intern.
16

See generally van Schewick (2010a), pp. 255-259 and, regarding incentives to engage in discriminatory traffic
management, Cooper (2013a) (based on a case study of broadband traffic management in the UK).
17
See, e.g., Cooper (2013a) (wireline Internet services in the UK); Body of European Regulators for Electronic
Communications (2012); Kroes (2012) (Europe) (European wireline and mobile Internet services); Parsons (2009)
(wireline Internet services in Canada); van Schewick (2011b) (Verizon Wireless/tethering applications); van
Schewick (2011a) (AT&T, Verizon Wireless, T-Mobile/Google Wallet); Ziegler (2012); Kang (2012) (AT&T/Apple
Facetime). See also van Schewick (2012a), pp. 21-22 (summarizing the evidence). On the amount of competition in
the market for Internet services in the US and Europe, see van Schewick (2012b), p. 34.
18
For the EU, see Articles 20 and 21 Directive 2002/22/EC of the European Parliament and of the Council of 7
March 2002, as amended by Directive 20091136/EC of the European Parliament and of the Council of25 November
2009 (Universal Service Directive). For the US, see 47 C.F.R. 8.3. On the effect of disclosure rules on network
providers' incentives to discriminate, see van Schewick (2012b), pp. 32-38.
19
Cooper (2013b ), Chapter 6, pp. 131-170; Chapter 7, pp. 184-196.
2

Cooper (2013b ), Chapter 6, pp. 131-170.


21
Cooper (2013b ), Chapter 7, pp. 186-190.
22
Cooper (2013b), Chapter 7, pp. 191-194.
23
Cooper (2013b), Chapter 7, pp. 194-195.

- 7-

van Schewick ex parte Letter- March 3, 2014

We discussed evidence ofblocking and discrimination outside of the US and the limits of
Section 706.
MEETING WITH JONATHAN SALLET

I also met with Jonathan Sallet, Acting General Counsel. We discussed potential motivations for
engaging in blocking or discrimination, the conditions under which Internet service providers
have an incentive to discriminate, and the treatment of access fees in the Open Internet Order.

Motivations for Engaging in Blocking or Discrimination

First, Internet service providers may engage in blocking or discrimination to increase their
profits. This includes the following practices: 24

Blocking or discrimination against applications that compete with the ISPs offering or
with that of a partner; 25
Excluding applications to pnce discriminate among Internet service customers (e.g.,
allowing the use of video conferencing only for users of its premium Internet service, not
for users of its basic Internet service); 26
Discriminating among applications by charging different Internet transport prices for
different applications (e.g., charging higher Internet-service fees for an e-mail packet than
for a packet of Web content of equal size); 27
Other forms of blocking or discrimination that increase profits (e.g., search hijacking). 28

Second, Internet service providers may engage in blocking or discrimination to exclude


unwanted content that threatens the company's interests or does not comply with the network
provider's chosen content policy. 29
Finally, Internet service providers may engage in blocking or discrimination to manage
their networks. 30

24

For a detailed analysis of incentives to block or discriminate to increase profits, see van Schewick (201 Oa), pp.
222-264, 275-278.
25
van Schewick (2010a), pp. 222-264.
26
For a detailed analysis of network providers' incentives to engage in this strategy and of the impact on application
developers and users, see van Schewick (2010a), pp. 275-278 (price discrimination). For a real-world example of
this strategy, see Wu (2003), pp. 151-152, 165; van Schewick (2010a), p. 471 fu. 237 (price discrimination).
27
For a detailed analysis of network providers' incentives to engage in this strategy and of the impact on application
developers and users, see van Schewick (2010a), pp. 273-275 (application-specific pricing). Application-specific
pricing may also be used to discriminate among applications or classes of applications (van Schewick (2012b), p.
12). For a real-world example of this strategy, see (Allot Communications & Openet (2010), p. 7.
28
See footnotes 6 to 8 above and accompanying text.
29
For a more detailed discussion, including examples, e.g., van Schewick (2010a), pp. 266-270; van Schewick
(2012b), p. 18, Box 7.
30
See, e.g., van Schewick (2010a), pp. 264-266; van Schewick (2008), pp. 5-6.

- 8-

van Schewick ex parte Letter- March 3, 2014

Incentives to Block or Discriminate 31


Network providers' ability to block or discriminate against applications can only affect
application innovation, if network providers have an incentive to block or discriminate.
An Internet service provider does not generally have an incentive to exclude applications.
After all, more applications make the network provider's Internet service more attractive,
allowing the network provider to attract more Internet service customers or charge a higher price
. .
37
to extstmg customers. There are, however, situations in which a network provider nevertheless has an incentive
to block specific applications or discriminate against them - to increase its profits (e.g., by
blocking applications that compete with its own offering or that of a partner, or by excluding
applications to price discriminate among its Internet service customers), to manage congestion
on its network, or to exclude unwanted content that threatens the company's interests or does not
comply with the network provider's chosen content policy. 33
In all of these cases, a network provider will only engage in exclusionary conduct if the
benefits of exclusion exceed the costs in the market for Internet services. 34 Notably, the incentive
to discriminate is often independent of whether the network provider participates in the market
for the affected application and whether the exclusionary conduct is capable of monopolizing the
market for that application. In other words, network providers often have an incentive to block or
discriminate against an application even if they do not participate in the market for that
application (e.g., when they block an application to manage congestion, block unwanted content,
or price discriminate in the market for Internet services), 35 and discrimination will often be
profitable even if it does not monopolize the market for the application in question. 36

31

The following paragraph is adopted from van Schewick (F01ihcoming 2014).


van Schewick (2010a), pp. 222-225. See also Whinston (1990), pp. 840, 850-852; Farrell & Katz (2000); Fanell
& Weiser (2003), pp. 89, 100-105.
33
For a detailed analysis of incentives to block, see, e.g., van Schewick (2010a), pp. 222-264, 275-278 (increase
profits), pp. 266-270 (block unwanted content), pp. 264-266 (manage congestion); van Schewick (2008) , pp. 5-6
(manage congestion).
34
van Schewick (2010a), p. 225. For a more detailed analysis of the costs of exclusionary conduct, see van
Schewick (2010a), p. 259-264; van Schewick (2012b), pp. 32-38.
35
van Schewick (2010a), p. 273, 277; van Schewick (2012b), pp. 37-38 (discussing examples). The impact of
blocking on application developers' incentives to i1movate stems from the blocking as such and is independent of
whether the network providers participates in the market for the application or not. By contrast, US antitrust law
only condemns discriminatory conduct in the market for a specific application if the network provider participates in
that market or is affiliated with a participant in that market. See van Schewick (2012b), pp. 37.
36
See van Schewick (2010a), p. 251-255, 264-270; Frischmann & van Schewick (2007), pp. 412-416. This chapter
focuses on the impact of discrimination on application developers' incentives to innovate. To reduce application
developers' incentives to innovate, the exclusionary conduct does not need to drive them from the market; it suffices
if it reduces their profits. By contrast, scholars who evaluate discriminatory conduct within a framework based on
US antitrust law will only be concerned about discriminatory conduct if the conduct if reasonably capable of
monopolizing the market for the affected application or the market for Internet services. For a detailed analysis of
this difference and references to the literature, see van Schewick (2012b), pp. 38-41. See also Frischmann & van
Schewick (2007), pp. 414 fn. 119, 416 fn. 128.
32

- 9-

van Schewick ex parte Letter- March 3, 2014

Access Fees

We also discussed the treatment of access fees in the Open Internet Order.
Access fees come in two vmiants:
In the first, a network provider charges application providers who are not its Internet
service customers 37 a fee for the 1ight to access the network providers' Internet service
customers. Applications whose providers do not pay the access fee cannot be used on the
network provider's access network.
In the second variant, a network provider charges application providers for prioritized or
otherwise enhanced access to the network provider's Internet service customers. For example, if
an application provider has paid such an access fee, the application's data packets may receive a
better type of service (e.g., travel faster) on the network provider's access network or may not
count against a user's monthly bandwidth cap.
The Open Internet mles themselves do not address access fees. The text of the order
discusses the two types of access fees separately.

Fees for access to end users


The text of the order clearly prohibits network providers from charging application and content
providers for access to the network providers' Internet service customers (i.e. fiomjust charging
for access, without offering anything in return). 38
The order discusses this question in the context of the mle against blocking on the fixed
Internet. To the extent that the mles prohibit blocking of a specific application on the mobile
Internet, the no-blocking mle also prevents network providers from charging this application an
access fee. 39

Fees for prioritized or otherwise enhanced access to end users ("third-party-paid


prioritization'')
While the text of the order stops short of an outright ban of "third-party-paid prioritization"
arrangements, it seems to get as close to explicitly banning these arrangements as one can get
without explicitly banning them. The order explicitly endorses the concerns against these
arrangements, 40 unequivocally rejects the main arguments in favor ofthem, 41 and concludes that
"as a general matter," arrangements of this kind are "unlikely" to be considered reasonable. 42
37

Any Internet service provider can charge fees to customers of its Internet access service, regardless of whether
these customers are providers of applications or "normal" end users. In the past, Internet users directly paid fees for
Internet service only to their own Internet access provider.
38
Federal Communications Commission (2010), para 67.
39
See the explicit reference to para 67, which contains the access fee discussion, in the discussion of the rule against
blocking on mobile networks on p. 56, note 306 of the order.
4
Federal Communications Commission (2010), paras 76 and 24-34.
41
Federal Communications Commission (2010), paras 40 and 28.
42
Federal Communications Commission (201 0), para 76.

- 10-

van Schewick ex parte Letter

March 3, 2014

The Open Intemet order discusses the limits on access fees for prioritized or otherwise
enhanced access to end users in the context of the non-discrimination mle. Conceptually,
however, the mle as clarified by the text of the order is more accurately characterized as a limit
or ban on charging. If it was a non-discrimination rule, the mle would allow Intemet service
providers to charge this type of access fees, but require Intemet service providers to offer and
charge for enhanced access in non-discriminatory ways.
In addition, limits on access fees rest on different considerations than mles against
blocking or discrimination, and are therefore best treated separately- both in the text of eventual
mles and in their justification. 43
Should you have any questions, please do not hesitate to contact me.
Sincerely,

Is/ Barbara van Schewick


Barbara van Schewick
Associate Professor of Law and (by courtesy) Electrical Engineering
Helen Crocker Faculty Scholar
Faculty Director, Center for Intemet and Society
Stanford Law School
650-723-8340
schewick@stanford. edu

References

Allot Communications & Openet. 2010. Managing the Unmanageable: Monetizing and
Controlling OTT applications. FierceLive! Webinar Presentation. Attachment to Free
Pree's Ex Parte Letter In the Matter of Preserving the Open Intemet submitted December
14, 2010. GN Dkt. No. 09-191.
Becker, Gary S., Dennis W. Carlton & Hal S. Sider. 2010. "Net Neutrality and Consumer
Welfare." Journal of Competition Law & Economics, 6(3): 497-519.
Body of European Regulators for Electronic Communications. 2012. BEREC Findings on Traffic
Management Practices in Europe. Body of European Regulators for Electronic
Communications. BoR (12) 30.
Cave, Martin, Richard Collins, Nico van Eijk, Pien-e Larouche, Luigi Propsperetti, Alexandre de
Streel, et al. 2009. Statement by European Academics on the Inappropriateness of
Imposing Increased Internet Regulation in the EU
Cooper, Alissa. 2013a. "How Competition Drives Discrimination: An Analysis of Broadband
Traffic Management in the UK." Paper presented at 41st Research Conference on
Communication, Information and Intemet Policy (TPRC 41). Arlington, Virginia, USA.

43

For an explanation of the policy concerns underlying the ban on access fees, see van Schewick (201 Ob ); van
Schewick (2010a), pp. 278-280.

- 11-

van Schewick ex parte Letter - March 3, 2014

Cooper, Alissa. 2013b. "How Regulation and Competition Influence Discrimination in


Broadband Traffic Management: A Comparative Study of Net Neutrality in the United
States and the United Kingdom." DPhil Thesis. Oxford University, Oxford, UK.
http://www .alissacooper. com/phd-thesis/
Fmivar, Cyrus. 2013. "France's Second-Largest ISP Suspends Ad Blocking for Now." Ars
Technica. J anuaty 7. http://arstechnica. com/business/20 13/0 1/frances-second-largest-ispsuspends-ad-blocking-for-nowI
Farrell, Joseph & Michael L. Katz. 2000. "Innovation, Rent Extraction, and Integration in
Systems Markets." Journal of Industrial Economics, 48(4): 413 -432.
Fanell, Joseph & Philip J. Weiser. 2003 . "Modularity, Vettical Integration, and Open Access
Policies: Towards a Convergence of Antitmst and Regulation in the Internet Age."
Harvard Journal ofLaw and Technology, 17(1): 85-134.
Federal Communications Commission. 20 10. "Preserving the Open Internet. Report and Order".
FCC 10-201.
Ftischmann, Brett M. & Barbara van Schewick. 2007. "Network Neutrality and the Economics
of an Information Superhighway: A Reply to Professor Yoo." Jurimetrics Journal, 47(4) :
383-428.
Geist, Michael. 2011. "CRTC's Net Neutrality Rules in Action: Bell To Drop P2P Traffic
Shaping."
Michael
Geist
Blog.
December
20.
http://www.michaelgeist.ca/content/view/6209/ 125/
Giles, Jim. 2011. "US internet providers hijacking users' search queries." N ewScientist. August 4,
last updated August 10. http ://www.newscientist.com/mticle/dn20768-us-internetproviders-hijacking-users-search-queries.html
Kang, Cecilia. 2012. "AT&T Faces Complaint Over iPhone FaceTime Blocking." Washington
Post. September 19. http://www.washingtonpost.com/blogs/post-tech/post/atandt-facescomplaint-over-iphone-facetime-blocking/20 12/09/181799c8650-0 183-11 e2-b257e1c2b3548a4a blog.html
Kreibich, Christian, Nicholas Weaver, Vern Paxson & Peter Eckersley. 2011a. "An Update on
Paxfire
and
Search
Redirection."
EFF Deep/inks
Blog.
August 25 .
https://www.eff.org/deeplinks/2011 /08/update-paxfire-and-search-redirection
Kreibich, Christian, Nicholas Weaver, Vern Paxson & Peter Eckersley. 2011b. "Widespread
Hijacking of Search Traffic in the United States." EFF Deep/inks Blog. August 4, last
updated August 25 . https://www.eff.org/deeplinks/2011/07/widespread-search-hijackingin-the-us
Kroes, Neelie. 2012. "Next Steps on Net Neutrality - Making Sure you get Champagne Service
if That's What You're Paying For." European Commission. May 29.
http://b logs. ec. europa. eu!neelie-kroes/netneutralitvl
Litan, Robert E. & Hal J. Singer. 2007. "Unintended Consequences of Net Neutrality
Regulation." Journal on Telecommunications & High Technology Law, 5(3): 533-572.
Parsons, Christopher. 2009. Summary of January 13, 2009 CRTC Filings by Major ISPs in
Response to Interrogatory PN 2008-19 with February 9, 2009 Updates.
Pfanner, Eric. 2013 . "France Rejects Plan by Internet Provider to Block Online Ads." The New
York Times. Januaty 7. http://www.nytimes.com/2013/01/08/technologv/france-rejectsplan-to-block-online-ads.html?pagewanted=2&ref=netneutrality&pagewanted=all& r=O
Schmidt, Sarah. 2012. "Complaints About Online Traffic Delays Accelerating, Says CRTC."
Canada.com.
January
12.
- 12-

van Schewick ex parte Letter - March 3, 2014

http://www.canada.com/life/Complaints+about+online+traffic+delays+accelerating+says
+CRTC/5986923/story.html
Sterling, Toby. 2011. "Dutch Parliament Poised To Enact World's Strongest Net Neutrality Law
For
Mobile
Service."
Buffington
Post.
June
22.
http://www .huffingtonpost.com/20 11/06/22/dutch-parliament-mobile-netneutrality n 882309.html
van Schewick, Barbara. 2008. Official Testimony at the Federal Communications Commission
Second En Bane Hearing on Broadband Management Practices. Federal
Communications Commission.
van Schewick, Barbara. 201 Oa. Internet Architecture and Innovation. Cambridge, MA: MIT
Press.
van Schewick, Barbara. 2010b. Opening Statement at the Federal Communications
Commission's Workshop on Approaches to Preserving the Open Internet. Federal
Communications Commission.
van Schewick, Barbara. 2011a. "Is Verizon Wireless Illegally Blocking Google Wallet? It's
Time for the FCC to Investigate." Internet Architecture and Innovation. December 19.
https://netarchi tecture.org/20 11112/is-verizon-wireless-illegally-blocking-goo gle-walletits-time-for-the- fcc-to-investigate/
van Schewick, Barbara. 2011 b. "Public Interest Requires Public Input: V erizon/Android
Internet
Architecture
and
Innovation.
June
30.
Tethering."
https:/ /netarchitecture.org/20 11 /06/public-interest -requires-public-input-verizonandroidtethering/
van Schewick, Barbara. 2012a. Comments to European Commission's Public Consultation on
Specific Aspects of Transparency, Traffic Management and Switching in an Open
Internet. October 15.
van Schewick, Barbara. 2012b. Network Neutrality and Quality of Serilice: What a NonDiscrimination Rule Should Look Like. Center for Internet and Society White Paper.
van Schewick, Barbara. Forthcoming 2014. "Internet Architecture and Innovation in
Applications." In Handbook on the Economics of the Internet, eds. Johannes M. Bauer &
Michael Latzer: Cheltenham and Northampton, Edward Elgar.
Whinston, Michael D. 1990. "Tying, Foreclosure, and Exclusion." The American Economic
Review, 80(4): 837-859.
Wu, Tim. 2003. "Network Neutrality and Broadband Discrimination." Journal on
Telecommunications & High Technology Law, 2: 141-175.
Yoo, Christopher. 2007. "What Can Antitmst Contribute to the Network Neutrality Debate?"
International Journal of Communication, 1: 493-530.
Ziegler, Chris. 2012. "AT&T Only Allowing FaceTime Over Cellular on Mobile Share Plans, No
Extra Charge." The Verge. August 17. http://www.theverge.com/2012/8/ 17/3250228/attfacetime-over-cellular-ios-6-mobile-share

- 13-

Not Responsive
-

From:

,
---

Attachments:

Robert Cooper <RCooper@BSFLLP.com>


Wednesday, March 19, 2014 12:01 PM
Tim Brennan; Jonathan Chambers; Henning Schulzrinne; Thomas Spavins; Julie Veach;
Stephanie Weiner
Beury, Robert; James P. Denvir
Ex Parte Submission
Cogent Communications Group Ex Parte (3-19-14).pdf

Categories:

Yellow Category

Sent:
To:
Cc:

Subject:

All:
Attached please find an ex parte letter regarding our meeting yesterday. This letter was filed
electronically with the Commission this morning.
Please note that we did not have the names of everyone who attended the
meeting. Therefore, I would be grateful if you would share this letter with any other
attendees who may be interested.
Thank you again for meeting with us. Please do not hesitate to contact me with any questions.
Best regards,

Wisconsin Ave., N.W.


VVashington, DC 20015
202.237.2727 (main)
202.895.5211 (direct)
202.262.4240 (mobile)
202.237.6131 (fax)

or other use of this communication is strictly prohibited and no


the sender by replying to !ilis electronic message and then deleting tilis

is waived. If you
received
communication
message from your computer. [v.1]

B
530 .

I E

S ,

WISCOI\IS ! N AVENUl , N.W

H I L L

E R

WASH I NGTON . D. C

200 1 5

&

20 1 5 PH

N E R

202 237 . 2 / 27 FA X 202 . 237 . 613 1

March 19, 2014


VIA ELECTRONIC FILING
Ms. Marlene H. Dortch
Secretary
Federal Communications Commission
445 twelfth Street, S. W.
Washington D.C. 20554
Re:

In the Matter of Preserving the Open Internet, GN Docket No. 14-28

Dear Ms. Dortch:


On March 18, 2014, the undersigned, counsel for Cogent Communications Group, Inc.
("Cogent"), met with several members of the Commission's staff. I was joined by Cogent's
Founder and ChiefExecutive Officer, Dave Schaeffer, Cogent's Chief Legal Officer, Bob Beury,
and my partner, Jim Denvir. The Commission staff in attendance included: Tim Brennan, Chief
Economist; Jonathan Chan1bers, Chief of the Office of Strategic Planning & Policy Analysis;
Hetming Schulzrinne, Chief Technology Officer; Thomas Spavins, Assistant Chief-Economics,
Enforcement Bureau; Julie Veach, Chief of the Wireline Competition Bureau; and Stephanie
Weiner, Office ofthe General Counsel.
During the meeting, Mr. Schaeffer provided an overview of Cogent's business and
explained the role that settlement-free peering among the major networks that, collectively,
comprise the global Internet has played in the Internet's extraordinary growth. Mr. Schaeffer
also described how increasing consumer demand for bandwidth-intensive Internet applications,
such as streaming video, has led to congestion at various interconnection points between Internet
backbones and certain broadband Internet service providers ("ISPs"). He emphasized that the
capital expenditures required to remedy congestion at interconnection points are extremely
modest. In light of this, Mr. Schaeffer observed that the unwillingness of particular ISPs to
augment their interconnections with Internet backbones is attributable either to their desire to
limit the competitive vitality oflnternet content that competes with vertically integrated services
they offer (e.g., video or voice) and/or the divergence between the capacity and functionality of
their own networks as compared to what they marketed and sold to their own customers.
As consumer demand for Internet bandwidth continues to grow, customers of those
broadband ISPs that are unwilling to augment their interconnection with other networks so as to
relieve congestion will, as Mr. Schaeffer explained, be left with an unpalatable choice of
congested service, usage caps and/or increased prices. While some large edge providers may be
able to pay a toll to create a way around such congestion, 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.

WWW .BSFLLP .COM

BOIES,

SCHILLER

& FLEXNER

LLP

For these reasons, Cogent strongly supports reclassification that would permit the
Commission to exercise its authority under Title II of the Communications Act to regulate
broadband ISPs as common carriers.
Please direct any questions regarding this matter to my attention.

cc:

Tim Brennan
Jonathan Chambers
Henning Schulzrinne
Thomas Spavins
Julie Veach
Stephanie Weiner

From:
Sent:
Subject:
Attachments:

Matt Wood < mwood@freepress.net>


Tuesday, February 11, 2014 12:20 PM
Julie Veach
FW: Letter to Chairman Wheeler regarding Broadband Classification
Free Press_Feb 7 2014_FCC Letter.pdf

Categories:

Yellow Category

To:

Dear Julie,
Attached please find a copy of a letter that Free Press sent to the Chairman regarding broadband classification, Open Internet,
and technology transitions issues last week. We filed in the three relevant dockets, yet I thought I might send it to you directly
as well.
Thanks as always,
Matt

From: Microsoft Office User <mwood@freepress.net>


Date: Fri, 7 Feb 2014 16:18:11 -0800
To: Jonathan Sallet <Jonathan.Sallet@fcc.gov>, Philip Verveer <Philip.Verveer@fcc.gov>, Gigi Sohn
<Gigi.Sohn@fcc.gov>, "Daniei.Aivarez@fcc.gov" <Daniei.Aivarez@fcc.gov>
Cc: Derek Turner <dturner@freepress.net>
Subject: Letter to Chairman Wheeler regarding Broadband Classification

Dear all,
Attached please find a letter to Chairman Wheeler that Free Press filed this afternoon in the Commission's Open Internet,
Broadband Framework, and Technology Transitions dockets.
The letter articulates the continuing vitality of and necessity for common carriage communications networks- both to
promote free expression and economic activity in our nation, as well as to comport with the mandates of the Communications
Act.
We would welcome the chance to meet with you and discuss the contents of this letter in greater detail. In the wake of the
decision in Verizon v. FCC, the Commission has but one path and basis of authority available for it to preserve the open
Internet, maintain our network compact, and ensure the availability of affordable broadband telecommunications services for
all. Title II is the proper legal ground for any approach the Commission may take, either to adopt new "Net Neutrality" rules,
make "case-by-case" determinations on such issues, or promote the principles articulated in last week's Technology
Transitions item.
Best regards,

Matt Wood
Policy Director

www.freepress.net
(202) 265-1490 X. 36
1

MASSACHUSETTS

WASHINGTON

40 main st, suite 301


florence, rna 01062
tel 413.585.1533
fax 413.585.8904

1025 connecticut ave. nw, suite 1110


washington, de 20036
tel 202.265.1490
fax 202.265.1489

February 7, 2014
The Honorable Tom Wheeler
Chairman
Federal Communications Commission
445 12th Street, S.W.
Washington, D.C. 20554
Re: GN Docket No. 13-5, Technology Transitions
GN Docket No. 10-127, Framework for Broadband Internet Service
GN Docket 09-191, Preserving the Open Internet
Dear Chairman Wheeler,
When the Founders enshrined our free speech rights in the Constitution, Americans exercised
these rights by using their voices to speak to those within earshot. But an equally if not more important
conduit for free expression was the printed word, a form of speech that could reach a far larger
audience than a single Patriot standing upon a soapbox in the town square.
The printed word was an indispensible component to our ability to self-govern. And the printed
word was carried to all parts of the colonies and, later, the Union, by a common carrier network: the
postal service. The people's ability and freedom to use this common carrier network to communicate
was vital to ending the "tyranny of place" that had restrained the widespread availability of
information to the masses. 1
The public's right to access "the truth" was a critical part of the Enlightenment understanding
of the public sphere. 2 And because "speech concerning public affairs is more than self-expression; it is
the essence of self-government,"3 promoting the public's ability to access this network was an early
American policy priority.4 This notion of promoting and protecting our ability to exercise our free
speech rights appears throughout our nation's history, and is notably enshrined in our communications
laws in a manner that preserves this principle even as communications technologies and markets
evolve.

1 Tom

Wheeler, "Net Effects: The Past, Present, and Future Impact of Our Networks," at 5-7 (Nov . 26, 2013).

2 Culver

Smith, The Press, Politics, and Patronage: The American Government 's Use ofNewspapers. 1789-1875,
Athens: University of Georgia Press (1977).
3
4

Garrison v. Louisiana, 379 U.S . 64, 74-75 (1964).

The Postal network was so vital to our embryonic democracy that Ben Franklin himself served as the first Postmaster
General under the Continental Congress, and the Postal Service Act was one of the first pieces of legislation adopted by the
new federal government. See Richard R. John, Spreading the News, Cambridge: Harvard University Press (1995).

We as a nation believe that every American should have access to adequate communications
facilities at reasonable charges. 5 We believe that every American should have access to facilities that
allow them to transmit the information of their choosing between points of their choosing without
unjust discrimination. 6 We understand that the role of our nation's communications policymakers and
regulators should be to promote competition so that Americans are able to pay the lowest price for the
highest quality telecommunications services.?
These high level concepts should sound familiar. They collectively form the core of the
Communications Act, as amended by the Telecommunications Act of 1996.
Congress enshrined and reaffirmed the common law doctrine of common carriage in the
Communications Act precisely because the ability to exercise our right to speak freely is so important
and indispensible.
The law recognizes that the ability to have our speech carried free from undue discrimination is
essential to our right to speak freely.
This ability is defined by the Communications Act as the capability for members of the public
to transmit the "information of the user's choosing," between "points specified by the user ... without
change in the form or content of the information as sent and received." 8
In other words, our ability to throw off the tyranny of place and exercise our right to speak
freely is a capability promoted and ultimately protected by the law's definition of a
telecommunications service.

5 47 U.S.C. 151 ("For 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 the people ofthe United States, without discrimination on the basis of race,
color, religion, national origin, or sex, a rapid, efficient, Nationwide, and world-wide wire and radio communication service
with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety
of life and property through the use of wire and radio communication, and for the purpose of securing a more effective
execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional
authority with respect to interstate and foreign commerce in wire and radio communication, there is hereby created a
commission to be known as the 'Federal Communications Commission,' which shall be constituted as hereinafter provided,
and which shall execute and enforce the provisions of this Act.").
6 See id. 153 ("The term 'telecommunications' means the transmission, between or among points specified by the
user, of information of the user's choosing, without change in the form or content of the information as sent and received ...
The term 'telecommunications service' means the offering of telecommunications for a fee directly to the public, or to such
classes of users as to be effectively available directly to the public, regardless of the facilities used."); see also id. 254(b)
("Access to advanced telecommunications and information services should be provided in all regions of the Nation."); id.
160 ("The Commission shall forbear from applying any regulation or any provision of this Act to a telecommunications
carrier or telecommunications service, or class of telecommunications carriers or telecommunications services, in any or
some of its or their geographic markets, if the Commission determines that ... 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." (emphasis added)).
7 P.L. 104-104 ("An Act To promote competition and reduce regulation in order to secure lower prices and higher
quality services for American telecommunications consumers and encourage the rapid deployment of new
telecommunications technologies.").
8

47

u.s.c. 153.
2

But because of prior FCC actions, and not the law itself, the legal protection to communicate
via wire and radio free from undue discrimination only exists for some. These indispensible legal
protections are confined by FCC policy to certain portions of networks that facilitate a specific type of
phone call or dial-up Internet access - all modes of communication that pre-date 1996.
This legal protection to communicate free from undue discrimination no longer exists for
broadband, the mode of telecommunications the nation uses more than any other. Despite the promises
of the 1996 Act, and the reality that Americans born since its enactment prefer to speak using the
language of data, there is no mass-market broadband telecommunications services market in America.
This outcome is plainly nonsensical. How can there be no broadband telecom services market?
Surely, making the telecom services market disappear as bandwidth capabilities increased was the
exact opposite of Congress' intent in amending the Communications Act in 1996.
This is not simply a matter of semantics. Indeed, the Commission's original eagerness to
engage in semantics is precisely why Americans no longer have legal protections for their right to
speak freely to each other and the masses.
Until such time that Congress choses to take away this legal protection for our ability to
communicate free from undue discrimination, it remains absolute.
The obligation to protect our ability to exercise our free speech rights cannot be left to the selfdesignations and promises of private entities. And the Commission's authority to protect that right
derives from the immutable text of the law, not the opinions of bureaucrats about the meanings of
phrases like "reasonable and timely."
Most importantly, our ability to exercise our free speech rights should be protected and
promoted even after the universal deployment of any particular telecommunications medium.
Below we offer an expansion on these ideas through the lens of recent policy history. We
highlight some of the misconceptions concerning communications common carriage. We discuss how
the FCC can achieve Congress' bipartisan vision of an open, competitive, and largely deregulated
telecommunications marketplace. We also suggest a workable system of case-by-case enforcement
through policies designed to create a market structure that acts as a regulator, buttressed by the FCC's
clear oversight authority over broadband telecommunications services.
INTRODUCTION

In the discussions surrounding the issue of the appropriate regulatory classification of mass
market broadband communications, too many have lost the thread of history, and have developed an
inaccurate understanding of the framework for innovation and competition that Congress established
for our nation's two-way communications networks.
Our nation's laws are made in a deliberate fashion, in a manner that incorporates our shared
understanding of history and our hopes for the future. Our federal lawmaking process for the most part
produces laws that are flexible and withstand the test of time. This is the case because of the
deliberative wisdom of the Congressional process, which often bases our laws on bedrock principles
- principles that transport the law through changing times.
3

Our Communications Act is guided by the principles of non-discrimination, universal access,


interconnection, competition, public safety and reasoned deregulation.
These principles, through the framework of the Telecommunications Act of 1996, were
intended to foster the development of a robust, advanced and competitive two-way
telecommunications services market, which would in tum facilitate competition in the information
services and video markets that use telecommunications to reach end users.
Contrary to Washington's prevailing conventional wisdom, the Communications Act is not at
all outdated. Congress in fact overhauled the law in 1996 with an eye towards competition and
technological convergence. In particular, Title II is most certainly not a framework for monopolies
offering telephone service, but a framework for competition in two-way communications networks-a
framework that specifically includes advanced broadband networks.
Furthermore, the notion that the non-discrimination, universal .access, interconnection,
competition, public safety and reasoned deregulation principles that form the heart of Title II are
somehow outdated ignores the plain fact that many of our law's basic principles are hundreds of years
old. From the ideas embodied in the Constitution to the ideas embodied in common law, basic
principles often withstand the test of time. In enacting the 1996 Act, Congress certainly understood
that non-discrimination and interconnection unfettered by market power are the keys to a robust twoway communications infrastructure, regardless of changes in technologies.
If one simply takes the time to understand the history, it becomes clear that the law we have in
place is still quite useful. It's just not being used.
MISCONCEPTIONS ABOUT THE COMMUNICATIONS ACT AND ITS EMBRACE OF COMMON CARRIAGE

A discussion of the appropriate regulatory approach to broadband telecommunications must


start with a common understanding of the law and its history. Unfortunately, many involved in this
discussion, either out of self-interest or out of ignorance, seem to hold a few fundamental
misconceptions of the law, its history and purpose.
For example, this discussion is often plagued with the incorrect conclusion that Title II and
common carriage were designed solely to govern the Ma Bell monopoly. The truth is that the number
of regulations applied to a telecommunications service are indeed proportional to whether or not a
market is a monopoly, but common carriage is not confined to utilities or to monopolies. Indeed, as we
discuss below, there are many communications services offered in non-monopoly markets that are
nonetheless treated as common carrier services under the law-and they are vibrant markets
characterized by high levels of investment and innovation.
There is also an incorrect view of the 1996 Act as a blueprint for total deregulation. This view
ignores the purpose and bounds of forbearance. The entirety of Section 10 indicates that forbearance
can only be granted if the regulations are not needed to ensure the outcomes required by Section 201
and 202. In other words, not only should the rates be reasonable, but the charges and practices after
forbearance must remain ')ust and reasonable and []not unjustly or unreasonably discriminatory."

It is critical that neither the importance of a non-discriminatory outcome nor the Commission's
continued ability to ensure that outcome get lost in this discussion.

The 1996 Act's drafters knew quite well about the Internet, and about the role that policies
governing telecom services played and would continue to play in promoting its advancement.
The Commission first dealt with this very issue in Computer I, and later settled on a firm
demarcation between "basic" and "enhanced" services in Computer II, a distinction that Congress
codified with its adoption of the definitions of "telecommunications services" and "information
services." Further, the Open Network Architecture ("ONA") policies contained in Computer III served
as the basis for Section 251 's unbundling framework. The indisputable reality is that the Commission
developed a wildly successful policy framework from which Congress took its cues ..
There is a widely held belief that classifying a communications service as a
telecommunications service brings substantial regulation. As the Commission knows better than most,
there are dozens of such services that comprise tens of billions of dollars in economic activity. These
are treated as common carriage services under Title II, yet are subject to very little regulation.
Finally, we must rid this discussion of the notion that the legal framework Congress adopted in
1996 is a siloed approach that is in any way concerned with modes of technology. Congress
purposefully wrote the Act to be technology neutral, a fact made clear by its definitions. Title II is
about two-way communications services; Title III deals with spectrum, regardless of the technologies
and services that utilize it. And the 1996 changes to Title VI's treatment of cable services were largely
deregulatory and technology neutral. These are not silos, and they are not obligations based on the
mode oftechnology.
In sum, Congress was clear: the physical networks of the 21st century would provide
telecommunications services. Congress gave the Commission wide latitude in applying Title II to those
networks - networks that clearly provide common carriage in the eyes of the law. Congress'
overarching goal was to ensure a world of big open telecom services that could connect Americans to
the Internet, or to whatever information service. That goal requires telecom services that function to
deliver whatever applications our innovators think of next.
A BRIEF HISTORY OF THE 1996 TELECOM ACT AND ITS CENTRAL PURPOSE: SERVICES
COMPETITION DELIVERED VIA BIG, OPEN AND COMPETITIVE TELECOMMUNICATIONS SERVICES

In the years following the breakup of Ma Bell, there was a marked shift in how many members
of Congress on both sides of the aisle approached the issue of communications regulation.
Deregulation was the theme ofthe day, even if this overarching slogan obscured the complexity of the
policy choices Congress considered. While a few members may have felt that government should play
no role in the telecommunications and cable markets, the overwhelming majority of both Republicans
and Democrats embraced the emerging "competition-then-deregulation" philosophy.
The driving forces behind this shift were the dawn of the broadband telecommunications era in
the mid-1990s and the big promises that cable, telco and other executives were making about the future
of competition. The Regional Bell Operating Companies ("RBOCs") wanted desperately to get out
from under the policies of the court-ordered Modified Final Judgment ("MFJ") in the AT&T breakup,
which kept them from entering the long-distance, video and information-services markets. The
5

competitive telecoms, led by AT&T Corp. and MCI, wanted equal access to the RBOCs' local
networks to offer local calling and data services. And the cable industry wanted multichannel service
rate deregulation and approval to enter the local telecom market.
All these factions told Congress that open telecommunications networks would solve any
market-power problems in the services offered over those networks. If every home and business in
America were offered reasonably priced, fast and open advanced telecommunications services, there
would no longer be any concern about competition in the local toll, long-distance, information-service
and multichannel-video markets. The thinking was that so long as the underlying telecommunications
service was a neutral distribution platform, and new entrants could get into the business of offering
these other services over that platform, there would be no concern about the Bells entering the longdistance markets-and no need to regulate cable rates.
The plan's linchpin was cable's promise to become a telecommunications service provider, not
merely as an alternative for narrowband voice service, but an open and nondiscriminatory broadband
telecommunications service capable of delivering high-quality voice, video and data communications. 9
Again, for most members of Congress, the entire point of the 1996 Act was the creation of
robust and open telecommunications platforms that could deliver competitive voice, video and data
services. The theory Congress operated on in 1996 was that more distribution mediums (be they
copper, coaxial cable, fiber, terrestrial wireless or satellite) produces competition in the markets for the
services delivered over those distribution mediums.
But despite all their promises, the Bells did not enter the video markets for another decade
(having completely ignored the law's Open Video System provisions that would have enabled entry
bypassing the franchise process). The cable industry also broke its promise to become the competing
nondiscriminatory broadband platform. Cable instead pressured the FCC to create a loophole in the
regulatory structure by defining cable's two-way telecommunications platform as an information
service and not a telecommunications service. The Commission did this-even though Congress
clearly stated that "telecommunications services [include} the transport of information or cable
services" 10 when it adopted the 1996 Telecom Act.

9 See Telecommunications Competition and Deregulation Act of 1995, Report of the Committee on Commerce,
Science, and Transportation on S. 652, S. Rpt. 104-23, 104th Congress, First Session, at 13 (1995) ("Senate Committee
Report on S. 652") ("Decker Anstrom testified that NCTA supports telecommunications .legislation because the cable
industry is ready to compete, and legislation must include rate regulation relief for cable. He said that cable will be the
competing wire to the telephone indus tty, and cable's coaxial cable carries 900 times more information than telephone's
twisted copper pair. The problem, he said, is that cable does not have the capital or, in some states, the authority to compete
with the local exchange carriers." (emphasis added)).

IO See Senate Committee Report on S. 652. ("As defined under the 1934 Act [as amended by this bill],
'telecommunications services' includes the transport of information or cable services, but not. the offering of those services.
This means that information or cable services are not included in the definition of universal service; what is included is that
level of telecommunications services that the FCC determines should be provided at an affordable rate to allow all
Americans access to information, cable, and advanced telecommunications services that are an increasing part of daily life
in modem America. Put another way, the Committee intends the definition of universal service to ensure that the conduit,
whether it is a twisted pair wire, coaxial cable, fiber optic cable, wireless, or satellite system, has sufficient capacity and
technological capability to enable consumers to use whatever consumer goods that they have purchased, such as a
telephone, personal computer, video player, or television, to interconnect to services that are available over the
telecommunications network." (emphasis added)).

This history is as important today as it is forgotten. Congress created the correct framework to
promote the blossoming of competition in the voice, video, data and information-services markets. But
the FCC, abetted by the courts, quickly abandoned this framework.
By tossing aside the congressional roadmap, the Commission led us to what we all live with
today: despite the promise of the 1996 Act to foster a competitive advanced telecommunication
services market, Americans now have zero options for broadband telecommunications services. All we
have is an at-best duopoly market for wired high-speed Internet information services, a sharp decline
from the choice in ISPs that Americans enjoyed in the late 1990s.
The lack of an open telecom service platform completely undermined the blueprint for video
competition in particular (not to mention telecom competition), and not surprisingly multichannel
service prices continue to skyrocket despite the decline in traditional cable's market share. And the
fallout isn't over. The consequences of the FCC's classification decisions have up until now been
reserved for broadband telecommunications, but by simply calling their services information services,
the remaining common carriers will be able to bring an end to the entire concept of a public
telecommunications service network. 11
Nothing in the law or legislative history even remotely suggests this was the path Congress
intended for the FCC to follow, nor the outcome it desired.
However, the law itself remains intact.
If the Internet remains an open and nondiscriminatory platform, like it has always been, then
anyone can be an information service provider, broadcaster, publisher or video distributor - not just
the incumbents that own the physical infrastructure.
But thanks to the FCC's misguided classification decisions, there is no guarantee under the law
that the Internet will remain a viable delivery platform for information services, including new video
distributors. When the owners of the physical infrastructure can prevent anyone else from being a
distributor, that's a problem- the exact problem the 1996 Act was designed to solve.
Because of the actions the FCC took in the Computer Inquiries, the codification of that policy
framework in the 1996 Act, and the FCC's half-willingness to promote openness through policy
statements and legally shaky Open Internet rules, we've seen robust innovation and investment in the
edge markets that require an open delivery platform. But this investment and innovation will not
continue if there is any new uncertainty about the openness of the delivery platform.
The answer to this seemingly complex problem is the one that the FCC and then Congress
came to before. We don't need public policy to dictate how the industry should behave; that's the
consumers' job. We need public policy to allow innovation to happen. If we. keep the pipes open, the
content will flow and consumers will win.

11

See Comments of Free Press, In the Matter of AT&T Petition to Launch a Proceeding Concerning the TDM-to-IP
Transition; Petition of the National Telecommunications Cooperative Association for a Rulemaking to Promote and Sustain
the Ongoing TDM-to-IP Evolution, GN Docket No. 12-353 (filed Jan. 28, 2013).

The unfortunate reality is that while we already have these policies and they are the law of the
land, the Commission abandoned them. The agency's shortsighted classification decisions robbed
Americans of a competitive video market and a competitive Internet access market, and robbed
Americans completely of any broadband telecommunications service market.
Incumbents have spent a substantial amount of resources spreading misinformation about and
ultimately demonizing the principle of common carriage, and by extension, Congress' competitive
blueprint from the 1996 Act. This is unfortunate, because Congress' blueprint was right, and members
of both parties supported it, as did the cable and telecom incumbents and theirwould-be competitors.
The 1996 Act was framed as deregulation in exchange for competition. We've already got the
law we need, and the Commission must take the steps needed to get the Act back on track.
THE COMMISSION FORGOT ABOUT FORBEARANCE

Given the history discussed above, the current heated debate over broadband's place in Title I
or Title II seems odd.
Of course two-way broadband transmission networks belong in Title II, because that's where
Congress put them and intended them to stay. But that does not mean Congress intended for a
permanent heavy hand of regulation to apply to these advanced networks. Again, Congress recognized
that as competition develops, reasoned deregulation is an appropriate response.
Section 10 of the Act is the path of reasoned deregulation chosen for our nation's two-way
communications networks. The Commission chose a different path that involved sometimes
metaphysical definitional interpretations of legal classifications. The Commission felt that it could
follow this path to deregulation, while preserving the Commission's ability to uphold the principles of
universal service, non-discrimination, interconnection and competition.
But the legal theory on which the FCC based this assumption has now, through the DC
Circuit's decisions, been proven unworkable. The FCC's classification errors now inhibit the
Commission's activities in areas that Congress clearly placed under the FCC's authority. This
outcome, and its unworkability was predicted by Justice Scalia in his dissent in the Brand X case:
The main source of the Commission's regulatory authority over common carriers is
Title II, but the Commission has rendered that inapplicable in this instance by
concluding that the definition of "telecommunications service" is ambiguous and does
not (in its current view) apply to cable modem service. It contemplates, however,
altering that (unnecessary) outcome, not by changing the law (i.e., its construction of
the Title II definitions), but by reserving the right to change the facts ... [by asserting] its
undefined and sparingly used "ancillary" powers ... Such Mobius-strip reasoning mocks
the principle that the statute constrains the agency in any meaningful way. 12
In other words, the FCC's end-run around Section 10 physically "broke" the law, making it
unworkable. As Justice Scalia put it, in pursuing the principle of reasoned deregulation in an
unreasonable manner (one not remotely contemplated by Congress), "the Commission has attempted to
12

National Cable & Telecommunications Ass 'n v. Brand X Internet Services, 545 U.S. 967 (2005).

establish a whole new regime of non-regulation .... The important fact, however, is that the Commission
has chosen to achieve this through an implausible reading of the statute, and has thus exceeded the
authority given it by Congress."
Some still say that restoring the policy framework Congress adopted (via "reclassification")
would be a return to "century-old rules made for railroads and Ma Bell phone monopolies." That is
simply incorrect. Reclassification would return the framework that Congress adopted for all two-way
communications networks in 1996, a framework that today still applies .to many non-monopoly
markets, including CLEC services, CMRS services, as well as all of the high-capacity data lines in the
very competitive enterprise broadband market.
Reclassification, followed by appropriate Section 10 forbearance, will preserve the 1996 Act's
deregulatory approach. It will put the FCC's rules back in harmony with the law, and it is justified by
current realities of the marketplace that make the prior classification decisions inappropriate today.
CASE-BY-CASE ENFORCEMENT IS VALID ONLY IF BUILT UPON A CLEAR, PERMANENT AND
UNAMBIGUOUS BASIS OF AUTHORITY TO PROTECT DESIRED OUTCOMES THROUGH EXPECTED
NORMS OF INDUSTRY BEHAVIOR

There is a reason the Department of Justice broke up AT&T, and that reason was not simply to
bring an end to a monopoly. Indeed, the Modified Final Judgment left local monopolies in place.
The Department took the action it did in order to create a market stmctu.re that would act as a
regulatory force to improve consumer welfare. The breakup drew a clear market boundary between the
local access network (which was and will always be subjected to the greatest level of natural monopoly
barriers) and every other possible market that the local access network can connect to (be it long
distance, information services, cable services, or customer premises equipment).
The Department's actions weren't the only path to removing Ma Bell's gatekeeper power over
these adjacent markets; the Commission could have tried to regulate incumbents' interactions with
these markets. Indeed, in some cases it did, quite successfully (e.g., Carterfone for CPE, and Computer
II for information services). But the inherent eloquence of the Department's action was to let the
market structure act as regulator first, then the FCC second.
This approach worked. Washington seems to have forgotten the success of this approach, as it
in many cases stood by and watched vertical reintegration dissolve these important market boundaries.
If the Commission wishes to reduce regulation to as minimal a level as possible in a market
that will always be highly concentrated, constrained as that market is by the economics and politics of
the last mile, then it needs to think deeply about restoring a market structure that can act as the firstpass regulator. This begins with a clear delineation of market boundaries and a commitment to keeping
those boundaries intact. In broadband, this means recognizing that local access networks are the gates
through which all other markets must cross.
Whatever the wisdom of a purely case-by-case approach to preserving the Network Compact,
the Commission must recognize that any such approach must be built upon a clear basis of authority.
This approach must be directed at violations of expected norms of behavior. We suggest that the norms
9

encompassed in the heart of Title II-Sections 201 and 202-provide a clear expectation for industry,
and will lessen the likelihood of carriers stepping outside these norms in the first place.
Furthermore, we hope the Commission recognizes that the principles and outcomes for our
communications markets transcend the temporality of a Section 706 finding and even the goal of
universal deployment. Narrowband telecommunications networks reached a state of full deployment
long before Congress amended the Act in 1996, but the law extended Title II's protections and goals to
those and other telecommunications services regardless of the state of deployment or competition.
The Commission's repeated legal entanglements on this issue, the never-ending stream of
metaphysical definitional questions it faces, and the uncertainty all of this creates are merely symptoms
of the illness caused by the original improper classifications and diversion from Congress' blueprint.
The Commission must revisit its prior assumptions for those classifications, as almost all of them were
wildly incorrect. 13 Returning the classifications in harmony with the law will provide certainty to all,
and is the only sensible path for the Commission to follow.
We recognize the appeal of putting fresh chalk on the cue for another triple cushion shot, this
time using the latest reading of Section 706. This is the wrong approach legally and principally, but
under current conditions, it is an easier path politically.
But while politics are important to politicians, they should not even be a small concern to
regulators. Regulators must from time to time demonstrate their congressionally mandated
independence from politics by showing political courage.
CONCLUSION

The history of the Communications Act and its amendments makes clear that nothing about a
service's classification depends on how the provider chooses to think of it. The Act isn't something
designed to let carriers get the privileges of Title II without the obligations, based on self-designation
as an information service provider.
The Act was written as laws unlikely to see constant tinkering are always written-as clear as
the drafters could be about functions, reflecting the input, debate and promises made to the American
people in real time.
These promises-made by industry and by members of Congress, and ultimately enshrined in
the law itself-were not promises to forever offer the American people only narrowband
telecommunications services. No members who voted for the 1996 Act thought they were voting to
ensure that the residential telecom services market would disappear completely (as it very well may in
the context of the IP Transition, if the Commission fails to restore its authority over broadband).

13

For example, the Commission fully believed that even in the absence of any obligation to do so, that incumbent
cable and LECs would continue to offer competing ISPs access to their last mile networks. This clearly did not happen. See,
e.g., Appropriate Framework for Broadband Access to the Internet over Wireline, Report and Order and Notice of
Proposed Rulemaking, 20 FCC Red 14853, '1146 (2005) ("For the reasons discussed herein, we determine that the
competitive pressures and technological changes that have arisen since 1990 have reduced the BOCs' incentive and ability
to discriminate against unaffiliated ISPs in their provision of broadband Internet access service to the point that structural
separation for BOC broadband Internet access service is no longer necessary.").

10

The 1996 Act was in fact about the future. In it, Congress embraced the foundational principles
of common carriage (and what the FCC had helped enable in Computer II) and used these principles to
usher in a competitive advanced telecommunications services market.
We are now 18 years removed from this last overhaul. We are now in that future.
A child born in that February when the 1996 Act became law is about to tum 18. That child and
her cohort barely use voice "calls." She speaks and communicates to her world through data-text and
instant messages, social media, Tumblr, and numerous other websites and applications that many
members of prior generations have likely never heard of.
The two-way communications facilities and underlying technology used to carry these services
may have changed, as Congress fully expected they would. But the societal and policy reasons
for common carriage obligations have not. The total eradication of common carriage is certainly not
the promise Washington made to America, yet that is the reality we now face. Here today, 18 years
later, there is no mass-market broadband telecommunications services market. There is only "high
speed Internet access" in a highly concentrated market. There are long-term consequences to this loss.
If the Commission fails to restore common carriage to our nation's central communications
network, we are ensuring that future generations of Americans will not be able to send the information
of their choosing, between points of their choosing, without undue discrimination. That is the very
definition of a telecommunications service and the protection afforded by Title II. Nowhere in
Communication Act or in the lengthy debates leading up to the 1996 rewrite is it suggested that
Americans should not be able to access telecommunication services. That shouldn't be surprising,
because it's a plainly absurd proposition.
The Commission must understand that the children of today and tomorrow do not and will not
communicate the way prior generations did. They communicate with Os and Is. They communicate
through words and images on a screen.
Is the Commission seriously willing to tell our children that they should not be able to access a
public network that lets them communicate free from undue discrimination?
Is the Commission really prepared to tell our children that if they warit to act like their parents
and grandparents and make a voice call using a landline or wireless phone, they know that call will
connect and won't be of inferior quality, and they won't be price gouged for it; but if they instead
choose to communicate through their natural medium of data, they get no legal protections against
undue discrimination?
The choice for the Commission is binary. It can act to restore American's legal protections to
communicate free from undue discrimination, or it can leave this foundational democratic principle to
the whims of the market.
Sincerely,
Derek Turner, Research Director
Free Press
dtumer@freepress.net
11

cc:

Jonathan Sallet
Philip Verveer
Gigi B. Sohn
Daniel Alvarez

12

From: Bruce Beard [mailto:bbeard@cjonamonmueller.com)


Sent: Tuesday, May 06, 2014 09:04PM
Gigi Sohn
American Cable Association Ex Parte GN 14-28

Dear Ms. Sohn,


Attached is a copy of the Ex Parte Notification we filed today on behalf of the American Cable Association in GN Docket
No. 14-28-Protecting and Promoting the Open Internet. If you have any questions please do not hesitate to give Barbara
or I a call.
"
Thanks
Beard
Bruce E. Beard
Cinnamon Mueller
1714 Deer Track Trail-Suite 215
Louis, MO 63131

314-394-1535 (Office)
314-394-1538 (Fax)
314-541-3305 (Cell)

-b-***w-k**************************************************************************

This electronic mail transmission may contain confidential or privileged information. If you believe that you have received
this message in error, please notify the sender by reply transmission and delete the message without copying or
.

CINNAMON

MUELLER

WA SHINGTO N, DC

ST. LOUIS

CHICAGO

1875 tye Street , NW


Suite 70 0
Washington, D.C. 20 006

1714 Deer Tracks Trail


Suite 215
St. Louis, MO 63131

307 N . Michigan Ave


Suite1020
Chicago. IL 60601

BARBARA S . ESBIN

Ad mitted in the D istrict of C ol umbia


besbin@C innamonMueller. com

phone: 3123723?30

direcr: 20 2 8726811
fax: 20 2 683 6791

May6, 2014
ViaECFS

Marlene Dortch
Secretary
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554
Re:
American Cable Association Notice of Ex Parte Presentation; Protecting
and Promoting the Open Internet, GN Docket No. 14-28.

Dear Ms. Dortch:


On May 5, 2014, Matthew M. Polka, President and CEO of the American Cable Association
("ACA"), had a teleconference with Gigi Sohn, Special Counsel for External Affairs to Chairman
Wheeler, to discuss recent actions by Viacom to deny access to its websites by broadband Internet
subscribers served by smaller cable broadband providers who are members of ACA. Mr. Polka
explained that Viacom took this punitive step in retaliation for ACA members refusing to sign cable
programming renewal contracts seeking exorbitant fee increases for Viacom networks with low
ratings and minimal viewer interest. Mr. Polka described how, as a result of this action, all broadband
Internet subscribers of two ACA members- Cable ONE and Liberty Cablevision of Puerto Rico- are
being blocked, and that the number of small cable operators targeted by Viacom is likely to grow
since dozens of other ACA members recently chose not to renew a cable programming carriage
agreement with Viacom.
Mr. Polka noted that the Internet has always been a bastion of openness for consumers, who
have been allowed to reach the lawful content of their choice. Viacom's move to block a select group
of broadband Internet customers regardless of whether they subscribed to the operators' video
offerings or not is inconsistent with the fundamental tenet of Internet openness that the Commission's
vacated 2010 Open Internet Order championed. Mr. Polka urged the Commission to seek comment
in its upcoming Notice of Proposed Rulemaking in this docket on whether the Commission's decision
in its 2010 Open Internet Order that the Open Internet rules should not apply to edge provider
activities, such as the provision of content or applications over the Internet, remains appropriate given
market conditions and recent actions taken by content providers.1
If you have any questions. or require further information, please do not hesitate to contact me
directly. Pursuant to section 1.1206 of the Commission's rules, this letter is being filed electronically
with the Commission.
Sincerely,

See In the Matter of Preserving the Open Internet Broadband Industry Practices, Report and Order in GN

Docket No. 09-191 and we Docket 07-52,25 F.C.C.R. 17905, at1J50 (2010).

ww w.C;nnamonM uelfer.com

Title: ACA Ex Parte Letter-GN Docket 14-28


Date: May 6, 2014
Page2

Barbara Esbin

cc (via email): Gigi Sohn

CINNAMON
MUELLER

From:
Sent:

To:
Cc:
Subject:

Seyed Reza Vousefi


Friday, April 04,
Eric Ralph
William Sharkey; M?rk Byk_owsky
Re: Session on Network Neutrality at the AEA 2015 meetings

Dear Eric,
Thanks a lot. That sounds perfect. Will be delighted to have a paper from Mr. Bykowski and Mr. Sharkey. I
can make it. What I need for
is a short one-sentence
understand the FCC constraints, and I hope that
description and abstract, and the names, affiliations, and email addresses for all authors for the paper. That will
be good if I receive these by Saturday April12 (earlier is better) so that I can go ahead and submit all the papers
in a package of a complete session.
Regards,
Reza

On Fri, Apr 4, 2014 at 3:54PM, Eric Ralph <Eric.Ralph@fcc.gov> wrote:


Reza

Mark Bykowski & Bill Sharkey, copied in on this email, have been working on network neutrality in what are currently
two related, but still being drafted papers. They are v interested in presenting their results in Boston. Due to internal FCC
constraints, they cannot commit at this point.

However, 1 hope by putting you alf in touch you will be able to come to some arrangement in the near term.

Eric

Eric Ralph
Chief Economist, WCB
445 12th St, SW
1

Washington, DC 20554

0: 202 418 0771

M f?GIA Exemption 6

"

From: Seyed Reza Yousefi Fi'OIA Exemption 6


Sent: Thursday, April 03, 2014 12:46 PM
To: Eric Ralph
Subject: Session on Network Neutrality at the AEA 2015 meetings

Dear Eric,
I am thinking of submitting a session on Network Neutrality at the 2015 AEA meetings in Boston.
Knowing your research, I would like to ask you if you are willing to contribute to the session?! Please
also let me know if you know other colleagues or researchers at other universities who may be willing
to be part of the session.
I am also submitting a draft and asking other professors to join us. If we have a total of three or four
papers, we can go ahead and submit that.
Regards,
Reza
P.S. I believe at this stage we just need to submit abstracts of the papers and the deadline is April15.

On Tue, Jan 11,2011 at 9:29AM, Eric Ralph <Eric.Ralph@fcc.gov> wrote:


Here there are.
Eric

Eric K. Ralph
WCB
Today: Blackberry

-----Original Message----From: Seyed Reza Yousefi


2

Sent: Sun 119/20111:19 AM


To: Eric Ralph
Subject: Presentation Files
Dear Eric,
Thanks a lot for today's session on Network Neutrality. I'm doing research with Prof.Whinston at the University
of Texas at Austin on the same topic. The presentations and discussions were so informative and wellorganized.
I'll be thankful if you please send the presentation slides to me (and your discussion, if possible).
Regards,
Reza

Chief Economist, WCB

445 12th St, SW


Washington, DC 20554

0: 202 418 0771


M: 202 427 5990
From: Seyed Reza Yousefi
Sent: Friday, April 04,
To: Eric Ralph
Subject: Re: Session on Networ!< Neutrality at the AEA 2015 meetings

Attached is the paper.


Reza
On Fri, Apr 4, 2014 at 11:51 AM, Eric Ralph <Eric.Ralph@fcc.gov> wrote:
If that is the paper I think it is, it is excellent.

Eric

Eric Ralph
Chief Economist, WCB

445 121h St, SW


Washington, DC 20554
1

0: 202 418 0771


E01A Exemption 6
k

From: Seyed Reza Yousefi

FOIA Exemption 6

Sent: Friday, April 04, 2014 11:49 AM


To: Eric Ralph
Subject: Re: Session on Network Neutrality at the AEA 2015 meetings

By the way, Prof. Hennalin just responded with a paper coauthored with Prof. Economides.
Best,
Reza

On Fri, Apr 4, 2014 at 11:16 AM, Seyed Reza Yousefi - r o t e :


Good Morning Eric,

Many thanks, that will be great.

Best,
Reza

On Fri, Apr.4, 2014 at 10:20 AM, Eric Ralph <Eric.Ralph@fcc.gov> wrote:


Seyed

This sounds v interesting. .At this point probably not for me, but I may have an excellent alternative for you & will try to
get back to you today.

Eric
2

Eric Ralph
Chief Economist, WCB
445

12th

St, SW

Washington, DC 20554

0: 202 418 0771

From: Seyed Reza Yousefi

Sent: Thursday, April 03,


To: Eric Ralph
Subject: Session on Network Neutrality at the AEA 2015 meetings

Dear Eric,
I am thinking of submitting a session on Network Neutrality at the 2015 AEA meetings in Boston.
Knowing your research, I would like to ask you if you are willing to contribute to the session?! Please
also let me know if you know other colleagues or researchers at other universities who may be willing
to be part of the session.

I am also submitting a draft and asking other professors to join us. If we have a total of three or four
papers, we can go ahead and submit that.
Regards,
Reza
P.S. I believe at this stage we just need to submit abstracts of the papers and the deadline is April15.

On Tue, Jan 11,2011 at 9:29AM, Eric Ralph <Eric.Ralph@fcc.gov> wrote:


Here there are.
Eric
3

Eric K. Ralph
WCB

-----Original Message----From: Seyed Reza Y


Sent: Sun 1/9/20111:19 AM
To: Eric Ralph
Subject: Presentation Files
Dear Eric,
Thanks a lot for today's session on Network Neutrality. I'm doing research with Prof.Whinston at the University
of Texas at Austin on the same topic. The presentations and discussions were so informative and wellorganized.

I'll be thankful if you please send the presentation slides to me (and your discussion, if possible).
Regards,
Reza

THE STRATEGIC USE OF DOWNLOAD LIMITS


BY A MONOPOLY PLATFORM*
NICHOLAS ECONOMIDESt AND BENJAMIN E. HERMALIN:j:

ABSTRACT

We consider a heretofore unexplored explanation for why platforms,


such as Internet service providers, might impose download limits on
content consumers: doing so increases the degree to which those
consumers view content providers' products as substitutes. This,
in turn, intensifies competition among providers, generating greater
surplus for consumers. A platform, in turn, can capture this increased surplus by charging consumers higher access fees. Even accounting for congestion externalities, we show that a platform will
tend to set the download limit at a lower level than would be welfaremaximizing; indeed, in some instances, so low that no download limit
is welfare superior to the limit the platform would set. Somewhat
paradoxically, we show that a platform will install more bandwidth
when allowed to impose a download limit than when prevented from
doing so. Other related phenomena are explored.
Keywords: two-sided markets, Internet, download limits (caps), congested platforms, network neutrality, price discrimination.
JEL Classification: 11, D4, 112, 113, C63, D42, D43.

*The authors thank Paul Klemperer, Francine Lafontaine, Chengsi Wang, and seminar
participants at Berkeley-Stanford IOFest, Nuffield College, the University of Mannheim, and
the Paris School of Economics for helpful suggestions. The financial support of the Newhouse
Foundation and of the Thomas and Alison Schneider Distinguished Professorship in Finance
is gratefully acknowledged.
tstern School of Business New York University 44 West Fourth Street New York, NY
10012-1126 email: neconomi@stern.nyu.edu Also NET Institute, www.NETinst.org and
Haas School of Business, University of California, Berkeley.
*University of California Department of Economics 530 Evans Hall #3880 Berkeley,
CA 9472Q-3880 email: hermalin@berkeley.edu.

Date: January 26, 2014 (version 16)

CONTENTS

CONTENTS

1 INTRODUCTION

2 BASELINE MODEL

BENCHMARK:

No

CONGESTION EXTERNALITIEs

ENDOGENOUS BANDWIDTH

13

RESTRICTIONS BY TIME OF DAY

15

7 ISP UTILIZES A Two-PART TARIFF

17

8 HETEROGENOUS HOUSEHOLDS AND PRICE DISCRIMINATION

19

9 HETEROGENEOUS CONTENT PROVIDERS

25

CONGESTION

7
9

10 ADVERTISING-SUPPORTED CONTENT AND SURPLUS EXTRACTION VIA


HIGHER QUALITY

27

11 CONCLUSIONS AND FUTURE WORK

29

REFERENCES

31

INTRODUCTION

INTRODUCTION

Why do platforms, such as residential Internet service providers (ISPs) and mobile telephone companies, impose caps (limits) on how much content their customers can download each month? An immediate answer is that these caps may
be part of a !lecond-degree price discrimination scheme via quantity discounts.
Another is that caps represent the platform's efforts at alleviating the congestion externality consumers impose on each other: reducing the externality raises
consumer welfare, which the platform captures as higher access (hookup) fees.
Although both answers are likely part of the story, in this paper we identify
another effect that could motivate download caps: as customers become more
limited in the amount they can download, the more they will see the digital
products they acquire from different content providers as substitutes. This,
in turn, will increase the competitive pressures on the content providers, who
will respond by lowering their prices. Lower prices mean greater consumer surplus for customers, which the platform can capture via higher access fees. 1 In
essence, unlike a traditional price-discrimination analysis, in which a platform
uses caps to appropriate surplus from end users, we show that a platform has
an incentive to introduce caps to capture surplus from upstream providers.
The basic idea can be readily illustrated. Suppose there is a measure one of
households (customers) and two content providers. A household's utility is
2

u=-H + 2:)v-pn)Xn,
n=l

where Xn indicates whether a household purchases a unit of the nth content


provider's product (x = 1) or not (x = 0), Pn is the nth content provider's
price, and His the hookup fee charged by the platform. Assume thecontent
providers each have a constant marginal cost of 0 and no overhead or fixed costs.
Assume the platform has no costs. If we assume the content providers set prices
first, the platform sets H next, with households making their purchase decisions
last, then it is readily seen that, in equilibrium, p 1 = p 2 = v and H = 0. 2
Now consider an alternative game: for some reason (e.g., a download restriction), each household is limited to one unit in total; that is, a household can
buy from one content provider or the other, but not both. Otherwise the setting
is as just described. The content providers are now effectively in Bertrand competition and the resulting equilibrium exhibits Pl = P2 = 0. Household surplus
gross of the hookup fee is v, which means the platform can charge households
a hookup fee of v.
1 As we discuss briefly in Section 10, the content providers could also respond by improving.
t4e quality of their products, agein reising consumer surplus and, thus, the access fees the
platform can charge. This effect would be of particular relevance when content is provided
free to customers and the content providers generate revenue by selling advertising.
2 An arguably more realistic timing, which is equivalent in terms of the resulting equilibrium, is (i) the platform sets H; (ii) households decide to connect or not; (iii) the content
providers set prices; and (iv) the households decide what content to buy. There are some
nuances, though, to this. alternative timing, which we discuss later.

INTRODUCTION

Comparing the two games, the download restriction harms the content providers, which see their profits go from v each to zero; benefits the platform,
which sees its profit go from 0 to v; and reduces welfare (the sum of consumer
surplus and platform and content providers' profits) from 2v to v. Because, in
either scenario, the households' surplus is fully extracted, households are neither
better nor worse off.
Although rudimentary, the example illustrates the basic tension we explore:
by limiting the aggregate amount trui.t households can buy, the platform effectively induces greater competition among the content providers. This causes
them to lower their prices, which can raise household surplus gross of the hookup
fee. The platform then captures this greater surplus via a higher hookup fee.
The reader's immediate response to this could be, "okay, it's a theoretical
possibility, but is there any
evidence?" There is indeed some. For example, Reed Hastings, Netflix's CEO, arguing against the Canadian ISPs Rogers
and Bell Canada's download caps, said, "It's an effective way to drive the bill
up, that tends to be why caps are used." 3 Further, some reports suggest that
ISPs are interested in imposing caps to enhance revenue because they are blocked
from directly charging content providers (network neutrality).4 Moreover, evidence indicates ISPs might seek to impose caps even when congestion is not a
significant problem. 5
In the simple example above, the only reason for the platform to impose
a download cap is rent extraction. As hinted, an additional rationale for restrictions arises if there is a congestion externality: by limiting total consumption, the platform could enhance welfare by reducing the congestion externality.
Much of the analysis that follows-see, in particular, Sections 3-6-focuses on
that issue. We find, in a static setting (fixed bandwidth), that, while it is possible that welfare is greater if the platform is free to impose a cap of its choosing
than it would be absent any cap, there are many circmnstances in which no cap
is welfare superior to the overly tight cap the platform would choose.
In a dynamic setting (endogenous bandwidth), we find-somewhat paradoxically-that a platform's incentive to build bandwidth is greater when it can
3 "Netflix says Internet download caps only in place to drive up bills,"
March
29, 2011 (accessed August 15, 2013 at URL http://www.thespec.com/news-story/2202174netfiix-says-internet-download-caps-only-in-place-to-drive-up-bills/). According to Van Gorp
and Middleton (2010), "Canada is only one of four countries in the OECD where download
caps were imposed on all the service plans studied by the OECD." That article also notes that
Canada tends to have high prices for residential broadband Internet relative to other OECD
countries, consistent with our model.

4 See, e.g., "If Net Neutrality Is Coming, So Is The End Of All-You-Can-EatInternet


Access," Dan Frommer, Business Insider, December 1, 2010 (accessed online August 15,
2013 at URL http:/fwww.businessinsider.com/if-net-neutrality-is-coming-so-is-the-end-of-allyou-can-eat-internet-access-2010-12).
5 See, e.g., "AT&T puts broadband users on monthly allowance," Ryan Singe!,
Wired, March 15, 2011 (accessed online August 15, 2013 at URL http://www.cnn
.com/2011/TECH/web/03/15/att.broadband.allowance.wired/index.html}. A relevant quote
from this article is "There's [sic) little data to demonstrate whether large ISPs act1,1ally are
experiencing real issues with congestion."

INTRODUCTION

impose a download cap than when it cannot (see Proposition 4 in Section 5).
Intuitively, the platform can extract more rent from content providers via a
download cap the more content they sell in equilibrium. By expanding its
bandwidth, the platform can expand the amount of content sold. Whether
the benefits of greater bandwidth outweigh the static inefficiency caused by
download caps is ambiguous, as we illustrate via an example.
We also explore alternatives to download caps, including allowing unlimited
downloads during off-peak times .(Section 6) and the use of two-part tariffs (a
hookup fee plus a per-byte fee) by the platform (Section 7). We show that the
platform has no incentives to allow unlimited off-peak usage-consistent with
actual practice (Proposition 6). This result further illustrates that it could well
be rent extraction rather than congestion alleviation that motivates platforms'
use of download caps. We find that two-part tariffs could yield greater profit
than a download cap (Proposition 7), but the difference in profit between the
two regimes tends to zero as the number of content providers expands. Hence,
a download cap may be a good substitute for a two-part tariff and might even
be preferred by the platform given the non-trivial administrative costs likely
associated with a two-part tariff.6
We also note, building on the well-known result that the statutory incidence
of an excise tax is irrelevant to its actual incidence, that the analysis in Section 7
would apply if the content providers were the ones charged the per-byte fee.
Hence, the analysis in that section speaks to the issue of whether download caps
are a substitute for allowing the platform to charge the content providers directly
for content delivery to consumers. Under current us policy-a regime broadly
known as network neutrality-residential Internet service providers (ISPs) cannot charge content providers for so-called "last-mile" delivery of their content
to households. The analysis in Section 7 suggests that us ISPs' interests in imposing download caps could be a response to network neutrality, as download
caps serve as a reasonable-and, in the limit, perfect-alternative to directly
charging the content providers. 7
Most of the paper assumes homogeneity across consumers (households) and
content providers. In large part, those assumptions are necessary to have
tractable models with which to explore many of the issues of interest. In Sections 8 and 9, we use simplified versions of our base model to explore issues
that arise with heterogeneity, such as price discrimination across households
and the mix of active content providers. In Section 8, we show that a platform
would never offer a plan with unlimited downloads; that is, a desire to discriminate across households need not lead a platform to offer unlimited downloads
6 It could also be that, because consumers don't have a good sense of how many bytes
various downloads represent, there would be consumer resistance to per-byte charges. That
noted, there are platforms that utilize such tariffs: the UK mobile telephone provider Three
offers data plans under which consumers pay lp per megabyte.

7 It is possible that a platform might wish to do both: charge content providers directly
and impose download caps. Given length considerations, we do not explore that
in
this paper..

INTRODUCTION

to any household. 8 In other words, unlike standard models of discrimination,


in which there is no distortion at the top, we find that all household types will
be sold less than first-best quantity. In Section 9, we show that welfare can
be greater, despite congestion externalities, with no cap than with the cap imposed by the platform even if the content providers are heterogeneous. That
the platform would fail to set the welfare-maximizing cap arises for two reasons
with heterogenous content providers: one, the platform is more concerned about
marginal effects than infra-marginal effects, so distortions arise (a result in the
spirit of Spence, 1975, and others); and, two, the platform is seeking to extract
rents from the content providers, as well as capturing consumer surplus. Hence,
while the first reason makes it ambiguous as to whether the platform would
set too liberal or too stringent a cap vis-a-vis the welfare optimum, the second
reason leads it to set too stringent a cap.
The focus of our analysis is primarily on the effect of caps on the content
providers' pricing. The logic, however, extends, as we illustrate in Section 10,
to situations in which content is provided for free, but in which the content
providers choose quality. By inducing greater competition among the content
providers, a download cap can cause them to provide higher quality products,
thereby increasing households' surplus, which the platform can, in turn, capture
via higher access charges.
This paper is part of the emerging literature on two-sided markets (see e.g.,
Roson, 2005, Rochet and Tirole, 2006, and Rysman, 2009, for surveys). In particular, it is part of the literature on monopoly platform practices, especially
those of Internet service providers (ISPs). 9 In terms of the model employed, we
build most directly on Hermalin and Katz (2007) and Economides and Hermalin
(2012), although neither considers download caps. In two related articles, Dai
and Jordan (2013a,b) consider download caps in the context of price discrimination by an ISP in the residential market. Unlike us, they don't model price
or quality setting by the content providers and, so, do not consider the effect
download caps have on those choices. Beyond the Dai and Jordan articles, the
academic literature on download caps appears limited and focused on legal and
regulatory issues (see, e.g., Van Gorp and Middleton, 2010).
We note that a phenomenon related to our rent-extraction effect of download
caps can arise with advertising. 10 Let the platform be a free-to-public media
outlet (e.g., a radio station or free newspaper). Consumers (listeners, readers) are one side of the market, merchants the other. Suppose the merchants
. are in competition and can attract consumers only if they place an ad on the
platform. By limiting the number of ads it accepts, the platform les8ens the
8 In this regard, we note that the Canadian ISP Rogers, which offers many plans, only offers
plans with download caps. Source: http://www.rogers.com (accessed on September 17, 2013).
9 A partial list of papers on this topic includes Hermalin and Katz (2007), Choi and Kim
(2010), Krii.mer and Wiewiorra (2012), Cheng et al. (2011), Economides and Tii.g (2012),
Economides and Hermalin (2012), and Choi et al. (2013). None of these papers, however,
consider download caps.

10 We

thank Chengsi Wang for this observation.

BASELINE MODEL

competition among the merchants, thereby raising their profits; which, in turn,
it can capture via higher advertising rates. 11 Indeed, by selling advertising to
a single merchant, it creates a monopoly in the relevant product market and
it can capture the monopoly profit by setting the advertising fee equal to that
profit. Although a related phenomenon, there is a critical difference: in this
paper, the platform is seeking to induce the merchants (content providers) to
charge lower prices, not higher, because the platform benefits by increasing, not
decreasing, consumer surplus.

BASELINE MODEL

Households want to engage with some or all of N content (or application)


providers. To reach households, the providers' content must pass through a
"pipe" controlled by a monopoly platform, herein called the ISP for concreteness. The pipe has a capacity (bandwidth) of B; that is, B units (e.g., bytes)
can go from the content providers to the households per unit of time. 12
The assumed sequence of play is that the ISP moves first, announcing its
policies and prices. Next, households decide whether to purchase access. The
content providers then announce their priees. Finally, households decide how
much content to purchase from each content provider.
This game admits multiple equilibria. One is a degenerate equilibrium in
which households expect the content providers to set such exorbitant prices
that they are deterred from purchasing access. Because households don't then
acquire access and there are, thus, no households to which to sell, it is a weak
best response for the content providers to indeed set exorbitant prices. In what
follows, we ignore that equilibrium and focus instead on the equilibrium in which
households acquire access. Households anticipate the prices that will emerge in
the subgame that follows if they acquire access. Provided they can attain nonnegative surplus, they will acquire access. Because the ISP can make money
only if the households acquire access, it will set its access fee so that household
surplus will be non-negative. 13
We assume that content providers are limited to linear pricing. Denote
content provider n's price by Pn We further assume the content providers are
not in direct competition and that each has a marginal cost of 0.
Initially, we limit the ISP to charging households a hookup fee, H. In Section 7, we allow the ISP to also charge a per-unit (e.g., per byte or packet) price.
Consistent with actual practice, we rule out the ISP's setting access charges that
are contingent on the prices announced by the content providers.
11 Dukes and Gal-Or (2003) make a similar point, although in the context of competing
media. platforms.
12 There
13 An

a.re some nuanced issues concerning time, which we address later.

alternative timing, which would yield similar results, is the ISP sets its policies, but not
its access price; the content providers announce their prices; the ISP responds by ami.ouncing
its access price; and, finally, consumers simultaneously decide whether to acquire access and
what content to purchase.

BASELINE MODEL

There is a measure one of households. Each household has quasi-linear


utility:
N

U= L

("n

Jo

n=l 0

f.L(xL(XIB))dx + y,

(1)

where Xn is the amount of content acquired from the nth content provider, y is
the numeraire good, and L(XIB) reflects the congestion loss that arises when X
total content is transmitted. The function f.L( ) gives the marginal contribution
to utility of a unit with "quality'' L(XIB). We assume diminishing marginal
utility; that is, z > z' implies f.L(Z) < f.L(z'). The utility function in (1) is similar
to the ones used by Economides and Hermalin (2012) and Hermalin and Katz
(2007). We assume that content consumption by a household is never so great
as to consume all income; that is, if I is household income, we assume
N

O<y=l- LPnXn

(2)

n=l

always holds.
For low levels of total platform usage, it is possible that congestion is irrelevant, in which case we set L(XIB) = 1. Otherwise, we assume that L(IB) is
an increasing and everywhere differentiable function.
it rationally does not take into account
Because each household is
its consumption decisions on congestion. Although one could imagine that content providers recognize their effects on congestion, it seems more plausible that
they do not and we limit attention to that case. We note that both assumptions
enhance the possibility of our finding that the ISP's imposition of download restrictions is welfare improving. Hence, conclusions in the analysis that follows
that such restrictions are not welfare improving can be viewed as fairly robust.
2.1

HOUSEHOLD DECISION MAKING

Assuming a household has decided to connect to the platform, it then chooses


the amount of content to purchase-the bundle (x1, ... , XN )-so as to maximize
its utility, expression (1). It may be subject to a total download limit:
N

LXn:::; x,

(3)

n=l

where xis the cap on total downloads. Substituting for y according to (2), the
first-order condition for a household's maximization program is

f.L(xnL(XIB))- Pn- >. = 0,

(4)

where >. is the Lagrange multiplier on (3).


Tractability, unfortunately, requires functional-form restrictions: assume the
marginal-utility function is linear; that is,

. f.L(z) =a- z,

(5)

BENCHMARK: No CONGESTION

where a is a positive constant. Setting the slope to -1 is a convenient normalization and imposes no further loss of generality. Given (5), a household
maximizes its utility by consuming
Xn

C-Pn
= L(X!B)

(6)

if there is no download limit (or it doesn't bind); or

Xn

= N

"#nP3- (N- l)Pn

NL(XjB)

(7)

if there is a binding download limit. 14 Notice that the imposition of a download


cap effectively turns the previously independent goods into substitute goods (at
least from the perspective of the content providers' strategies).

BENCHMARK:

No CONGESTION

As a benchmark, we consider the case in which there is no congestion externality;


that is, L(X!B) = 1.
If there is no download limit, then, from (6), the profit-maximizing price for
the content providers is Pn = a:/2. A household's consumer surplus from its
consumption of a given content provider's content is

0:2

(a: -p)dp =

a/2

8.

Consequently,, the ISP will charge a hookup fee of

Na:2

HNOCAP

= -8- .

If there is a binding download limit, then, from (7), each content provider
sets its price to maximize

The corresponding first-order condition is equivalent to

x+ I.':P; -2(N -l)Pn =

0,

Ji.n
14 To be precise, the formulre in (6) and (7) are valid only when non-negative.. For our
purposes, with only one household type, we do not need to make explicit reference to that
fact. If there were multiple household types, the non-negativity condition could require explicit attention. However, extending this version of the model to multiple household types
proves intractable. For the more limited model we use to explore heterogeneous households
in Section 8, this issue also does not arise.

BENCHMARK: NO CONGESTION

which yields the best-response function

- x+ LjnPi

Pn-

2(N -1)

The unique Nash equilibrium is


iC

P1 = = PN = N _

Hence, from (7), each household consumes x/N from each content provider
in equilibrium. Its consumer surplus from its consumption of a given content
provider's content is, consequently,

r/N (a- x)dx- N -1 N = x_aN iC

iC

(3N- 1)x2
2(N- 1)N2

"-..--'
Pn

It follows that the ISP will charge a hookup fee of


HeAP=

_
(3N -l)x2
xa- 2(N -l)N.

(8)

To maximize its profit, the ISP will set the download limit to maximize (8);
hence,
_ a(N -1)N
X=

3N-1.

(9)

Note this solution is relevant only if the iC given by (9) is less than Na/2, which
is the total content downloaded absent a limit (or if the limit does not bind).
Because the x given by (9) is always less than Na/3, it follows the limit binds.
Expressions (8) and (9) yield the equilibrium access (hookup) fee:
Na 2 4(N -1)
4(N -1)
8 - X 3N _ 1 = HNoeAP X 3N _ 1

HeAP = -

We can conclude:
Proposition 1. Given the functional forms assumed, the ISP strictly prefers to
impose a download limit if there are four or more content providers; is indifferent
between a limit and no limit if there are three content providers; and prefers no
limit if there are two or fewer content providers.

Intuition for Proposition 1 can be gained from Figure 1. The download limit
effectively induces competition among the content providers. Hence, the4" prices
fall, which will increase household's consumer surplus ceteris paribus (the dark
rectangle in the figure). At the same time, though, the content purchased from
each content provider falls, which reduces household surplus ceteris paribus (the
light triangle). However, as thefigure suggests-and the algebra confirms-the
. increase due to competition can outweigh the loss due to reduced consumption.

CONGESTION EXTERNALITIES

price

Figure 1: Rationale for download limits: surplus extraction from a single content

provider n. By effectively inducing the content providers to compete,


household surplus increases by the area of the dark rectangle less the
areas of the light triangle.

Not surprisingly, the competition effect is greater the more content providers
there are, which helps explain why the ISP finds a download limit profitable
when there are many content providers, but not when there are only a few.
Because the content acquired from each content provider is reduced and
there are no congestion externalities, the download limit must reduce welfare,
as illustrated in Figure 1.

CONGESTION EXTERNALITIES

Assume, now, that there is a negative congestion externality. If there is no


download limit, then, from (6), the profit-maximizing price is again Pn = o:./2.
Now, however, there is a consistency constraint: total demand must be consistent with the effect the resulting congestion has on demand; that is,
Pn
N

X =

Xn

,..-"-...

o:./2)
No:.
2t (o:.L(XjB) = 2L(XjB)

(10)

Because (i) the leftmost side of (10) is zero at X= 0, while the rightmost side is
positive; (ii) the leftmost side increases without bound in X while the rightmost
side is non-increasing; and (iii) L(IB) is continuous, it follows that a unique
solution to (10) exists. Call it X(B).

10

CONGESTION EXTERNALITIES

Each content provider sells X(B)/N in content, so household surplus per


content provider is
.
{X(B}/N

Jo

aX(B)
(a- xL(X(B)jB) )dx- ' i ! f

X(B) (aN- X(B)L(X(B)jB))


2N2

aX(B)

=-m-

where the last equality follows from (10). It follows the hookup fee charged by
the ISP is
aX(B)
HNOOAP

= --4- .

Total surplus (welfare) is 3aX(B)f4.


If there is a binding download limit, then, from (7), each content provider
sets its price to maximize
Pn

x "'J#.nPi- (N -1)Pn)
(N +
NL(xiB)

The corresponding first-order condition is equivalent to

xL(xiB)

I:>j - 2(N- l)Pn = 0,

#n

which yields the best-response function

xL(xiB) +
Pn=

2(N-1)

The unique Nash equilibrium is


Pl = =PN =

xL(xiB)
N-1

(11)

Expression (11) might, at first, seem counterintuitive: equilibrium price is


increasing in the distaste for congestion ceteris paribus. This result can, however, be understood by considering (7). The greater distaste, the less sensitive
household demand is to relative prices ceteris paribus; hence, the lower are the
competitive pressures arising from the download limit and, hence, the greater

the price the content providers feel able to charge.


From (7), each household consumes xfN from each content provider in equilibrium. Its consumer surplus from its consumption of a given content provider's
content is, therefore,
r/N (. _ L(-IB))dx _ xL(xiB) x = _ _ (3N- l)L(x!B)x
}
a x x
N- 1 N x N
2(N- l)N 2
0

CoNGESTION EXTERNALITIES

11

Consequently, the ISP will charge a hookup fee of


HeAP=

_
(3N- 1) c-l )-2
xa- 2(N _ 1)NL x B x .

Accounting for the content


WCAP =

(12)

profits, welfare is

_
( (3N -1)
2N
)
_ )_ 2
xa- 2(N _ 1)N - 2(N _ 1)N L(xiB x_ .

(13)

Observe, in terms of if, that HeAP and WeAP have a common "benefit-like" term,
but the former has a "cost-like" term with a higher margin. Hence, by the usual
comparative statics, it must be that the x the ISP would set to maximize its
profit is lower than the cap that would maximize welfare. To summarize:

Proposition 2. Assuming the households' marginal utility functions are given


by (5), a profit-maximizing ISP will set a household download limit (cap) that is
lower than the limit that would maximize welfare.
Although too stringent vis-a-vis the cap that would be welfare maximizing,
is the cap chosen by the ISP welfare superior to no cap at all? In general, the
answer is complicated because of the number of forces at work:
1. because neither content providers nor households take into account the
congestion externality, there will be a tendency to transmit too much
content ceteris paribus;

2. but, because the content providers exercise market power, too little content would get traded if there were no congestion externality; and,
3. as noted, the ISP has incentives to set less than the welfare-maximizing
cap.
The first two points indicate the. theory of the second best is at work absent
any download caps: the reduced trade due to the exercise of market power partially offsets the congestion externality (or, conversely, because of the congestion
externality, the welfare loss from the exercise of market power is reduced).
To study the question, suppose that the loss-from-congestion function is
6

(14)

L(XIB)

where A > 0 and B 2::: 0 are constants. The analysis of Section 3 corresponds to
1 and 8=0.
Given the
form assumed in (14), the solution to (10) is

A=

= (NaBo)m

2A

'

12

CONGESTION EXTERNALITIES

which implies that, absent a cap,


Xl

= ... =

XN

aBo )
( 2ANB

m'

HNOCAP

and

(Na9+2B8) u:f:r
22B+3A

WNoeAP

N a9+2 Be) uh
.

= 3 ( 229+3A

{15)

Suppose there is a binding cap. Maximizing the ISP's profit, expression {12),
with respect to x yields
9

_ = ( f,a(N -1)NB
X
A(3N- 1)(0 + 2)

)m
1

Substituting yields:

_ 0 + 1 (2Na9+ 2 B 0 (N -1)) u:f:r


HeAP- 0 + 2
A(3N- 1)(0 + 2)
28

0+ 1 ( 2 +4(N -1) )
= HNOCAP 0 + 2 {3N- 1)(0 + 2)

u:f:r

. . {16)

From {16), it can be seen that HeAP> HNocAP for all N > 3 regardless of 0. If
0 > 0, then that inequality holds for all N;::: 3. If 0;::: .295, then that inequality
holds for all N ;::: 2. Substituting x into the statement for welfare:

WeAP

)m ((3N -1){0+2)(N -1))


(3N- 1){0 + 2)
22B+4(N-1) )m ({3N-1)(0+2)-(N-1))
(3N- 1)(0 + 2)
(3N- 1)(0 + 2)
.

_ (2a0+ 2(N -1)NB 8


A(3N- 1){0 + 2)

-W.
-

NOeAP 3

{l 7 )

There are values for 0 and N such that WeAP > WNocAP and such that WeAP <
WNoeAP (an example of the former are 0 = 7 and N = 6, an
of the
latter would be 0 = 6 and N = 6). In other words, allowing the ISP to impose
a download cap of its choosing can be welfare superior to prohibiting it from
imposing any cap at all; but it can also be welfare inferior-the answer depends
on the parameters.
To investigate the parameters more systematically, observe, from {17), that
the ratio WeAP/WNoeAP is increasing inN. In the limit, as N-+ oo, that ratio is
n. , - -

_L

12

CONGESTION EXTERNALITIES

which implies that, absent a cap,

(15)
Suppose there is a binding cap. Maximizing the ISP's profit, expression (12),
with respect to x yields
1

_
X=

( 'J.a(N -1)NB9 ) T-FI


A(3N- 1)(0 + 2) .

Substituting yields:

_ 8 + 1 (2Na9+ 2 B 9 (N -1)) w:h


HeAP- 0 + 2
A(3N -1)(8 + 2)
0+ 1 ( 229+4(N -1) ) $

HNocAP

o+ 2

(3N -1)(o + 2)

. (16)

From (16), it can be seen that HeAP > HNoCAP for all N > 3 regardless of e. If
0 > 0, then that inequality holds for all N;::: 3. If 8 ;::: .295, then that inequality
holds for all N ;::: 2. Substituting x into the statement for welfare:
2

W.
CAP

-W.
-

(2a9+ (N -1)NB
A(3N- 1)(0 + 2)

NOCAP

) T-FI

229+4(N-1)
3 (3N- 1)(0 + 2)

((3N- 1)(0 + 2)- (N- 1))


(3N- 1)(0 + 2)

)$ ((3N-1)(0+2)-(N-1))
(3N -1)(0 + 2)
.

(17)

There are values for 0 and N such that WcAP > WNocAP and such that W CAP <
WNocAP (an example of the former are 0 = 7 and N = 6, an example of the
latter would be 0 = 6 and N = 6). In other words, allowing the ISP to impose
a download cap of its choosing can be welfare superior to prohibiting it from
imposing any cap at all; but it can also be welfare inferior-the answer depends
on the parameters.
To investigate the parameters more systematically, observe, from (17), that
the ratio WcAP/WNocAP is increasing inN. In the limit, as N-+ oo, that ratio is

3--w: (

...L
l+9

(5 + 30)

2+0
If 0 < 6.47 (approximately), then that limit is less than one: welfare is greater
if the ISP is barred from imposing a download cap of its choosing. If 0 > 6.47,
then the limit exceeds one and allowing the ISP to set a cap of its choosing is
welfare superior to no cap. This yields the following:

ENDOGENOUS BANDWIDTH

13

loss (L(XIB))

' - - - - - - - = - - - - - + - r a t i o of
transmitted to
bandwidth
(X/B)

Figure 2: A highly convex disutilityjloss of congestion function.

Proposition 3. Assume bandwidth is fixed. Then, given the functional forms


assumed, prohibiting the ISP from imposing a download restriction of its choosing
is welfare superior to allowing it to impose such a restriction unless the disutil6.47).
ityjloss from congestion function is highly convex (specifically,
Figure 2 plots z 647 , which illustrates how convex it is. It is plausible that
such convexity is consistent with actual preferences: presumably marginal disutility/loss is very small at low levels of congestion: going from no freezes in an
on-demand video to the occasional freeze due to a small increase in congestion
is presumably less costly to people than going from the occasional freeze to constant freezing, as might incur with an increase in congestion at a higher level of
congestion. In a sense, Figure 2 can be seen as approximating a backward-Lshaped curve-a "breaking-point" model in which congestion is acceptable to
certain point, but thereafter almost wholly unacceptable.
Once()> 6.47, the consequences for welfare from allowing the ISP to impose a
download restriction of its choosing depend on the number of content providers.
In particular, the greater is B, the lower is the number of content providers
necessary to make welfare greater with the cap than without.

ENDOGENOUS BANDWIDTH

The analysis to this point has treated the bandwidth, B, as fixed. It is possible, over some time horizons at least, that the ISP can change the bandwidth.
We briefly consider the consequences of endogenizing the bandwidth in this

14

ENDOGENOUS BANDWIDTH

section. 15 Our analysis maintains the previously made functional-form assumptions. We assume (J > 0 and N ;::=: 3, so that HeAP > HNocAP From expression
{16), this entails 8HeAP/8B > 8HNocAP/8B if the latter partial derivative is
positive. That the latter is indeed positive is immediate from expression {15).
In sum, then, the ISP's marginal return to greater bandwidth is greater with a
cap than without. This establishes the following:

Proposition 4. Assume {i) the ISP 's cost of installing bandwidth is everywhere
differentiable; and {ii} that, if barred from imposing a download cap or restriction, the ISP 's choice of bandwidth is an interior solution to the problem of
maximizing profit with respect to bandwidth. Then, given the functional forms
assumed, an ISP able to choose a download restriction will install more bandwidth than one barred from imposing a cap.
Proposition 4 may, at first, seem counter-intuitive: one might have expected
download restrictions to be a substitute for expanding bandwidth, as both address the congestion externality. Although true, there are additional effects.
First, the expanded bandwidth is used. This is the recongestion effect identified
by Economides and Hermalin (2012) and familiar to anyone who has seen physical highway expansion fail to end bumper-to-bumper traffic. But greater use
increases the potential surplus the ISP can capture from inducing competition
among the content providers. Moreover, as discussed in conjunction with expression (11), induced competition is fiercer the lower is L(x!B) ceteris paribus.
Accounting for these other effects, the ISP's investment incentives are greater
when it can impose a download cap than when it cannot.
Whether the welfare benefits of greater bandwidth outweigh the potential
welfare loss from too tight a download cap is, in general, ambiguous. As an
example, suppose that the ISP's cost of installing B bandwidth is kB, k a positive
constant. Continue to suppose that L(XIB) is given by {14). Let A ,;, (J = 1.
Note, because (J < 6.47, static welfare (i.e., for a fixed B) is greater if the ISP
is barred from imposing a download limit. In contrast, in a dynamic setting
(i.e., when B is endogenous), welfare can be greater if the ISP is allowed to set
a limit. Specifically, it can be shown that
No:3

BNoeAP

2(N- 1)No:3

= 128k2 and BeAr= 27{3N- 1)k2

256 N -1

27 3N -1 BNoeAP.

Welfare, including the cost of installing the bandwidth, is


5 No: 3

WNoeAP

= 128 -k- and WeAP =

2(5N-1)(N-1)No:3
27(3N- 1)2k
=

256 (5N-1){N-1)
135
(3N -1)2 WNOCAP.

15 0ther articles that have explored ISPs' incentives to expand bandwidth include Choi and
Kim {2010), Cheng et al. (2011), Economides and Hermalin {2012), and Krii.mer and Wiewiorra
(2012). None of these, however, investigate the relation between bandwidth and download

caps.

RESTRICTIONS BY TIME OF DAY

15

It follows that if N < 11, then welfare is greater if the ISP is barred from
imposing a download cap, but if N > 11, then welfare is greater if the ISP is
permitted to impose a cap of its choosing (if N = 11, welfare is the same in the
two regimes.)

RESTRICTIONS BY TIME OF DAY

To the best of our knowledge, ISPs and similar platforms that impose download
caps or limits (e.g., cellular networks with data plans for smartphones) do so on
a monthly basis. This suggests that the unit oftime in our model is a month. On
the other hand, network congestion is generally not a constant throughout the
month: there are peak and off-peak hours. For example, watching on-demand
video might be something done in the evening rather than during the work
day. One could, nonetheless, justify our model by imagining the ho11seholds
make monthly usage decisions and the loss function L reflects some average
congestion disutility that they expect given the usage pattern they've chosen.
Alternatively, we could imagine that the households have to consume some
content at peak hours (e.g., 4ltensive residential Internet usage can occur only
in the evenings after work). That is, off-peak usage is necessarily limited and
minor (e.g., a quick check of email before heading to work in the morning);
hence, peak hours are effectively all that matter.
On the other hand, this discussion calls into question why ISPs and similar platforms impose a monthly limit rather than a limit that applies during
peak hours only (e.g., a plan with unlimited downloads in the wee hours of the
morning, but with limits during evenings or other congested periods). Although
modeling time-of-day consumption complicates an already complex model, we
are able to examine that possibility, to an extent, in this section. We find that
an ISP has higher profits with an "all-the-time" (e.g., monthly) cap than with
a time-of-day cap.
AB a somewhat primitive analysis of such time-of-day issues and their implications, consider a model in which a day has two periods: a high-usage period
(h) and a low-usage period (f). Let the gross utility a household gains from Xn
units of the nth content provider's product be

where Xh is total consumption in the h period; t(x) E {0, 1} reflects the time of
day the xth unit is consumed, with t(x) = 1 corresponding to the h period and
t(x) = 0 corresponding to the .e period; and where 1J > 1 reflects the reduced
benefit from consuming during the less-preferred period (e.g., during the day or
late at night) .16 Although a more general model would allow for the possibility
that congestion is also a problem during the .e period, we assume it is not for
the sake of tractability.
16 0r it could reflect the nuisance of having to remember, for example, to download a video
at a low-usage time, even if it will be watched at a high-usage time.

RESTRlCTIONS BY TIME OF DAY

16

We assume that the content providers cannot engage in time-of-day pricing;


that is, each content provider's price is the same in both the and h periods.
A household chooses t(x) to maximize its utility. Absent any download cap,
it follows from (18) that a household's timing decision satisfies

t( ) _ { 1, if L(XhiB) < 1J
X

0, if L(XhiB)

> 1]

for all x E [0, Xn] Hence, a household is willing to consume during both periods
only if L(XhiB) = 1J.
Only equilibria in which there is h-period consumption are of interest. Let X
again denote total consumption over both periods and let
denote equilibrium
consumption during the h period. We restrict attention to equilibria in which

xe- { X,. 1 if L(XIB) s 1J


h-

L- (7JIB), if L(XIB) > 17 .

That is, either all consumption is during the high-usage period because, even
given the loss from congestion, households find consumption in the low-usage
period too distasteful; or consumption occurs in the high-usage period until
the point that the loss from congestion just equals the distaste for off-peak
consumption, with all consumption beyond that being in the low-usage period.
Absent a download cap, a content provider's demand is proportional to a-pn
regardless of the timing of household purchase decisions. Hence, its price is
a:/2. Recall X(B), which is the solution to (10). If L(X(B)IB) > 7], then the
imposition of a download limit during the h period has no effect on content
providers' prices:
Proposition 5. Under the assumptions of this section, if households consume
positive amounts in the low-usage ()period absent download restrictions, then
the content providers' equilibrium prices remain unaffected if a download restriction is imposed for the high-usage {h) period.
Proof: By supposition, marginal consumption is -period consumption. So, if
is total consumption of the nth provider's content, then Xn

Xn

:z/'

{ "(a:-

lo

1
2:

"(a: -1Jx)dx- PnXn,

where
is h-period consumption of the nth provider's content. Imposition of
peak-time download limits could affect
and
but would not affect the
optimal Xn It follows that marginal demand is
1

-(a:- Pn)
1]

So the nth content provider's pricing problem is unaffected and it will thus conIll
tinue to choose Pn = a:/2.

ISP

UTILIZES A

Two-PART TARIFF

17

Intuitively, the content providers don't care when their content is consumed.
Hence, measures by the ISP that shift the timing of consumption, but don't
affect the total amount consumed, can have no bearing on the content providers'
pricing.
Suppose, absent a cap, there is no consumption during the 1!. period. For
the moment, suppose that households cannot move consumption to the. 1!. period
following a cap. The analysis of the previous sections would then apply. In
particular, denote the prices given by (11) as fin, n = 1, ... , N. If

Pn?:.ex-7]N,
then the equilibrium is unchanged if households were now allowed to buy in the
1!. period. The reason is as follows: those equilibrium prices satisfy Pn < exj2.
Hence, on the margin, a content provider wants to increase its price above fin
if demand is proportional to ex - p. It cannot, therefore, benefit a content
provider to induce consumption in thee period by lowering its price further.
Similar reasoning applies if

x.
Pn < ex -1] N

(19)

Because fin < ex/2, the content provider wants to raise its price--the benefit
from getting a higher price on .:period sales outweighs the loss from fev.rer sales.
Hence, the equilibrium prices when the content providers can sell in the 1!. period
and (19) holds will be greater than the prices given by (11).
Putting all this analysis together, we have
Proposition 6. Under the assumptions of this section, a time-of-day download
limit during the high-usage (h) period never induces a greater competition effect
among the content providers than an all-the-time download limit, but can induce
less of a competition effect.
Because the ISP makes greater profit by inducing more intense competition
among the content providers, Proposition 6 offers a possible explanation for
why ISPs and mobile networks do not relax download restrictions for content
accessed off peak.

ISP

UTILIZES A Two-PART TARIFF

Suppose that rather than impose a download cap, the ISP could utilize a twopart tariff in which a household pays H + r:v if it downloads :v total content.
By now familiar reasoning, each content provider would set a price of (ex r)/2. Total content downloaded would need to satisfy the analog of (10):

(ex-r- t(ex- r))


L(XIB)

= N(ex- r)

2L(XIB) .

(20)

If Lis given by (14), then the total amount downloaded is

= (N(ex- r)B9)
2A

_L.

O+l

(21)

ISP

18

UTILIZES A Two-PART TARIFF

Household surplus from consuming the nth provider's content is, thus,
{X/N

Jo

(or.-xL(XIB))dx-

(or.-r
) X
X(or.-r)
-2-+-r N=
4N '

where the equality follows, in part, from (20). The hookup fee is, therefore,

H= X(or.-r).
4

The ISP's profit is thus

(22)
where the second equality follows from (21). Maximizing with respect tor yields

or.(2+38)

= 3(2+8)

Substituting that back into (22) reveals the ISP's profit to be

8 + 1 ( 2Nor.8+2B 8 ) $8+2 3A(8+2)


Comparing (23) with

HeAP

(23)

given in (16), it follows, because


1

N-1

3 > 3N -1'

(24)

that the ISP's profit is greater when it can employ a two-part tariff than when
it must rely on a download cap. On the other hand, the limit of the righthand
side of (24) as N :-r oo is 1/3; hence, if there are a large number of content
providers, the ISP's loss from utilizing a download cap rather than a two-part
tariff is minor. If there are significant transaction costs in administering a twopart tariff, then the ISP coUld prefer a download cap. To summarize:
Proposition 7. Given the functional forms assumed, the ISP makes greater
profit with a two-part tariff and no download cap than utilizing just a download
cap and a hookup fee. However, as the number of content providers gets large,
this difference shrinks; in the limit, profits are the same under the two regimes.
Hence, if there are significant transaction fees associated with administering a
two-part tariff, then the ISP would prefer a download cap and a hookup fee if the
number of content providers is large enough.

As we observed in the Introduction, the analysis of this section applies


equally well if the content providers were the ones charged r, given that r can
be viewed as an excise tax paid to the ISP and, as is well known, the statutory
incidence of such a tax is irrelevant to its actual incidence (effect). In many

HETEROGENOUS HOUSEHOLDS AND PRICE DISCRIMINATION

19

places-the US in particular-residential ISPs cannot currently charge content


providers for delivering content to their residential customers (this is part of
a broad set of policies and customs commonly known a.s network neutrality). 17
The analysis of this section thus suggests that an ISP's motive to impose a download cap will be greater in a network-neutrality regime than in a regime in which
it could directly charge the content providers.
Corollary 1. Given the functional forms assumed, the ISP would earn greater
profit if it could directly charge content providers for delivering their content
(with no download caps) than utilizing a download cap. However, as the number of content providers gets large, the difference in profits between the regimes
shrinks, with profits being the same in the limit.

HETEROGENOUS HOUSEHOLDS AND PRICE DISCRIMINATION

Next, we explore the relation between download caps and second-degree price
discrimination by the ISP. Price discrimination necessarily entails different
household types, which raises the issue of what constitutes a "type" in this
setting: is it different benefits from all content or only from some
An additional issue is that, when there are different household types and
the ISP discriminates by offering different packages with varying access prices
and download limits, the pricing subgame among the content providers will
often have solutions in mixed-strategies only. The intuition for why is that,
depending on the parameter values, competition among the content providers
when seeking to cater to all types could be fierce. Consequently, a content
provider could be tempted to "drop out" of the competition to sell to all types
and simply seek to sell to a subset of types, but at a greater price. But it
cannot be an equilibrium for all content providers to cater to the subset alone:
by shaving its price, a content provider could pick up a considerable share of the
remaining types' business. Even for our simple model and eschewing congestion
effects, the analysis quickly becomes intractable.
To avoid having to solve directly for any mixed-strategy pricing equilibria of
the content providers' pricing sub game and also to keep the definition of type
relatively straightforward, our analysis of heterogenous households and price
discrimination by the ISP is restricted to a more limited model than heretofore
considered. To wit, assume there are two household types, 0 or 1. Let fJ denote
an arbitrary element of {0, 1}. Let proportion E (0, 1) of households be type 1,
which can be considered the "high" type. A type-1 household's utility is
N

= Y + Vl :2.::: Xn '
n=l

17There is a small literature that analyzes the pros and cons of network neutrality in terms
of economic welfare: see, e.g., Hermalin and Katz (2007), Choi and Kim (2010), Cheng et a!.
(2011), Economides and Hermalin (2012), Economides and Tag (2012), Krii.mer and Wiewiorra
(2012), and Choi et a!. (2013).

HETEROGENOUS HOUSEHOLDS AND PRICE DISCRIMINATION

20

where Xn = 0 indicates no purchase from the nth content provider and Xn = 1


indicates the purchase of a unit. Observe that a household wants at most one
unit of content from any provider. Observe, too, that we are not considering
the effects of congestion (i.e., L(XIB) 1).
The preferences of type-0 households are slightly different. Let .Ar denote
the set of all content providers. Type-0 households only want content from
content providers in a set N0 , No N (note we are allowing for the possibility
that No = N). Content providers know if they are in No or not. Because the
ordering of content providers is arbitrary, assume content provider n is in No if
n :$ No, No being the size of N0 , and it is not in No if n > N 0 Assume N 0 ;::: 2.
Let a type-0 household's utility be

No

U=y+voLXn,
n=l

where Xn has the same interpretation as before.


For the sake of brevity, we limit attention to situations in which the high-type
households would realize greater benefit from unfettered access than low-type
(type-0) households. In fact, to speed the analysis, we impose a slightly stronger
condition:
(25)
Novo< (N -l)v1.
We assume the content providers cannot distinguish which households are
which type. Hence, given the assumed utility functions, the content providers
are necessarily limited to uniform pricing.
Absent download caps, there is no equilibrium in which the ISP earns a
positive profit. To see this, note that without caps there is no mechanism by
which the ISP can discriminate: it must charge a uniform hookup price, H.
If only one household type, (3, obtains access in equilibrium, then the content
providers will necessarily charge vp: those households will obtain no surplus
and, hence, be willing to purchase access only if H = 0. If both household
types obtain access in equilibrium, 18 then profit maximization by the content
providers entails Pn ;::: min{ vo, v1} if n :$ No and Pn = VI if n > No. It follows
that at least one type is earning no surplus; so, if both are to obtainaccess, it
must again be that H = 0. To summarize:
Lemma 1. Absent download caps, the ISP earns zero profit given the assumptions of this section.
If vi > v0 , then all content providers price at p = VI in the absence of
download caps. In this case, low-type households would be shut out of the
market and only high-type households would acquire access. If v1 :$ v0 and
a content provider in No believes all households have purchased access, then it
prices as follows:
_ { vo, if (1- )vo >VI
Pnmin{vo,vi}, otherwise
18 We could allow mixing by households, but this doesn't change the analysis. Hence, for
the sake of brevity, we do not consider this.

HETEROGENOUS HOUSEHOLDS AND PRICE DISCRIMINATION

21

A content provider not in No prices at vr. Welfare is maximized if content


providers in No price at min{vo, v1 } and falls short of the maximum otherwise
(as, then, some household types are priced out of the content offered by content
providers in No).
Suppose the ISP imposes a uniform download cap of n < No on all households. The situation is analogous to that considered in the Introduction: the
content providers become, effectively, Bertrand competitors, which leads them
to price at zero, from which it follows that a household that obtains access realizes a surplus of vpn gross of the hookup fee. It further follows that, under
such a uniform cap, the ISP will set
1iV1 ,

H =

if if>v1 > Vo

nvo, if (1- </>)vo

> vr

(26)

nmin{vo,vr}, otherwise

Because n < N, welfare is, necessarily, lower with a cap than without. In
the first and third pricing cases in (26), the set of households who obtain access
is unaffected by the imposition of the cap vis-a-vis what it would be absent the
cap. That is not true in the second: there is a further reduction of welfare in this
case because the high-type households would be priced out of the market. It is
readily seen that, conditional on n < N 0 , the ISP maximizes profit by setting
n = No - 1. To summarize:
Proposition 8. Relative to a situation with no caps, the imposition of a uniform
download cap binding on all household types (i.e., n < N 0 ) reduces welfare and
either leaves the set of households who obtain access unaffected or.reduces it. In
this scenario, the ISP 's profit-maximizing cap is n = No - 1.

What about a uniform cap that would bind only on high-type households
(i.e., No:::; n < N)? Maximum welfare in this scenario is

which is achievable only if all households obtain access. But if all type-0 households obtain access, then a content provider in No can guarantee itself an expected profit of at least (1- <f>)vo by pricing at vo. Consequently, conditional
on n, the ISP's expected profit, 7r18 p, in any equilibrium satisfies
(27)
The righthand side of (27) is increasing in n and is a maximum when n = N -1.
Moreover, the ISP can obtain the righthand side in that case with certainty:
suppose it sets H = (N -1)v1 . Given condition (25), type-0 households would
not obtain access even if they anticipated getting content for free. Consequently,
only type-1 households would possibly choose to obtain access. The content
providers would, thus, find themselves virtual Bertrand competitors and price
at zero. Type-1 households would, thus, just be willing to obtain access. To
conclude:

HETEROGENOUS HO.USEHOLDS AND PRICE DISCRIMINATION

22

Proposition 9. Conditional on the ISP 's setting a uniform cap that would bind
only on high-type households, there is an equilibrium in which the ISP sets a
cap of N - 1 and prices access equal to the resulting consumer surplus hightype households will receive from buying content (i.e., H = (N- l)v 1). Only
high-type households acquire access and the content providers price at zero.
Comparing Propositions 8 and 9 yields the following:
Proposition 10. Suppose the ISP is limited to setting a uniform download cap,
Its equilibrium choice of cap and hookup fee, H, are

n.

(No -1, (No -1)vo),


- H) (n,
-

(No-1,(No-1)min{vo,vl}), if

max{ 1,
V1

<PJ::::i)}

[(1 - rfJ)vo, .!!!!.]


</>"'""-"

& min{vo,vl} >

(N- 1, (N -1)v1), otherwise

(28)

Observe that an ISP limited to a single cap will set a relatively tight cap (No -1)
if it seeks to provide access to all households or only households that place a
large value on the content they want, but who want a limited amount of content
(i.e., vo > v1, but No< N). It will set a looser cap (N -1) if it seeks to provide
access only to high-type househplds (households that want more content ceteris
paribus, each unit of which they may value more).
Finally, we consider the possibility of the ISP's offering two packages, (no, H 0 )
and (n1 ,H1), intended for the type-0 and type-1 households, respectively. It is
convenient for what follows to define N 1 = N, </>1 = , and r/Jo = 1 - . If
fip :;:::: Np, then type-/3 households have no download cap (their package allows
"all you can eat").
Lemma 2. There is no equilibrium in which the ISP gains by offering a package
with all you can eat (i.e., a package with fip:;:::: Np).

Proof: Suppose not. Maximum possible total surplus is


1

S = L.">pmin{Np,fip}vp.

(29)

(3=0

If fip :;:::: Np for a given type {3, then content providers that cater to that type
can guarantee themselves an expected profit of at least r{Jpvp by pricing at vp.
Hence, in aggregate, those content providers must earn expected profits of at
least r/JpNpvp. Necessarily S 2 7rrsp, the second term being the ISP's expected
profit; hence, it follows from (29) that, if Np S fip for both /3, the ISP can
earn no expected profit. As seen (Propositions 8 and 9), the ISP can earn a
positive profit by offering a single package with a binding download cap. Hence,
Np > fip for at least one {3.

23

HETEROGENOUS HOUSEHOLDS AND PRICE DlSCRIMINATION

Suppose N1 > ih, but No S no. It follows from (29) and the previously
given logic that
_1l"Jsp S 1n1v1;
but the ISP can achieve a profit of ifJ1(N- 1)vl by setting a uniform'download
cap of N -1 and pricing access at (N -1)v1; that is, the ISP does weakly better
offering that than two packages, one of which provides type-0 households all
they can eat.
Suppose No> no, but N1 S n1. Similar logic entails

but the ISP can achieve a profit of at least o(No- 1)vo by setting a uniform
download cap of No- 1 and pricing access at (No- 1)vo.
II
Suppose the ISP offers two packages and that the content providers expect each type of household to choose the package intended for it. In light
of Lemma 2, the ensuing pricing game among the content providers will be
Bertrand-like, with equilibrium prices equal to zero. Hence, gross of the hookup
fee, a type-1 household's surplus from purchasing the package intended for a
type-,8 household is nf3V1 and a type-0 household's surplus from purchasing
such a package is min{nf3, No}vo. The ISP's problem is then
max

{Ho,H,no,ih}

(1- )Ho + Hr

(30)

subject to

novo- Ho;::: min{nl,No}vo- Hr,


n1 v1 - H1 ;::: nov1 - Ho ,
novo - Ho ;::: 0, and

(re-O)
(rc-1)
(IR-0)

fi1v1- H1;::: 0.

(IR-1)

Because the ISP could "offer" the package (0, 0), there is no loss of generality in
assuming both household types participate (i.e., the individual rationality, IR,
constraints will hold for both types).
Suppose vo > v1. Given (25), this entails No< N -1. It is readily seen that
the solution to the program (30) is

(n 0 ,Ho) =((No -1), (No -1)vo) and (n1,H1) = ((Nr -1), (N1 -1)v1).
Observe this solution means the ISP achieves the maximum possible profit; in
particular, no surplus is left to the households.
The remaining case is v0
v1 and No S N, with at least one inequality
strict. This corresponds to the textbook second-degree price discrimination
situation (see e.g., Tirole, 1988, Chapter 3). Hence, we know that if the ISP
markets two distinct packages, then, in equilibrium,

24

HETEROGENOUS HOUSEHOLDS AND PRICE DISCRIMINATION

Ho =novo;
high-type households receive an information rent of R =
no (VI - vo); and, hence,
H1

n0 v 1 - Ho

= n1v1- R = n1v1- no(vl- vo).

If the ISP were to market two packages with n1 >no, its profit would be

H1

+ (1- rp)Ho = (n1 - no)vl +novo.

(31)

Clearly, (31) is increasing in 7ir, from which we can conclude n1 = N- 1. Expression (31) is nondecreasing in no if v 1 :5 vo, which means the ISP maximizes
its profit by setting no =No -1. Expression (31) is decreasing in no if r/Jv1 > vo,
which means the ISP maximizes its profit by setting no = 0 (i.e., it offers a single
package intended for high-type households only). To conclude
Proposition 11. In equilibrium, if v1 > vo, then the ISP will offer a single
package with a download cap of N -1 and hookup fee equal to (N -1)v1. In this
case, only high-type households acquire access. If v1 2: vo 2: v1, then the ISP
will offer two packages: one with a download cap of No - 1 and a hookup fee of
(No- 1)vo intended for low-type households and the other with a download cap
of N- 1 and a hookup fee of (N- No)vl +(No- 1)vo intended for high-type
households. 19 Finally, if v 0 > v 1 , then the ISP will also offer two packages: the
download caps will be as just stated, but the hookup fees will be (No - 1)vo and
(N -1)v 1 for the low-type and high-type packages, respectively. In the latter two
cases, both household types acquire access.

We observe that Proposition 11 is consistent with what we see when residential ISPs utilize download caps (e.g., as in Canada-see footnote 8 supra).
Although they may price discriminate across customers by offering different
packages, all packages have download limits.
An important implication of Proposition 11 is the following. Given the
assumptions of this section, allowing the ISP to impose a download cap is always
welfare reducing (although the relative reduction in welfare is arguably minor
when the number of content providers, N, is large). In particular, the ISP's
pricing scheme never expands access beyond the set of households who would
obtain access were download caps prohibited. Under such a prohibition, the
content providers would price to exclude low-type households if v1 > vo and
serve all households otherwise. Similarly, if v1 > vo, the ISP prices to exclude
low-type households, whereas otherwise it caters to all households.
In a model with more standard demand (e.g., closer to the model of Section 3), such a result might not hold. As is well known, price discrimination
can sometimes expand the number of populations served (see, e.g., Tirole, 1988,
Chapter 3) vis-a-vis the number served under uniform (non-discriminatory) pricing. On the other hand, the forces identified earlier would continue to exist: to
19 If

N =No, then these are the same packa.ge.

HETEROGENEOUS CONTENT PROVIDERS

25

better capture rents from the content providers, the ISP will have a tendency to
set the download caps too low. .In contrast, in this section, although it sets the
cap below the welfare-maximizing levei, that effect is relatively small when N
is large.
A further issue, also omitted from our analysis, is an ISP's ability to discriminate via other means. In particular, many residential ISPs discriminate on
the basis of connection or download speed (i.e., engage in second-degree price
discrimination via quality distortions or versioning). Although an ISP might
wish to use both instruments (i.e., download speed and limits) solely for the
purpose of price discrimination, it is possible that download speed is a sufficient
instrument for discrimination and, hence, the additional imposition of download limits could be driven primarily by incentives to extract rents from content
providers, as modeled in this paper. 20

HETEROGENEOUS CONTENT PROVIDERS

Next, we briefly consider the situation if the content providers are heterogenous.
This is not easily done with either model used so far; hence, we utilize the
following variant: a household's utility is

=faN v(n, X)xndn + y,

where Xn E {0, 1} indicates whether the household has acquired a unit of the
nth content provider's content. Note, as in the previous section, a household
wants, at most, one unit of any content provider's content and we are assuming
a measure N of content providers. The quantity v(n, X) is the contribution to
total household utility from a unit of the nth content provider's content given
X units of total content are being transported. We again assume congestion is
detrimental: v(n, ) is a decreasing function for all n. We assume a fixed order
of preference for the different content; specifically, assume that n > n' implies
v(n,X) < v(n',X) for all X. Assume v(N,N) :;:: 0 (i.e., even with maximum
congestion, a household gains utility from its least preferred content). At the
same time, we maintain the assumption that limits on congestion can be welfare
enhancing: let the function

U(M)

=:1M v(n,M)dn

be concave in M and assume U'(N) < 0.


Absent any download limit, all content providers will operate and content
provider n sets a price of v(n, N). There is no household surplus, so HNocAP = 0.
Welfare is U(N).
20 Somewhat the flip side: slow download speeds could be similar to download caps insofar
as they cause households to see different content providers as substitutes (e.g., one might be
willing to wait, a long time for content from provider A or B but not the time to get content
from both). This is an issue, however, for future research.

HETEROGENEOUS CONTENT PROVIDERS

26

Suppose a download restriction of M < N is imposed. The following is an


equilibrium, as is readily verified:
All content providers n ;::: M set their prices to 0.
A content provider n, n < M, sets its price to v(n, M) - v(M, M).
Household surplus is Mv(M,M); hence, HeAP= Mv(M,M).
The ISP will set M to maxirllize HeAP The first-order condition is
(32)
In contrast, welfare maximization entails setting M to solve
(33)
Clearly, expressions (32) and (33) are different, from which it follows that the
download limit that is profit maximizing for the ISP is, generically at least,
not the limit that would be welfare maximizing. Further examination of these
expressions reveals that a famili(J.r tension exists: the monopolist (the ISP) is
concerned with marginal values, while welfare depends on infra-marginal values
(similar in logic to Spence, 1975). In particular, we have the following result.
Proposition 12 .. Under the assumptions of this section, if the marginal disutility
of congestion is not less for content of lower value than higher value (i.e., if
a(8v/8X)jan :::; 0}, then the ISP will set a download cap that is below the
welfare-maximizing cap.

Proof: By the intermediate value theorem (33) equals


v(

for some

n E [0, M).

M M)
'

Mav(n,M)

(34)

ax

By assumption, (34) is not less than


v

(M M)

Mav(M,M)

ax

which in turn strictly exceeds (32). The result follows.

For example, if v(n, X) = K - nX, K ;::: N 2 , then the ISP will impose a cap
of VK/3, while welfare maximization entails a cap of -/2K{3. Indeed, as long
as the ISP wishes to impose a cap (i.e., whenever N > VK/3), welfare with no
cap exceeds welfare under the ISP's preferred cap:
Proposition 13. Under this section's assumptions and assuming v(n, X) =
K - nX, K 2: N 2 , welfare is greater with no download cap than with the cap
the ISP would choose.

ADVERTISING-SUPPORTED CONTENT AND SURPLUS EXTRACTION VIA HIGHER QUALITY

Proof: Observe U(n) = Kn- n 3 /2 is a concave function inn. At n =


(the upper bound):

The derivative of U(n) evaluated at n


U(-/K73) for all n E (-/K73,-/.KJ.

= yK73 is

K/2

27

.../K

> 0. Hence, U(n) >

Proposition 12 assumed that the disutility from congestion was greater for
less desired content than more desired content. It is, of course, possible the opposite is true (e.g., movies on demand could be both highly valued and marginal
disutility from congestion high relative to material from online periodicals).
Even in such a setting, it is possible that the ISP will wish to set a cap below the welfare-maximizing cap due to the direct effect of inducing competition
among the content providers (i.e., reflecting the 8v(M,M)f8n term in (32)).
To illustrate this, suppose

(35)

v(n, X)= Jx(K- n),


where K 2: N. Observe 8(8vj8X)/8n > 0. It is readily see that

U(M)

M3/2

= KVM- -2-.

The welfare-maximizing cap is, therefore,

= K/3.

Mw =

2Kj3. Solving (32) yields

Proposition 14. Under this section's assumptions and assuming v(n, X) is


given by (35), welfare is greater with no download cap than with the cap the ISP
would choose.
Proof: Observe U(n) is a concave function inn. At n

(3K) = 56-/3

[(3/2

The derivative of U(n) evaluated at n


U(K/3) for all n E (K/3, K].

10

=K

(the upper bound):

J{3/2

< -2- .= U(K).

= K/3 is VfK/4 > 0.

Hence, U(n) >


g

ADVERTISING-SUPPORTED CONTENT AND SURPLUS EXTRACTION VIA HIGHER QUALITY

Considerable amounts of content available on the Internet is provided free to


households, with the content providers' deriving their revenue from advertising.
In this section, we briefly consider a model of advertising-supported content in

ADVERTISING-SUPPORTED CONTENT AND SURPLUS EXTRACTION VIA HIGHER QUALITY 28

which the content providers, if induced to compete, will do so via the quality of
their content. 21 Using a simple model, we demonstrate that the ISP continues
to derive a surplus-extraction benefit from download caps.
For convenience, we again employ a model of household demand similar to
that used in the Introduction and Section 8: a household's utility is
N

U=y+

LVnXn,
n=l

Xn = 0 again indicates no acquisition from the nth content provider,


= 1 indicates acquisition of a unit, and Vn is the value (quality) of a unit

where
Xn

of the nth provider's content. For the sake of brevity, we assume away any
congestion externality.
Assume that each content provider chooses its Vn from the binary set {11., v},
where

(N-1)v>NY.2:0.

(36)

Assume that a content provider incurs a fixed cost of c(vn) if it selects quality
For convenience, we assume c(Y.) = 0. Let c = c(v) and assume c > 0.
A content provider's revenue is Axn, where Xn is the total amount of content
delivered and A is the advertising rate. For the sake of brevity, we do not model
the advertising market and, instead, consider A to be fixed. An alternative,
which we do not explore, is that a download cap reduces the supply of "eyeballs,"
so A increases the tighter is the cap. Since the consequence of an increasing A
would only reinforce the effect we analyze here, there is little loss in limiting
attention to a fixed A.
A content provider's profit is, thus, Axn- c(vn) If there are no download
caps, then Xn = 1 (recall there is a measure one of households). It follows that
a profit-maximizing content provider would set Vn = 'Jl.. It further follows that
the ISP sets its hookup fee as HNocAP = N'Jl..
Suppose there is a cap, n < N. Households will, then, consume from the
n content providers that offer the highest quality (most desirable) content. If
there are N+ 2: n content providers all offering the maximum quality, assume
each delivers njN+ amount of content. We limit attention to the case
Vn

N-1

-rA;:::c.

(37)

If, instead of (37), A :::; c, then low-quality would be provided in equilibrium


even with download caps. If, instead

then the quality-choice subgame would have no pure-strategy equilibrium.


21 We thank seminar participants at the Paris School of Economics for encouraging us to
explore this extension.

CONCLUSIONS AND FUTURE WORK

29

Given condition (37), if the ISP imposes a, download cap of ii = N- 1, then


an equilibrium of the quality-choice subgame played by the content providers
is for each to choose high quality (i.e., Vn = v for all n). Household surplus
is (N- l)v and, thus, the hookup fee charged by the ISP is HeAP = (N- l)v.
Given (36), HeAP > HNoeAP: a download cap increases the ISP's profit.
The welfare consequences of a download cap are clearly ambiguous: without
a cap, welfare is (A+ 'Q)N; with a cap, it is (A+ v)(N- 1)- Nc; and either
quantity could be the greater. 22
To summarize:
Proposition 15. Even if content is provided freely by content providers
households, the ISP can have incentives to impose a download cap in order
induce the content providers to provide more desirable content, the benefits
which the ISP can capture via higher hookup fees. The welfare consequences
a cap in this instance are ambiguous.

11

to
to
of
of

CONCLUSIONS AND FUTURE WORK

This paper has considered how a platform, such as a residential Internet service
provider (ISP) or .mobile telephone company, can profit from the imposition of
download caps on its customers even absent motives of price discrimination and
congestion alleviation. Download caps intensify the competitive pressures on
content providers, which causes them to reduce the prices they charge consumers
(or raise the quality of their content). Because, ceteris paribus, consumers would
realize greater surplus, the platform can raise its access (hookup) charge, thereby
increasing its profit.
Beyond demonstrating that effect, the paper has shown it could be sufficiently strong that the platform has incentives to set the cap so low that, even if
there were welfare benefits to be had from congestion alleviation, welfare would
be higher with no cap than with the overly tight cap the platform would choose.
The implications of this effect for both the platform's capacity (bandwidth) decisions and time-of-day practices were considered. Somewhat paradoxically, it
was shown that allowing the platform to impose a download cap increases its
incentives to expand capacity. It was also shown that the profits generated by a
download cap undermine incentives the platform might have to shift consumption to off-peak times (at least to shift them by relaxing the caps during off-peak
times).
We considered other means by which the platform could extract rents, specifically by charging households or content providers direct per-unit (e.g., per byte)
fees. We showed those means generate greater profit than download caps. Critically, though, the difference in the platform's profits between these other means
and the utilization of download caps shrinks as the number of content providers
increases. When the number of content providers is large, the platform could
be close to indifferent between these other means and download caps; hence,
22 This ignores the advertisers' well-being, but even accounting for their surplus, the welfare
consequences of a cap would remain ambiguous.

CONCLUSIONS AND FUTURE WORK

30

once transaction costs, consumer attitudes, or prevailing regulations are taken


into account, the platform may choose to use download caps rather than those
other means.
We extended the analysis to allow for heterogeneous content providers. Although tractability limited us to a less-general model than used for most our
analysis, our results suggest that our conclusions continue to hold when the value
consumers place on the content of different providers varies. We also extended
our analysis to allow for heterogeneous consumers (households). Agaii;t, issues
of tractability limited the analysis, but we were able to demonstrate that the
logic of our earlier results was not dependent on our assumption of homogenous
consumers.
Future work remains. First, there is the question of quantifying the size
of the effect of download caps. In this regard, comparing the US with Canadian residential Internet markets could be instructive. The former is currently
characterized by few download caps, while download caps are prevalent in the
latter. If the former market is characterized by higher content prices, but lower
access fees, relative to the latter, 23 then this would provide both support for
our model, as well as a means of quantifying the effect.
Second, our analysis has been limited to a monopoly platform. Although
platform competition in the relevant markets is often limited, it does exist and
the consequences of oligopolistic competition among platforms on the use of
download caps to be explored. Among the issues worth exploring is the extent to
which the platforms are tempted to free ride on each other: because platform A
benefits from the reduction in content prices induced by platform B's download
caps, A might be tempted to offer less stringent caps to gain a competitive
advantage vis-a-vis B. On the other hand, if, as a consequence, A has the lion's
share of the households, the effect of B's caps on content providers' pricing could
be negligible.
Another competitive issue arises when the platform is also a content provider.
For instance, a cable TV company could provide broadband Internet and compete directly with Internet-based purveyors of on-demand movies. A download
limit could harm such rivals, but because it also makes them fiercer competitors,
it could lower the cable TV's profits from its own sale of
movies.
Download caps could also affect aspects of content providers' operations in
addition to their pricing. Beyond, for instance, giving them incentives to employ
better compression algorithms, caps could affect how they see the balance between directly charging consumers and generating revenue through other means,
such as advertising. Hence, although, as discussed in Section 10, download caps
could induce higher quality from content providers, it is also possible that it induces lower quality (e.g., transmitting lower-resolution images or having more
ads). To the extent quality is reduced, consumer surplus would also be reduced
ceteris paribus, which in turn could affect the platform's incentives to impose
23 As noted earlier, Van Gorp and Middleton (2010) report evidence that Canadian access
fees tend to exceed those of other OECD countries. Given the prevailing currency rates at the
time this is written, Netflix charges 6% less in Canada than the US.

REFERENCES

31

caps in the first place. All of these extensions are, however, beyond the scope
of the current paper and remain work for the future.
REFERENCES

Cheng, H. Kenneth, Subhajyoti Bandyopadhyay, and Hong Guo, "The


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_, Doh-Shin Jeon, and Byung-Cheol Kim, "Net Neutrality, Business
Models, and Internet Interconnection," 2013. Working Paper, Georgia Tech.
Dai, Wei and Scott Jordan, "Design and Impact of Data Caps," in "IEEE
Global Communications Conference (Globecom)" Atlanta, GA December
2013.
.
_ and_ , "How do ISP Data Caps Affect Subscribers?," in "Research Conference on Communication, Information and Internet Policy" Arlington, VA
September 2013.
Dukes, Anthony and Esther Gal-Or, "Negotiations and Exclusivity Contracts for Advertising," Marketing Science, May 2003, 22 (2), 222-245.
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_ and Joacim Tag, "Net Neutrality on the Internet: A Two-sided Market
Analysis," Information Economics and Policy, 2012, 24, 91-104.
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Rochet, Jean-Charles and Jean Tirole, "Two-Sided Markets: A Progress
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REFERENCES

32

Spence, A. Michael, "Monopoly, Quality, and Regulation," Bell Journal of


Economics, Autumn 1975, 6 (2), 417-429.
Tirole, Jean, The Theory of Industrial Organization, Cambridge, MA: MIT
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Van Gorp, Annemijn F. and Catherine A. Middleton, "The Impact
of Facilities and Service-Based Competition on Internet Services Provision
in the Canadian Broadband Market," Telematics and Informatics, 2010, 21,
217-230.

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Subject:

F<rBA
Monday, March 10, 6:00- 8:15p.m.
The Courts, the First Amendment, and the Future of Video
The FCBA Video Programming and Distribution and Judicial Practice Committees will co-sponsor a CLE
on Monday, March 10 from 6:00- 8:15p.m. entitled "The Courts, the First Amendment, and the Future of
Video." This program will be held at Wiley Rein LLP, 1776 K Street, NW.

*This CLE was origillally scheduled for February 24, but is

flOW

going to be held March 10.

Changes in the video marketplace have prompted numerous disputes about whether existing rules should remain
in place and whether new (or revised) rules are needed. This CLE will address the role that the courts have
played recently in resolving such disputes and the impact that these judicial decisions may have on the industry,
with a particular focus on constitutional issues.

This program has been approved for 2.0 MCLE credit hours from the VA and CA State Bars.

Click here to register online


Click here to download the registration form
AGENDA
6:00- 6:05 p.m.

Welcome and Introduction

6:05 -7:05p.m.

Recent and Pending Court Decisions

In the span of just a few months, courts have issued a series of decisions - including, most recently, the DC
Circuit's rejection of key portions of the FCC's "Open Internet" order- that could shape the legal framework
1

applicable to the video marketplace, and thus the marketplace itself. And on the horizon is the Supreme Court's
adjudication of a challenge by television broadcasters to Aereo's online subscription video service. Speakers
will describe the legal issues presented by these cases, how the courts are approaching them, and the potential
ramifications of these rulings for the industry.

Speakers:
John Bergmayer, Senior Staff Attorney, Public Knowledge
Rick Chessen, Senior Vice President- Law and Regulatory Policy, National Cable & Telecommunications
Association
_Pantelis Michalopoulos, Partner, Steptoe & Johnson LLP
(Other speakers to be detennined)
Moderator:
Brian Murray, Latham & Watkins LLP and FCBA Video Programming and Distribution Committee Co-Chair
7:05-7:15 p.m.

Break

7:15-8:15 p.m.

First Amendment Issues

.A number of the significant decisions impacting the video marketplace have raised First Amendment issues. In
the second half of the CLE, speakers will discuss the different ways in which the "First Amendment has come up
in these cases, and how big a role the First Amendment is likely to have in similar cases going forward.

Speakers:
Matthew Brill, Partner, Latham & Watkins LLP
Eve Reed, Partner, Wiley Rein LLP
Gerry Waldron, Partner, Covington & Burling LLP
(Other speakers to be detennined)
Moderator:
Joshua Turner, Wiley Rein LLP and FCBA Judicial Practice Committee Co-Chair

Not Responsive

-From:

Sent:
To:

Subject:
Attachments:

,
'

,L
I

QUINN JR., ROBERT W FOIA Exemption 6


Friday, March 21, 2014 6:06 PM
Jonathan Sallet; Philip Verveer; Gigi Sohn; Daniel Alvarez
FW: Net Neutrality Comments
AT&T Net Neutrality Remand Comments.pdf

Should have shot these to you a while ago. Sorry.


We actually focused on how you could rewrite rules around no blocking and non-discrimination. Apparently, we are in
the minority ....
Robert W. Quinn Jr.
AT&T Services, Inc
Senior Vice President- Federal Regulatory & Chief Privacy Officer
1120 20th Street NW
Suite 1000
Washington, DC 20036

rwquinn@ att.com

This message and any anuchments toil contain PRIVILEGED AND CONFIDENTIAL ATTORNEY/CLIENT
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OF OR IN PREPARATION TO LITIGATION intended exclusively for specific recipients. Please DO NOT FORWARD OR
DISTRinUTE to anyone else. If you have received this e-mail in error, please call Glenis McKoy at (202) 457-2080 to report the
error and then delete this message from your system.

Before the
FEDERAL COMMUNICATIONS COMMISSION

Washington, DC 20554

In the Matter of
Protecting and Promoting the Open Internet

)
)
)
)
)
)

GN Docket 14-28

COMMENTS OF AT&T SERVICES, INC.

Christopher M. Heimann
Gary L. Phillips
Lori Fink
AT&T SERVICES, INC.
1120 20th Street, NW
Washington, D.C. 20036
(202) 457-3058 (phone)

Counsel for AT&T Inc.


March 21, 2014

TABLE OF CONTENTS
INTRODUCTION AND EXECUTIVE SUMMARY ..................................................................... I
DISCUSSION .................................................................................................................................. 5
I.

Verizon Allows the Commission to Adopt Targeted Net Neutrality Rules That
Promote Both a Free and Open Internet and Broadband Investment .................................. 5

II.

Any New Nondiscrimination Rule Should Target Only "Commercially


Unreasonable" Actions That Threaten Internet Openness and the Virtuous Cycle of
Innovation and Investment. ................................................................................................ I 0

III.

A.

The Commission Should Adopt a Safe Harbor for Certain Arrangements That
Promote the Purpose of Section 706 ...................................................................... 11

B.

The Commission Should Evaluate Arrangements Outside the Safe Harbor


Through a Case-by-Case, Data-Driven Analysis ................... ............................... 13

An Approach that Targets Only "Commercially Unreasonable" Arrangements Will


Best Achieve the Purpose of Section 706 .......................................................................... 14
A.

B.

A Targeted Approach Focusing on Specific Threats to Internet Openness


Makes Abundant Policy Sense ............................................................................... 15
1.

Allowing Individualized Dealings Would Help Small Edge


Providers .................................................................................................... 16

2.

Enabling ISPs to Negotiate with Edge Providers Would Reduce the Costs
of Broadband for Consumers and Promote Increased Broadband
Adoption .................................................................................................... 22

3.

Flexible Net Neutrality Rules Would Spur ISPs to Invest in Broadband


Infrastructure and New Service Features ................... :............................... 24

4.

Allowing Individualized Dealings Would Promote Efficiency and


Stimulate the Development ofNew Products and Services ....................... 25

A Targeted Rule Would Be in Harmony with Other Rules Sharing a Similar


Purpose and with Regulatory Best Practices ......................................................... 27

CONCLUSION .............................................................................................................................. 32

ii

INTRODUCTION AND EXECUTIVE SUMMARY

The D.C. Circuit's remand in Verizon 1 requires the Commission to fine-tune its net
neutrality rules, at least insofar as they apply to fixed broadband Internet access services. 2 As a
result of Verizon, any nondiscrimination requirement must be narrowly tailored to address only
true threats to Internet openness that emerge from the record developed in this proceeding. But
this required tailoring will in no way undermine the rules' intended purpose. To the contrary,
with the modest changes described below, the Commission's new rules would more fully and
directly promote the goal of a free and open Internet that catalyzes innovation and investment.
In short, the Commission should follow the court's directive and permit ISPs "to make
individualized decisions, in particular cases, whether and on what terms to deal" with edge
providers/ without any common-carrier-like constraints on the outcomes of those dealings. At
the same time, the Commission can prohibit commercially unreasonable conduct that deters
investment in advanced telecommunications capability by stifling the openness of the Internet.
That more targeted and flexible approach would be consistent not 0!11Y with Verizon but
also with the approach that the D.C. Circuit blessed in Cellco Partnership v. FCC, 700 F.3d 534
(D.C. Cir. 2012), in upholding the Commission's Data Roaming Order. 4 The D.C. Circuit
upheld that Order precisely because, at least on its face, it permitted providers to negotiate
customer-specific offerings with no requirement that those offerings be generally available.
See generally Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 20I4) (reviewing Report and
Order, Preserving the Open Internet et al., 25 FCC Red I7905 (20 I 0) ("Open Internet Order")).
2

These comments focus solely on how the Commission should proceed with respect to the
no-blocking and nondiscrimination rules applicable to fixed broadband services. We do not
address here the separate no-blocking rule for mobile broadband.

3
4

Verizon, 740 F.3d at 651.

See Second Report and Order, Reexamination ofRoaming Obligations ofCommercial


Mobile Radio Service Providers and Other Providers ofMobile Data Services, 26 FCC Red
54 II (20 II) ("Data Roaming Order").

Here, too, the Commission must allow ISPs the flexibility to engage in individualized
negotiations with edge providers, subject to the proviso that an ISP not engage in commercially
unreasonable conduct.
Such an approach not only would be lawful under binding precedent; it also would make
abundant policy sense. In fact, allowing individualized negotiations in the mine run of cases
would promote many of the same goals that the net neutrality rules are designed to further. For
example, broad net neutrality rules are often justified as necessary to protect fledgling edge
providers and those who seek to bring innovative new applications to market. But permitting
individualized arrangements with ISPs often would benefit smaller, innovative edge providers by
enabling them to overcome more established players' large capital investments in physical
infrastructure. And empowering edge providers and ISPs to negotiate whether and on what
terms to deal would promote the public interest in other ways as well. Empirical studies in a
variety of contexts have shown that vertical arrangements are much more likely to promote
competition than hinder it. And in the Internet space, allowing ISPs to recover some of their
network costs directly from edge providers would benefit consumers by decreasing the cost of
broadband service. And this, in turn, would increase the demand for broadband Internet access,
spurring ISPs to deploy more and faster broadband infrastructure. Permitting individualized
deals also would promote the development of cutting-edge network features (and with them,
innovative applications that use those features) because ISPs could recover.the costs of such
network upgrades directly from the edge providers that make use of them. Finally, such rules
also would enable ISPs and edge providers to efficiently determine which innovative new
applications require quality-of-service enhancements that only ISPs can deliver.

Importantly, allowing ISPs to differentiate among edge providers in commercially


reasonable ways would not prevent the Commission from addressing conduct that truly threatens
an open Internet, should such conduct occur. To the contrary, Verizon requires only that any
new rules be narrowly tailored and focused on situations that present real threats to Internet
openness. To ensure that its new rules are consistent with this directive, the Commission should
ground them in facts, not speculation, and common sense reality, not rhetoric.
It is also important that any new rules balance the need for flexibility in addressing

particular actions with the benefits of regulatory certainty. As the Commission has long
recognized, regulatory uncertainty is the enemy of investment and thus is antithetical to the
broadband deployment objectives of section 706. 5 Accordingly, the more clarity and guidance
the Commission provides in advance, the better. To that end, the Commission should establish a
safe harbor for non-exclusive arrangements entered into with unaffiliated providers of Internet
content, services, or applications. ISPs have neither the incentive nor ability to harm Internet
openness in derogation of section 706 goals in these circumstances, and subjecting them to caseby-case regulatory scrutiny would unnecessarily impede efficient and pro-consumer arms-length
commercial dealings. For arrangements that do not fall within that safe harbor, the Commission
should employ a case-by-case analysis that examines the competitive effects, if any, ofthe
arrangement, as well as other factors similar to those contained in the Data Roaming Order. In
conducting this case-by-case analysis, the Commission should evaluate each arrangement or
practice independently through a fact-specific and data-driven approach that appropriately
weighs both the benefits and the costs of interfering with a particular negotiated arrangement.

47

u.s.c. 1302.
3

That approach would be consistent with the Commission's rules in other areas, such as
program access, where it assesses vertical arrangements on their unique facts, only condemning
those arrangements that are shown to be harmful to the public interest. It would also be in line
with modem antitrust doctrine and with basic regulatory best practices, which recognize that
regulations always introduce competitive distortions and unintended consequences, and which
therefore limit government intervention to situations in which private arrangements inflict
identifiable harm.
The balance of these comments is organized as follows. Part I discusses the D.C.
Circuit's opinion in Verizon and the options that remain open to the Commission following that
decision. In particular, we outline the legal basis for a targeted approach to regulation of fixed
broadband Internet access services that proscribes only "commercially unreasonable"
discrimination and that allows ample room for individualized dealing. Part II lays out AT&T's
specific proposal, including the safe harbor that would apply to certain arrangements and the
factors that the Commission should consider when evaluating whether arrangements falling
outside the safe harbor are "commercially unreasonable." And Part Ill discusses why the
Commission should adopt AT&T's proposal. In Part liLA, we explain why allowing
individualized dealings between ISPs and edge providers makes abundant policy sense. And in
Part III.B, we explain why flexible and targeted net neutrality rules comport with principles
governing related areas of the law and with regulatory best practices more generally. 6

In these comments, AT&T proposes changes to only the rules applicable to fixed
broadband providers. Because the D.C. Circuit found that the Open Internet Order did not
sufficiently disaggregate the antidiscrimination rule applied to fixed broadband providers from
the no-blocking rules applied to fixed and mobile providers, the court held that the no-blocking
rules, like the antidiscrimination rule, did not leave sufficient room for individualized bargaining
and therefore violated the statutory prohibition on common-carrier treatment. Verizon, 740 F.3d
at 657-58. Arguably, the no-blocking rule for mobile broadband did not impose common-carrier
4

DISCUSSION
I.

VERIZON ALLOWS THE COMMISSION TO ADOPT TARGETED NET NEUTRALITY RULES

THAT PROMOTE BOTH A FREE AND OPEN INTERNET AND BROADBAND INVESTMENT

Although Verizon struck down the Commission's net neutrality rules, it also provided
clear instructions on how to modify those rules so that they do not unlawfully impose commoncarrier requirements on information services. By following the court's guidance, the
Commission can ensure a free and open Internet that promotes broadband investment without
running afoul of section 153(51) ofthe Communications Act.
In its Open Internet Order, the Commission imposed various requirements on broadband
Internet access providers designed to protect and preserve the open Internet. First, the Order
required both fixed and mobile broadband providers to disclose certain network management
practices, performance characteristics, and terms and conditions of their broadband services. 7
Second, the Order prohibited fixed broadband providers from blocking lawful content,
applications, services, or non-harmful devices, and it barred mobile broadband providers from
blocking lawful websites or applications that compete with the provider's own voice or video
telephony services. 8 Finally, the rules banned fixed broadband providers from "unreasonabl[y]
discriminating in transmitting lawful network traffic." 9 The Commission made clear that both
the nondiscrimination and no-blocking obligations contained exceptions for "reasonable network

regulation insofar as it was limited in scope, prohibiting blocking only of access to lawful
websites and applications that competed with an ISP's video and voice telephony services, and
was unaccompanied by a separate nondiscrimination requirement. See Open Internet Order, 25
FCC Red at 17959-61
99-103. The mobile no-blocking rule thus focused on situations where
an ISP theoretically might have an incentive to act in a commercially unrea"sanable fashion,
while otherwise leaving room for individual negotiations. See Part II, infra.
7

Open Internet Order, 25 FCC Red at 17906

I d.

I d.

I.

management," which the Commission defined to allow broadband providers "flexibility to


experiment, innovate, and reasonably manage their networks." 10 The Commission also limited
the rules' application to the transmission of traffic as part of a mass-market broadband Internet
access service, 11 made clear that such services did not include "Internet backbone services," 12
and expressly disavowed any intent to regulate "paid peering
In Verizon, the D.C. Circuit upheld the Commission's authority under section 706 to
regulate broadband Internet service providers in ways that "encourage the deployment of
broadband telecommunications capability." Verizon, 740 F.3d at 634 (citing 47 U.S.C. 1302(a),
(b)). At the same time, the court reaffinned that the Commission may not use any of its powers
"in a manner that contravenes any specific prohibition contained in the Communications Act," id.
at 649, including the command 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." 47 U.S.C. 153(51). And because the Commission has rightly concluded that
broadband ISPs provide "information services" and not "telecommunications services," 14 it may
not, as the court held, regulate such providers as common carriers, including under section 706.
10

!d. at 17955-56

II

ld. at 17932 44.

12

!d. at 17933

47.

13

!d. at 17944

67 n.209.

92.

14

See, e.g., Declaratory Ruling and Notice of Proposed Rulemaking, Inquiry Concerning
High-Speed Access to the Internet Over Cable and Other Facilities et al., 17 FCC Red 4798
(2002) ("Cable Modem Order"), aff'd, National Cable & Telecommunications Ass 'n v. Brand X
Internet Servs., 545 U.S. 967 (2005); see also Comments of AT&T, Frameworkfor Broadband
Internet Service, GN Docket 10-127 (filed July 15, 2010) ("AT&T Title II Reclassification
Comments"). In discussing this classification, the court incorrectly stated that the Commission
had, at one time, classified Internet access as a telecommunications service. Verizon, 740 F.3d at
630-31. While the Commission once classified stand-alone DSL transport service as a
telecommunications service, it has never broadly classified Internet access itself as such. See
Cable Modem Order, 17 FCC Red at 4825 43.

Verizon, 740 F.3d at 650. The court went on to set aside the Open Internet Order's no-blocking
and nondiscrimination rules as prohibited "common carrier" regulations. See id. at 655-59.
The main question following Verizon is therefore what constitutes an impermissible
common-carrier regulation. Synthetizing prior decisions, the D.C. Circuit explained in Verizon
and in Cellco that common-carrier obligations include any obligation that "force[s] [a] carrier to
offer service indiscriminately and on general terms." Cellco, 700 F.3d at 547; see also, e.g.,

NARUC v. FCC, 525 F.2d 630, 641 (D.C. Cir. 1976) ("[T]o be a common carrier one must hold
oneself out indiscriminately to the clientele one is suited to serve[.]"). Thus, the essence of
common-carrier status is a limit on a provider's ability to treat customers on an individualized
basis. See, e.g., NARUC, 525 F.2d at 641 ("[A] carrier will not be a common carrier where [it]
... make[s] individualized decisions, in particular cases, whether and on what terms to deal.").
In determining whether a given regulation amounts to compelling a provider to hold its
services or facilities out indiscriminately for public use-'and thus is an impermissible commoncarrier obligation-the Supreme Court's decision in Midwest Video II is instructive. That case
involved a generally applicable requirement that cable television systems oyer a certain size
provide a certain number of channels for use by the public at either no fee or a regulated fee. See

FCC v. Midwest Video Corp., 440 U.S. 689, 693-94 (1979) ("Midwest Video IF'). The rules also
stripped cable operators of any discretion regarding who could use the channels, what could be
transmitted over them, and on what terms. !d. at 693. The Court found that, in adopting such
rules, the Commission had "relegated cable systems, pro tanto, to common-carrier status." /d. at
700-01. As the Court explained, "cable systems are required to hold out dedicated channels on a
first-come, nondiscriminatory basis"; cable operators "are prohibited from determining or
influencing the content of access programming"; and the rules "delimit[ed]. what operators may

charge for access and use of equipment." Id. at 701-02. The rules thus "plainly impose
common-carrier obligations on cable operators." Id. at 701.
At the same time, Midwest Video II clarified that not all forms of"openness" obligations
would amount to prohibited common-carrier regulation, distinguishing the Supreme Court's
prior decision in United States v. Southwestern Cable Co., 392 U.S. 157 (1968). Southwestern
Cable involved, among other things, a Commission requirement that CATV systems transmit to

their subscribers the signals of any station into whose service area the CATV system had brought
a competing broadcast signal. Id. at 166. That targeted requirement was among a number of
rules the Commission had adopted out of fear that the carrying of distant broadcast signals by
CATV operators would imperil local broadcasters. Id. at 175. As the Supreme Court explained
in Midwest Video II, the carriage requirement at issue in Southwestern Cable, unlike that in
Midwest Video 11 itself, "did not amount to a duty to hold out facilities indifferently," but was

rather 'limited to remedying a specific perceived evil"-namely, the perceived threat to local
broadcasters-and therefore did not run afoul of the prohibition on treating cable system
providers as common carriers. Midwest Video II, 440 U.S. at 707 n.16; see also Verizon, 740
F.3d at 656 ("[T]he Southwestern Cable regulation imposed no obligation on cable operators to
hold their facilities open to the public generally, but only to certain specific broadcasters if and
when the cable operators acted in ways that might harm those broadcasters." (emphasis added)).

The D.C. Circuit's recent decision in Cellco similarly illuminates the limits on the
Commission's authority under the Communications Act. Cellco involved the Commission's
Data Roaming Order, which generally "require[d) facilities-based providers of commercial

mobile data services to offer data roaming arrangements to other such providers on commercially

reasonable terms and conditions," 15 a requirement the Commission believed would "help[]
provide consumers with greater competitive choices." Data Roaming Order, 26 FCC Red at
5422

20. At the same time, however, the Commission expressly permitted providers to

negotiate the terms of their roaming agreements on an "individualized basis" and to offer
arrangements "on commercially reasonable terms and conditions tailored to individualized
circumstances without having to hold themselves out to serve all comers indiscriminately on the
same or standardized terms." !d. at 5433

45. The Commission further specified that conduct

that "unreasonably restrains trade" would not be commercially reasonable, id., and outlined a
number of factors to aid future determinations regarding reasonability, including "the level of
competitive harm" and "benefits to consumers," id. at 5445

68. In upholding the rules, the D.C.

Circuit emphasized that the data roaming regulations "le[ft] substantial room for individualized
bargaining and discrimination in terms" and endowed providers with "considerable flexibility ...
to respond to the competitive forces at play in the mobile-data market," subject only to a loose
commercial reasonability backstop. Cellco, 700 F.3d at 548. Importantly, the court also found
that, although the rules were lawful on their face, the Commission might apply them in an
unlawful manner if it policed providers' discretion too closely and in a manner that amounted to
imposing a de facto "common carriage obligation." !d. at 549.
Emerging from these cases are a number of principles that must guide any new rules the
Commission crafts in responding to the D.C. Circuit's remand. Most importantly, any such rules
must allow broad room for individualized negotiations among ISPs and edge providers, with no
presumption that ISPs must treat like customers alike absent a clear justification for treating them
differently. Closely policing individual negotiations as a general matter would effectively

15

See Data Roaming Order, 26 FCC Red at 5411


9

1.

amount to applying Title II nondiscrimination obligations to ISPs. Instead,. individualized


negotiations that result in different terms among even similarly situated parties should be treated
as presumptively lawful unless there is a factual showing that the action poses a threat to Internet
openness and the virtuous cycle of innovation and investment that such openness promotes.
More specifically, the Commission should follow the courts' lead and adopt an
appropriately narrow rule that is grounded on fact-based, real world record evidence, and that
proscribes only "commercially unreasonable" practices. The Commission should approach
whether an action is commercially reasonable by first focusing on those situations that pose a
particular threat to Internet openness and the objectives of section 706, and then applying the
factor-based analysis described below (see Part II, infra). Such an approach, by concentrating on
specific threats to Internet openness while preserving market choices in the majority of cases,
would, as in Southwest Cable, represent a targeted response to a specific concern. And it would,
as in Cellco, allow individual contracting parties flexibility in the mine run of cases to reach
tailored agreements without fearing Commission enforcement actions. Finally, as explained in
Part III below, this approach also would further the Commission's twin goals of promoting a free
and open Internet and stimulating investment in broadband infrastructure. Indeed, for the
reasons detailed below, it would advance those goals far better than the broader rules vacated in

Verizon.
II.

ANY NEW NONDISCRIMINATION RULE SHOULD TARGET ONLY "COMMERCIALLY


UNREASONABLE" ACTIONS THAT THREATEN INTERNET OPENNESS AND THE VIRTUOUS
CYCLE OF INNOVATION AND INVESTMENT

To comply with Verizon, the Commission need not substantially revise the text of the
nondiscrimination rule that the court struck down. While the old rule prohibited fixed broadband
providers from "unreasonably discriminat[ing] in transmitting lawful network traffic over a

10

consumer's broadband Internet access service," 16 the new rules could simply ban "commercially
unreasonable discrimination in the transmission of lawful network traffic over a consumer's
broadband Internet access service." 17 As it did in the Data Roaming Order, however, the
Commission should explain that the commercial reasonability requirement does not amount to a
Title-11-like obligation to treat like providers alike except where there is a special justification for
treating them differently. 18 Instead, the commercial reasonability standard should allow broad
room for individualized negotiations among providers leading to different terms in different
cases, subject only to a prohibition on actions that in fact harm Internet openness and by

extension, the virtuous cycle of innovation and investment.

A.

The Commission Should Adopt a Safe Harbor for Certain Arrangements


That Promote the Purpose of Section 706

In deciding whether an action is commercially unreasonable, the Commission should


adopt a safe harbor for practices that, as a category, do not threaten the open Internet.
Specifically, the Commission should clarify that any new prohibition on discrimination does not
apply to non-exclusive arrangements entered into with unaffiliated providers oflnternet content,
services, or applications. This safe harbor would not only be consistent with cases delineating
the breadth of common carrier regulation, but with section 706 itself insofar as it would offer
greater predictability in the application of the Commission's rules.

16

47 C.F.R. 8.7.

17

As the old rules were, any new such prohibition must be subject to a reasonable network
management exception. See Open Internet Order, 25 FCC Red at 17951-56 ,-r,-r 80-92 (discussing
exception).
18

As the Commission acknowledged in the Data Roaming Order, under the commercially
reasonable standard, the "actual provisioning of [services] under those arrangements and any
practices in connection with such arrangements will be subject to individually negotiated
contract[] provisions, unlike a common carrier obligation under Sections 20 I and 202 of the Act."
26 FCC Red at 5445-46 ,-r 68.
II

First, the safe harbor outlined above finds strong support in the law, and in particular the
Supreme Court's directives in Southwestern Cable and Midwest Video II. In those cases, the
Court made clear that the Commission may adopt targeted responses to parJ:icular threats without
being deemed to have imposed common carrier regulation, but that broad restrictions on
individualized dealings cross the line. See Part I, supra. The safe harbor test proposed here is
consistent with that jurisprudence. In situations in which an ISP is neither favoring its own
content, applications, or services nor providing a service on an exclusive basis, there is no risk of
commercially unreasonable discrimination that would constitute a threat to Internet openness in
derogation of the goals of section 706. To the contrary, ISPs have neither the incentive nor the
ability to engage in such conduct when they are offering services on a non-exclusive basis to
third parties with which they are not affiliated.
Such a safe harbor also would advance the core goal of section 706-namely, investment
in broadband infrastructure 19-by reducing the regulatory uncertainty surrounding any new net
neutrality rules. The Commission recognized the investment-deterring effects of such
uncertainty in the Open Internet Order itself. 20 Indeed, an inability to predict how openne$S
obligations will apply to all types of negotiated arrangements would have a demonstrable
chilling effect on carriers' investment incentives. When a provider is choosing whether to
deploy new facilities or services, it needs to be able to make an accurate judgment regarding
19

47 U.S.C. 1302(b) (stating that the Commission "shall take immediate action to
accelerate deployment of[advanced telecommunications] capability by removing barriers to
infrastructure investment and by promoting competition in the telecommunications market"); id.
1302(a) (directing the Commission to "encourage the deployment on a reasonable and timely
basis of advanced telecommunications capability to all Americans ... ").
20

Open Internet Order, 25 FCC Red at I 7929-30 42 & n.I37; see also Cable Modem
Order, 17 FCC Red at 4840 73 (noting "the need to minimize both regulation ofbroadband
services and regulatory uncertainty in order to promote investment and innovation in a
competitive market").

12

what the regulations allow, so that it can weigh the expected costs and benefits of its investment.
Where a regulation is potentially overbroad and enforcement risks are difficult to calculate, a
prudent provider will, on the margins, be less likely to invest, undermining the very goal section
706 seeks to advance. 21 A safe harbor that permits a provider to enter into at least a limited class
of pro-consumer arrangements without facing regulatory scrutiny would therefore inject needed
clarity into the provider's investment decisions and make that provider on balance more likely to
invest.

B.

The Commission Should Evaluate Arrangements Outside the Safe Harbor


Through a Case-by-Case, Data-Driven Analysis

Where the safe harbor does not apply, the Commission should specifY the factors that it
will apply in determining whether an arrangement is "commercially unreasonable." If, and only

if, based on the record developed in the forthcoming rulemaking proceeding, those factors reveal
a demonstrable harm to the free and open Internet should the Commission intervene in dealings
between ISPs and edge providers. The most important such factor should be whether the action
would have anticompetitive effects-i.e., whether it poses a threat to Internet openness by
foreclosing competition among providers oflawful content, applications and services over the
Internet. At the same time, the Commission should clarifY that it is not concerned with
arrangements-such as those described in Part III below-that fall outside of the safe harbor but
benefit consumers, promote openness, and incentivize broadband investment.
The Commission also could recognize that other factors may be relevant in individual
cases. Such factors may include:

how broadly available a given offering is;

21

See AT&T Title II Reclassification Comments at 2-5 (discussing investment deterring


effects of regulatory uncertainty).

13

whether the broadband ISP has responded to requests for negotiations regarding
similar or related transmission offerings from other customers of its service;

whether the ISP has engaged in a pattern of stonewalling; and

whether the terms on which the transmission is offered are so unreasonable as to be


tantamount to a refusal to deal.

In addition to listing the factors that will generally inform its analysis as to whether a
transmission arrangement is commercially reasonable, the Commission should make clear that its
determinations in all cases will be fact-based and data-driven. Even when one or inore factors
suggests cause for concern, the Commission should evaluate dealings between ISPs and edge
providers using a case-by-case approach that appropriately weighs both the benefits and the costs
of interfering with a specific arrangement.
Finally, the Commission must be careful to apply any factors it announces in a manner
that is consistent with Verizon and the cases that delineate the boundaries of common carriage.
As the D.C. Circuit found in Cellco, applying factors in such a way that amounts to a backdoor
common-carriage requirement would be unlawful-for example, if the Commission were to
apply a presumption that all similarly situated edge providers should be treated the same way
absent some special justification. See Cellco, 700 F.3d at 549. Again, to escape treating ISPs as
common carriers and thereby contravening the Communications Act and Verizon, the
Commission must accept that individualized treatment is the norm, not the exception.

III.

AN APPROACH THAT TARGETS ONLY "COMMERCIALLY UNREASONABLE"


ARRANGEMENTS WILL BEST ACHIEVE THE PURPOSE OF SECTION 706

The targeted approach described above is not only compelled by Verizon, but also would
advance the goals of Internet openness, innovation, and infrastructure inveStment better than the
broad-based ban on differential treatment that was struck down in Verizon. That is because, as

14

AT&T has explained in prior comments, 22 allowing contracting flexibility redounds to the
benefit of edge providers and consumers alike, and it spurs network investment by broadband
ISPs.
Indeed, adopting a more narrowly cabined nondiscrimination rule for fixed broadband
Internet access services would parallel the approach taken in other areas outside the commoncarrier context. For example, in the context of program access and retransmission consent, and
of course in the Data Roaming Order upheld in Cellco, the Commission has rightly forsworn any
intent to scrutinize the terms of individual deals unless there is a specific reason, based on the
particular facts and circumstances, for concern. And in antitrust, voluntary agreements among
parties are not treated as unlawful unless there is a specific demonstration of harm or the action
is of a very narrow type for which such harm is all but assured. The Commission should follow
a similar course here.

A.

A Targeted Approach Focusing on Specific Threats to Internet Openness


Makes Abundant Policy Sense

Allowing individualized dealings between ISPs and edge providers is sound policy for a
number of reasons. By enabling smaller edge providers to negotiate specia.l arrangements for the
handling of their traffic, flexible net neutrality rules will empower start-ups to compete more
effectively against more entrenched and well-heeled rivals. And by enabling ISPs to recover the
costs of network upgrades not just from consumers but also from the edge providers whose
applications benefit from such upgrades, flexible rules also will promote deployment of
additional broadband infrastructure and improved features. They also will reduce the cost of
22

See, e.g., Comments of AT&T, Preserving the Open Internet et al., GN Docket No 09191 et al. (filed Jan. 14, 2010) ("AT&T 2010 Comments"); Reply Comments of AT&T,
Preserving the Open Internet eta!., GN Docket No 09-191 eta!. (filed Apr. 26, 20 I 0);
Comments of AT&T, Broadband Industry Practices, WC Docket No. 07-52 (filed June 15,
2007).
15

broadband service for consumers, facilitating greater adoption. Finally, such rules will enable
edge providers and ISPs to efficiently determine which innovative new applications need the
quality-of-service enhancements that only ISPs can deliver. For these and the other reasons
discussed below, sound policy supports the adoption of targeted net neutrality rules that
proscribe only "commercially unreasonable" discrimination.

1. Allowing Individualized Dealings Would Help Small Edge Pr,oviders


Applying a more targeted nondiscrimination requirement to fixed broadband ISPs would
in no way undermine the goal of a free and open Internet. Rather, such a rule would in fact
promote greater diversity in the Internet ecosystem.
Platform owners such as broadband ISPs have no reason to inefficiently discriminate
against new and innovative products and services. 23 Indeed, ISPs' incentives actually run in the
opposite direction. By supporting innovation on their platforms, broadband providers make
those platforms more valuable to end users in the long run, enabling ISPs to reap far greater
economic benefits over time. In particular, a platform provider free from retail price
regulation-as all broadband providers are today-will normally have incentives to deal
evenhandedly with independent providers of complementary applications, because anticonsumer discrimination in the applications market would simply devalue the platform and

23

See, e.g., William J. Baumol, et al., AEI-Brookings Joint Center, Economists' Statement
on Nenvork Neutrality Policy 2 (2007), http://www.brookings.edu/views/papers/litan/
200703jointcenter.pdf; Declaration of Gary S. Becker & Dennis W. Carlton at 12 (attached to
Comments ofVerizon, Preserving the Open Internet et al., GN Docket No. 09- I 91 et al. (filed
Jan. 14, 2010)) ("Becker & Carlton Declaration"); J. Gregory Sidak & David J. Teece,
Innovation Spillovers and the "Dirt Road" Fallacy: The Intellectual Bankntptcy ofBanning
Optional Transactions for Enhanced Delivery Over the Internet, 6 J. Comp. L. & Econ. 521, 566
(20 10); Christopher S. Yoo, Nenvork Neutrality and the Economics of Congestion, 94 Geo. L.J.
1847, 1888-89 (2006); Joseph Farrell & Philip J. Weiser, Modularity, Vertical Integration, and
Open Access Policies: Towards a Convergence ofAntitmst and Regulation in the Internet Age,
17 Harv. J.L. & Tech. 85, 104 (2003).
16

would not enable the provider to earn any profits it could not otherwise earn for the underlying
platform itself.24 As Nobel Prize-winning economist Gary Becker and Dennis Carlton have
explained, "discrimination by broadband access providers that limits access to content usually
reduces the amount that consumers are willing to pay for broadband access services. That is,
consumers are willing to pay more for access to more content and, as a result, broadband access
providers face disincentives for restricting access to Internet content."25 In fact, that incentive to
maximize available content would exist even ifthe broadband market were.uncompetitive as a
general matter. As it is, however, any broadband access provider that prevents innovative new
content and applications from using its platform would inflict considerable harm on itself given
that most consumers could switch to a different provider that does not engage in such selfdefeating behavior. 26
Some net neutrality proponents nonetheless claim that expansive nondiscrimination rules
are necessary to ensure that small, start-up edge providers can reach end users in a way that
enables them to compete with established providers. 27 Without this ability, they c1aim, the next
innovative application--even the next Google or Netflix or Facebook-may never see the light
of day. That argument is conceptually flawed and factually specious.
As an initial matter, the Commission's focus should be on promoting innovation in the
Internet ecosystem as a whole and not on shielding individual competitors per se. As FCC
General Counsel Jonathan Sallet recently stated, regulation should protect "[n]ot competitors, but

24

See, e.g., Farrell & Weiser, supra note 23, at 104; see also Yoo, supra note 23, at 1888-

89.
25

Becker & Carlton Declaration at 12.

26

I d.

27

See, e.g., Open Internet Order, 25 FCC Red at 17920-21 ljf 26.
17

competitio;1."28 In no other area of the economy does the government ban voluntary market
transactions (here, for example, quality-of-service enhancements) specifically in order to prevent
those with superior resources from offering better services to their own customers. Far from it;
there are myriad ways in which entities with superior resources are free to use those resources to
enhance the quality of, or lower the price of, their products and services. For example,
companies with greater assets may be able to fund superior research and development, obtain
more patent licenses, procure higher quality raw materials or other inputs, reduce costs through
vertical integration or volume purchases, pay more for marketing or advertising, or offer higher
salaries to attract the best employees. No one would ever claim that the federal Government
should intercede to prevent these or other uses of resources in order to preserve "a level playing
field." 29 And of course, the Commission itself has recognized not only that its mission is to
protect competition and not individual competitors, but also that "the competitive process itself is
largely about trying to develop one's own advantages, and all firms need not be equal in all
respects for this process to work." 30 In short, the theoretical basis of this rationale for a strict
nondiscrimination rule is thoroughly unsound and anathema to a market economy.
So too is its factual premise-namely, that a strict nondiscrimination rule is needed to
prevent harm to small edge providers. Indeed, allowing broad room for individualized dealings

28

Prepared Remarks of Jon Sallet at 4, Acting General Counsel, FCC, Nat'! Press Club,
Mar. 12,2014, available at http://transition.fcc.gov/Daily_Releases/Daily_Business/
2014/db0312/DOC-326033Al.pdf.
29

Or, as Professors Farber and Katz have put it: ''No one would propose that the U.S. Postal
Service be prohibited from [charging more for] Express Mail because a 'fast lane' mail service is
'undemocratic.' Yet some current proposals would do exactly this for Internet services." David
Farber & Michael Katz, Hold Off on Net Neutrality, Wash. Post, Jan. 19,2007,
http://www. washingtonpost.comlwp-dyn/content/article/2007/01/18/AR20070 1180 1508.html.
30

Report and Order, Competition in the Interstate Jnterexchange Marketplace, 6 FCC Red
5880, 5892 60 (1991).
18

between ISPs and edge providers likely will help small edge providers in the majority of cases.
To understand why that is so, it is important to recognize that the Internet is not now, and has
never been, a "neutral" place where different edge providers compete on an equal playing field.
Quite to the contrary, the largest edge providers-including but not limited to content "hyper
giants" such as Google and Facebook31 -already use their economic power to provide services
to their customers that place them at a distinct advantage vis-a-vis smaller providers. And
limiting ISPs' ability to deal individually with edge providers would do nothing to address any
such inequality. In fact, it almost certainly would make it worse. 32
The poster child for expansive net neutrality rules is the small entrepreneur working in a
garage or low-rent office space. But that entrepreneur's larger and richer rivals already can and
do use their economic power to advantage themselves in ways that broad net neutrality rules
aimed at ISPs do nothing to address. In fact, many oftoday's leading edgeproviders have
themselves evolved into "global delivery networks" with an unprecedented combination of
transmission capacity, processing power, and data storage.33 These networks represent enormous
capital investments that already allow certain edge providers to serve their customers more
effectively and at faster speeds than rivals lacking such resources.
And even mid-size edge providers that cannot deploy such facilities take steps to get a leg
up on competitors in the delivery of their content. For example, they may partner with "Content

31

See Arbor Networks, Two-Year Study of Global Internet Traffic Will be Presented at
NANOG47, Oct. 13,2009, http://www.arbornetworks.com/news-and-events/press-releases/2009press-releases/181 0-two-year-study-of-global-internet-traffic-will-be-presented-at-nanog4 7
(describing "'hyper giants' like Limelight, Facebook, Google, Microsoft and YouTube" that
"now generate and consume a disproportionate 30% of all Internet traffic").
32

For a fuller discussion, see AT&T 2010 Comments at 20-41.

33

Thomas W. Hazlett & Joshua D. Wright, The Law and Economics ofNetwork Neutrality,
45 Ind. L. Rev. 767, 780 (2012).
19

Delivery Networks" (or "CDNs"), which distribute and store copies of content on servers at
multiple locations across the Internet and thus enable end users to gain access to that content
more quickly and reliably than in a conventional "unicast" arrangement, where each end user
must communicate directly with a single centralized server. 34 Although

and a number of

other large Internet companies self-provision their own CDNs, many application and content
providers outsource this functionality by hiring third-party CDN providers such as Akamai,
Limelight, Level 3, and AT&T. 35 As one such provider explains: "A top-ranked CDN
strategically places its server farms near the Internet's most important peering points. This
allows your customers to enjoy the best possible experience when they are using your web-based
applications. Lower latency and no lag time means happier users, who will be more likely to tell
their friends about a great website they found." 36 The bottom line is that, all else held equal, end
users have better experiences in their interactions with CDN-equipped content providers than
with content providers that do not use CDN functionality. This in turn means that well-funded
content and application providers that can afford to purchase (or self-provision) CDN services
have a substantial advantage over less-well-funded rivals in the battle to bring end users topquality Internet experiences. For that reason, rules limiting ISPs' ability to deal individually with
edge providers would do little to make the Internet more "neutral." Rather; they would allow
larger, better funded edge providers to maintain an advantage in delivering services to their endusers.

between ISPs and edge providers likely will help small edge providers in the majority of cases.
To understand why that is so, it is important to recognize that the Internet is not now, and has
never been, a "neutral" place where different edge providers compete on an equal playing field.
Quite to the contrary, the largest edge providers-including but not limited to content "hyper
giants" such as Google and Facebook31 -a!ready use their economic power to provide services
to their customers that place them at a distinct advantage vis-a-vis smaller providers. And
limiting ISPs' ability to deal individually with edge providers would do nothing to address any
such inequality. In fact, it almost certainly would make it worse. 32
The poster child for expansive net neutrality rules is the small entrepreneur working in a
garage or low-rent office space. But that entrepreneur's larger and richer rivals already can and
do use their economic power to advantage themselves in ways that broad net neutrality rules
aimed at ISPs do nothing to address. In fact, many oftoday's leading edge providers have
themselves evolved into "global delivery networks" with an unprecedented combination of
transmission capacity, processing power, and data storage. 33 These networks represent enormous
capital investments that already allow certain edge providers to serve their customers more
effectively and at faster speeds than rivals lacking such resources.
And even mid-size edge providers that cannot deploy such facilities take steps to get a leg
up on competitors in the delivery of their content. For example, they may partner with "Content

31

See Arbor Networks, Two-Year Study ofGloballnternet Traffic Will be Presented at


NANOG47, Oct. 13, 2009, http://www.arbornetworks.com/news-and-events/press-releases/2009press-releases/ 181 0-two-year-study-of-gl obal-internet-traffic-wil I-be-presehted-at-nano g4 7
(describing "'hyper giants' like Limelight, Facebook, Google, Microsoft and YouTube" that
"now generate and consume a disproportionate 30% of all Internet traffic").
32

For a fuller discussion, see AT&T 20 l 0 Comments at 20-41.

33

Thomas W. Hazlett & Joshua D. Wright, The Law and Economics ofNetwork Neutrality,
45 Ind. L. Rev. 767, 780 (2012).
19

Delivery Networks" (or "CDNs"), which distribute and store copies of content on servers at
multiple locations across the Internet and thus enable end users to gain access to that content
more quickly and reliably than in a conventional "unicast" arrangement, where each end user
must communicate directly with a single centralized.server.34 Although Google and a number of
other large Internet companies self-provision their own CDNs, many application and content
providers outsource this functionality by hiring third-party CDN providers such as Akamai,
Limelight, Level3, and AT&T. 35 As one such provider explains: "A top-ranked CDN
strategically places its server farms near the Internet's most important peering points. This
allows your customers to enjoy the best possible experience when they are using your web-based
applications. Lower latency and no lag time means happier users, who will be more likely to tell
their friends about a great website they found." 36 The bottom line is that, all else held equal, end
users have better experiences in their interactions with CDN-equipped content providers than
with content providers that do not use CDN functionality. This in turn means that well-funded
content and application providers that can afford to purchase (or self-provision) CDN services
have a substantial advantage over less-well-funded rivals in the battle to bring end users topquality Internet experiences. For that reason, rules limiting ISPs' ability to deal individually with
edge providers would do little to make the Internet more "neutral." Rather, they would allow
larger, better funded edge providers to maintain an advantage in delivering "services to their endusers.

34

See, e.g., id. at 786 (explaining that CDNs allow applications to gain "faster access to the
customer's screen" through "local caching").
35

!d. at 780.

36

See CacheFly Blog, http://blog.cachefly.com/20 13/1 0/08/web-based-applicationsserving-rich-media-will-thrive-with-a-cdn/.


20

One way to improve the lot of smaller edge providers would be to permit individualized
deals between ISPs and content providers. Limits on paid prioritization and other specialized
offerings benefit providers that have established market dominance by building out their own
capital-intensive CDNs. But such limits hurt other edge providers that wish to compete through
alternative business plans. In particular, they harm content and application providers that view
prioritization arrangements with ISPs as an efficient afternative to CDN functionality. And those
edge providers are likely to include the majority of small start-ups that net neutrality rules are
designed to benefit. Simply put, innovators working out of a garage cannot afford to put servers
in every wire center, like Netflix can. Instead, smaller companies normally prefer to expend
their scarce resources on opex rather than capex, and such providers may well find it beneficial
to pay for a superior level of service from the terminating ISP. And even those edge providers
that prefer to rely on conventional CDNs will likely see their costs for such. services decline in
the face of competition from ISPs. In sum, limiting "optional business-to-business transactions
for [quality of serviceJwould," far from helping, actually "serve as an entry barrier" for smaller
e d ge prov1.d ers. 37
And there are other ways that fledgling edge providers would benefit from flexible net
neutrality rules. Such a regime would empower upstarts to differentiate their products from
those of more established competitors through individualized arrangements with ISPs. For
example, in 2002, when it was still a relative newcomer competing with entrenched rivals,
Google paid for prime placement of its search service on various ISPs' por1;als, including
AOL's. 38 Other applications seeking to unseat established competitors have pursued similar

37

Sidak & Teece, supra note 23, at 543.

38

Hazlett & Wright, supra note 33, at 796.


21

strategies. 39 Banning or limiting these arrangements in the name ofhelping small providers
would thus achieve precisely the opposite result in many cases, entrenching larger rivals at the
expense of innovative new enterprises. As Howard Shelanski, now head ofthe Office of
Information and Regulatory Affairs, has explained:
[A]ccess quality may be an important way for new competition in some services
to differentiate themselves from incumbents. Established applications providers
have little interest in defending against entrants on new competitive dimensions.
The "neutral" status quo may therefore be of competitive advantage to
applications incumbents while denying a competitive tool to new innovators from
the edge. 40
In short, banning discrimination by ISPs or materially limiting their ability to transact
with edge providers on an individualized basis cannot be justified as a means of protecting small
edge providers. To the contrary, flexible net neutrality rules are more likely to empower smaller
competitors to flourish in the marketplace.
2. Enabling ISPs to Negotiate with Edge Providers Would Reduce the Costs of
Broadband for Consumers and Promote Increased Broadband Adoption
Allowing ISPs to experiment with different pricing structures and impose charges on
edge providers also would lead to pricing innovation that redounds to the benefit of consumers.
Conversely, by artificially restricting a broadband provider's ability to recover network costs
from application and content providers, the Commission would impose upward pressure on the
rates paid by ordinary broadband customers. 41
Like newspapers and travel agents, broadband providers operate in a classic "two-sided"
marketplace. Such two-sided markets involve a platform intermediary (like a newspaper) that
39

!d.

40

Howard A. Shelanski, Network Neutrality: Regulating with More Questions Than


Answers, 6 J. on Telecomm. & High Tech. L. 23,28 (2007).
41

See Declaration ofMarius Schwartz at 18 (attached to AT&T 2010 Comments as Exh. 3)


("Schwartz Declaration").
22

links two separate groups (for example, readers and advertisers). Broadband providers similarly
serve as an intermediary between end users and edge providers, and like any other participant in
a two-sided market, they must look to one side--or both-for cost recovery. Different two-sided
marketplaces feature a wide variety of efficient cost-recovery schemes, hammered out through
the free play of market forces. 42 Today, for example, many broadband providers recover
essentially all of the costs of residential access networks from fees imposed on the subscribers tq
those networks. But this traditional cost-recovery model will become increasingly unsustainable
as networks continue investing billions to accommodate the network demands imposed by
bandwidth-intensive applications that are used extensively by only limited subsets of subscribers.
By limiting broadband providers' ability to enter into a range of agreements with
application providers for enhanced service quality, rules that restrict dealings between ISPs and
edge providers impede pricing innovation and force ISPs to recover from consumers alone all of
the network costs of accommodating increasingly bandwidth-intensive applications. Indeed,
proponents of net neutrality have sometimes acknowledged that a strict nondiscrimination rule
could lead to higher prices for ordinary residential subscribers. Such a rule would be, in the
words of Tim Wu, "a subsidy to the creative and entrepreneurial at the expense of the passive
and consumptive"-i.e., ordinary American consumers. 43 That outcome not only would be
inefficient and inequitable, but also would particularly hurt those consumers who are low-income
or who simply would prefer to pay low rates for basic broadband connectivity and do not wish to
use quality-of-service-needy, bandwidth-intensive applications in the first place. And as prices
for broadband service go up, adoption of broadband services will fall. There should be no

42

See id. at 17.

43

Robin S. Lee & Tim Wu, Subsidizing Creativity Through Network Design: Zero-Pricing
and Net Neutrality, 23 J. Econ. Perspectives 61, 67 (2009).
23

illusions about this fundamental trade-off. Conversely, by allowing ISPs to negotiate directly
with edge providers, the Commission could both decrease the costs of broadband service for
average consumers and increase the rates ofbroadband adoption.

3. Flexible Net Neutrality Rules Would Spur ISPs to Invest in Broadband


Infrastmcture and New Service Features
Allowing ISPs to negotiate tailored deals with edge providers also would maximize ISPs'
incentives to invest in and deploy broadband infrastructure, which is the touchstone for any
exercise ofthe Commission's section 706 authority. For one thing, by spurring innovation and
reducing consumer prices in the manner described above, individualized arrangements naturally
raise the demand for broadband services, thus making network expansion more attractive.

44

In

addition, the ability to experiment with different pricing structures that generate revenues from
edge providers as well as end users would provide greater incentives for ISPs to invest and
innovate in a number of different ways. For example, if a new service (for example, an advanced
streaming HD video service) requires upgrades to the core network, enabling broadband
providers to recover some of the costs of those upgrades from the content providers that use them
will increase ISPs' incentives to make the upgrades in the first place. And this, again, will
promote the virtuous cycle that enables the development of innovative new services while at the
same time spurring network infrastructure investment.45 By contrast, "limitations on charging
for prioritization and enhancements could skew investments away from 'smart' functionalities
(e.g., in routers), functionalities that promote the goals of public safety, national security, and
other goals desired by the Commission.'rl 6 That would not be good public policy.
44

See Verizon, 730 F.3d at 634.

45

See Gary Becker et al., Net Neutrality and Consumer Welfare, 6 J. ofComp. L. & Econ.
497, 518-19 (2010).
46

Schwartz Declaration at 13.


24

4. Allowing Individualized Dealings Would Promote Efficiency and Stimulate


the Development ofNew Products a11d Services
Finally, individualized dealings between ISPs and edge providers will make it easier for
ISPs to determine which specific applications may require specialized handling and enable
deployment of innovative new services by content providers of all sizes. More specifically,
granting ISPs broad discretion to provision specialized quality of service ("QoS") enhancements
according to individually tailored arrangements hammered out in the marketplace would promote
the development of new products and services that depend on QoS guarantees in order to
function or that can perform better with such guarantees. It is well recognized that latency and
jitter can devalue performance-sensitive content while leaving non-performance-sensitive
content unharmed. Allowing ISPs the flexibility to offer QoS provisioning to services that
actually need it would therefore provide important benefits to providers of those services and
their customers. As with any other market where scarce goods must be efficiently allocated to
their most valued uses, price signals are essential to the success of any prioritization scheme. 47 If
a particular level of prioritization could be had simply by demanding it from the ISP, thenunder a familiar tragedy-of-the-commons dynamic--every user would demand high priority,
with the consequence that no packets would receive any meaningful priority. Price signals
provide the only feasible means of efficiently identifying high value, latency-sensitive products
that need to be prioritized in order to realize their full worth for consumers. And as AT&T has
explained in prior comments,48 the most efficient and only workable solution may be to charge
the providers of performance-sensitive, high-bandwidth applications themselves, who are the
parties that will know the most about the particular QoS needs of their individual applications

47

See id. at 11-12.

48

See AT&T 2010 Comments at 139-40.


25

and which netv.ork techniques are best suited to meet those needs. Importantly, such a solution
requires flexibility for ISPs and individual edge providers to work out specialized terms that are
tailored to the needs of the edge provider in question and that price such services efficiently.
Without such flexibility, services that require unique specialized treatment may never see the
light of day. 49
Some advocates of more expansive regulation have argued that once broadband providers
are allowed to strike individual deals for the prioritization of some latency-sensitive traffic, they
will have the incentive and ability to consign all other traffic "to the digital. equivalent of a
winding dirt road." 50 That concern, however, is deeply misplaced. 51 Broadband providersincluding both cable providers and ILECs, as well as new entrants such as Google Fiber-are in
fact investing tens of billions of dollars to increase Internet access speeds, including by
deploying next-generation technologies specifically in order to gain a leg up on rivals. 52
Providers would not be investing those sums, or competing on that basis, if it were commercially
viable to consign their own customers to a "dirt road." Indeed, if Broadband Provider X began
degrading its best-effort Internet access platform to favor its "prioritized" content, such that most
applications and content loaded more slowly on X's network than on its rivals' Internet access
49

See, e.g., Becker & Carlton Declaration at 27 (explaining that "a variety of differentiated
services may result in benefits to consumers but may be inconsistent with net neutrality rules"
and that "the adoption of restrictions on network operations and business models can inhibit the
development of services that might otherwise be developed in the future") ..
50

See, e.g., Lawrence Lessig & Robert W. McChesney, No Tolls on the Internet, Wash.
Post, June 8, 2006, http://www.washingtonpost.com/wp-dyn/content/article/
2006/06/07/AR2006060702108.html; see also Open Internet Order, 25 FCC Red at 17921-22
51

See AT&T 2010 Comments at 127.

52

See Anna-Marie Kovacs, Telecommunications Competition: The InfrastructureInvestment Race 35-37 (Oct. 2013), http://internetinnovation.org/images/misc_content/studytelecommunications-competition-09072013.pdf; Associated Press, Google Aims to Provide
Broadband in 34 More Cities, Feb. 19,2014, available at http://www.cnbc.com/id/101428947.
26

platforms, customers would begin switching to those rivals en masse. The rivals would
encourage consumers to do precisely that by running advertisements emphasizing the poor
performance on Broadband Provider X's network. For that matter, application and content
providers themselves would likewise be free to broadcast their preference for X's rivals right on
their homepages for all traffic bound for X's current customers. In short, there is nothing to this
concern. Rather, allowing ISPs and edge providers to freely negotiate for service enhancements
will bring innovative new services and applications to the Internet ecosystem.

B.

A Targeted Rule Would Be in Harmony with Other Rules Sharing a Similar


Purpose and with Regulatory Best Practices

Adopting a case-by-case approach that focuses on specific threats to Internet openness,


innovation, and investment also makes abundant sense from a broader regulatory perspective. In
a variety of contexts, academics and regulators have agreed that private market transactions
should be presumptively lawful unless there is a demonstrated harm to which government action
is specifically addressed. These principles are reflected in the FCC's own rules, modern antitrust
doctrine, and regulatory best practices.
FCC Precedent The revised program access rules provide a good example of the type of

narrowly tailored regulation that is appropriate in the net neutrality context. Those rules enforce
statutory prohibitions on "activities that inhibit competition in video programming," codified at
47 U.S.C. 548. 53 Under the rules, the Commission applies far more scrutiny to special
agreements between cable operators and video programmers that are vertically integrated or
otherwise affiliated-that is, those particular situations in which cable operators are likely to
have the incentive and ability to inflict harm on competition. And even in that context, the 2012
Program Access Order allowed the per se ban on exclusive contracts for satellite cable and
53

Cablevision Sys. Corp. v. FCC, 597 F.3d 1306, 1308 (D.C. Cir. 201.0).

27

satellite broadcast programming between a cable operator and cable-affiliated program vendor to
sunset. 54 At the same time, the Commission has recognized that "there may be certain regionspecific circumstances where vertically integrated cable operators may have an incentive to
withhold satellite-delivered programming from competitors" and has adopted a "case-by-case
approach" to deal with "competitively harmful conduct" by vertically integrated operators "in a
more targeted, less burdensome manner." !d. at 12619 21. And the Commission has
recognized that even "exclusive contracts" between operators and affiliated content-providers
"do not always harm competition and can have procompetitive benefits." !d. at 12620

21.

Thus, the Commission requires such harm to be demonstrated in a case-by-case complaint


process that places the burden of proof on the complainant. !d. at 12640-41
The Commission's retransmission consent rules, which among other things require "good
faith" negotiations by television broadcast stations that provide retransmission consent, also
provide a useful example. There, the Commission has recognized that it should not engage in
"detailed substantive oversight" of retransmission consent negotiations, and it has therefore
declined to police the individual terms negotiated by private parties as a general matter. 55 At the
same time, the Commission has recognized that "any effort to further anti-competitive ends
through the negotiation process would not meet the good faith negotiation requirement." 56 The
rules thus represent a narrowly tailored exception-based on specific competition concerns-to

54

Report and Order, Revision of the Commission's Program Access Rules et al., 27 FCC
Red 12605, 12607 1 (2012).
55

First Report and Order, Implementation of the Satellite Home Viewer Improvement Act of
1999, 15 FCC Red 5445, 5448 6 (2000).
56

!d. at 5448

8.
28

the general principle that private parties are generally free to contract with each other as they
wish. 57

Antitrust. Adopting a targeted approach focusing on situations in which harm is most


likely also accords with modem antitrust law, which views voluntary commercial agreements as
efficient except when there is a specific demonstration of the type of competitive harm on which
antitrust is focused. For example, even conduct by a monopolist is not condemned by the
antitrust laws unless it "harm[s] the competitive process," not merely "one or more competitors,"

and the conduct has a demonstrated "anti competitive effect." United States v. Microsoft Corp.,
253 F.3d 34, 58-59 (D.C. Cir. 2001). Similarly, antitrust law has moved away from per se rules
in all but a handful of very narrow circumstances. 5 8 Per se rules, like broad net neutrality rules,
presume that certain conduct is harmful as a matter of law. Those rules are now reserved for a
narrow range of situations that are rarely if ever procompetitive (for example, horizontal price
fixing). See, e.g., Leegin Creative Leather Prods. v. PSKS, Inc., 551 U.S. 877, 886, 895 (2007)
(per se rules should be restricted to situations that '"always or almost always tend to restrict
competition and decrease output"' (quoting Business Electronics Corp. v. Sharp Electronics

Corp., 485 U.S. 717, 723 (1988)). That is because, as the Supreme Court has stated, per se rules
"can be counterproductive" and "can increase the total cost of the antitrust system by prohibiting
procompetitive conduct[.]" !d. And vertical arrangements-like those between ISPs and edge
providers-are overwhelmingly likely to be procompetitive, especially where the parties lack
any theoretical incentive to act anti-competitively, and rules that limit such arrangements ex ante

57

!d. at 5453

19-20.

58

See Christopher S. Yoo, What Can Antitmst Contribute to the Network Neutrality
Debate?, 1 International J. of Communication 493, 503-04 (2007).
29

are therefore inherently suspect. 59 For that very reason, per se treatment of vertical arrangements
under the antitrust laws is extinct. 60 That same principle should apply in the net neutrality
context.

Regulatory best practices. Adopting tailored net neutrality rules that apply only in cases
where there is a demonstrated harm to Internet openness, innovation, or broadband investment
also is in line with regulatory best practices. President Obama's cost-benefit executive order, for
example, states that each agency should "propose or adopt a regulation only upon a reasoned
determination that its benefits justify its costs" and "tailor its regulations to impose the least
burden on society, consistent with obtaining regulatory objectives."61 Applying regulations
where there is no demonstrated need for them is inconsistent with that advice and could lead to
unintentionally stifling innovation, distorting the competitive marketplace, and other harms that
would ultimately be felt by consumers. As the FTC has warned about regulation of broadband
Internet access services:
Policy makers also should carefully consider the potentially adverse and
unintended effects of regulation in the area of broadband Internet access before
enacting any such regulation. Industry-wide regulatory schemes- particularly
those imposing general, one-size-fits-all restraints on business conduct- may well
have adverse effects on consumer welfare, despite the good intentions of their
proponents. Even if regulation does not have adverse effects on consumer
welfare in the short term, it may nonetheless be welfare-reducing in the long term,
particularly in terms of product and service innovation. Further, such regulatory
59

Hazlett & Wright, supra note 33, at 815-16 (quoting Francine Lafontaine & Margaret
Slade, Vertical Integration and Firm Boundaries: The Evidence, 45 J. Econ. Lit. 629, 680
(2007)) ("[F]aced with a vertical arrangement, the burden of evidence should be placed on
competition authorities to demonstrate that that arrangement is harmful before the practice is
attacked."); id at 809 (noting "near[] uniform recognition that vertical contracting practices are
more likely to help than harm consumers").
60

Yoo, supra note 58, at 509.

61

See Exec. Order No. 13563, 76 Fed. Reg. 3821 (Jan. 18, 2011 ); see also Exec. Order No.
13579, 76 Fed. Reg. 41587 (July 11, 2011) (exhorting independent agencies to follow same
principles).
30

schemes inevitably will have unintended consequences, some of which may not .
be known until far into the future. Once a regulatory regime is in place, moreover,
it may be difficult or impossible to undo its effects. 62
Instead, the FCC should adopt a system of smart regulation similar to that advocated in a recent
paper by former FCC Chairman Reed Hundt and Gregory L. Rosston, whic:h would involve
giving "clear guidance" to regulated parties while simultaneously paying great attention to the
"actual facts of any dispute," condemning practices only where they are demonstrated to be
harmfu1. 63 It would also be consistent with what Chairman Wheeler has stated is his own
regulatory philosophy, which involves the Commission being "extremely circumspect" in its
approach, using its "tools in a fact-based, data-driven manner," and always asking "what,

if any,

action (including governmental action) is needed to preserve the future of network


competition." 64

In sum, there are no legal or policy grounds for broad net neutrality rules that view
individually tailored treatment of edge providers skeptically as a general matter. Instead, the
Commission should focus on those situations where harm to the open Jnten1et, innovation, and
investment is most likely to occur. And as discussed in Part II above, even in those situations,
the Commission should intervene only on a case-by-case basis as guided by the particular facts
and circumstances at issue.

62

FTC, StqffReport: Broadband Connectivity Competition Policy, at 11 (2007),


http://www. ftc. govI sites/de fault/files/documents/reports/broadband -conn ecti vity-competi ti onpolicy/v070000report.pdf.

63

See Reed E. Hundt & Gregory L. Rosston, Articulating a Modern Approach to FCC
Competition Policy, 66 Fed. Comm. L.J. 71, 95-96 (2013).

64

Prepared Remarks of FCC Chairman Tom Wheeler at 3-4, Ohio State University, Dec. 2,
2013, http://transition.fcc.gov/Daily_Releases/Daily_Business/20 13/db 1202/DOC324476Al.pdf.
31

CONCLUSION

The Commission should embrace the opportunity presented by the D.C. Circuit's remand
in Verizon by adopting the policies outlined above.
Respectfully submitted,
Is/ Christopher Heimann
Christopher M. Heimann
Gary L. Phillips
Lori Fink
AT&T SERVICES, INC.
1120 20th Street, NW
Washington, D.C. 20036
(202) 457-3058 (phone)

Counsel for AT&T Inc.


March 21, 2014

32

Sharon Hurd
Wednesday, April 02, 2014 12:31 PM
Mark Wigfield
Meribeth McCarrick; Susan Szulman
FW: Interview request- Net Nuetrality Interview Request from American University

From:

Sent:
To:
Cc:

Subject:
f7GIA Exemption 5
y

From: Satchel Price

L'-'-""""-""'"'

Sent: Wednesday, April 02,


To: MediaRelations

Subject: Interview request

Hello,
My name is Satchel Price, I'm a senior studying journalism at American University and an associate editor at
Vox Media. I'm currently working on a story that looks at the potential impact of the recent Verizon net
neutrality ruling and the proposed Comcast-TWC merger on the online gaming industry, particularly relating to
major hardware and software makers like Sony, Microsoft and Valve.
As such, I'm reaching our to your agency hoping to interview one ofyour staff members to briefly discuss this.
I'd be happy to do the interview by phone or e-mail, and it wouldn't require more than a few minutes of time.
s week and next week ifwe can arrange something. You can reach me at this
by phone at
Looking forward to speaking.
Exemption 6

Thanks,
Satchel Price

From:

Sent:
To:

Subject:

Neil Grace
Thursday, February 20, 2014 1:15 PM
Mark Wigfield
Fw: Net Neutrality Clarification

!::::01A Exemption 5

Neil Derek Grace


Federal Communications Commission
(o) 202-418-0506 EGIA Exemption 6
neil.grace@fcc.gov

From: Anne L Kim [mailto:alkim@cq.com]

Sent: Thursday, February 20, 2014 12:15 PM


To: Neil Grace
Subject: RE: Net Neutrality Clarification
Sure.
- Will the NPRM be drafted using Section 706 authority?
- If so, would the NPRM be drafted using Section 706 for both the no-blocking and no-discrimination rules?
-In drafting the NPRM, will you be looking at the data roaming rules for guidance (the idea of general rules of the road
and subsequent case-by-case decisions) only for the no-discrimination rule, or also for the no-blocking ruule?
- What does it mean for the Title II docket to be left open?
-Is reclassification still an option for the NPRM?

From: Neil Grace [Neii.Grace@fcc.gov]

Sent: Thursday, February 20, 2014 12:08 PM


To: Anne L Kim
Subject: Re: Net Neutrality Clarification
Hi sure- our commission meeting is still happening. Want to email over your q?

Neil Derek Grace


Federal Communications Commission
(o) 202-418-0506
neil.grace@fcc.gov

From: Anne L Kim [mailto:alkim@cq.com]

Sent: Thursday, February 20, 2014 12:06 PM


To: Neil Grace

Subject: Net Neutrality Clarification


Hi Neil:
I was hoping to get some clarification on the details of yesterday's announced path forward on net neutrality, specifically
on the Title II docket and use of section 706 authority.
1

Is anyone available to speak with me about this?


Thanks,
Anne Kim
CQ Roll Call
Legislative Action Reporter
(202) 650-6526
alkim@cq.com

This e-mail may contain confidential material. If you are not an Intended recipient. please notify the sender and delete all copies. It may also contain personal
views which are not the views of CQ Roll Call or its owner, The Economist Group. We may monitor e-mail to and from our network. For company information go to
http:lllegal.economistgroup.com.

From:
Sent:

Subject:

Shannon Gilson
Monday, May 12, 2014 9:51 PM
Daniel Alvarez; Stephanie Weiner
Neil Grace; Mark Wigfield
Fw: Statement of Ro Khanna on Chairman Wheeler's Revised Net Neutrality Proposal

Follow Up Flag:
Flag Status:

Follow up
Completed

To:
Cc:

Fr-G!lA Exemption 5_
_:-, ..

:...

:.

. . - . . .

. :. : : . .
.

: . .

. '

. ...

'

:.

.
.,q

. : .:

.. : .

------------------------------

From: Brooks Boliek [mailto:bbo!iek@politico.com]


Sent: Monday, May 12, 2014 09:48PM
To: Shannon Gilson
. subject: Re: Statement of Ro Khanna on Chairman Wheeler's Revised Net Neutrality Proposal

Really!
I have to 'look them up.
Some commish aids complaining their offices haven't seen the draft.
Sorry so late.
bb
Brooks Bolick I POLITICO

Technology reporter
240-281-4901
bboliek@politico.com
@technocowboy

On May 12, 2014, at 9:01 PM, "Shannon Gilson" <Shannon.Gilson@fcc.gov> wrote:


Fact: I used to work with Ro Khanna.

-----------------------------------------------

From: Brooks Boliek [mailto:bboliek@politico.com]


Sent: Monday, May 12, 2014 08:54PM
To: Shannon Gilson
Subject: Fwd: Statement of Ro Khanna on Chairman Wheeler's Revised Net Neutrality Proposal

FYI
bh
Brooks Boliek I POLITICO

Technology reporter
240-281-490 I

bboliek@politico.com
@technocowboy
Begin forwarded message:
From: Tony Romm <tromm@politico.com>
Date: May 12,2014 at 8:43:20 PM EDT
To: TP-Tech <tech@politico.com>
Subject: FW: Statement ofRo Khanna on Chairman Wheeler's Revised Net
Neutrality Proposal
to the extent we care to glorify the silicon valley plutocracy in action,

this:

Tony Romm I POLITlCOPro


T..,..,uu>v.v

@tonyromm
From: Tyler Law [tyler@rokhanna.com]
Sent: Monday, May 12, 2014 8:41PM
To: Tony Romm
Subject: Fwd: Statement of Ro Khanna on Chairman Wheeler's Revised Net Neutrality
Proposal

W ap.ted to make sure you got this


----------Forwarded message---------From: Ro for Congress Press <press@rokhanna.com>
Date: Mon, May 12,2014 at 5:40PM
Subject: Statement ofRo Khanna on Chairman Wheeler's Revised Net Neutrality
Proposal
To: tyler@rokhanna.com

FOR IMMEDIATE RELEASE


MONDAY, MAY 12,2014
CONTACT: Tyler Law, 510-326-1273
tyler@rokhanna.com
2

Statement ofRo Khanna on Chairman Wheeler's Revised Net


Neutrality Proposal
FREMONT- Ro Khanna issued the following statement today in response to
revisions in Chairman Wheeler's net neutrality proposal:
"Chairman Wheeler may have made some revisions to his initial proposal, but be
still falls far short of ensuring a free and open Internet. The idea of allowing 'fast
lanes' for certain content providers, or any form of discrimination in the market,
has disastrous implications for small businesses and entrepreneurs and it makes
me question his basic understanding of net neutrality. Frankly, a former
telecommunications lobbyist should never have been appointed to chair the
Federal Communications Commission in the first place.
"We need to move immediately to classify Internet Service Providers as common
carriers. But most importantly, Congress needs to pass a bipartisan Internet Bill of
Rights that will ensure net neutrality, protect citizens from warrantless mass
surveillance and provide consumers with more control over their personal data. I
recognize that defending our constitutionally guaranteed rights is increasingly
difficult in a digital world, and as a member of Congress, I will continue to
champion a free and open Internet."
Change.org Petition: Ro Khanna's Internet Bill of Rights

Ro Khanna is a candidate for Congress in California's 17th district, which


encompasses the heart ofSilicon Valley. Since announcing his campaign for
Congress in early April, Ro Khanna has received key endorsements from Lt.
Governor Gavin Newsom, former Mayor Orrin Mahoney of Cupertino, Mayor
Jose Esteves ofMilpitas, and over 200 of the leading job creators and innovation
luminaries in Silicon Valley including Sheryl Sandberg, Marissa Mayer and Eric
Schmidt.
Learn more about the campaign: RoK!tamza.com
Connect with Ro on Facebook and Twitter.

###

Ro for Congress Press


. http://www.rokhanna.com/

Ro for Congress PO Box 1398, Fremont, CA 94538, United States


This email was sent to tyler@rokhanna.com. To stop receiving ema:ils, click here.

Tyler Law
Press Secretary
Ro Khanna for Congress
510-326-1273

Follow me on Twitter @tyzlaw

Kirby{ Paul <paul.kirby@wolterskluwer.com>


Tuesday{ April 01 2014 1:48 PM
Shannon Gilson; Neil Grace; Mark Wigfield
RE: would the chairman like to comment on o'rielly's speech today?
FCBA Speech FINAL.pdf

From:

Sent:

To:

Subject:
Attachments:

l ve attached it. He criticizes NTIA decision on ICANN and expected FCC action on net neutrality.
Paul Kirby
Senior Editor
TRDaily
202-842-8920
1015 15th St.

/Othjloor

Waslzingtou, D.C, 20005


www.tr.com
pau/.kirbv@wolterskluwer.com

From: Shannon Gilson [mailto:Shannon.Gilson@fcc.gov]

Sent: Tuesday, April 01, 2014 1:45PM


To: Kirby, Paul; Neil Grace; Mark Wigfield

Subject: RE: would the chairman like to comment on o'rielly's speech today?
Hey Paul,
I missed the remarks. What's the upshot?

From: Kirby, Paul [mailto:paul.kirby@wolterskluwer.com]

Sent: Tuesday, April 01, 2014 1:43 PM


To: Neil Grace; Shannon Gilson; Mark Wigfield

Subject: would the chairman like to comment on o'rielly's speech today?

Paul Kirby
Senior Editor
TRDaily
202-842-8920
1015 15th St. NW, 10th floor
Washington, D.C., 20005
www.tr.com
pau/.kirby@wolterskluwer.com

From:

Sent:
To:
Subject:

Brendan Sasso < bsasso@ nationaljournal.com >


Monday, March 31, 2014 5:08 PM
Mark Wigfield
Re: peering

In response to my question, the chairman said he doesn't think peering is a net neutrality issue. I interpreted that
to mean he doesn't think it should be part of the new Open Internet proceeding. Are you saying that
interpretation is wrong? Is the FCC still studying whether to regulate peering through the new Open Internet
rules? Thanks.
On Mon, Mar 31,2014 at 2:28PM, Mark Wigfield <Mark.Wigfield(a)fcc.gov> wrote:
Shannon tells me you had a few questions about peering following the meeting. On background, we can say
this:

The scope of the 20 10 Open Internet Order was confined to retail services to consumers and did not include
interconnection or peering. However, interconnection is important to Chai1man Wheeler. It is one of the
elements of his network compact. The Commission has received comments on peering, which it is reviewing
carefully.

Brendan Sasso
Technology Reporter
National Journal
(202) 266-7685

From:

Sent:
To:
Subject:

grant_gross@idg.com
Tuesday, April 01, 2014 9:09 AM
Mark Wigfield
Re: My question about the IP transtition

Hey, Mark
Last time I'll ask. Any luck with this?
I'm following up on the IP transition and the connection to the court's net neutrality ruling. Some people are worried that
the court's recent decision on net neutrality could have an effect on the IP transition and the FCC's ability to enforce
common carrier rules.
Harold Feld's blog post explains it pretty well: http://www.publicknowledge.org/news-blog/blogs/the-net-neutrality-decisionand-the-ip-transition.-what-happens-when-you-ca
Do you guys have the same concerns?

Thanks
Grant

Grant Gross
Washington correspondent
IDG News Service
Phone: 202-595-9882
IDG News Service serves as a wire service for PC World, Computerworld, Macworld, lnfoWorld, Network World, CIO, and
hundreds of other technology-related magazines and websites worldwide. I DG publications reach more than 100 million
readers a month, the largest tech audience in the world.

From:

Sent:
To:

Subject:

Satchel Price < satcheleprice@gmail.com >


Tuesday, April 08, 2014 11:49 AM
Mark Wigfield
Re: Interview request

Apologies for the confusing phrasing, you're correct, I'm referring to the court decision regarding open Internet
rules. I meant to talk about the relationship between that decision and the digital distrubution of content (gaming
in particular), in reference to the first question.
I hope that clears things up, let me know if you have any more questions.
On Tuesday, April 8, 2014, Mark Wigfield <Mark.Wigfielcl@fcc.gov> wrote:
OK, haven't responded yet. I want to make sure what decision you're talking about on digital distribution. I thought you
were referring to the open Internet decision, but perhaps not

From: Satchel Price [mailto:satcheleprice@gmail.com]

Sent: Tuesday, April 08, 2014 10:24 AM


To: Mark Wigfield
Subject: Re: Interview request

Hey Mark,
Following up one more time. Not sure if you've tried responding and it just didn't go through, but I'd love
answers to the following questions as soon as possible.
1. With the possible implications of the original V erizon comi ruling on digital distribution, how does the
increasingly large industry of online gaming fit into that equation?
2. Verizon's CEO has said in the past (http://www.gamespot.com/miicles/verizon-savs-gamers-should-paymore-for-bandwidth-update/11 00-6418017 /) that garners should be charged extra for their bandwidth usage. Is
there concern that breaking down net neutrality would adversely affect the multi-billion-dollar gaming industry,
and consumers in particular?
3. Gaming companies like Sony, Microsoft and Valve have made incredible innovations in recent years (Xbox
Live, Steam, the upcoming Playstation Now service, etc.), but they practically all require high-bandwidth
Internet connections. Would the breakdown of previous net neutrality rules lead to less innovation in this field?

4. Does the FCC speak with or work with game developers, publishers and others
regarding these issues? Have those discussions ramped up in recent months?

in the industry

5. If the Comcast-TWC merger passes, does the FCC have any plans to try and protect consumers, and garners
in particular? How might the FCC try to "save the Internet" without its old enforcement powers?
1

Thanks again,
Satchel Price

On Mon, Apr 7, 2014 at 10:3 7 AM, Satchel Price <satcheleprice{a)gmail.com> wrote:


The questions are following, however much you want to go into your answers is fine. I appreciate you taking
the time to help out.

1. With the possible implications of the original Verizon court ruling on digital distribution, how does the
increasingly large industry of online gaming fit into that equation?
2. Verizon's CEO has said in the past (http://www.gamespot.com/articles/verizon-says-gamers-should-paymore-for-bandwidth-update/ 1100-6418017/) that garners should be charged extra for their bandwidth usage. Is
there concern that breaking down net neutrality would adversely affect the multi-billion-dollar gaming industry,
and consumers in particular?

3. Gaming companies like Sony, Microsoft and Valve have made incredible innovations in recent years (Xbox
Live, Steam, the upcoming Playstation Now service, etc.), but they practically all require high-bandwidth
Internet connections. Would the breakdown of previous net neutrality rules lead to less innovation in this field?

4. Does the FCC speak with or work with game developers, publishers and others involved in the industry
regarding these issues? Have those discussions ramped up in recent months?
5. If the Comcast-TWC merger passes, does the FCC have any plans to try and protect consumers, and garners
in particular? How might the FCC try to "save the Internet" without its old enforcement powers?
Thanks again,
Satchel Price

On Mon, Apr 7, 2014 at 10:23 AM, Mark Wigfield <Mark.Wigfield{a)fcc.gov> wrote:


Let's start with e-mail. What are your questions?

From:

Sent:
To:

Cc:
Subject:

Sharon Hurd
Wednesday, February 19, 2014 12:33 PM
Shannon Gilson; Neil Grace; Mark Wigfield
Meribeth McCarrick
FW: Net neutrality proposal

From: Bill Donahue [mailto:bill.donahue@law360.com]

Sent: Wednesday, February 19, 2014 12:30 PM


To: MediaRelations
Subject: Net neutrality proposal

I'm a reporter with the legal journal Law360, with two questions today:
1. I wasn't on today's press call, so can you confirm that a "senior agency official" said the FCC wouldn't be
attempting to reclassify the ISPs as Title II telecoms for the time being? I'm happy to attribute to a no-name
official, I just want to be accurate.
2. Can I be added to any blast list regarding media calls, alerts, etc? I've recently taken over the communications
beat here at Law360.
Appreciate the help,
Bill Donahue
Senior Reporter
Law360
Portfolio Media, Inc.
Publisher of the Law360 Newswire
860 Broadway, 6th floor
New York, New York 10003
Direct 646.783.7153
Editorial 646.783.7100 ext 3
Fax 646.783.7162
bill.donahue@law360.com
www.law360.com

From:

Sent:
To:

Subject:

Neil Grace
Tuesday, April 22, 2014 2:20 PM .
Shannon Gilson; Mark Wigfield; Tamara Smith
FW: Hearing this form inside and outside the FCC...

Neil Derek Grace


Senior Communications Advisor
Federal Communications Commission
(o) 202-418-0506 FOIA Exemption 6
neil.grace@fcc.go

From: Buskirk, Howard [mailto:hbuskirk@warren-news.com]

Sent: Tuesday, April 22, 2014 2:19PM


To: Neil Grace
Cc: Mark Wigfield
Subject: Hearing this form inside and outside the FCC ...
FCC Chairman Tom Wheeler appears to be considering adding net neutrality to the agenda for the May 15 FCC meeting,
creating what could be truly epic open meeting, industry and FCC officials told us. The FCC is already poised to vote then
on service rules for the incentive auction as well as revised spectrum aggregation rules (CD April 21 p1 ). The next steps
on net neutrality for the FCC are likely an NPRM on revised rules, consistent with U.S. Court of Appeals for the D.C.
Circuit's Jan. 14 decision in Verizon v. FCC, and possibly an NOI on speeding deployment of municipal broadband.
Howard Buskirk
Executive Senior Editor
Communications Daily

From:

Sent:
To:
Cc:
Subject:

Shannon Gilson
Wednesday, February 05, 2014 2:08 PM
Jonathan Sallet; Ruth Milkman; Gigi Sohn
Mark Wigfield; Neil Grace
Fw: net neutrality violation question

f;01A Exemption 5
-<,"

From: Wyatt, Ed [mailto:wyatt@nvtimes.com]

Sent: Wednesday, February 05, 2014 02:02PM


To: Shannon Gilson

Subject: net neutrality violation question

Shannon -- this blog today reported evidence that Verizon is slowing down ISP service to certain cloud
providers. We are working to confirm; iftrue this would seem to be a blatant violation of what Verizon pledged.
Need to ask if FCC has received any complaints about this, or is aware of such actions? Will speak to anyone on
any basis we can work out. Ed.

Edward Wyatt
The New York Times
Washington Bureau
202-862-0445
vvyatt@nytimes.com

From:

Sent:
To:
Cc:
Subject:

Sharon Hurd
Wednesday, February 191 2014 11:31 AM
Shannon Gilson; Neil Grace; Mark Wigfield
Meribeth McCarrick
FW: net neutrality

-----0 rigi naI Message----From: Meghashyam Mali [mailto:mmali@washingtonexaminer.com]


Sent: Wednesday/ February 19, 2014 11:30 AM
To: MediaRelations
Subject: net neutrality

Could you please add me to your email list?


Also, can someone confirm WSJ report on new net neutrality rules.

Meghashyam Mali
Assistant Managing Editor
The Washington Examiner
Twitter: @malimeg
Office hone: 202.459.4952

From:

Sent:
To:
Cc:
Subject:

Buskirk, Howard <hbuskirk@warren-news.com>


Tuesday, April 22, 2014 2:19 PM
Neil Grace
Mark Wigfield
Hearing this form inside and outside the FCC...

FCC Chairman Tom Wheeler appears to be considering adding net neutrality to the agenda for the May 15 FCC meeting,
creating what could be truly epic open meeting, industry and FCC officials told us. The FCC is already poised to vote then
on service rules for the incentive auction as well as revised spectrum aggregation rules (CD April 21 p1 ). The next steps
on net neutrality for the FCC are likely an NPRM on revised rules, consistent with U.S. Court of Appeals for the D.C.
Circuit's Jan. 14 decision in Verizon v. FCC, and possibly an NOI on speeding deployment of municipal broadband.
Howard Buskirk
Executive Senior Editor
Communications Daily

From:
Sent:
To:
Subject:

Josh Long <JLong@vpico.com>.


Tuesday, April 22, 2014 6:40 PM
Mark Wigfield
Net Neutrality Wednesday April 23

Hi Mark:
I am writing an article about Net Neutrality and Netflix's argument that FCC should reject Comcast/TWC merger.

http ://blog.netf1ix.com/20 14/03/internet-tolls-and-case-for-strong-net.html


On Wednesday, can you send me any background materials (or call me) on FCC's plans for adoption of new net
neutrality rules following the appeals court ruling earlier this year?
Thxs
Josh

Josh Long Chief legal Correspondent


VIRGO

Channel Partners Magazine


Billing & 055 World
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jlong@vpico.com
0: 480.990.1101 Ext. 1104

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RG0

ltJioiSht, An4tl)t1h, A(ti<ttt

Learn about VIRGO's innovative programs at VIRGO Marketing Services.


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From:

Sent:
To:

Subject:

Neil Grace
Tuesday, February 04, 2014 3:04 PM
Shannon Gilson; Sara Morris; Mark Wigfield; Gigi Sohn; Jonathan Sallet
NJ: net neutrality story

Neil Derek Grace


Senior Communications Advisor
Federal Communications Commission
(o) 202-418-0506

From: Brendan Sasso [mailto:bsasso@nationaljournal.com]

Sent: Tuesday, February 04, 2014 2:17PM


To: Neil Grace
Subject: net neutrality story

Hey Neil,
Do you have a minute to talk? My editors want me to write a story today (possibly for the magazine) about net
neutrality. I just have a couple quick questions. Thanks!

Brendan Sasso
Technology Reporter
National Joumal
(202) 266-7685

From:

Sent:
To:
Subject:

Nagesh, Gautham <Gautham.Nagesh@wsj.com>


Tuesday, February 18, 2014 11:05 PM
Mark Wigfield
Net neutrality

Hi Mark/
I hear the net neutrality announcement is coming tomorrow on an enforcement framework under the Commission's
Section 706 authority. I'm trying to confirm the details and get a couple questions answered. I also understand the
Commission will not be closing the Ttl 2 d k t I'll b
I t rking on this story1 so please contact me when you
have a chance on my home phone FOIA Exemption 6
Thanks and have a good night.
Best1
Gautham

Subject:
location:

OI Call--House Energy and Commerce Committee Democratic Staff


TBD

Start:
End:
Show Time As:

Wed 4/23/2014 4:00 PM


Wed 4/23/2014 4:30 PM
Tentative

Recurrence:

(none)

Meeting Status:

Not yet responded

Organizer:
Required Attendees:

David Toomey
Jonathan Sallet; Stephanie Weiner; Julie Veach; Philip Verveer; Daniel Alvarez; Matthew
DelNero; Sara Morris

Subject:
Location:

OI Call--House Energy and Commerce Committee Republican Staff


TBD

Start:
End:
Show Time As:

Wed 4/23/2014 3:30 PM


Wed 4/23/2014 4:00 PM
Tentative

Recurrence:

(none)

Meeting Status:

Not yet responded

Organizer:
Required Attendees:

David Toomey
Jonathan Sallet; Stephanie Weiner; Julie Veach; Philip Verveer; Daniel Alvarez; Matthew
DelNero; Sara Morris

Subject:
Location:

OI Call--Rep. Pelosi staff


TBD

Start:
End:
Show Time As:

Thu 4/24/2014 12:30 PM


Thu 4/24/2014 1:00 PM
Tentative

Recurrence:

(none)

Meeting Status:

Not yet responded

Organizer:
Required Attendees:

David Toomey
Jonathan Sallet; Stephanie Weiner; Julie Veach; Philip Verveer; Matthew DelNero; Daniel
Alvarez; Sara Morris

Subject:
Location:

OI Call--Sen. Markey's staff


TBD

Start:
End:
Show Time As:

Thu 4/24/2014 9:30 AM


Thu 4/24/2014 10:00 AM
Tentative

Recurrence:

(none)

Meeting Status:

Not yet responded

Organizer:
Required Attendees:

David Toomey
Jonathan Sallet; Stephanie Weiner; Julie Veach; Philip Verveer; Daniel Alvarez; Matthew
DelNero; Sara Morris; OLA Shared Calendar

Subject:
Location:

OI Call--Sen. Markey's staff


TBD

Start:
End:
Show Time As:

Thu 4/24/2014 9:30 AM


Thu 4/24/2014 10:00 AM
Tentative

Recurrence:

(none)

Meeting Status:

Not yet responded

Organizer:
Required Attendees:

David Toomey
Jonathan Sallet; Stephanie Weiner; Julie Veach; Philip Verveer; Daniel Alvarez; Matthew
DelNero; Sara Morris; OLA Shared Calendar

Subject:
location:

OI Call--Senate Commerce Committee Democratic Staff


TBD

Start:
End:
Show Time As:

Wed 4/23/2014 4:30 PM


Wed 4/23/2014 5:00 PM
Tentative

Recurrence:

(none)

Meeting Status:

Not yet responded

Organizer:
Required Attendees:

David Toomey
Jonathan Sallet; Stephanie Weiner; Julie Veach; Philip Verveer; Daniel Alvarez; Matthew
DelNero; Sara Morris

Subject:
location:

OI Call--Senate Commerce Committee Republican staff


TBD

Start:
End:
Show Time As:

Wed 4/23/2014 3:00 PM


Wed 4/23/2014 3:30 PM
Tentative

Recurrence:

(none)

Meeting Status:

Not yet responded

Organizer:
Required Attendees:

David Toomey
Jonathan Sallet; Stephanie Weiner; Julie Veach; Philip Verveer; Matthew DelNero; Daniel
Alvarez; Sara Morris

From:

Sent:
To:
Cc:
Subject:

Peter Trachtenberg
Monday, March 24, 2014 11:03 AM
Jennifer Salhus
Nese Guendelsberger
new OI filings

FOIA Exemption 5

William Rinehart
Vonage Holdings Corp.
Voices for Internet Freedom
Verizon and Verizon Wireless
Public Knowledge and Common Cause
Parris
Open Technology Institute at New
America Foundation
Future of Music Coalition
Full Service Network LP
Free Press
Curtis J Neeley Jr
Computer & Communications Industry
Association (CCIA)
CompTIA
CTIA-The Wireless Association
Alissa Cooper
NASUCA
Level 3 Communications, LLC
Institute for Local Self-Reliance
Consumer Electronics Association
AT&T Services, Inc.
ADTRAN, Inc.
Telecommunications Industry
Association

(11 pages)
(9 pages)

Letter (2 pages)
(14 pages)
(42 pages)
(3 pages)

(13 pages)
Future of Music
Qages)

Comments 2014 (7

_
Free Press Comments {8 pages)
3 21 2014 comment {5 pages)
(9 pages}
_@J?_ages)
CTIA Comments to FCC Open Internet PN 3 21 2014 (10

(208 pages)
NASUCA Comments IMO DC Circuit Court of Appeals
Decision in Verizon v FCC {55 pages)
(16 pages)
Comments on Open Internet Proceedings
(7 pages)
(34 pages}
Comments of ADTRAN (16 pages)
(7 pages}

One page withheld pursuant to FOIA Exemption 5

Neil Derek Grace


Senior Communications Advisor
Federal Communications Commission
(o) 202-418-0506 (m) 202-413-4959
neil.grace@fcc.gov

From: Kate Tummarello [mailto:katet@thehill.com]

Sent: Tuesday, May 13, 2014 9:59 AM


To: Neil Grace
Subject: Response to Pai's office on NN?

Hey Neil- Pai's office is saying the Republicans are being kept in the dark on the Chairman's newest proposal.
Does his office have any response?
Thanks,
Kate

Kate Tummarello
Staff Writer
katet@thehill.com
o: 202.628.8515
c: 516.456.4333

Mark Wigfield
. Thursday, May 15, 201412:16 PM
Stephanie Weiner, Matthew DelNero; Shannon Gilson; Neil Grace
RE: FCC Launches Broad Rufemaking to Protect and Promote the Open Internet

From:
Sent:
To:
Subject:

Follow up
Completed

Follow Up Flag:
Flag Status:

--------

From: Jon Brodkin [mailto:jon.brodkin@arstechnica.com]


Sent: Thursday, May 15, 2014 12:12 PM
To: Mark Wigfield
Subject: Re: FCC Launches Broad Rulemaking to Protect and Promote the Open Internet

when it says "exclusive contracts that prioritize service to broadband affiliates are unlawful," does that
mean these are allowed as long as they're offered to anyone on commercially reasonable terms?
Jon Brodkin

Senior IT Reporter
Ars Technica
Ars Orbiting HQ

----------------------------

From: Mark Wigfield <Mark.Wigfield@fcc.gov>


Reply-To: Mark Wigfield <Mark.Wigfield@fcc.gov>
Date: Thursday, May 15, 2014 at 12:04 PM
To: press <press@info.fcc.gov>
Subject: FCC Launches Broad Rulemaking to Protect and Promote the Open Internet

Press release and fact sheet below

FOR IMMEDIATE RELEASE:


May 15,2014

NEWS MEDIA CONTACT:


Mark Wigfield, 202-418-0253
E-mail: mark. wigfield@fcc.gov

FCC LAUNCHES BROAD RULEMAKING ON HOW BEST TO PROTECT AND PROMOTE THE OPEN
INTERNET
.

Seeks Public Input over the Next Four Months to Find Most Viable Approach

Washington, D.C. -The Federal Communications Commission today launched a rulemakmg seeking public comment on
how best to protect and promote an open Internet. The Notice of Proposed Rulemaking adopted today poses a broad
1

range of questions to elicit the broadest range of input from everyone impacted by the Internet, from consumers and small
businesses to providers and start-ups.
The Internet is America's most important platfonn for economic growth, innovation, competition, free expression, and
broadband investment and deployment. The Internet has become an essential tool for Americans and for the growth of
American businesses. That's because the Internet has been open to new content, new products and new services, enabling
consumers to choose whatever legal content, services and applications they desire.
The FCC has previouslyconcluded that broadband providers have the incentive and ability to act in ways that threaten
Internet openness. But today, there are no rules that stop broadband providers from trying to limit Internet
openness. That is why the Notice adopted by the FCC todays starts with a fundamental question: "What is the right public
policy to ensure that the Internet remains open?"

The FCC proposes to rely on a legal blueprint set out by the United States Court of Appeals for the District of Columbia
Circuit in its January decision in Verizon v. FCC, using the FCC's authority to promote broadband deployment to all
Americans under Section 706 of the Telecommunications Act of 1996. At the same time, .the Commission will seriously
consider using its authority under the telecommunications regulation found in Title II of the Communications Act. In
addition, the Notice:

Proposes to retain the definitions and scope of the 2010 rules, which governed broadband Internet access service
providers, but not services like enterprise services, Internet traffic exchange and specialized services.
Proposes to enhance the existing transparency rule, which was upheld by the D.C: Circuit. The proposed
enhancements would provide consumers, edge providers, and the Commission with tailored disclosures, including
infonnation on the nature of congestion that impacts consumers' use of online services and timely notice of new
practices.
As part of the revived "no-blocking" rule, proposes ensuring that all who use the Internet can enjoy robust, fast
and dynamic Internet access.
Tentatively concludes that priority service offered exclusively by a broadband provider to an affiliate should be
considered illegal until proven otherwise.

Asks how to devise a rigorous, multi-factor "screen" to analyze whether any conduct hurts consumers,
competition, free expression and civic engagement, and other criteria under a legal standard tenned "commercial
reasonableness."
Asks a series of detailed questions about what legal authority provides the most effective means of keeping the
Internet open: Section 706 or Title II.
Proposes a multi-faceted process to promptly resolve and head off disputes, including an ombudsperson to act as a
watchdog on behalf of consumers and start-ups and small businesses.

Action by the Commission May 15,2014, by Notice of Proposed Rulemaking (FCC 14-61.). Chairman Wheeler and
Commissioner Clyburn with Commissioner Rosenworcel concurring and Commissioners Pai and O'Rielly
dissenting. Chairman Wheeler, Commissioners Clyburn, Rosenworcel, Pai and O'Rielly issuing statements.

-FCC-

FACT SHEET: Protecting and Promoting the Open Internet


May 15,2014
The Internet is a vital platfonn for innovation, economic growth and free expression in America. And yet, despite two
prior FCC attempts,there are no rules on the books to prevent broadband providers from limiting Internet openness by
blocking content or discriminating against consumers and entrepreneurs online. The "Protecting and Promoting the Open
Internet" Notice of Proposed Rulemaking (NPRM) begins the process of closing that gap, which was created in January
2014 when the D.C. Circuit struck down key FCC Open Internet rules.
This Notice seeks public comment on the benefits of applying Section 706 of the Telecommunications Act of 1996 and
Title II of the Communications Act, including the benefits of one approach over the other, to ensure the Internet remains
2

an open platform for innovation and expression. While the Notice reflects a tentativeconclusion that Section 706 presents
the quickest and most resilient path fmward per the court's guidance, it also makes clear that Title II remains a viable
alternative and asks specifically which approach is better. In addition, the proposal asks whether paid prioritization
arrangements, or "fast lanes," can be banned outright.

We Are Listening: An Extended Four-Month Public Comment Period is Open


Since February, tens of thousands of Americans have offered their views to the Commission on how to protect an Open
Internet. The proposal reflects the substantial public input we have received. The Commission wants to continue to hear
from Americans across the country throughout this process. An extended four-month public comment period on the
Commission's proposal will be opened on May 15-60 days (until July 15) to submit initfal comments and another 57
days (until September 10) for reply comments.
The NPRM seeks comment on a number of questions designed to:

Develop the Strongest Legal Framework for Enforceable Rules of the Road

Reflects the principles that Chairman Wheeler outlined in February, including using the Section 706 blueprint for
restoring the Open Internet rules offered by the D.C. Circuit in its decision in Verizon v. FCC, which relies on the
FCC's legal authority under Section 706 of the Telecommunications Act of 1996. At the same time, the
Commission will seriously consider the use of Title II of the Communications Act as the basis for legal authority.
Seeks comment on the benefits of both Section 706 and Title II, including the benefits of one approach over the
other to ensure the Internet remains an open platform for innovation and expression.
Explores other available sources oflegal authority, including also Title III for wireless services. The Commission
seeks comment on the best ways to define, prevent, expose and punish the practices that threaten an Open
Internet.

Ensure choices for consumers and opportunity for innovators


Proposes a requirement that all users must have access to fast and robust service: Broadband consumers must
have access to the content, services and applications they desire. Innovators and edge providers must have access
to end-users so they can offer new products and services.
Considers ensuring that these standards of service evolve to keep pace with of
Prevent practices that can threaten the Open Internet

Asks if paid prioritization should be banned outright.


Promises clear rules of the road and aggressive enforcement to prevent unfair treatment of consumers, edge
providers and innovators.
Includes a rebuttable presumption* that exclusive contracts that prioritize service to broadband affiliates are
unlawful.

(*Rebuttable presumption is a presumption that is taken to be true unless someone comes forward to contest it and proves
otherwise)

Expand transparency

Enhance the transparency rules to provide increased and specific information about broadband providers'
practices for edge providers, consumers.
Asks whether broadband providers should be required to disclose specific network practices, performance
characteristics (e.g., effective upload and download speeds, latency and packet loss) and/or terms and conditions
of service to end users (e.g., data caps).
Tentatively concludes that broadband providers should disclose "meaningful information" about the service,
including (I) tailored disclosures to end users, (2) congestion that may adversely impact the experience of end
3

users, including at interconnection points, and (3) infonnation about new practices, like any paid prioritization, to
the extent that it is otherwise permitted.

Protect consumers, innovators and startups through new rules and effective enforcement

Proposes the creation of an ombudsperson with significant enforcement authority to serve as a watchdog and
advocate for start-ups, small businesses and consumers.
Seeks comment on how to ensure that all parties, and especially small businesses and start-ups, have effective
access to the Commission's dispute resolution and enforcement processes.
Considers allowing anonymous reporting of violations to alleviate fears by start-ups of retribution from
broadband providers.

Consider the Impact on the Digital Divide: Ensuring access for all communities

Considers the impact of the proposals on groups who disproportionately use mobile broadband service.
Asks whether any parts of the nation are being left behind in the deployment of new broadband networks,
including rural America and parts of urban America.

Link to Chainnan Wheeler's February Open Internet framework: http://www.fcc.gov/document/statement-fcc-chainnantom-wheeler-fccs-open-internet-rules


Conunent on the Open Internet proposals: http://www.fcc.g?v/comments

You have received this release from the FCC Office of Media Relations.
To view all of the latest FCC headlines go to the http://www.fcc.gov.
If you wish to stop receiving releases send a blank email to leave-53734080259.22flf714fb6206382fl27c3b9896c7aa@info.fcc.gov

management@ssrn.com
Sunday, April.27, 2014 5:59 PM
Jonathan Levy
2014 TPRC Conference- Final review has been submitted

From:

Sent:
To:

Subject:

Dear jonathan levy,


jonathan levy has submitted their final review of 2417933 The Proof of the Pudding is in the Eating: Moving Away from
Ideology, Putting Net Neutrality in Practice.
This review is now available for you to read.

---------------REVIEWER ANSWERS AND COMMENTS-------------- Acceptance Recommendation:


FOIA Exemption 6

. . t.. .. 1
FOIA Exemption 6

...

Acceptance Recommendation:

Relevance to TPRC Audience:


High
N
It fA
FOIA Exemption 6

d/

It

Strengths:

Weaknesses:

Comments to Coordinator:

Comments to Author:

Submission Area Coordinator Comments:

Thank you.
SSRN Management Team

From:
Sent:
To:
Subject:

Carleen Maitland <cmaitland@ist.psu.edu>


Tuesday, April 08, 2014 11:57 AM
Jonathan Levy
Re: Review Assignments

Don't do too much in SSRN because if you have those permissions you might be able to see authors. Let me check with
Addie.
-em
On Apr 8, 2014, at 11:43 AM, "Jonathan Levy" <Jonathan.Levy@fcc.gov> wrote:
Hi Carleen;
Thanks for getting back to me. This is a bit disappointing but I don't know what can be done. I just went in
and accepted all 25 of my assigned papers. I noticed one minor oddity. SSRN said that

<image002.png>jonathan levy is logged in as Program Committee Chair


I just signed in as myself. I doubt that this matters for anything but wanted to let you know just in case.
Jonathan

From: Carleen Maitland [mailto:cmaitland@ist.psu.edu]

Sent: Monday, April 07, 2014 10:52 PM


To: Jonathan Levy

Subject: Re: Review Assignments


Jonathan,
I was very surprised that there were very few- only one that I can recall. There were, as usual, many on
spectrum policy and unsurprisingly a large number on net neutrality.
Carleen
On Apr 7, 2014, at 3:13 PM, "Jonathan Levy" <Jonathan.Levy@fcc.gov> wrote:
HI Carleen:
I will be happy to review the assigned papers but I am curious as to whether we got ANY
papers on media policy. This is my primary specialty/interest and I indicated it as one of
my priorities when signing up. Did we just not get any papers at all in this area?
Best,
Jonathan
Jonathan Levy
Deputy Chief Economist
Federal Communications Commission
(202) 418-2048

From:

Sent:
To:
Subject:

management@ssrn.com
Monday, April 07, 2014 1:50 PM
Jonathan Levy
2014 TPRC Conference - Notice of Review

Dear TPRC 2014 PC Member,


You have been assigned to review Net Neutrality: Discrimination, Competition, and Innovation in the US and UK.
We request you to kindly confirm your acceptance of this assignment (see below), being free from any conflicts of
interest, by Friday, April 11th, and then complete your review by Monday, April 28th.
The Guidelines for Reviewers are also included below.
Thank you for contributing your time as a Reviewer.

TPRC Conference Submitter


info@tprc.org
Carleen Maitland
cmaitland@ist.psu.edu

Guidelines for Reviewers


2014 TPRC Conference is working with Social Science Research Network (SSRN) to provide an online conference
submission and review system. If you need assistance at any point during the review process: please email Addie
Jackson at Addie_Jackson@ssrn.com, SSRN at usersupport@ssrn.com or calf (877) SSRNHelp (877-777-6435).
Please note, the Program Committee has agreed to a blind review system. As such we ask that you refrain from seeking
authors' identities either through the SSRN system or other means.
To View Paper
Start by going to www.ssrn.com. This is the SSRN login page where you will create your SSRN User ID and Password. If
you already have a SSRN User ID and Password, skip the remainder of this paragraph. Enter the email address where
you received this email in the Your Email Address field and click Submit. Click on your name on the following page and
your User ID and Password will be emailed to you within a few minutes. Retrieve your Password from the email and
enter it in the Password field to login.
After logging in, there is a link on the left side of the page titled 'Referee List'. Clicking on this link will list allofthe
papers you have been requested to review.
Please click the Yes button under the "Will you review/discuss this paper?" column to continue with the review process.
This will move the paper to the Papers Accepted section of your page so that you can complete the review form.
Click on the View button to open the paper in Adobe Acrobat. If you are having problems viewing the PDF file, you
should upgrade to the latest version at http://www.adobe.com/reader. You can print the paper and read it offline.
After you have read the paper, you should complete the online review form.
To Review
1

Login to SSRN at www.ssrn.com and click on the Referee List link. Clicking on this link will list all of the papers you have
been requested to review.
If you have not previously agreed to review the paper, please click the Yes button under the "Will you review/discuss
this paper?" column to continue with the review process. This will move the paper to the Papers Accepted section of
your page so that you can complete the review form.
Click on the Review link, next to the View button. Please read the instructions and click on the appropriate buttons to
record your opinions about the paper.
SSRN has a 4-point scale (Accept- 4, Probably Accept- 3, Probably Reject- 2, Reject -1) for scoring abstracts. You must
grade 50% of your abstracts in the 'reject' category. Remaining abstracts should be scored so they distribute evenly
among the other three grades, at the reviewer's discretion.
Score each abstract and click 'SAVE REVIEW'. DO NOT click the 'SUBMIT' button until you are certain you have adhered
to the curve.
In addition to the recommendations on acceptance, you have the option to answer two multiple-choice questions,
'Relevance to TPRC audience' and 'Novelty of approach and/or results' (High, Above Average, Average, Below Average,
Low). These scores provide additional information to help determine the outcome for papers that are not unanimously
clear accepts. Reviewers can also submit optional comments on 'Strengths', 'Weaknesses', 'Comments to PC Chair' and
'Comments to author'. There is no limit to the number of comments a reviewer can make. Useful feedback would
include quality of research, clarity of objectives/methods/data, validity of methods, explanation of why research is
novel, relevance/timeliness for presentation at TPRC, organization, grammar, comprehensibility. For strengths,
weaknesses, and comments to the PC Chair, why the abstract is a strong 'accept' or 'reject' candidate is helpful, but we
ask you refrain from making comments indicating your final recommendation to the author.
Two potentially helpful comments to the PC Chair (only)are the reviewer's experience with the author in terms of the
likelihood of actually getting the paper done in time for the conference and whether the reviewer believes the abstract
could be presented as a poster.
Because of the curve, you should wait to review all abstracts, 'SAVE' each of the reviews, and then determine whether
you meet the curve BEFORE you click the 'SUBMIT' button on any review.
After you have completed the form for each abstract that has been assigned to you, review the 'Paper Review List' with
all the abstracts you have accepted to review and their scores so as to ensure you have adhered to the curve: 50% reject
and the remainder divided evenly among the three other categories (Accept, Probably Accept, and Probably Reject).
Once you have confirmed the curve has been met, click the 'Review' link to open each abstract and select 'SUBMIT FINAL
REVIEW' for all of them. This will complete the process and your final recommendation will appear next to the Review
link.
When your review has been received, a confirmation email will be sent to you.

From:

Sent:
To:
Subject:

management@ssrn.com
Monday, April 07, 2014 1:14 PM
Jonathan Levy
2014 TPRC Conference - Notice of Review

Dear TPRC 2014 PC Member,


You have been assigned to review The Proof of the Pudding is in the Eating: Moving Away from Ideology, Putting Net
Neutrality in Practice.
We request you to kindly confirm your acceptance of this assignment (see below), being free from any conflicts of
interest, by Friday, April 11th, and then complete your review by Monday, April 28th.
The Guidelines for Reviewers are also included below.
Thank you for contributing your time as a Reviewer.

TPRC Conference Submitter


info@tprc.org
Carleen Maitland
cmaitland@ist.psu.edu

Guidelines for Reviewers


2014 TPRC Conference is working with Social Science Research Network (SSRN) to provide an online conference
submission and review system. If you need assistance at any point during the review process: please email Addie
Jackson at Addie_Jackson@ssrn.com, SSRN at usersupport@ssrn.com or call (877) SSRNHelp (877-777-6435).
Please note, the Program Committee has agreed to a blind review system. As such we ask that you refrain from seeking
authors' identities either through the SSRN system or other means.
To View Paper
Start by going to www.ssrn.com. This is the SSRN login page where you will create your SSRN User ID and Password. If
you already have a SSRN User ID and Password, skip the remainder ofthis paragraph. Enter the email address where
you received this email in the Your Email Address field and click Submit. Click on your name on the following page and
your User ID and Password will be em ailed to you within a few minutes. Retrieve your Password from the email and
enter it in the Password field to login.
After logging in, there is a link on the left side of the page titled 'Referee List'. Clicking on this link will list all of the
papers you have been requested to review.
Please click the Yes button under the "Will you review/discuss this paper?" column to continue with the review process.
This will move the paper to the Papers Accepted section of your page so that you can complete the review form.
Click on the View button to open the paper in Adobe Acrobat. If you are having problems viewing the PDF file, you
should upgrade to the latest version at http://www.adobe.com/reader. You can print the paper and read it offline.
After you have read the paper, you should complete the online review form.

To Review
Login to SSRN at www.ssrn.com and click on the Referee List link. Clicking on this link will list all of the papers you have
been requested to review.
If you have not previously agreed to review the paper, please click the Yes button under the "Will you review/discuss
this paper?" column to continue with the review process. This will move the paper to the Papers Accepted section of
your page so that you can complete the review form.
Click on the Review link, next to the View button. Please read the instructions and click on the appropriate buttons to
record your opinions about the paper.
SSRN has a 4-point scale (Accept- 4, Probably Accept- 3, Probably Reject- 2, Reject -1) for scoring abstracts. You must
grade 50% of your abstracts in the 'reject' category. Remaining abstracts should be scored so they distribute evenly
among the other three grades, at the reviewer's discretion.
Score each abstract and click 'SAVE REVIEW'. DO NOT click the 'SUBMIT' button until you are certain you have adhered
to the curve.
In addition to the recommendations on acceptance, you have the option to answer two multiple-choice questions,
'Relevance to TPRC audience' and 'Novelty of approach and/or results' (High, Above Average, Average, Below Average,
Low). These scores provide additional information to help determine the outcome for papers that are not unanimously
clear accepts. Reviewers can also submit optional comments on 'Strengths', 'Weaknesses', 'Comments to PC Chair' and
'Comments to author'. There is no limit to the number of comments a reviewer can make. Useful feedback would
include quality of research, clarity of objectives/methods/data, validity of methods, explanation of why research is
novel, relevance/timeliness for presentation at TPRC, organization, grammar, comprehensibility. For strengths,
weaknesses, and comments to the PC Chair, why the abstract is a strong 'accept' or 'reject' candidate is helpful, but we
ask you refrain from making comments indicating your final recommendation to the author.
Two potentially helpful comments to the PC Chair (only)are the reviewer's experience with the author in terms of the
likelihood of actually getting the paper done in time for the conference and whether the reviewer believes the abstract
could be presented as a poster.
Because of the curve, you should wait to review allabstracts, 'SAVE' each of the reviews, and then determine whether
you meet the curve BEFORE you click the 'SUBMIT' button on any review.
After you have completed the form for each abstract that has been assigned to you, review the 'Paper Review List' with
all the abstracts you have accepted to review and their scores so as to ensure you have adhered to the curve: 50% reject
and the remainder divided evenly among the three other categories (Accept, Probably Accept, and Probably Reject).
Once you have confirmed the curve has been met, click the 'Review' link to open each abstract and select 'SUBMIT FINAL
REVIEW' for all of them. This will complete the process and your final recommendation will appear next to the Review
link.
When your review has been received, a confirmation email will be sent to you.

management@ssrn.com
Sunday, April 27, 2014 5:59 PM
Jonathan Levy
2014 TPRC Conference- Final review has been submitted

From:

Sent:
To:
Subject:

Dear jonathan levy,


jonathan levy has submitted their final review of 2418479 Net Neutrality: Discrimination, Competition, and Innovation in
the US and UK.
This review is now available for you to read.

FOIA Exemption 6

ERS AND COMMENTS-------------- Acceptance Recommendation:

Overall Review Score:

Acceptance Recommendation:

Relevance to TPRC Audience:


FOIA Exemption 6
Novelty of Approach and/or Result:
FOIA Exemption 6
Strengths:

Weaknesses:

Comments to Coordinator:

Comments to Author:

Submission Area Coordinator Comments:

Thank you.
SSRN Management Team

Jonathan Levy
Friday, February 21, 2014 5:59 PM
'VIadica Tintor'
RE: Greetings

From:

Sent:
To:
Subject:

Greetings Vladica:
I hope to return to Beograd someday but I am not sure when it wlll be possible. Our biggest challenges now are, in no
particular order: completing our incentive auction design (to recover additional spectrum from the television broadcasting
service and reallocate to wireless broadband), figuring out what network neutrality regulations are appropriate and within
our authority, reforming our universal service policies to make them more efficient and focused on broadband, and
managing the transition IP for what is left of our circuit switched networks.
My family is indeed well and I hope that the same can be said for yours.
Cordially,
Jonathan

From: Vladica Tintor [mailto:vladica.tintor@ratel.rs]

Sent: Monday, February 10, 2014 8:23 AM


To: Jonathan Levy

Subject: RE: Greetings


Dear Jonathan,
It is a great pleasure to hear from you. I hope that you are doing well. What are the current regulatory challenges in the
USA regarding the telecommunications? We are mostly dealing with the digital transition, digital dividend, interferences
between DVB and LTE systems.
FOIA Exemption 6

If you are planning to visit Belgrade again please let me know.


Best regards,

Vladica Tintor, PhD, MB/\


Deputy Director

.'ib'S. >
.

'"'""'" "'"'""

Republic Agency for Electronic Communications


Visnjiceva 8
11.000 Belgrade
Repubiic ot Serbia

Phone: +38111 202 6801


rvlobi!e: +381 64 640 8505

Fax:

+38111323 2537

www.ratel.rs
1

This email is confidential and is protected by copyright.


please don't print this e-mail unless you really need to.

From: Jonathan Levy [mailto:Jonathan.Levy@fcc.gov]

Sent: Wednesday, February 05, 2014 11:44 PM


To: 'vladica.tintor@ratel.rs'

Subject: Greetings
Dear Vladica:

Best regards,
Jonathan
Jonathan Levy
Deputy Chief Economist
Federal Communications Commission
(202) 418-2048

Subject:
location:
Start:

FW: Meeting on behalf of EDUCAUSE re: to discuss the Open Internet rules and
Interconnection and Professional Introductions
5-8516

Show Time As:

Man 5/12/2014 3:30 PM


Man 5/12/2014 4:30 PM
Tentative

Recurrence:

(none)

Meeting Status:

Not yet responded

Organizer:

WCBChief

End:

Now meeting
-----Original Appointment----From: WCBChief
Sent: Tuesday, April 08, 2014 3:52PM
To: WCBChief; Alison Neplokh; Carol Simpson; Christopher Killion; Claude Aiken; Henning Schulzrinne; Jennifer Salhus;
Jonathan Chambers; Jonathan Sallet; Julie Veach; Kurt Schroeder; Mark Stone; Matthew DelNero; Nese Guendelsberger;
Peter Trachtenberg; Philip Verveer; Robert Cannon; Roger Sherman; Rosemary McEnery; Stephanie Weiner; Thomas
Spavins; Tim Brennan
Subject: Meeting on behalf of EDUCAUSE re: to discuss the Open Internet rules and Interconnection and Professional
Introductions
When: Monday, May 12, 2014 3:30PM-4:30PM (UTC-05:00) Eastern Time (US & Canada).
Where: 5-6516

From: Robert Cannon


Sent: Wednesday, March 26, 2014 10:29 AM
To: 'Jarret Cummings'; Latoya Toles
Cc: jwindhausen@telepolyconsulting.com;
Subject: RE: EDUCAUSE and Interconnection and Professional Introductions
Excellent. I am forwarding this to Latoya Toles who will help set up an ex parte meeting in which you can share your
views about Open Internet with FCC staff. Look forward to it!
B

From: Jarret Cummings [mailto:jcummings@educause.edu]


Sent: Tuesday, March 25, 2014 4:32 PM
To: Robert Cannon
Cc: jwindhausen@telepolyconsulting.com; josh@ulmanpolicy.com
Subject: RE: EDUCAUSE and Interconnection and Professional Introductions
Hi, Bob -I think it may make sense for us to start with the Open Internet rules and then talk through how the
interconnection issue might come into play in that context. We haven't been thinking of the two together, but it's
starting to seem like others may be, so it's probably worth exploring.

I've copied John Windhausen, who's consulted with us on telecom/broadband issues for a number of years, as well as
Josh Ulman, who serves as our primary consultant on public policy and government relations issues generally. We'd be
happy to schedule a meeting with you and any colleagues you'd like to include; just let us know what scheduling options
you have in mind and we'll look for a match. And we can host the discussion at our office on 18th St, NW, near Farragut
North and Farragut West, or we can come to the FCC, whichever you think would work best.
It may ultimately make sense for us to bring a couple of our local university C!Os into the conversation to get a direct
campus perspective, but we can talk and see if/when that might be helpful. We look forward to hearing from you when
you get the chance.- Jarret

Jarret S. Cummings
Director of External Relations

EDUCAUSE
Uncommon Tt1inking for tlw Common Good
direct 202.331.5372 I main: 202.872.4200 I educause.edu

Not Responsive

From:
Sent:
To:
Cc:

Subject:

Jarret Cummings <jcummings@educause.edu>


Monday, March 31, 2014 4:24PM
Robert Cannon
jwindhausen@telepolyconsulting.com; josh@ ulmanpolicy.com; Latoya Toles
RE: EDUCAUSE and Interconnection and Professional Introductions

Hi, Bob- Yes, Latoya got in touch and I promised her that I'd start organizing dates with my colleagues. But then Josh,
John, and I realized we should probably ask our friends at ALA and ARL to join us as well, I thought I'd better doublecheck with you before I started polling them for scheduling options. I'll start doing that now and get back to Latoya as
promised. Thanks!- Jarret

Jarret S. Cummings
Director of External Relations

EDUCAUSE
Uncommon Thinking for ttle Common Good
direct: 202.331.5372 I main: 202.872.4200 I educause.edu

From: Robert Cannon [mailto:Robert.Cannon@fcc.gov]

Sent: Monday, March 31, 2014 3:27 PM


To: Jarret Cummings
Cc: jwindhausen@tefepolyconsulting.com; josh@ulmanpolicy.com; Latoya Toles

Subject: RE: EDUCAUSE and Interconnection and Professional Introductions


HiJarret
Did you respond to LaToya Toles? She is coordinating the meeting.
Yes, certainly a meeting with ALA and Association of Research Libraries makes sense.
There is inside the FCC an Open Internet working group that includes Jonathan Sallet (GC), Stephanie Weiner (Deputy
GC), Amb. Phil Verveer (OCH), Jonathan Chambers (Chief, OSP), Tim Brennan (Chief Econ), Henning Schulzrinne (CTO),
Julie Veach (Chief, Wireline Bureau) and many others. It would be with that group that you would be meeting.
B

From: Jarret Cummings [mailto:jcummings@educause.edu]

Sent: Monday, March 31, 2014 10:50 AM


To: Robert Cannon
Cc: jwindhau?en@telepolyconsulting.com; josh@ulmanpolicy.com; Latoya Toles

Subject: RE: EDUCAUSE and Interconnection and Professional Introductions


Hi, Bob- As I talked with my colleagues about scheduling options to propose, it occurred to us that we should probably
have representatives from our partners in this space- the Association of Research Libraries and the American Library
Association- join us. We submitted joint comments with them during the original Open Internet Rules process as well as
following the recent court ruling, and we're in the process of developing a joint net neutrality principles statement to
submit for the current docket (as well as to our respective communities for support).

Would that work for you and your colleagues? Please let me know when you get the chance. Also, if you have a sense
yet for whom else at the FCC might participate in the discussion, please let us know that as well. Thanks!- Jarret

Jarret S. Cummings
Director of External Relations

EDUCAUSE
Uncommon Thinking for the Common Good
direct: 202.331.53721 main: 202.872.4200 I educause.edu

From: Latoya Toles [mailto:Latoya.Toles@fcc.gov]

Sent: Wednesday, March 26, 2014 1:58 PM


To: Jarret Cummings
Cc: jwindhausen@telepolyconsultinq.com; josh@ulmanpolicy.com
Subject: RE: EDUCAUSE and Interconnection and Professional Introductions
Hi Jarret,
I see your interest in meeting with our staff on Open Internet rules, when would you like to come in to discuss? If
possible, can you please provide dates/ times so I can talk internally to schedule this meeting.
Thanks, LT
LaToya Toles
Staff Assistant
Federal Communications Commission
Wireline Competition Bureau
202.418.1353

From: Robert Cannon

Sent: Wednesday, March 26, 2014 10:29 AM


To: 'Jarret Cummings'; Latoya Toles
Cc: jwindhausen@telepolyconsultinq.com; josh@ulmanpolicy.com
Subject: RE: EDUCAUSE and Interconnection and Professional Introductions
Excellent. I am forwarding this to Latoya Toles who will help set up an ex parte meeting in which you can share your
views about Open Internet with FCC staff. Look forward to it!
B

From: Jarret Cummings [mailto:jcummings@..S!QIJ.

Sent: Tuesday, March 25, 2014 4:32PM


To: Robert Cannon
Cc: jwindhausen@telepolyconsulting.com; josh@ulmanpolicy.com
Subject: RE: EDUCAUSE and Interconnection and Professional Introductions
Hi, Bob -I think it may make sense for us to start with the Open Internet rules and then talk through how the
interconnection issue might come into play in that context. We haven't been thinking of the two together, but it's
starting to seem like others may be, so it's probably worth exploring.
I've copied John Windhausen, who's consulted with us on te!ecom/broadband issues for a number of years, as well as
Josh Ulman, who serves as our primary consultant on public policy and government relations issues generally. We'd be
happy to schedule a meeting with you and any colleagues you'd like to include; just let us know what scheduling options
2

you have in mind and we'll look for a match. And we can host the discussion at our office on 18th St, NW, near Farragut
North and Farragut West, or we can come to the FCC, whichever you think would work best.
It may ultimately make sense for us to bring a couple of our local university CIOs into the conversation to get a direct
campus perspective, but we can talk and see if/when that might be helpful. We look forward to hearing from you when
you get the chance.- Jarret

Jarret S. Cummings
Director of External Relations
EDUCAUSE
Uncommon Thinking for the Common Good
direct: 202.331.5372 I main: 202.872.4200 I educause.edu

From:

Sent:
To:
Cc:
Subject:

Robert Cannon
Monday, April 07, 2014 10:02 AM
Jarret Cummings
Latoya Toles
RE: EDUCAUSE/ALA/ARL meeting scheduling

Please work with Latoya on the schedule. It looks to me that on the 22nd you would have a hard time meeting with
Jonathan Sallet, the General Counsel- and on the 25th you would have a hard time meeting with Jonathan Sallet, or
Henning Schulzrinne the CTO.
It might be useful to move into May in order to actually get on everyone's calendar.
B

From: Jarret Cummings Ucummings@educause.edu]


Sent: Monday, April 07, 2014 9:45AM
To: Robert Cannon
Cc: Latoya Toles
Subject: RE: EDUCAUSE/ALA/ ARL meeting scheduling
Thanks! Yes, I think it cements that we really need to try to make this happen in April if at all possible, which I believe
will help me push some more schedule shuffling with my colleagues. I think my luck may have turned over the weekend
already, though, with some folks warming to one of the options Latoya and I discussed on Friday. I'm going to make a
quick round of confirmations before cashing my lottery ticket on this one, but if I'm right, we may be able to get this
scheduled for the week after next after all.

Jarret S. Cummings
Director of External Relations
EDUCAUSE
Uncommon Thinking for the Common Good
direct: 202.331.5372 I main: 202.872.4200 I educause.edu
-----Original Message----From: Robert Cannon [mailto:Robert.Cannon@fcc.gov]
Sent: Monday, April 7, 2014 9:37AM
To: Jarret Cummings
Cc: Latoya Toles
Subject: RE: EDUCAUSE/ALA/ARL meeting scheduling
In February the FCC released a press release regarding the Open Internet Remand. The FCC is working on preparing a
response to the appellate court's decision, and input from that release. That most likely would be in the form of a notice
of proposed rulemaking which will come out this spring.
Obviously Educause's input is valuable and welcome. We are at the stage in the process where the FCC is considering
proposals on how to move forward- not at the stage where we are making specific decisions. Of course, as you know, it
is always good to get in early in order to help steer the ship.

I hope that helps provide some clarity. More than that, I think it is your call.

B
From: Jarret Cummings Ucummings@educause.edu]
Sent: Friday, April 04, 2014 2:27PM
To: Robert Cannon
Cc: Latoya Toles
Subject: EDUCAUSE/ALA/ARL meeting scheduling
Hi, Bob- LaToya was kind enough to spend some quality time with me this afternoon so we could troop through the
scheduling swamp and look for some solid ground.l'm floating a few options with my group to see if some of them can
change their "no" to a "yes," looking at April22 or April25.
In the meantime, I wanted to ask you by what point this meeting needs to happen to effectively inform the FCC process.
If LaToya and I have to talk early May dates, will that work, or does the meeting have to take place by the end of April
for it to matter? Please let me know when you get the chance. Thanks!- Jarret

Jarret S. Cummings
Director of External Relations
EDUCAUSE
Uncommon Thinking for the Common Good
1150 18th Street, NW, Suite 900 Washington, DC 20036
direct: 202.331.5372 I main: 202.872.4200 I educause.edu<http://www.educause.edu/>

Subject:
Location:

Face to Face w/ Kevin Werbach


7 south

Start:
End:
Show Time As:

Thu 3/13/2014 4:00 PM


Thu 3/13/2014 4:45 PM
Tentative

Recurrence:

(none)

Meeting Status:

Not yet responded

Organizer:
Required Attendees:
Optional Attendees:

Jonathan Sallet
Open Internet Working Group
Henning Schulzrinne; Christopher Killion; Stephanie Weiner; Jonathan Chambers;
Matthew DelNero; Tim Brennan; Rosemary McEnery; Thomas Spavins; Aaron Garza;
Robert Cannon; Roger Sherman; Julie Veach

That works. thanks.


-kOn Feb 25, 2014, at 5:36PM, Sharina Smith <Sharlna.Smi!b_@fcc.gov> wrote:
> 4pm on March 13th works for Jon, please let me know if we can confirm. Thanks
>
>-----Original Message----> From: Kevin Werbach [mailto:werbach@wharton.upenn.edu]
>Sent: Monday, February 24, 2014 11:14 AM
>To: Sharina Smith
>Subject: Re: Catching Up
>
>Actually, Jon called me over the weekend and we were able to talk. So I think we're good for now.
>
.>Among other things, he wanted to schedule some time when I'm in DC on March 13. I have an event in the morning,
but should be free starting at noon and all afternoon. Can you see when he might be available?
>
>Thanks.
>
> -k>
>On Feb 24, 2014, at 10:59 AM, Sharina Smith <Sharina.Smith@fcc.gov>
>wrote:
>
>>Sorry for the back and worth but let's confirm 10am on Wednesday the 26th. Thanks
>>
-----Original Message---- From: Werbach, Kevin [mailto:werbach@wharton.upenn.edul
Sent: Friday, February 21, 2014 6:07PM

To: Sharina Smith


Subject: Re: Catching Up
>>
No, I have meetings 10-11:30 and 12-3. I could probably leave the first meeting early at 11. But I can't miss the
beginning.
>>
If that doesn't work, I'm free Wednesday 9:30-11, or Thursday 9:30-2.
>>
>> -k>>
On Feb 21, 2014, at 5:40 PM, Sharina Smith <Sharina.Smith@fcc.gov> wrote:
>>
>>>Kevin>>>
>Would it be possible to now have this call start at lOam ET?
>>>
>>>-----Original Message----> From: Kevin Werbach [mailto:werbach@wharton.upenn.edu]
>Sent: Thursday, February 20, 2014 12:40 PM
>To: Sharina Smith
>Subject: Re: Catching Up
>>>
>Yes, that works. I'll be at 215-898-1222, or if he'd prefer, I can call Jon. Thanks.
>>>
>>> -k>>>
>On Feb 20, 2014, at 12:30 PM, Sharina Smith <Sharina.Smith@fcc.gov>
>>>wrote:
>>>
>>The morning ofthe 25th work, can we confirm 9:30amET?
>>>>
>>-----Original Message---->> From: Kevin Werbach [mailto:werbach@wharton.upenn.edJ!l
Sent: Thursday, February 20, 2014 12:28 PM
>>To: Sharina Smith
Subject: Re: Catching Up
>>>>
That's OK-- the Chairman gets priority!
>>>>
Unfortunately Monday I'm booked straight through from 12-7pm. I could do something in the morning, or on
Tuesday I have some time in the late afternoon.
>>>>
>>>> -k>>>>
On Feb 20, 2014, at 12:21 PM, Sharina Smith <Sharina.Smith@fcc.gov>
>>>>wrote:
>>>>
> Hi Kevin>>>>>
>Unfortunately Jon has now been requested at this time by the Chairman. Are you available on Monday the 24th
at 3:30pm ET?
>>>>>
2

>>>We do apologize for any inconvenience


>>>>>
>-----Original Message----> From: Werbach, Kevin [mailto:werbach@wharton.upenn.edu]
>Sent: Wednesday, February 19, 2014 8:59PM
>To: Sharina Smith
>Subject: Re: Catching Up
>>>>>
>OK, let's do 3:30 then. He can reach me tomorrow at 215-898-1222, or I can call if you give me a number. Thanks.
>>>>>
>>>>> -k>>>>>
>On Feb 19, 2014, at 12:09 PM, Sharina Smith <Sharina.Smith@fcc.gov> wrote:
>>>>>
>> Unfortunately, 4:30pm doesn't work. Let me know if we can confirm 3:30pm ET.
>>>>>>
>>>>Thanks
>>>>>>
>>-----Original Message---- From: Werbach, Kevin [mailto:werbach@whart.Q!1..\oJ_Qenn.edu]
Sent: Tuesday, February 18, 2014 6:24PM
To: Sharina Smith
>>Subject: Re: Catching Up
>>>>>>
>>Correct, we weren't able to talk today. Thanks for following up.
>>>>>>
>>Could he do 4:30 Thursday? If not, let me see if I can move the thing I have at 3:30. I probably can.
>>>>>>
>>>>>> -k>>>>>>
On Feb 18,2014, at 5:50PM, Sharina Smith <Sharina.Smith@fcc.gol,(> wrote:
>>>>>>
>>>>>>> Good afternoon>>>>>>>
>I'm Jon's assistant and I don't believe you and Jon were able to connect today, but if you did please disregard
this email.
>>>>>>>
>I wanted to confirm a time that work for his schedule, are you available for a call Thursday the 20th at 3:30pm?
>>>>>>>
>-----Original Message----> From: Werbach, Kevin [mailto:werbach@wharton.upenn.edu]
>Sent: Tuesday, February 18, 2014 2:09PM
>>>>>To: Jonathan Sallet
> Cc: Sharina Smith
>Subject: Re: Catching Up
>>>>>>>
>Here now if you're available to talk- 484-222-5138. If something came up, no worries. I'm around until4pm
today, or we could do another time.
>>>>>>>
>>>Thanks.
>>>>>>>
>>>>>>> -k3

>>>>>>>
>>>>>>>
>On Feb 16, 2014, at 9:23AM, Jonathan Sallet <Jonathan.Sallet@fcc.gov> wrote:
>>>>>>>
>> 2pm Tuesday works; where should I call you?
>>>>>>>>
>>-----Original Message---->>>> From: Kevin Werbach [mailto:werbach@wharton.uQenn.edu]
Sent: Saturday, February 15, 2014 9:09PM
>>>>>>To: Jonathan Sallet
>>Subject: Re: Catching Up
>>>>>>>>
On Feb 15, 2014, at 4:07AM, Jonathan Sallet <Jonathan.Sal!et@fcc.gov> wrote:
>Want to talk next week after you get back? I'm around all week. Jon
>>>>>>>>
>>Sounds good. I have some time 2-4pm on Tuesday, or 12-2 Thursday. What works best?
>>>>>>>>
>>>>>>>> -k>>>>>>>>
>>>>>>>>
>>>>>>>
>>>>>>
>>>>>
>>>>
>>>
>>
>

From:

Sent:
To:
Subject:

Henning Schulzrinne
Friday, February 14, 2014 1:42 PM
Robert Cannon
RE: Internet Backbones

-----Original Message----From: Robert Cannon


Sent: Friday, February 14, 20141:39 PM
To: Henning Schulzrinne
Subject: FW: Internet Backbones

From: k daffy [kc@caida.org]


Sent: Wednesday, February 12, 2014 3:17 PM
To: Robert CannOn
Subject: Re: Internet Backbones
B,

david clark was at the silicon flatirons gig this last weekend and talked w wheeler and others there a bit about this stuff,
and what we're doing in this area, but i agree w you that we should visit.
don't know if you watched nanog this week, matthew gave a lightning (10-min) talk on our recent study of congestion:
http:Uwww .ca ida .o rg/"'m il/nanog-co ngestio n.pdf
and we have a proposal submitted to NSF, which i have shared w Padma Krishnaswamy
<Padma.Krishnaswamv@fcc.gov> after a phone call where she said she was tasked w looking into "interconnection and
CON" stuff. (also shared w her an 1Pv6 deployment modellng proposal since that is also on her study list, fwiw.)
i do not currently have a trip planned to de but we could arrange for this purpose. i think david clark was trying to find a
date where wheeler and other relevant folks would be there too. and david's schedule is hard, so maybe we can't get
everyone there at once.
the papers you mention are not focused on the congestion issues which is what i think you care about now;)
i think you will find the proposal attached juicy reading; it will require more budget than NSF will give us.
really what FCC needs (as i have said for years) is a joint program on scientific measurement of Internet behavior to
support FCC policy development needs.
but it requires the tpye of leadership at both agencies which has not thus far existed ..
1

fi"Onl: Latoya Toles on behalf ofJul'fe Veach


Sent: Wednesday, April 02, 2014 12:23. PM

To: WCBChief; Julie Veach; Jonathan Sallet; Linda Oliver; Stephanie Weiner; William Dever; Matthew Warner; Eric Ralph;
Octavian Carare; James Miller; Padma Krishnaswamy; Mark Walker; Henning Schulzrinne; Tim Brennan; Kathryn OBrien;
Carol Simpson; Matthew DelNero
Subject: RE: Hold for Internet Backbones (CAIDA)
FYI-Conformation email below.
----Original Message--From: Latoya Toles
Sent: Wednesday, March 12, 2014 2:54PM
To: 'David Clark'
Cc: k daffy
Subject: Meeting Confirmation Internet Backbones (CAIDA)
Good Afternoon,
This email is to confirm that you have a meeting scheduled with various staff (listed below) to discuss Internet Backbone
(CAIDA). On Friday, April 4th from 10:00am-11:00am. The meeting will be held in 5-B516 -South Conference Room. When
you arrive, please have security call the main line at 202.418.1500.
WCB Attendees
Julie Veach
Jonathan Sallet
Linda Oliver
Stephanie Weiner
William Dever
Matthew Warner
Eric Ralph
Octavian Carare
James Miller
Padma Krishnaswamy
Mark Walker
Henning Schulzrinne
Tim Brennan
Kathryn Obrien
Matthew DelNero
1

Thanks,

LaToya Toles
Staff Assistant
Federal Communications Commission
Wireline Competition Bureau
202.418.1353

-----Original Appointment----From: WCBChief


Sent: Wednesday, March 12, 2014 2:37 PM
To: WCBChief; Julie Veach; Jonathan Sallet; Linda Oliver; Stephanie Weiner; William Dever; Matthew Warner; Eric Ralph;
Octavian Carare; James Miller; Padma Krishnaswamy; Mark Walker; Henning Schulzrinne; Tim Brennan; Kathryn OBrien;
Carol Simpson; Matthew DelNero
Subject: Hold for Internet Backbones (CAIDA)
When: Friday, April 04, 2014 10:00 AM-11:00 AM (UTC-05:00) Eastern Time (US & Canada).
Where: 5-8516

-----Original Message----From: Robert Cannon


Sent: Monday, March 10, 2014 6:22 PM
To: 'k daffy'; Latoya Toles
Cc: David Clark
Subject: RE: Internet Backbones {CAIDA)

1am going to hand you off to Latoya Toles who apparently is in charge of scheduling these types of meetings.
Latoya, I would invite from the FCC
William Dever
Matthew Warner
Eric Ralph
Octavian Carare <Octavian.Carare@fcc.goV>; James Miller <James.Miller@fcc.goV>; Padma Krishnaswamy
<Padma.Krishnaswamy@fcc.gov>; Walter Johnston <Walter.Johnston@fcc.ggv>; Henning Schulzrinne
<Henning.Schufzrinne@fcc.gov>; Tim Brennan <Tim.Brennan@fcc.gov>; Kathryn OBrien <Kathryn.OBrien@fcc.gov> Carol
Simpson; Matthew DelNero <Matthew.DeiNero@fcc.gov>
And myself.
Thanks
-----Original Message----From: k daffy (mailto:kc@caida.org]
Sent: Monday, March 10, 2014 2:44 PM
To: Robert Cannon
Cc: David Clark
Subject: Re: Internet Backbones {CAIDA)

i haven't bought my tix yet because


flights coming home fri nite are insanely expensive. but i hope to get a ticket leaving Spm friday which probalby means i have
to leave fcc 3pm. so i guess that leaves the morning. i was also supposed to meet with nsf that morning, i could do it early or
try to fly in the day before.
so i guess late morning is best, and lunch.

yes, we meet with verveer/wheeler at 1pm.


i don't know the exact agenda for that..
thanks ..
k

On Man, Mar 10, 2014 at 03:21:19PM +0000, Robert Cannon wrote:


Ambassador Verveer indicates that we should go forward and plan!
Friday April 4th? And you are meeting with Amb. Verveer at 1 pm?
Why don't you tell me what windows are open for you, and then I will attempt to coordinate with staff's calendars and find
the best spot?
Thanks!
B

-----Original Message---From: k daffy [mailto:kc@caida.org]


Sent: Thursday, March 06, 2014 2:25 PM
To: Robert Cannon
Cc: David Clark
Subject: Re: Internet Backbones

It looks like David and l will be meeting with Tom Wheeler on 4 April at 13:00. Philip Verveer also said:
From: Philip Verveer <Philip.Verveer@fcc.gov>
In addition to the meeting with Tom, we would like to have an
additional meeting or meetings for the benefit of the FCC staff
during your visit to Washington. we; of course, will work around
your schedule for that.
so I'm not sure what that means, but
maybe you wanted to be involved in
planning that day. feel free to
contact Philip on this, i'm not
sure what is best use of our time
but i will allocate the day to FCC.
yes i've met gigi, she is wonderful.;)
hope to see you then,
k

Subject:
Location:

Prof. Rob Frieden on Internet Backbones (Netflix, Level 3, Cogent, Comcast, Verizon .... )
6 South

Start:
End:
Show Time As:

Wed 3/12/2014 2:30 PM


Wed 3/12/2014 3:30 PM
Tentative

Recurrence:

(none)

Meeting Status:

Not yet responded

Organizer:
Required Attendees:

Robert Cannon
Henning Schulzrinne; Tim Brennan; Jonathan Levy; Thomas Spavins; Matthew Warner;
William Dever; Eric Ralph; Octavian Carare; Stephanie Weiner; Hillary Burchuk; Walter
Johnston; James Miller; Padma Krishnaswamy; Richard Hovey; OSP DL
Gary Epstein; Sherille Ismail; Bill Cline; Chuck Needy; Alison Neplokh; Eric Spry; Alec
MacDonell; Nicholas Alexander

Optional Attendees:

Open Invite - Feel Free to Forward

Prof. Rob Frieden is Professor and Pioneers Chair in Telecommunication and Affiliate
Law Faculty at Penn State Law. He has written extensively on developments in
communications and the Internet. His blog (which is blocked by FCC lTC policy for some
reason) is Telefrieden. He will be joining us to share his thoughts on recent developments
in Internet interconnection and backbones, including the Netflix, Cogent, Level3, Comcast,
Verizon discussions)
Some of his papers include:
Frieden, Rob, Rationales for and Against FCC Involvement in Resolving Internet Service Provider
Interconnection Disputes (September 24, 2011). TPRC 2011. Available at SSRN:
http://ssrn.com/abstract=1985741
Frieden, Rob, Why the FCC's Proposed Openness Principles Cannof and Should Not Apply to Internet
Application and Content Providers (January 1, 2010). Available at SSRN: http:l/ssrn.com/abstract-1534928
or http://dx.doi.org/1 0.2139/ssrn.1534928
Frieden, Rob, The Rise of Quasi-Common Carriers and Conduit Convergence (2013). Available at SSRN:
http://ssrn.com/abstract=2261346 or http://dx.doi.org/1 0.2139/ssrn.2261346
Frieden, Rob, Network Neutrality or Bias?- Handicapping the Odds for a Tiered and Branded Internet (September 2006). Available at
SSRN: http://ssrn.com/abstract=893649 or http://dx.doi.org/1 0.2139/ssrn.893649
Frieden, Rob, Internet 3.0: Identifying Problems and Solutions to the Network Neutrality Debate (February 2007). Available at SSRN:
http://ssrn.com/abstract-962181 or http://dx.doi.org/1 0.2139/ssrn.962181

From:

Sent:
To:

Cc:
Subject:
Attachments:

Evan Kwerel
Tuesday, February 18, 2014 3:52 PM
Jonathan Levy; Tim Brennan
Chuck Needy
FW: Chris Hogendorn
FCC abstract.pdf

Coleman Bazelon has suggested that we might be interested in hearing a talk in March from Chris Hogendorn
on "Complementarities and Open Infrastructure." An abstract of the talk is attached. Should we schedule something?
Evan

From: Bazelon, Coleman [Coleman.Bazelon@brattle.com]

Sent: Monday, February 10, 2014 2:50PM


To: Evan Kwerel

Subject: Chris Hogendorn


Hi Evan,
Attached is an abstract for what Chris Hogendorn would propose to talk about at the FCC. Does this sound
interesting? What other materials do you need? If so, is there a time in March that works well for you guys?
Cheers,
Coleman

COLEMAN BAZELON
Principal
The Brattle Group
Direct + 1.202.4 19.3338
Mobile + 1.410.262.6873
brattle.com

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Complementarities and Open Infrastructure


Christiaan Hogendorn
Economics Department, Wesleyan University and
Hitachi Center for Technology and International Affairs,
Fletcher School, Tufts University
Network neutrality and related concepts of"openness" and "open systems" refer to
communications service providers' relationship with content, including small websites
and major Internet forces like Facebook and Google. There have been significant
debates about whether communications networks should be compatible or
nondiscriminatory, and whether these are problems of monopoly or another kind of
market failure.
The idea that infrastructure, technology, and openness are collectively important to
economic welfare is an old one and provides the context in which common carrier
obligations developed. It was also an important, though partially neglected, context
for Hotelling's (1938) dictum that "the optimum of the general welfare corresponds to
the sale of everything at marginal cost:' and the resulting Marginal Cost Controversy.
The reasons for a market failure in regard to openness can be divided into marginal
and inframarginal, which also corresponds to static and dynamic with respect to
technology. The marginal market failures are positive externalities and inappropriable
surplus. Both are well understood but often assumed away in the economics literature.
The inframarginal market failures revolve around the introduction of new products, as
emphasized in the macroeconomic-oriented work of Paul Romer. When a good is an
input into new products, complementarities (a type of spillover that includes
inframarginal surplus and inframarginal externalities) become relevant to welfare
analysis, and the magnitude of potential market failure rises many fold. These issues
matter most when the good in question is an essential input into a wide range of new
products - precisely the situation, indeed almost the definition, of infrastructure.
My focus is on price discrimination and multi-part pricing. These pricing techniques
can enhance efficiency in some cases, and were offered by Coase and many followers
as regulatory solutions for infrastructure. But I show that they can exacerbate market
failure with regard to complementarities by making infrastructure less open.

From:

Sent:
To:

Subject:

Chuck Needy
Wednesday, March 19, 2014 12:15 PM
Chuck Needy
Tomorrow at 10:30 --Seminar on Net Neutrality & Price Discrimination

is Assoc. Prof. of
Economics at Wesleyan Univ. His
research interest is the economics of
infrastructure industries, especially
telecom and the Internet. Earlier, he was
a member of the Research Dept. at Bell
Labs. Chris holds a PhD from Univ. of
Penn.
Evan
Kwerel (OSP) has invited Chris to discuss the debate about whether
communications networks should be compatible or nondiscriminatory-- and
whether these are problems of monopoly or another kind of market
failure. Chris observes that the reasons for a market failure in regard to
openness can be divided into marginal and infra-marginal, which also
corresponds to static and dynamic with respect to technology. He argues that,
although price discrimination and multi-part pricing can enhance efficiency in
some cases, they can exacerbate market failure with regard to
complementarities by making infrastructure less open.

Not Responsive
From:
Sent:
To:

Subject:

Jared Cornfeld
Thursday, May 15, 2014 2:25 PM
Jerry Duvall; Thomas Spavins; Adonis Hoffman; Ajit Pai; Aleks Yankelevich; Allen Barna;
Allison Baker; Amanda Burkett; Austin Randazzo; Carer' Mattey; Catherine Matraves; Chin
Yoo; Clarence Bush; Claude Aiken; Clint Odom; Courtney Reinhard; Dana Scherer; Daniel
Shiman; Don Sussman; Donna Christianson; Douglas Galbi; Eliot Maenner; Elizabeth
Andrion; Elizabeth Mdntyre; Ellen Burton; ellen goodman; ellen goodman rutgers; Emily
Burke; Eric Ralph; Eric Spry; Erin McGrath; Evan Kwerel; Gary Epstein; Gigi Sohn; Gloria
Thomas; Heidi Kroll; Henning Schulzrinne; Howard Symons; Irene Wu; Jack Erb; Jake
Riehm; James Miller; Jared Cornfeld; Jay Schwarz; Jennifer Prime; Jeremy Marcus; Jessica
Campbell; Jill Benitez; Johanna Thomas; John Adams; John Adesalu; John Leibovitz; John
Williams; Jonathan Chambers; Jonathan Levy; Kalpak Gude; Kiran Duwadi; Linda Oliver;
Lisa Leyser; Louis Peraertz; Maria Kirby; Mark Bykowsky; Mark Walker; Matthew Berry;
Matthew Quinn; Meribeth
Michael Byrne; Michael Steffen; Mignon Clyburn;
Mike ORielly; Nicholas Alexander; Octavian Carare; Omar Nayeem; Paroma Sanyal;
Patrick Halley; Paul D'Ari; Paul Hartman; Paul Lafontaine; Philip Verveer; Pramesh
Jobanputra; Rebecca Hanson; Rebekah Goodheart; Renee Gregory; Richard Kwiatkowski;
Robert Tanner; Robert Cannon; Rodger Woock; Sherille Ismail; Simone DAbreu;
Soumitra Das; Steve Wildman; Steven Rosenberg; stuart benjamin; Susan Lee; Susan
Singer; Tamara Smith; Tejas Narechania; Tim Brennan; Tom Wheeler; Travis Litman; Ty
Bream; Vickie Robinson; Walt Strack; Wayne Leighton; William Layton; William Sharkey;
Yvette Tarlov; Zachary Bastian
FW: Cowen Conference Call: Navigating Net Neutrality 5/16/14 at 11:00 AM ET

COWEN
C>ONFEFiENCE CALL

Navigating Net Neutrality


Friday, May 16, 2014
11:00 am ET
CLICK HERE TO ADD TO CALENDAR
Dial-in: (888) 254-2821 or (913) 312-1475
Conference CaiiiD: 1205075
On the heels of the FCC's latest proposals around Net Neutrality we'll be sorting through the relevant details and potential
impacts across TMT with guest speaker Andrew Lipman.
Colby Synesael, Telecom Services & Internet Infrastructure Analyst, Cowen and Company
John Blackledge, Internet Analyst, Cowen and Company
Andrew Lipman, Partner, Bingham McCutchen
Andrew has spent more than 30 years developing the firm's Telecommunications, Media and Technology Group into one
of the largest practices of its kind in the nation. He practices in virtually every aspect of communications law and related
fields, including regulatory, transactional, litigation, legislative and land use. The TMT Group is international in scope,
representing clients in the U.S., Central and South America, Europe, Asia, and other parts of the world.
1

This call will be recorded and available for replay through 5/23/14:
Domestic replay: (888) 2031112
International replay (719) 4570820
Replay passcode: 1205075

Cowen Product Management I PMGMT@cowen.com

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update any opinions or other information contained herein.

From:
Sent:

To:
Subject:
Attachments:

Jonathan Levy
Sunday, April 20, 2014 5:03 PM
Nicholas Alexander; Jonathan Chambers; Sheri!le Ismail
FW: Summer Internship
Jordan Kroll Writing Sample.docx; Jordan Kroll CV.docx

To: Jonathan Levy


Subject: Summer Internship
From the Federal Communications Commission website !learned about your need for a
Planning and Policy analysis. Currently I am enrolled as a graduate student
ere I am studying for my Masters in Public Policy. I am very Interested in this position and believe that
ion and relevant work experience, I could make a valuable contribution to your Center. Please find a
copy of my CV and a writing sample attached for your consideration.
As you can see from my CV I had the opportunity to intern at Verizon Communications during the summer of
2012 in their Public Policy, Law, and Security Department. This internship provided me with first-hand experience in
legislative issue areas like net neutrality, the Universal Service Fund, and cybersecurity, areas that I had little previous
experience with but grew to be quite passionate about. I believe that this experience, combined with my strong
research, writing, and communication skills, would lead me to contributing a great deal to your organization.
I am very attracted to the FCC; it is a policy leader in
many of the issue areas I have grown to be quite interested in. It
would be an exciting opportunity to intern with the lead governmental
agency on communication policy issues. The enclosed resume and
writing sample provide additional evidence of
education and relevant skill
any further questions
available to start interning

Please feel free to contact me with


given the opportunity, I would be
rd to hearing from you.

From:

Sent:
To:

Subject:

Grillo, Kathleen M <kathleen.m.grillo@verizon.com>


Thursday, April 24, 2014 8:36AM
Matthew DelNero
voice mail

Matt-

r left you a voice mailthis m o r - - e c a n catch up this morning? If you can't get me on my desk phone
he only time I won't be available today on my mobile is from 10 to 11.
(below), you can try my mobil
Thanks.

Kathleen M. Grillo
Senior Vice President
Federal Regulatory Affairs
Verizon
1300 I Street, "NW
Suite 400W
Washington, DC 20005
(202) 515-2533
kathleen.m.grillo@verizon.com

Subject:
Location:

7B142

Start:
End:
Show Time As:

Thu 6/5/2014 4:30 PM


Thu 6/5/2014 5:30 PM
Tentative

Recurrence:

(none)

Organizer:
Required Attendees:
Optional Attendees:

Henning Schulzrinne
Open Internet Working Group
Thomas Spavins

When: Thursday,
(US & Canada)
Where: 7Bl42

Vishal Misra - OI meeting

June 05,

20l4 4:30 PM-5:30 PM.

(UTC-05:00)

Eastern Time

Prof. Vishal Misra (a Columbia colleague) is informally visiting the Commission this afternoon since he got some spare
time after another DC appointment. The outline of his discussion points:

1. Scope of the proposal should be broadened. Peering arrangements/disputes are intimately related to the issue of network

neutrality fast lanes etc. and should be under the purview. Our prior Shapley value work illustrates that explicitly.
2. Given the current FCC limited scope, competition/market power is the real issue. Our Public option work result, and the
UK/Ofcom approach etc. show that fixing monopolies gets rid of the need of most regulations, e.g. traffic management,
peering resloution etc.
3. Finally, if we have no choice but to regulate a monopoly, instead of the absolute "minimum requirement" people talk
about, we propose a better, novel and flexible alternative of bounded service difference between regular quality and any
premium service offered. It prevents the damaged goods scenario. This is work-in-progress but we have some analytical
results.

Henning

From:

Sent:
To:

Subject:
Attachments:

Tasha Kinney
Thursday, May 01, 2014 12:22 PM
Jonathan Sallet; Julie Veach; Stephanie Weiner; Matthew DelNero
Updated Attendees List
PublicinterestOI.docx

Public Interest Open Internet Meeting (May 1st at 1:00PM)

Attending
Matt Wood, Free Press
Craig Aaron, Free Press
Andy Schwartzman, Georgetown University
Cheryl Leanza, United Church of Christ
Todd O'Boyle, Common Cause
Barbara Van Schewick, Stanford (By Phone) 650-561-4539
John Vezina, WGA W (By Phone) 323-782-4875
Sarah Morris, New America Foundation
Ellen Stutzman, WGA W (By Phone) 323-782-4875
Gabe Rottman, ACLU
David Sohn, CDT
Corrine Yu, Leadership Conference for Civil Rights (By Phone) 202-466-5670
Michael Weinberg, Public Knowledge
Chris Riley, Mozilla, By Phone
Hazeen Ashby, National Urban League
Michael Scurato, National Hispanic Media Coalition
Tim Wu (By Phone) 415-690-0688
Sandra Fulton, ACLU
Mark Cooper, Consumer Federation of America

Not attending

Gene Kimmelman, Public Knowledge


Alan Davidson, New America Foundation
Michael Copps, Common Cause
Amalia Deloney, Center for Media Justice
Rashad Robinson, Color of Change
Kevin Werbach, University of Pennsyvlania
Susan Crawford, Harvard University
Kim Gandy, National Organization for Women
Mark Cooper, Consumer Federation of America
Delara Derakshani, Consumers Union
Marvin Vargas, WGA W (By Phone)
Malkia Cyril, Center for Media Justice (By Phone)
Chris Calabrese, ACLU (By Phone)

From:

Sent:
To:
Cc:

Subject:

Rashatwar, Rupalee <rrashatwar@NAAG.ORG>


Wednesday, May 14, 2014 12:07 PM
Matthew DelNero
Neil, Mark
RE: Spring Consumer Protection

Hello Matt,
I will note that on the agenda-thank you. And A/V will be available. We would welcome and encourage some materials
for distribution to the attendees- Powerpoint or otherwise. Please feel free to send them my way in adva nee of the
program so I can make them available for attendees digitally or in print if you so request.
Please let me know what you prefer! Thank you!

Rupalee Rashatwar
Program Coordinator/ Acting Legislative Coordinator
National Association of Attorneys General
zo3o M St, NW gth Floor
Washington, DC 20036
P: (202) 326-6018

E: RRashatwar@naag.org
From: Matthew DelNero [mailto:Matthew.DeiNero@fcc.gov]

Sent: Tuesday, May 13, 2014 6:00PM


To: Rashatwar, Rupalee
Cc: Neil, Mark
Subject: RE: Spring Consumer Protection
Rupalee,
Thank you for your note, and please accept my apologies for the delay in getting back to you. I am very much looking
forward to speaking at the Spring Consumer Protection Seminar. In terms of a title, I would suggest "Protecting and
Promoting the Open Internet."
Will there be an opportunity to use powerpoint? I could put together a few slides if that will be helpful. In terms of
materials, unfortunately anything I'd want to share would come from the NPRM to be voted on by the Commissioners
on Thursday-- so I can't provide those yet.
Best wishes,
Matt
MatthewS. DelNero
Deputy Bureau Chief
Wireline Competition Bureau, FCC
Tel: 202.418.7433
Email: matthew.delnero@fcc.gov

From: Rashatwar, Rupalee [mailto:rrashatwar@NAAG.ORG]

Sent: Friday, May 09, 2014 12:43 PM


To: Matthew DelNero
Cc: Neil, Mark
Subject: Spring Consumer Protection
Hello Mr. DelNero
I am reaching out regarding the NAAG panel that Emmitt Carlton indicated you would be participating in at the Spring
Consumer Protection Seminar. Your speech is scheduled from 10:45 to 11:15AM on Monday May 19 at the Westin
Georgetown located at 2350 M St NW. The conference is on the basement level, and the audience will be comprised of
AG staff only. Attached is an attendance list in case you are curious who will be in attendance. How shall we list your
presentation on the agenda? We currently have you down as discussing, "Internet Neutrality".
Also if you have any handouts or materials you would like to share with AG staff, please send them to my attention by
Tuesday May 12.
Please let me know if you have any concerns in advance of the meeting. Thank you again for participating in this event.
We are looking forward to your contributions.

Rupalee Rashatwar
Program Coordinator/ Acting Legislative Coordinator
National Association of Attorneys General
2030 M St, NW 8th Floor
washington, DC 20036

P: (202) 326-6018
E: RRashatwar@naag.m:g

Ann Infinger

Christine Hom

Lauren Villnow

Shannon Taitano

Stephen Levins

Landon Murata

Government

Government

Government

Gov Scholarship

Gov Scholarship

Government

Director; Consumer Protection

Director, Consumer Protection


Deputy Director, Consumer Protection Division
Chief Counsel of Consumer Protection
Director-Consumer Protection
Assistant Attorney General
Director of Investigations
Asst. Attorney General/Ex. Director
Assistant Attorney General

Debby Hagan

Terry Tolliver

Abby Kuzma

William Brauch

Jackie N Williams

Tanya Hutchings

Todd Leatherman

Brendan O'Neil

Government

Gov Scholarship

Government

Gov Scholarship

Gov Scholarship

Government

Gov Scholarship

Government

Deputy Attorney General

Executive Director

Attorney

Deputy Attorney General

Attorney

Staff Attorney

Staff Attorney

Consumer Protection

Senior Assistant Attorney General

Assistant Attorney General

Dan Walsh

Gov Scholarship

Rebecca Pruitt

Richard P. Lawson

Government

Chief Multi-State and Privacy Bureau

Gov Scholarship

Patrice Malloy

Gov Scholarship

Assistant Attorney General


Assistant Attorney General

Bruce B. Kim

Rebecca Sirkle

Gov Scholarship

Oscar Klaas

Grant May

Gov Scholarship

Assistant Attorney General

Gov Scholarship

Gary Tan

Gov Scholarship

Assistant Attorney General

Director; Fraud and Consumer Protection

Assistant Attorney General

First Assistant Attorney General

Supervising Deputy Attorney General

Assistant Attorney General

Chief Deputy

Title

Government

Matt Lintner

Jillian Lazar

Government

Sandra Arenas

Gov Scholarship

Government

Nicklas Akers

Jay Simonson

Shawn Johnson

Gov Scholarship

Gov Scholarship

Rick Bistrow

Government

Gov Scholarship

Name

Type of Attendee

Government Attendees

May 19-21, 2014

2014 NAAG Spring Consumer Protection Se1

Joyce Yeager

Kelley Hubbard

Ed Eck

Abigail Stempson

Laura Tucker

JoAnn Gibbs

Karen Meyers

Mary Alestra

Michael Henry

Gov Scholarship

Gov Scholarship

Government

Gov Scholarship

Government

Government

Gov Scholarship

Gov Scholarship

Gov Scholarship

Senior Assistant Attorney General


Director, Consumer Protection Unit
Assistant Attorney General
Assistant Attorney General
Assistant Attorney General
Assistant Attorney General

Julie Bays

Jonathan Groux

Tammy Miller

Jared Libet

Andrea C. Sancho

Phil Carlson

Jessica Myers

Gov Scholarship

Gov Scholarship

Gov Scholarship

Gov Scholarship

Government

Government

Government

William Wilson

Gov Scholarship

Assistant Attorney General

Matt Hull

Shannon Smith

Gov Scholarship

Chief, Public Protection Division

Paul Singer

Josephine Morgan

Gov Scholarship

Gov Scholarship
Gov Scholarship

Jacob Petry

Gov Scholarship

Chief Counsel for Consumer Affairs

Gov Scholarship

Assistant At!(Jrney General

Sr. Assistant Attorney General

Assistant Attorney General

Assistant Attorney General

Senior Counsel

Maliaka Bass

Carolyn Smith

Government

Chief Assistant Attorney General

Chief, Consumer Protection Section

Parrell Grossman

Sandy Lynskey

Gov Scholarship

Director-Consumer Protection & Antitrust

Assistant Attorney General

Senior Deputy Attorney General

Assistant Attorney General

Special Counsel

Director, Consumer Protection Division

Chief Multistate Counsel

Deputy Attorney General

Chief, Consumer Protection Division

Assistant Attorney General

Special Assistant Attorney General

Special Assistant Attorney General

Division Chief

Assistant Attorney General

Government

Kevin Anderson

Bridgette Wiggins

Government

Jennifer Harrod

Crystal Utley Secoy

Gov Scholarship

Government

OCP Bureau Chief

Joseph Patchen

Gov Scholarship

Government

Assistant Attorney General

Alistair Reader

Gov Scholarship

Assistant Attorney General

Phil Ziperman

Government

Chief, Consumer Protection Division

William Gruhn

Gov Scholarship

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Hawaii

Guam

Georgia

Georgia

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Florida

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Delaware

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From:

Sent:
To:

Cc:
Subject:

Latoya Toles
Tuesday, April 22, 2014 8:59AM
'Matthew.Murchison@lw.com'
Matthew DelNero
RE: Meeting request for NCTA

Hi Matthew, sorry about that. See email below.


This email is to confirm that you have a meeting scheduled with various WCB staff (listed below) to discuss the
Commission's Open Internet remand proceeding. On Tuesday, April 22nd from 4:00pm-4:30pm. The meeting will be held
in 5-8112 -North Conference Room. When you arrive, please have security call the main line at 202.418.1500.
WCB Attendees
Matthew DelNero
Stephanie Weiner
Carol Simpson
Kristine Fargotstein
Claude Aiken
LaToya Toles
Staff Assistant
Federal Communications Commission
Wireline Competition Bureau
202.418.1353
From: Matthew.Murchison@lw.com [mailto:Matthew.Murchison@lw.com]

Sent: Monday, April 21, 2014 5:12PM


To: Latoya Toles
Subject: RE: Meeting request for NCTA

Hi Latoya -I think you mentioned that you'd be sending me a confirmation email regarding the meeting scheduled for
4:00 on Tuesday. I don't believe I've received that email yet, so I just wanted to check in and make sure the meeting is
on.
Thanks,
Matt
From: Murchison, Matthew (DC)

Sent: Friday, April18, 2014 4:08PM


To: 'latoya.toles@fcc.gov'
Cc: Brill, Matthew (DC)
Subject: Meeting request for NCTA

Ms. Toles,
On behalf of the National Cable & Telecommunications Association (NCTA), I am writing to request a meeting early next
week with Carol Simpson, Matt Warner, Kristine Fargotstein, and Stephanie Weiner (OGC) (or some subset of that group)
in connection with the Commission's Open Internet remand proceeding. Our group likely would include myself, my
colleague Matt Brill, and Rick Chessen of NCTA. Please let me know what times would work on Monday, April 21st, and
Tuesday, April 22nd, and we will do our best to make ourselves available.

Many thanks,
Matt
Matthew T. Murchison
LATHAM & WATKINS LLP
555 Eleventh Street, NW
Suite 1000
Washington, D.C. 20004-1304
Direct Dial: + 1.202.637.2136
Fax: +1.202.637.2201
Email: matthew.murchison@lw.com
http://www.lw. com

To comply with IRS regulations, we advise you that any discussion of Federal tax issues in this e-mail was not intended or
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intended recipient. Any review, reliance or distribution by others or forwarding without express permission is strictly
prohibited. If you are not the intended recipient, please contact the sender and delete all copies.
Latham & Watkins LLP

Subject:
Location:

Open Internet Meeting w/Tech


Conference Room #1

Start:
End:
Show Time As:

Fri 5/2/2014 2:30 PM


Fri 5/2/2014 3:30 PM
Tentative

Recurrence:

(none)

Meeting Status:

Not yet responded

Organizer:
Required Attendees:

Tasha Kinney
Gigi Sohn; Sara Morris; Jonathan Sallet; Shannon Gilson; Matthew DelNero; Stephanie
Weiner; Julie Veach

Subject:
Location:

Open Internet Meeting w/Public Interest, Academia


Conference Room #1

Start:
End:
Show Time As:

Thu 5/1/2014 1:00 PM


Thu 5/1/2014 2:00 PM
Tentative

Recurrence:

(none)

Meeting Status:

Not yet responded

Organizer:
Required Attendees:

Tasha Kinney
Gigi Sohn; Sara Morris; Jonathan Sallet; Shannon Gilson; Matthew DelNero; Stephanie
Weiner; Julie Veach

Content Companies Open Internet Meeting (May 6th at 3:30PM)

Attending

Susan Fox, Disney


Margaret Tobey,
Jessica Marventano, Clear Channel
Eddie Lazarus, Tribue
Gregory Babyak, Bloomberg
Kimberly Hulsey,Scrippsnetworks
Rick Lane, 21st Century Fox
John Orlando, CBS
Linda Kinney, MPAA
Jane Mago, NAB
Claudia James, Podest Group

Not attending

Maureen O'Connel, 21st Century Fox


KJy Dixon, Time Warner
Dede.lea@viacom.com

From:

Sent:
To:

Subject:
Attachments:

Zachem, Kathy <Kathy_Zachem@Comcast.com>


Monday, May 12, 2014 10:13 AM
Priscilla Argeris; Amy Bender; Nicholas Degani; Rebekah Goodheart; Diane Cornell;
Matthew DelNero; Ruth Milkman; Jonathan Sal!et; Gigi Sohn; Philip VeNeer; Stephanie
Weiner
Open Internet, GN Docket No. 14-28
5 12 14 Open Internet FCC ltr.pdf

FYI. Please call if you have any questions.

Kathy
.Kathryn A. Zact1em
Senior VIce P(!lSident, Regulatory & State Legislative. Affairs
Corneas! Corporalion
300 New Jersey Avenue, NW, Suite 700
Washington, oc 20001
Phone: 202-379-7134
Fax:
202-379-7149

l<ajhv Zacbem@ComcofilcQm

Assistant: Donna Crichlow 202-379-7118- Qonoa Qr!chlow@ComcaS{.com

Kathryn A Zachem
Comcast Corporation
300 New Jersey Avenue, NW
Suite 700
Washington, DC 20001
202.379.7134

CO.MCAST

May 12,2014

Marlene H. Dortch
Secretary
. Federal Communications Commission
445 12th Street S.W.
Washington, D.C. 20554

Re:

Protecting and Promoting the Open Internet, GN Docket No. 14-28

Dear Ms. Dortch:


Comcast has been a strong proponent of Internet openness, and, indeed, is the only broadband
provider subject to a legally binding obligation to refrain from blocking consumers' access to lawful
web content and services or-from engaging in unreasonably discriminatory conduct. 1 While Comcast
continues to be a steadfast supporter of openness and remains confident that the Commission can
appropriately balance consumer protection with the need to allow network operators to manage their
networks reasonably, we believe that any proposal by the FCC to reclassify broadband Internet access
as a telecommunications service subject to Title II of the Communications Act would be a
destabilizing and counterproductive means of pursuing those important objectives.
Starting with the Cable Modem Declaratory Ruling in 2002, the Commission has consistently
ruled that broadband Internet access services inextricably combine transmission and information
processing, such that they are properly characterized as information services without any severable
telecommunications service component. 2 In the wake of those decisions, and in express reliance on
the Commission's determination that common carrier regulation does not (and should not) apply, cable
operators and other Internet service providers have invested hundreds ofbillions of dollars to deploy
increasingly robust broadband networks, laying the groundwork for an explosion of innovation in the
Applications ofComcast Corporation, General Electric Company, and NBC Universal, Inc.for Consent to Assign
Licenses and Transfer Control ojLicensees, Memorandum Opinion and Order, 26 FCC Red 4238, '1[94 (2011 ).
Inquiry Concerning High-Speed Access to the Internet Over Cabfe and Other Facilities, Declaratory Ruling and
Rulemaking, 17 FCC Red 4798 (2002); see also, e.g., Appropriate Framework for Broadband
Access to the Internet over Wire/ine Facilities, Report and Order and Notice of Proposed Rulemaking, 20 FCC
Red 14853 (2005) (classifying wireline broadband services as information services); Appropriate Regulatory
Treatment for Broadband Access to the Internet Over Wireless Network!!, Declaratory Ruling, 22 FCC Red 5901

Notice

(2007) (classifying wireless broadband services as information services) .

..

Ms. Marlene H. Dortch


May 12,2014
Page2

Internet ecosystem. This is the foundation on which the extraordinary Internet economy that is the
envy of the world emerged and thrived. Any effort to upend that settled legal framework-which has
been supported by Commissions and Administrations led by both parties-would be enormously
disruptive: It would deter the many billions in additional investment required to connect all Americans
and to continue increasing speeds, while subjecting the industry and the Commission to years of
debilitating litigation and resulting uncertainty. Just ten years ago, the Commission and the
Department of Justice expressly recognized these risks and went to considerable lengths to avoid the
imposition of common carrier regulation precisely because "[t]he effect of the increased regulatory
burdens" likely would have been to prompt ISPs to "postpone or forego plans to deploy new
broadband infrastructure, particularly in rural or other underserved areas." 3 The last thing the
Commission should do at this stage is to break from the long bipartisan approach that has borne such
fruit to date and radically shift to an approach that would curtail broadband investment and impede
adoption. 4
Fortunately, risking such harm.s is entirely unnecessary. The D.C. Circuit has now confirmed
the. Coml)1ission's power to prohibit blocking and to ensure commercially reasonable business
arrangements between access providers and edge providers pursuant to Section 706 of the
Telecommunications Act of 1996, ending a sustained peri.od of uncertainty regarding the
Commission's authority to adopt rules toenforce Internet openness. 5 While the Commission
understandably had contemplated reclassification theories before the court upheld its authority to
regulate information services, it would make no sense to pursue such a high-risk path now that the
D.C. Circuit has validated the Commission's analysis of potential threats to Internet openness and held
that the Commission has ample power to prohibit anticompetitive conduct and prevent harm to
consumers ..
Moreover, even apart from the substantial legal impediments to abandoning classification
decisions grounded in factual findings on which the industry has relied for more than a decade, the
purported benefits of invoking Title II as compared to relying on Section 706 are illusory. There is no
way to predict how a court would rule on a challenge to imposing Title II, and, in any event, Title II
would not necessarily support greater constraints on Internet practices. Common carriers are
prohibited only from engaging in unreasonable discrimination, 6 and the relevant precedent makes
clear that this standardentails substantial flexibility to differentiate among customers for legitimate
3

Petition fat Writ of Certiorari, U.S. Dept. of Justice and FCC, FCC v. Brand X Internet Servs., No. 04-277, at 2526 (Aug. 27, 2004). The Department of Justice and the Commission further recognized that the Commission's
"forbearance authority is not in this context an effective means ofremov[ing] regulatory uncertainty that in itself
may discourage investment and innovation"). !d. at 28 (internal quotation marks omitted).
See, e.g., Progressive Policy Institute, America's Digital Policy Pioneers, video recording at

http://www.progressivepolicy.org/20 13/ 12/americas-digital-policy-pioneers/ (including former Chairman


Kennard's endorsement of bipartisan commitment to avoiding heavy-handed regulation of broadband Internet
access services).
5

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

47 U.S. C. 202(a).

Ms. Marlene H. Dortch


May 12,2014
Page4
cc:

PriscillaArgeris
Amy Bender

Nicholas Degani
Rebekah Goodheart
Diane Cornell
Matthew DelNero
Ruth Milkman
Jonathan Sallet
Gigi Sohn
Philip Verveer
Stephanie Weiner

. .

From:

Sent:
To:
Subject:

Marvin Ammori FOIA Exemption 6


Wednesday, March 19, 2014 1:43 PM
Philip Verveer
RE: connection

>>':

Wonderful. See you then.


Sent from Mailbox for iPhone

On Wed, Mar 19,.2014 at 1:09PM, Philip Verveer <Philip.Verveer@fcc.gov> wrote:


Marvin

I could meet Friday at 11:00.

Phil

From: Marvin Ammori FOIA Exemption 6

Sent: Wednesday, March 19, 20141:03 PM


To: Philip Verveer
Subject: Re: connection

Hi Phil,
Great.

I'll be doing some traveling again when you're back, so we could try for
--this Friday, day after tomorrow, before 11 :30a or after 2p.
--Friday 3/28 afternoon or
-- Monday 3/31 sometime between

11 am.

Thanks much, again, looking forward.

On Wed, Mar 19,2014 at 12:52 PM, Philip Verveer <Philip.Verveer@fcc.gov> wrote:


Marvin
Thank you for the message. I look forward to an opportunity to meet.
1 will be away from Wash.ington next Monday through Wednesday so we will have to find a convenient time the
following week or later. With very limited exceptions, I expect to be in Washington continuously for the next several
months after next Wednesday.

Phil

From: FOIA Exemption 6

On Behalf Of Marvin Ammori

Sent: Wednesday, March 19, 2014 12:50 PM


To: Philip Verveer
Subject: Re: connection

Thanks Ben.

Hi Phil,
Nice to meet you virtually. I hear a lot of good things from people who've worked with you over the years.

I'd love to get together and discuss the aftermath of the Verizon v. FCC case, particularly regarding the law and
policy of the Chainnan's proposal.

Would you be available to meet Monday before 11 or after 2:30? Anytime Tuesday also works, but I'm
traveling the rest of next week.
And happy to do coffee or a drink if that's convenient.

Thank you.

Principal
Ammori Group

On Tue, Mar 18, 2014 at 1:44PM, Philip Verveer <Philip.Verveer@fcc.gov> wrote:


Thanks, Ben. I look forward to becoming acquainted with Marvin.
Phil

From: Ben Scott [mailto: FOIA Exemption 6

Sent: Tuesday, March 18, 2014 11:32.AM


To: Philip Verveer
Cc: Marvin Ammori

Subject: connection

Hi Phil,

I. hope this note finds you well. It was a pleasure to see you in February. I will be back in touch with you once
we have more information on the interconnection matter we discussed. As you know, the plot has thickened
on that particular story line.

In the meantime, I wanted to introduce you to Marvin Ammori (cc'd). Marvin was my lawyer for many years
when I ran the policy shop at Free Press, and we lived through the first rounds of net neutrality wars during the
Kevin Martin era. Marvin filed the complaint and argued the Comcast v. BitTorrent case- and he was a close
adviser during the Genachowski rule-making. Only a handful of people in town know the fine points ofthe
legal issues as well as he does; and I will be immodest on his behalf and say that none know them better.

As I watch from afar the debate over these issues- about which I care deeply- I wanted to volunteer him as a
useful resource who may provide helpful history and context. I'll let him follow up and perhaps there is time
for a meeting at FCC.

best regardsBen

From:
Sent:
Cc:
Subject:

Philip Verveer
Friday, February 28, 2014 4:06 PM
'David Schaeffer (dschaeffer@cogentco.com)'
Julie Veach; LatoyaToles; Ruth Milkman; Jonathan Sallet
FCC Meeting

Contacts:
Categories:

David Schaeffer
Yellow Category

To:

Mr. Schaeffer
Chairman Wheeler has indicated that you would be interested in discussing broadband interconnection and peering
issues with the Commission. A group of FCC officials is engaged in studying the architectural and economic issues
surrounding interconnection and peering. That group would welcome a meeting with you or your representatives.
The activities are being led by Julie Veach, the Chief of the FCC's Wire line Competition Bureau. We would be very
pleased if you or one of your colleagues would contact Julie's executive assistant LaToya Toles (copied here; telephone
202 418 1353) to arrange a meeting.
Phil
Philip L. Verveer
Senior Counselor
Office of the Chairman
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554
202 418 0897

From:

Sent:
To:

Subject:

Jim Glassman <Jim.Giassman@AEI.org>


Monday, April 28, 2014 2:46 PM
Philip Verveer
Invitation: AEI Previews FCC Open Meeting

Greetings!
The FCC's May Open Meeting is coming up, which means it's time for another installment of AEI's tech policy
breakfast series, "FCC Pre." In these invitation..:only events, AEI's Center for Internet, Communications, and
Technology Policy (CICT) brings together a small group from the private sector, Hill, a.nd think tank community to
discuss the agenda for the next FCC Open Meeting. We would love to have you participate.
The FCC's May agenda is packed with issues of vital importance to those operating in the Internet economy. At the
FCC Pre breakfast, we will be covering net neutrality, incentive auctions, mobile spectrum holdings, and wireless
microphones. The breakfast will be on Thursday May 8, from 8:30 to 10:00 a.m. at AEI's offices on 1150 17th St
NW, Washington, DC.
A full breakfast will be served.
To RSVP or request further information, please contact Guro Ekrann, at guro.ekrann@aei.org.
Sincerely,
James K. Glassman
Visiting Fellow
American Enterprise Institute

From:

Sent:
To:
Subject:

Brendan Sasso <bsasso@nationaUournal.com>


Wednesday, April 23, 2014 4:38 PM
Philip VeNeer
net neutrality

Hi Phil,
Do you have a minute to talk about the new net neutrality rules? I'm at my desk: (202) 266-7685. I'll be on my
celll.ater today: FOIA Exemption 6
Thanks.

Brendan Sasso
Technology Rep011er
National Journal
(202) 266-7685

From:

Luigi Gambardella FOIA Exemption 6

Sent:

Thursday, March 27, 2014 12:31 PM

To:

Philip Verveer
Digital Regulation and the 'Puppy Effect'; How is 'net neutrality' like puppies? You can
only say that you love them

Subject:

Dear friends,
I would like to share with you an opinion editorial! wrote yesterday on the Wall Street Journal.
It is available at this link http://on.wsj.com/1p1qfBA
Best regards,
Luigi Gambardella

Digital Regulation and the 'Puppy Effect'; How is 'net neutrality' like puppies? You can only say that you
love them.
The Wall Street Journal Online, Luigi Gambardelfa, Tuesday, 25 March 2014
What has net neutrality to do with puppies? More than you would imagine. Recently, while exchanging views with an
acute and well-informed observer of European politics, I was told: "I share most of the telecom industry's concerns
on how the debate is evolving, but net neutrality is like puppies. You can only say that you love them."
This anecdote is telling of where we stand in the debate about a crucial part of the EU's Connected Continent
regulation, which is now being amended by the European Parliament.
This piece of legislation, originally put forward by European Digital Agenda Commissioner Neefie Kroes, is aimed at
reigniting the growth of the European telecoms sector by strengthening the EU's single market. But now, two
months before the European Parliament elections, the debate has become confused. and dominated by populist
appeals to defend the "open Internet." Translating this principle at the EU level resulted in an ambiguous legislative
text, which makes hardly any sense to those engineers who run our networks.
The outcome is that some members of the parliament now propose amending Ms. Kroes's legislation to provide for
separating specialized services from the rest of the Internet. If such a draft were adopted, operators would be
precluded from prioritizing specific traffic, supposedly in aid of the "open Internet." Thus ahead of the May elections,
a cynical puppy effect among European politicians risks jeopardizing not only the objectives of the Connected
Continent regulation, but also the sustainability of the Internet as we know it today. People advocating for such
restrictive measures claim they Jove puppies-er, the "open Internet. In fact, they are putting pressure on the
European Parliament to rush through measures that could harm the whole digital ecosystem. Let me explain why.
First of all, some activists are pushing even more unclear language into the European Parliament's amendments.
Obscure, technical wording such as "logically distinct capacity," or paragraphs instructing that specialized services
shouldn't affect the "general quality of Internet access," would translate good prinCiples into bad legislationlegislation that fails to take into account how the Internet works.
Specialized services are part of the Internet as we know it: Think of telemedicine, Internet-based television, video on
demand an9 many other services. Consumers, businesses and health-care providers are all demanding these
services, they value them and in many cases think they are essential. If the wording, as currently floated, is adopted
to prevent any prioritization, the only way for operators to comply would be to operate networks that are separate
1

from the public Internet.


But telecom operators are far from the only players.who would be affected by such intrusive legislation. There is an
entire value chain out there that relies on the possibility of offering specialized services over the public Internet in
order to reach customers. In the field of telemedicine, for example, hospitals and other health-care providers
demand (and need) ensured quality and dedicated capacity. Here we are talking about essential European public
services that are critical to both citizens and governments.
What if we turn to businesses? Internet firms are a good example. Some innovative companies are interested in
giving their customers the possibility to enjoy superior, guaranteed streaming quality for movies and television.
Online distribution is fundamental to creating new opportunities for content delivery, and it is critical to the ability of
content providers to adapt to and benefit from the digital revolution. For years, many companies along the digital
value chain have been using these solutions to enhance the quality of traffic delivery internationally. We shouldn't
kill innovation and new growth opportunities with ill-thought provisions.
If we look at the broader picture, it seems that the European parliamentarians supporting these provisions might
have lost sight of a fundamental question: Where is Europe heading? The Internet is global. Can Europe afford to
set rules that would oblige EU telecom operators to run networks differently than the rest of the world? Won't this
handicap EU operators if, for example, our American peers are able to do things that we are prevented from doing in.
Europe? Is this a level playing field? We Europeans risk shooting ourselves in the foot at a time when companies
are fighting to succeed in a highly innovative, competitive and fast-moving environment.
European telecom operators' business is all about giving people access to the services they want. This is why our
organization, the association of European Telecommunications Network Operators (ETNO), has embraced the
principle of an open Internet, where choice and diverSity are the cornerstones of a better society. But establishing
and defending the principle of an open Internet won't be accomplished by stifling innovation and blocking growth.
European parliamentarians must not let a pre-electoral puppy-effect wipe away the thriving digital environment we
have today.
Mr. Luigi Gambardella is the executive chairman of ETNO, the association representing Europe's largest telecom
operators.
http://on/ine. wsj.comlnews/artic/es/SB1 0001424052702303725404579461281958053934?mod:=djkevword&mq-ren
o64-ws;

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From:

Sent:
To:

Subject:

.
Gambardella Luigi FOIA Exemption 6
Tuesday, March 18, 2014 8:03 AM
Philip Verveer
.
I: DJ EU Committee Votes in Favor of Telecoms Package -- Update

Phil
FYI
Luigi

----- Messaggio originate----Da: Press Office


lnviato: Tuesday, March 18, 201412:19 PM
Oggetto: DJ EU Committee Votes in Favor of Telecoms Package-- Update
DJ EU Committee Votes in Favor of Telecoms Package-- Update
By Frances Robinson
BRUSSELS--European Union lawmakers on Tuesday voted narrowly in favor of proposals to reform the continent's
telecoms market, putting it on track to become law by the end of this year.
Thirty members of the Parliamentary Committee on Industry, Research and Energy voted in favor of the amendments
to the proposed legislation, 12 voted against, while 14 abstained.
The legislation will now be put to a vote when the full parliament meets on April 3 for a plenary session. The
European Commission--the EU's executive arm which proposed the legislation--said it expects a final agreement of the
regulation by end of 2014.
The proposals include handing the commission more powers to review how governments allocate spectrum, ending
roaming fees, and rules on net neutrality which would stop Internet providers discriminating against trafficfrom
particular sources. Telecoms operators had wanted to charge users for newer and faster services.
Neelie Kroes, the EU commissioner for the digital agenda who proposed the legislation, said the vote is "great news,"
especially on net neutrality.
"This is about ensuring a dynamic, healthy, competitive telecoms sector, fit to face the future," she said. "And giving
every European citizen the seamless connectivity they have come to demand- without unfair practices like blocked
services or roaming charges."
But Luigi Gambardella, executive-board chairman of the European Telecommunications Network Operators'
Association, which represents the continent's biggest telecoms companies, including Deutsche Telekom AG, Orange SA
and Telefonica SA, said operators must have the flexibility to charge more for certain services.
"If the restrictive changes to the Open Internet provisions are confirmed in the final text, the access of European
users and businesses to our services will be affected," he said in a statement. "This would turn into a dangerous
situation, in which the European digital economy will suffer and EU businesses will be put in a difficult competitive
situation with respect to other areas of the world."
The parliament's position is being decided ahead of negotiations with representatives of the 28 EU governments.
National governments are not keen on some parts of the proposals, including new rules for spectrum because frequency
auctions are often a great way to raise revenue.
Write to Frances Robinson at frances.robinson@wsj.com
Subscribe to WSJ: http://online.wsj.com?mod=djnwires
(END} Dow Jones Newswires
1

18-03-14 1118GMT
Copyright (c) 2014 Dow Jones & Company, lnc.J
Questo messaggio e i suoi allegati sono indirizzati esclusivamente aile persone indicate. La diffusione, copia o qualsiasi
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From:
Sent:
To:
Subject:

Gambardella Luigi <lfuigi.gambardella@tefecomitalia.it>


Saturday, March 22, 2014 2:33 PM
Philip Verveer
I: Fwd: Who should Pay for Netflix?

Phil
FYI
Luigi

===

Da: Luigi FOIA Exemption 6


Inviato: Saturday, March 221 2014 06:42PM
A: Gambardella Luigi
Oggetto: Fwd: Who should Pay for Netffix?

Who should Pay for Netflix?


Dear friends,
I'd like to share with you a great blog post by Jim Cicconi, in response to Reed
Hasting's recent blog.
I share the view that there is a fundamental misunderstanding in the net neutrality
debate. While sharing the principle of Open Internet, we cannot accept an interpretation
of this principle as "free Internet, free lunch".
I believe that also in Europe we should avoid implementing any measure going against
innovation, better services and that at the end would restrict the freedom of the users.
Luigi Gambardella

Who should Pay for Netflix?


Posted by: Jim Cicconi on March 21, 2014 at 4:08 pm
I saw Reed Hasting's blog <http:/lblog.netflix.com/2014/03/internet-tolls-and-case-forstrong-net.html> yesterday from Netflix asserting in rather dramatic fashion (with
diagrams) that ISPs should build facilities (he said provide, but those facilities have to
be built) to accept all of Netflix's content- indeed all of the content on the Internetwithout charge. Failure to do so, according to Mr. Hastings, was a violation of "strong
1

net neutrality rules" and bad public policy. I thought it might be helpful to unpack those
assertions so we could get right down to the core of Netflix's rather radical proposition
-that people who don't subscribe to Netflix should nonetheless pay for Netflix. Here
are some undisputed facts upon which everyone should agree.
First, let's all accept the fact that the advent of streaming video is driving bandwidth
consumption by consumers to record levels. Increased bandwidth consumption and
faster broadband networks like our Gigapower service in Austin, Texas (and soon
Dallas) are requiring all service providers to drive more fiber into their networks to
create the capacity necessary to deliver those services to consumers, whether the
service providers are delivering a wireless or a wireline product. This phenomenon was
at the heart of our Project VIP investment announcement in November 2012 and it is
true of companies like Cogent, Level 3 and CONs like Netflix as well.
Second, we should accept that companies must build additional capacity to handle this
traffic. If Netflix was delivering, for example, 10 Terabytes of data in 2012 and
increased demand causes them to deliver 20 Terabytes of data in 2013, they will have.
to build, or hire someone to build, the capacity necessary to handle that increased
volume of traffic. That increase in traffic from Netflix is, by the way, not only the result of
a likely increase in online viewing by existing subscribers, but also due to an increase in
Netflix's customer base (it announced a 33% increase in subscribers from 2012 to
2013- good for Netflix).
Third, if Netflix is delivering that increased volume of traffic to, say, AT&T, we should
accept the fact that AT&T must be ready to buUd additional ports and transport capacity
to accept the new volume of capacity as a consequence of Netflix's good business
fortune. And I think we can all accept the fact that business service costs are ultimately
borne by consumers.
Mr. Hastings blog post then really comes down to which consumers should pay for the
additional bandwidth being delivered to Netflix's customers. In the current structure, the
increased cost of building that capacity is ultimately borne by Netflix subscribers. It is a
cost of doing business that gets incorporated into Netflix's subscription rate. In Netflix's
view, that's unfair. In its view, those additional costs, caused by Netflix's increasing
subscriber counts and service usage, should be borne by all broadband subscribersnot just those who sign up for and use Netflix service.
When Netflix delivered its movies by mail, the cost of delivery was included in the price
their customer paid. It would've been neither right nor legal for Netflix to demand a
customer's neighbors pay the cost of delivering his movie. Yet that's effectively what
Mr. Hastings is demanding here, and in rather self-righteous fashion. Netflix may now
be using an Internet connection instead of the Postal Service, but the same principle
applies. If there's a cost of delivering Mr. Hastings's movies at the quality level he
desires - and there is -then it should be borne by Netflix and recovered in the price of
its service. That's how every other form of commerce works in our country. It's simply
not fair for Mr. Hastings to demand that ISPs provide him with zero defivery costs- at
the high quality he demands- for free. Nor is it fair that other Internet users, who
couldn't care less about Netflix, be forced to subsidize the high costs and stresses its
service places on all broadband networks.

As we all know, there is no free lunch, and there's also no cost-free delivery of
streaming movies. Someone has to pay that cost. Mr. Hastings' arrogant proposition is
that everyone else should pay but Netflix. That may be a nice deal if he can get it. But
it's not how the Internet, or telecommunication for that matter, has ever worked.
http://www. attpublicpolicy. com/
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From:

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Gambardella Luigi <luigi.gambardella@telecomitalia.it>


Tuesday, March 18, 2014 3:42 PM
Philip Verveer
I: New York Times : E.U. Panel Adopts 'Net Neutrality' and Mobile Roaming Rules

---- Messaggio originate----Da: Gambardella Luigi


lnviato: Tuesday, March 18, 2014 07:04PM
A: Gambardella Luigi
Oggetto: New York Times: E.U. Panel Adopts 'Net Neutrality' and Mobile Roaming Rules
E.U. Panel Adopts 'Net Neutrality' and Mobile Roaming Rules NYTimes.com Feed, By JAMES KANTER and MARK SCOTI,
Wednesday, 19 March 2014, 984 Words, Copyright 2014. The New York Times Company. All Rights Reserved.
BRUSSELS -A panel of lawmakers voted on Tuesday for tougher measures to promote equal access to the Internet and
to cut the cost of celiphone charges across the 28-member European Union.
But the draft legislation was criticized by consumers and industry groups. Many lawmakers were also unhappy.
The proposal aims to create a single market for electronic communications. It has been the subject offerocious lobbying
by telephone companies, concerned about losing lucrative revenues when users roam in other countries. Providers of
online services have also lobbied for open access to the Internet, in which telecommunications carriers would not be
allowed to set limits on the speed or size of the digital content sent.over their networks.
A similar debate is playing out in the United States, where the Federal Communications Commission has been trying to
devise rules that stand up to appeals-court scrutiny and are meant to keep Internet access on an equal footing for big
and small content providers.
The European vote drew the ire of a number of groups, and the draft law will almost certainly be subject to further
changes.
Meeting in Brussels, the European Parliament's committee for industry, transport, research and energy voted to
strengthen measures in the legislation aimed at preventing Internet service providers- including mobile phone
companies -from slowing access to online services like making phone calls via Skype.
The members ofthe committee also voted to make it mandatory for mobile phone companies to comply with rules
drastically reducing consumers' roaming costs when using mobile phones in other European Union countries.
The European Commission, the Union's administrative arm, had set a deadline of July 2016 and given operators a variety
of options to phase out roaming charges. But under the draft law approved on Tuesday, there would be no options, and
the end of roaming charges would need to happen by mid-December 2015.
As for the net neutrality rules, those would enter into force shortly after a final agreement between the parliament and
Union governments. That could be as soon as late this year depending on the pace of the negotiations- and whether
they are successful.

The law, if passed, would mean that "posting a picture on Face book or having a look at em ails while abroad will be
easier and we should no longer expect shockingly high bills for our mobile communications," said Pilar de Castillo, a
Spanish member of the Parliament who is in charge of guiding passage of the legislation.
"Moreover, we have achieved further guarantees to maintain the openness of the Internet by stating that traffic should
be treated equally, without discrimination, restriction or interference, independent of the sender, receiver, type,
content, device, service or application," she said.
Nee lie Kroes, the member of the commission in charge of digital issues, welcomed the vote as part of efforts at "giving
every European citizen the seamless connectivity they have come to demand- without unfair practices like blocked
services or roaming charges."
But given the resistance from various sides, passage of the current draft law is uncertain.
The roaming and net neutrality legislation would still require approval by the full Parliament during a vote expected on
April 2 or 3, as well as by Union member governments. The approval process seems likely to extend the negotiations
past new elections to the European Parliament, to be held in late May.
In contrast to procedures in many parliaments, in which legislation unfinished by a previous parliament is effectively
dead, it would remain possible for the new European Parliament to ask the European Commission to submit the pending
legislation to allow for another full review. Whether that would happen, though, is anyone's guess.
Overshadowing the vote were dee'p divisions about whether to reserve the highest Internet speeds for certain media
and services that can afford to pay premium access rates.
The panel tightened the rules originally proposed by the commission by specifying that fewer so-called specialized
services that require significant Internet bandwidth- telesurgery or intensive cloud computing- could be offered for a
higher fee. But the panel endorsed the commission's view that this should happen only if it did not degrade the quality
of services used by.other customers, like a slowing of existing Internet speeds.
Advocates of
full net neutrality say that would be unfair, and are seeking to offer all media and services
companies equal access to online consumers. But advocates of a different model warn that full net neutrality risks
overburdening the Internet, degrading services like high-definition video or services for hospitals.
Consumer groups, meanwhile, say that the legislation as drafted has too vague a definition of what constitutes the type
of service for which .telecommunications companies could charge extra to run on their networks.
"The proposals open a door to new forms of discrimination," said Raegan MacDonald, the European policy manager for
the consumer group Access, based in Brussels.
For many industry groups, the net neutrality provisions look too onerous. The groups also complain of limits on their
ability to invest in their networks and restrictions to consumer choice because the networks will not be fast enough.
"The rules proposed by the European Parliament are very restrictive and will hamper innovation," said Luigi
Gambardella, chairman of the European Telecommunications Network Operators' Association.
In the United States, big carriers like Verizon and Time vyarner Cable have spent billions of dollars upgrading their
broadband networks, and they argue that they should be able to manage their networks as they like. They are pushing,
for example, to give Netflix, Amazon and other content providers faster access to their customers- at a cost.
But United States regulators want to prevent such deals, saying that large, rich companies could gain an unfair
advantage.
2

Mark Scott reported from London.

Questa messaggio e i suoi allegati so no indirizzati esclusivamente aile persone indicate. La diffusione, copia o.qualsiasi
altra azione derivante dalla conoscenza di queste informazioni sono rigorosamente vietate. Qualora abbiate ricevuto
questa documento per errore siete cortesemente pregati di darne immediata comunicazione al mittente e di
pro.vvedere alia sua distruzione, Grazie.
e-mail and any attachments is confidential and may contain privileged information intended for the addressee(s)
only. Dissemination, copying, printing or use by anybody else is unauthorised. If you are not the intended recipient,
please delete this message and any attachments and advise the sender by return e-mail, Thanks.

Subject:
Location:

Briefing re: Open Internet NPRM


Commissioner Pai's office

Start:
End:
Show Time As:

Mon 4/28/2014 10:00 AM


Mon 4/28/2014 10:30 AM
Tentative

Recurrence:

(none)

Meeting Status:

Not yet responded

Organizer:
Required Attendees:

Ajit Pai
Julie Veach; Jonathan Sallet; Matthew DelNero; Stephanie Weiner; Matthew Berry
(Matthew.Berry@fcc.gov)

Subject:
Location:

Commissioner Rosenworcel Briefing reOpen Internet NPRM


Commissioner Rosenworcel's office

Start:
End:
Show Time As:

Thu 4/24/2014 4:15 PM


Thu 4/24/2014 4:45 PM
Tentative

Recurrence:

(none)

Meeting Status:

Not yet responded

Organizer:
Required Attendees:

WCBChief
Jonathan Sallet; Stephanie Weiner; Matthew DelNero

(Julie has separate scheduler.)

Subject:
Location:

Open Internet Meeting w/Tech


Conference Room #1

Start:
End:
Show Time As:

Fri 5/2/2014 2:30 PM


Fri 5/2/2014 3:30 PM
Tentative

Recurrence:

(none)

Meeting Status:

Not yet responded

Organizer:
Required Attendees:

Tasha Kinney
Gigi Sohn; Sara Morris; Jonathan Sallet; Shannon Gilson; Matthew DelNero; Stephanie
Weiner; Julie Veach

From:

info=ppionline.org@mail.salsalabs.net on behalf of Progressive Policy Institute


<info@ppionline.org>
Thursday, February 27, 2014 4:08 PM
Claude Aiken
RSVP Today: New Principles for a Progressive Broadband Policy

Sent:
To:
Subject:

Claude-Please join us for our upcoming panel: New Principles for a Progressive
Broadband Policy on March 13th at the Mayflower Renaissance Hotel to
discuss the recent FCC broadband regulation proposals.
The regulatory landscape governing the arrangements between broadband
providers and content providers is in flux. The D.C. Circuit recently struck down
certain portions of the FCC's Open Internet Order, and just this weekend
Netflix reportedly agreed to pay Comcast pursuant to a "peering arrangement"
to ensure Netflix's online videos are streamed smoothly.
In the wake of these developments, the FCC is contemplating the design of an
adjudication regime under its section 706 authority to resolve potential disputes
in the Internet space. PPI will host a panel of legal and economic experis to
offer their advice on (1) the proper objective of the case-by-case regime, and
(2) how enforcement of that regime would work in practice. Panelists will asked
to explain how their proposed solutions are consistent with stimulating
broadband deployment and innovation among content providers.

New Principles for a Progressive Broadband


Policy
March 13, 2014
9-11 a.m.
at

The Mayflower Renaissance Washington


Chinese Ballroom
1127 Connecticut Ave. NW

Featured Event Speakers


in, Duke Law School
Werbach, Wharton School, University of Pennsylvania
Hal Singer, Progressive Policy Institute
Ev Ehrlich, Progressive Policy Institute
M<::mdel, Progressive Policy Institute (Moderator)
Breakfast will be served at 9 a.m. and the panel will begin promptly at 9:30
a.m.
Make sure you follow the conversation on Twitter with #Open Internet. If you
are unable to join us in person, watch the live webcast of the event.
Regards,
Progressive Policy Institute
Stuart

. L:J
.

Instantly.

From:

Sent:
To:

Cc:
Subject:
Attachments:

Hanser, Russell < RHanser@wbklaw.com >


Monday, April 21, 2014 5:18 PM
Jonathan Sallet; Henning Schulzrinne; Matthew DelNero; Claude Aiken
Tramont, Bryan; Jeffrey Campbell (campbell@cisco.com); Mary Brown
(marybrow@cisco.com)
Cisco Systems Ex Parte Letter
Cisco WBK Ex Parte Letter 042114 FINAL.pdf

All,
Attached please find the ex parte letter that Cisco Systems, Inc. filed today in connection with the
April 17 meeting regarding the Open Internet Remand matter.
Best regards,
Russ Hanser

WILKINSON) BARKER)
RUSSELL

P.

KNAUER.)

LLF

HANSER

PARTNER
2300 N STREET, NW
SUITE 700
WASHINGTON, DC 20037-1128
MAIN 202.783.4141
DIRECT 202.383.3408
FAX 202.783.5851
RHANSER@WBKLAW.COM
WWW.WBKLAW.COM

This electronic message transmission contains information from the law firm of Wilkinson Barker Knauer, LLP which may be
confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the
intended recipient, be aware that any disclosure, copying, distribution, or use of the contents ofthis information is prohibited. If you
have received this electronic transmission in eiTor, please notify us by telephone at 202.783.4141 or by electronic mail
administrator@wbklaw.com immediately.

WILKINSON) .BARKER

KNAUER

LLP

2300 N STREET, NW
SUITE 700
WASHINGTON, DC 20037

TEL

202.783.4141

FAX

202.783.5851

WWW.WBKLAW.COM
RUSSELL P.

HANSER

April21, 2014
VIAECFS
Marlene H. Dortch, Secretary
Federal Communications Commission
44512thStreetSW
Washington, DC 20554
Re:

Open Internet Order Remand Proceeding (GN Dkt. No. 14-28)

Dear Ms. Dortch:


I am writing pursuant to Section 1.1206(b)(2) of the Commission's Rules to notify the
Commission that on Thursday, April 17, Mary Brown and Jeffrey Campbell, both of Cisco
Systems, Inc. ("Cisco"), as well as Bryan Tramont and the undersigned, both of Wilkinson
Barker Knauer, LLP, met with Jonathan Sallet, Henning Schulzrinne, and Claude Aiken of the
Office of General Counsel and Matthew DelNero of the Wireline Competition Bureau to discuss
the above-referenced matter.
During the meeting, Cisco noted that recent decisions made by foreign governments
threaten to undercut innovation and investment in the broadband Internet ecosystem. These
governments will be closely watching this proceeding as it unfolds in the United States. Cisco
emphasized that the "specialized services" exemption was an extremely important component of
the balance struck by Commission's 2010 Open Internet Order, and should be retained in any
future regime. Further, Cisco urged the Commission not to pursue a constricting definition of
"specialized services." Rather, in order to accommodate the quickly evolving and still-nascent
market for managed offerings, the Commission should focus on an approach that promotes the
development and deployment of specialized services that will benefit consumers without
impacting broadband Internet access services. Finally, Cisco discussed a proposal raised by staff
during the meeting that "specialized services" might be defined to include any IP-based services
that are not broadband Internet access service. Cisco stated that this approach could be workable
so long as it was applied flexibly to accommodate ongoing technological and market
developments.

WILKINSON

BARKER' KNAUER LLI'

Marlene H. Dortch
April21,2014
Page 2
Respectfully submitted,

Is/ Russell P. Hanser


Russell P. Hanser
cc:

Jonathan Sallet
Henning Schulzrinne
Claude Aiken
Matthew DelNero

Two pages withheld- not responsive and FOIA


Exemption 6

From:

FOIA Exemption 6

Sent: Thursday, Ja.riuary 23, 2014 3:52PM


To: Jonathan Levy
Cc: Evan Kwerel
Subject: Re: Hello!

That's a great quote from the net neutrality opinion. I'm taking Administrative Law this semester and after nvo
day so fat, it's been a fantastic course. We're learning to see agencies in a whole new light- we started the
course by looking at the evolution of the administrative state and the ebb and flow of societal and judicial
support for adininistrative agencies. Before the class, I took the existence and function of agencies for granted
and now I get to see what's at stake in debates over administrative discretion and how agencies fit in to the
overall scheme of government. Very interesting!

On Mon, Jan 20, 2014 at 2:38PM, Jonathan Levy <Jonatb.an.Levy@fcc.gov> wrote:


Greetings

FOIA Exemption 6

was
new Chief Economist, Tim Brennan, plucked out the following sentence from the
4

might be suitable for tee-shirts and coffee mugs (although I am not sure it is ready for bureaucratic prime time): "After all,
even a federal agency is entitled to a little pride."

How have you both been? Any current Lunch Club/intern news? There was a buzz around the law school about
the net neutrality decision.

Hope all is well and talk to you soon!

FOIA Exemption 6

Lunch lntem

From: Latoya Toles On Behalf Of WCBChlef


Sent: Thursday, May 08, 2014 3:12PM
To: Julie Veach; Matthew DelNero; Michael Jacobs; Randy Clarke; carol Simpson; Kristine Fargotstein
Subject: Meeting on behalf of Hagon Lovells & Roku re: to discuss Roku's interest in the net neutrality proceedln
When: Wednesday, May 21, 2014 10:00 AM-11:00 AM (UTC-05:00) Eastern Tlme (US & canada).
Where: 5-6142

Good afternoon,
We would like to schedule a meeting with Chief Veach and the Bureau front office and Division staff working
on the Open Internet proceeding, who we understand includes the following people:

Matthew DelNero, Deputy Bureau Chief


Michael Jacobs, front office legal advisor
Randy Clark, Acting Chief of Competition Policy Division
Carol Simpson, Deputy Chief of Competition Policy Division
Kristine Fargotstein, Attorney Advisor in the Competition Policy Division

The topic of discussion will be Roku's interest in the net neutrality proceeding, as it relates to MVPD
authorization of Roku's over-the-top streaming set-top box platform. Please let me know if any of these slots
are available on May 21":

12:15p- 12:45p

l:OOp - 1:30p

1:45p-2:15p
4:45p - 5:15

In attendance, will be the following people:


Roku:
Stephen Kay, SVP and General Counsel
Steve Shannon, General Manager of Content and Services

Hogan Lovells:
Michele Farquhar
Praveen Goyal
Many thanks, in advance, for your time.
Kind regards,
Penny Johnakin
Assistant to P. Goyal, Esq.
Penny Johnakin
1\ssistant
Hogan L.ovolls US LL.P
Columbia Square
555 Thirteenth Street. NW
Washngton, DC 20004

Tel:
F<1x:
Email:

+ 1 202 637 5600


+1 202 637 7188
+1 202 637 5910
penny.johnakln@ hoganlovells.com
www.hoganlovells.com

P/eose consider the environment before printing this ems/1.

From: Nicholas Economldes [mailto:ecooomides@haas.berkeley.edu]


Sent: Monday, May OS, 2014 1:59AM
To: ECONOMIDES, Nicholas
Subject: NET Institute conference on May 9 at UC Berkeley

Reminder:
The NET Institute conference on network economics, two-sided markets, network
neutrality, and network formation will be at May 9 at UC Berkeley. Please see program at
http://www.netinst.org/2014 conference.htm and RSVP at
http://netinst2014.eventbrite.com .
Best,
Nick

**********************************************
Prof. Nicholas Economides.
Stern School of Business, NYU
44 West 4th Street, New York, NY 10012-1126
tel. (917) 776-8777, (212) 998-0864
mailto:ECONOMIDES @stem.nyu.edu
http://www .stem.nyu.edu/networks/
1

http://www .stern.nyu.edu/networks/cvnoref.html
and Haas School of Business, UC Berkeley
Executive Director, NET Institute
http://www .NETinst.orgf
http://www .facebook.corn!NET.inst
Selected works and sign up for notification of my new work:
http://works.bepress.com/economides/

**********************************************

From:

Sent:
To:

Cc:
Subject:

Gigi Sohn
Thursday, May 15, 2014 2:59 PM
'Katie McAuliffe'; Tom Wheeler
Ruth Milkman; Philip Verveer
RE: Net Neutrality Coalition Letter Attached

Thanks Katie!
From: Katie McAuliffe [mailto:kmcauliffe@atr.org]

Sent: Thursday, May 15, 2014 11:39 AM


To: Tom Wheeler
Cc: Ruth Milkman; Philip Verveer; Gigi Sohn
Subject: Net Neutrality Coalition Letter Attached
Dear Chairman Wheeler,
Attached and pasted below, Please find a coalition letter regarding the Net Neutrality Notice of Proposed Rule Making.
The undersigned respectfully request that the Federal Communications Commission not move forward with new Net
Neutrality rules. Congress is in the midst of working on a Telecom Act rewrite that we expect to provide the FCC with
direction on its role in promulgating regulation.
We thank you for your consideration,
Katie McAuliffe
Executive Director for Digital Liberty
Federal Affairs Manager
Americans for Tax Reform
Office: 202-785-0266
Blog: Digitalliberty.net
Twitter: @Digitalliberty

The Honorable Thomas Wheeler


Chairman, Federal Communications Commission
445 12th Street, S.W.
Washington, D.C. 20554
The Honorable Fred Upton
Chairman, Committee on Energy and Commerce
2183 Rayburn House Office Building
Washington, D.C. 20515
The Honorable Jay Rockefeller
Chairman, Committee on
Commerce, Science, & Transportation
531 Hart Senate Office Building
Washington, DC 20510
The Honorable John Thune
1

Ranking Member, Committee on


Commerce, Science, & Transportation
511 Dirksen Senate Office Building
Washington, DC 20510
May 15,2014
Dear Messrs:
The discussion on Net Neutrality has moved away from what consumers actually want and need almost entirely into
the political realm. What we need in our Internet infrastructure is not necessarily what some call a fast lane or a
slow lane, but an efficient allocation of resources, so that all applications appear searnlessly to the end user. Absent
. convincing evidence of a market failure or demonstrable consumer harm, network management should remain a
free-market contract negotiation of sorts, and not end up looking like government controlled phone service
infrastructure or of broadcast/ cable content regulation.
For the past decade, activists with a political agenda have pushed the increasingly oudandish conspiracy theory that
in the absence of immediate and pervasive federal regulation broadband Internet will be destroyed by the
companies supplying it. Unfortunately, the FCC appears to be bending to such pressure to rush through yet
another iteration of complex, unnecessary and legally questionable net neutrality rule making. We therefore
respectfully call on Congress to assert its authority concerning the FCC's role, and ask the FCC to await
further action from Congress.
In Verizon the D.C. Circuit Court interpreted Section 706 of the 1996 Communications Act so as to give d1e agency
authority to adopt new net neutrality rules, as long as these rules do not impose common carrier obligations on
ISPs. The court's ruling may even provide the FCC with new powers to regulate Internet services beyond
broadband infrastructure, such as "edge providers." The only real limit is that the FCC can't overdy treat Internet
services as common carriers. But this limit may mean litde.
Importantly, section 706 was not intended by Congress to constitute an independent grant of affirmative regulatory
authority. This was the Commission's own understanding of Section 706 as well until the agency switched its view
after its first foray into net neutrality regulation met with defeat in ConJCast Cmp. v. FCC.
Additionally, the court merely held the no-blocking and no-discrimination net neutrality rules unlawful; the court
did not purport to define the boundaries of the Commission's Section 706 authority or adjudicate any particular
exercises of such authority. The court did not require the agency to adopt any new regulations. Under all the
circumstances - and especially the circumstance that there is no evidence of a present market failure or consumer
harm resulting from Internet provider practices- there is no reason for the Commission to move forward at this
time to adopt new net neutrality or net neutrality-like rules.
While some call for the FCC to use the "nuclear option" of Tide II, we again urge Congress to clarify its intent with
regards to the FCC's regulatory authority and for the FCC to wait for that direction from Congress.
The primary problem with Tide II regulation of the competitive broadband industry is that it would abrupdy
decelerate the speed of Internet innovation to the speed of government- a regulatory regime that is as slow as the
slowest part of d1e FCC's filing and public comment process.
Tide II of the Communications Act is meant to deal with government-granted, government-regulated
monopolies. The old bargain for what were once thought to be "natural monopolies" was that in order to
encourage large, capital-intensive investments in utilities such as water, electric, or old-fashioned telephone
infrastructure, government would grant a monopoly to a single provider who agreed to build very expensive
2

infrastructure. Once built, these government-protected, government-regulated monopolies would be granted a


guaranteed "rate of return" on their investments, but be forbidden from charging their customers monopoly prices.
The FCC definitively moved the Internet away from Title II reg-qlations in 1998, when Clinton-appointed FCC
Chairman William Kennard rejected the same Title II arguments being made today in that year's report to Congress:

"Ciassijjing Intermt access seroices as teleconmmnications sen1ices could have significant consequences for the
global developnmtt if the Internet. We recognize the unique qualities if the Internet, and do not prwtme that
legary regulatory franmvorks are appropriatefy applied to it."
While the expansion of 706 authority would likely affect edge providers, Title II reclassification would likely apply
to all aspects of transmission via Internet. Any business providing over-the-top services, including search, voice,
video and email, would likely come under Title II regulation- a dramatic expansion of restrictive regulation. We do
not believe the FCC's "forbearance" authority would be efficient for determining the applicability of provisions of
Title II to all of these services. Tlus uncertainty would embroil the industry and the FCC in a slew of legal battles,
and volatile market uncertainty that would dramatically harm infrastructure investment and capital expenditures.
In consideration of the vibrant Internet market of both service providers and over-the-top services, we sub:niit that
no market failure or real harm to consumers has been adequately demonstrated to support any expansion of FCC
authority over the Internet. We urge Congress to act expeditiously in expressing its understanding of the
proper role of the FCC in regard to regulating the Internet, and urge the FCC to wait for Congressional
direction.
Regards,
Americans for Tax Reform
American Commitment
American Conservative Union
Americans for Prosperity
Competitive Enterprise Institute
Center for Individual Freedom
Digital Liberty
FreedomWorks
Institute for Liberty
Institute for Policy Innovation
Less Government
MediaFreedom
National Taxpayers Union
N etCompetition
Taxpayers Protection Alliance

From:

Sent:
To:

Cc:
Subject:

Harold Feld <hfeld@publicknowledge.org>


Friday, April 25, 2014 5:06 PM
Sharina Smith
Jonathan Sallet; Philip Verveer; Michael Weinberg
Net Neutrality Meeting Request

Jon, Phil:
I'd like to request a meeting on the upcoming network neutrality item with you both, although I am happy to do
two separate meetings if that makes the scheduling easier. I'd like to cover (a) our overall concern with paid
prioritization, and (b) if the FCC is going to permit paid prioritization, what specific issues it ought to seek to
address in the NPRM (especially with regard to issues in the existing data roaming regime).
Thanks. I've included Michael Weinberg, our network neutrality point person, on this email.

Harold Feld, Senior VP


202-861-0020 I @haroldfeld
Public Knowledge I @publicknowledge I www.publicknowledge.org
1818 N St. NW, Suite 410 I Washington, DC 20036
Promoting a Creative & Connected Future.

From:

Sent:
To:
Cc:
Subject:
Attachments:

David Toomey
Wednesday, May 14, 2014 5:14 PM
Milkman; Gigi Sohn; Daniel Alvarez; Jonathan Sallet; Philip Verveer; Julie
Veach; Shannon Gilson; Mark Wigfield; Neil Grace; Kim Hart
Sara Morris
FW: Letter to Chairman Wheeler
Ayotte fischer coats NN letter to FCC.pdf

Attached is a letter from Sens. Ayotte, Fischer and Coats requesting a delay in the 01 proceeding.

From: Seidman, Rob (Ayotte) [mailto:Rob Seidman@ayotte.senate.gov]


Sent: Wednesday, May 14, 2014 1:16PM
To: Ruth Milkman; Sara Morris; David Toomey
Cc: Quiello, Michael (Coats); Lynch, Josh (Fischer)

Subject: Letter to Chairman Wheeler


David, Sara, Ruth:
Attached is a letter to Chairman Wheeler from Senators Ayotte, Fischer and Coats.

Rob

tlnitcrl cStotcs cScnotc


WASHINGTON, DC 20510

May 14,2014
The Honorable Tom Wheeler
Chairman
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554
Dear Chairman Wheeler:
We write to express our strong reservations with the Federal Comm:unications
Commission proceeding to a vote on proposing net neutrality rules at its May 15, 2014 meeting.
Both the Commission and Congress should have sufficient time to review any proposal on net
neutrality prior to further action.
Commissioners Jessica Rosenworcel and Ajit Pai have both called for a delay of the
vote. Our understanding, as reported by Politico, is that minority members of the Commission
have been kept in the dark about your revised net neutrality proposal. Transparency is
paramount in this process, and forcing through regulations in a non-transparent way does a
disservice to consumers, businesses, and American taxpayers.
To date, the commission has received over 35,000 public comments since your original
proposal was first made public. We believe a more thorough examination of your proposal,
including a rigorous economic analysis, is required.
Additionally, we believe the complexity and unprecedented nature of the upcoming
broadcast incentive auction warrants the Commission's full and undivided attention at this
critical time. This is necessary to ensure the bipartisan congressional mandates contained in the
Public Safety and Spectrum Act of2012 are properly executed.
Thank you for your prompt consideration. We look forward to working with you on this
and other important challenges facing the Commission.
Sincerely,

Deb Fischer
United States Senator

Dan Coats
United States Senator

From:

Sent
To:

Subject:

Shannon Gilson
April 29, 2014 7:55 PM
Milkman; Jonathan Sallet; Philip Verveer; Gigi Sohn; Sara Morris; Daniel
rez; Neil Grace; Mark Wigfield
Fw: National Journal and Ars Technica

From: shannon gilson [mailto:gilson.shannon@gmail.com]


Sent: Tuesday, April 29, 2014 07:53 PM
To: Shannon Gilson
Subject: National Journal and Ars Technica

National Journal: FCC Chief Vows No Internet 'Slow Lanes'


Tom Wheeler defends his proposed net-neutrality rules
By Branda Sasso

The chairman of the Federal Communications Commission is trying to ease fears that he is caving on net
neutra lity.
In a blog post Tuesday, Tom Wheeler said his proposed rules would put the FCC "on track to have tough,
enforceable Open Internet rules on the books In an expeditious manner, ending a decade of uncertainty and
litigation."
Wheeler has come under fire from liberal lawmakers and consumer advocacy groups after floating new rules
that would allow Internet service providers to charge websites for faster service as long as the arrangements
are "commercially reasonable." Critics argue th.a t allowing "fast lanes" would tilt the Internet in favor of the
largest corporations and stifle new Internet start-ups.
Democratic Sen. AI Franken said Tuesday that allowing pay-for- priority deals would "destroy" the open
Internet.
But Wheeler vowed that under his rules, it "won't be possible for an Internet
available to all.''

to degrade the service

He said the debate over "fast lanes" misses the point. His rules would ensure that the Internet is "sufficiently
robust" for consumers to access whatever content and applications they want, he said.
"Degrading service in order to create a new 'fast lane' would be shut down," Wheeler said.

FCC Chairman Tom Wheeler has thus far declined to reclassify broadband as a telecommunications service,
which would open Internet service providers up to common carrier regulations under Title II of the
Communications Act. Today, he wrote that he won't hesitate to do so, although this still seems to be an
unlikely possibility.
When proposing network neutrality rules that prevent ISPs from blocking websites while allowing them to
charge Web services for a faster path to consumers; Wheeler set aside calls to declare ISPs common carriers.
His proposal came after a federal appeals court overturned the FCC's original anti-discrimination and antiblocking rules, ruling that the FCC imposed common carrier obligations on providers that it had not classified
as common carriers.

Wheeler defended his proposal today while stressing that it's not the only option.
"I do not believe we should leave the market unprotected for multiple more years while lawyers for the
biggest corporate players tie the FCC's protections up in court.

Notwithstanding this, all regulatory options remain on the table," Wheeler wrote in a blog post. "If the
proposal before us now turns out to be insufficient or if we observe anyone taking advantage of the rule, 1
won't hesitate to use Title II. However, unlike with Title II, we can use the court's roadmap to implement Open
Internet regulation now rather than endure additional years of litigation and delay."

"If we get to a situation where arrival of the 'next Google' or the 'next Amazon' is being delayed or deterred,
we will act as necessary using the full panoply of our authority," he also wrote. "Just because I believe strongly
that following the court's roadmap will enable us to have rules protecting an Open Internet more quickly, does.
not mean I will hesitate to use Title II if warranted."

Wheeler said criticism of his proposal has been unfair:

There has been a great deal of discussion about how our proposal to follow the court's roadma.p will result in a
so-called "fast lane" and Internet "haves" and "have-nots." This misses the point. The proposed rule is built to
ensure that everyone has access to an Internet that is sufficiently robust to enable consumers to access the
content, services, and applications they demand, as well as an Internet that offers innovators and edge
providers the ability to offer new products and services.

Wheeler said he will make sure any agreements between Web services and ISPs are "commercially
reasonable. 11 He laid out what he thinks is not commercially reasonable in today's post:
3

Mindel DelaTorre
Thursday, April 24, 2014 9:27AM
Philip Verveer; Diane Cornell
FW: FCC Undercuts Net Neutrality In New Proposal

From:

Sent:
To:
Subject:

From: Today's General Counsel [mailto:topstories@todaysgc.com]

Sent: Thursday, April 24, 2014 9:24AM


To: Mindel DelaTorre

$ubject: FCC Undercuts Net Neutrality In New Proposal


Having trouble viewing this email? Click here

"------corp

LaboriEmployment jiFi-----------

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. . ..

M'"I-"- ' -

Top Stories
Thursday, April24, 2014

FCC Undercuts Net Neutrality In New


Proposal

==-

==--=-

From: Today's General Counsel

In a policy reversal, the FCC indicated it will propose a new


rule that would undo 'net neutrality' by allowing Internet
providers to charge companies more for faster data
transmission.
Read more...

Court Rules Search Engine Results Are Free


Speech
From: Arent Fox

A district court rules against plaintiffs who said a search


engine was shutting them out. The decision likens a search
algorithm to an editor.
Read more...

7o acivert:se in TGC's daily email newsieiier. click here or e:n<.lll

advertising@todaysgc.com.

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Today's General Counsel ; 640 Park Ave. ! Hinsdale : IL l 60521

From: June Marie Sobrito [mailto:jsobrito@smpte.org]

Sent: Thursday, May 15, 2014 2:23PM


To: Matthew DelNero

Subject: RE: ETTA 2014- Important Information!


Matt,
Thanks very much for the bio and photo. Can you approve the copyright release? You can either email it back to me
signed or just agree to the terms in an email to me.

Also, are you providing a PowerPoint? Do you have any specific audio-visual require merits?
Thanks,
June

From: Matthew DelNero [mailto:Matthew.DeiNero@fcc.gov]

Sent: Thursday, May 15, 2014 2:19 PM


To: June Marie Sobrito
Subject: RE: ETIA 2014- Important Information!
Hi June,
Thanks for following up, and please accept my apologies for the delay in getting back to you. I've attached a Word
document with a bio and photo included. Please just let me know if you need anything else.
Best wishes,
Matt
Matthew 5. DelNero
Deputy Bureau Chief
Wireline Competition Bureau, FCC
Tel: 202.418.7433
Email: matthew.delnero@fcc.gov

From: June Marie Sobrito [mailto:jsobrito@smpte.org]

Sent: Wednesday, May 14, 2.014 9:34AM


To: Matthew DelNero
Subject: RE: ETIA 2014- Important Information!
Hi Matt,
Just following up. Can you send me a brief bio and headshot?
Thanks,
June

June Marie Sobrito


Executive Assistant
Society of Motion Picture & Television Engineers
3 Barl<er Avenue Fl5, White Plains, NY 10601 USA
www.smpte.org
T1 (914)20523841:\1 II
(914)761-3115
jsobrito@smpte.org

From: Matthew DelNero [mailto:Matthew.DeiNerci@fcc.gov]


Sent: Tuesday, May 06, 2014 8:01PM
To: June Marie Sobrito
Cc: Burger, James M.; Joel Welch
Subject: RE: ETIA 2014- Important Infonnation!

-----------

June,
Thanks very much. I look forward to participating and will be back in touch with the requested information.
Best wishes,
Matt

From: June Marie Sobrito [mailto:jsobrito@smpte.org]

Sent: Tuesday, May 06, 2014 10:14 AM


To: Matthew DelNero
Cc: Burger, James M.; Joel Welch
Subject: ETIA 2014- Important Infonnation!
Dear Mr. DelNero,
Thank you for being part of SM PTE's Entertainment Technology in the Internet Age conference developed in partnership
with the Stanford Center for Image Systems Engineering. The event will be held at Stanford University on 17- 18 June
2014. We appreciate your support of this important one-of-a-kind industry event.
I believe Jim has already requested your brief bio (150 words or less) and headshot. If you could send those to me, that
would be great.
Attached is the ETIA 2014 copyright release form. This form allows SMPTE to create and distribute presentation PDFs to
conference delegates. This form also authorizes SMPTE to capture video of your presentation. Please sign and either
email or fax it back to me. Or, you may simply agree to the terms in an email to me.
Please let me know if you have any questions and thanks again for your support.
Regards,
June

June Marie Sobrito


Exec,;tive Assistant
Socie.ty of Motion Picture & Television Engineers
3 Barker Avenue FIS, White Plains.
10601 USA
\w.rw.smple.org
T +1 (914) 205 23841 !\i .; I (UJ4l $t)(> 224() IF +1 (914) 761-3115
jsobrito@smple.org

Not Responsive
'
'
*
'"::"'
*-

'

'

Subject:
Location:

Meeting with Level 3 re. OI (DA,PV,DQ


conf. room #3 (8-a245)

Start:
End:
Show Time As:

Tue 4/22/2014 4:00 PM


Tue 4/22/2014 4:30 PM
Tentative

Recurrence:

(none)

Meeting Status:

Not yet responded

Organizer:
Required Attendees:

Kim Mattos
Daniel Alvarez; Philip Verveer; Diane Cornell

4/22Confirmed for 4pm and moved meeting from conf. room #I to conf. room #3 (8-a245). Thank you. -k

4/22-

Hi, Phil and DianeDaniel asked me to invite you to a meeting with Level 3 today. They're supposed to come in at 3:30pm, but I have
proposed a move to 4pm, per Daniel's request; awaiting their response. Thank you. -k

Hi DanielPer your request, a meeting has been scheduled. Thank you. -k

From: Cavender, Joseph [mailto:Joseph.Cavender@Leve13.com]


Sent: Tuesday, April 01, 2014 3:47PM
To: Daniel Alvarez
Subject: Open Internet ex parte request
Hi Dan,
1 hope everything is going well. I'd like to request an ex parte meeting to talk about Level3's perspective on the Open
Internet proceeding. As you may have seen from the filings in the docket, Level3 is very supportive of the Commission
taking action on this, and we are particularly focused on the need to address interconnection or "peering" issues. I think
we can be a useful resource on this, and, in that vein, I'd propose bringing in Marcellus Nixon, who is responsible for
negotiating all of Level3's Internet peering relationships around the world.
1know various folks have met with different people from the Chairman's office on these issues, so if I should be reaching
out to someone else, please just let me know and I would be happy to do so.
Thanks very much.
Best,
Joe

Joseph C. Cavender
Vice President, Federal Affairs
Level 3 Communications, LLC
1220 L Street NW Suite #660
Washington DC 20005
p: 571.730.6533
e: joseph.cavender@level3.com

THIS MESSAGE MAY BE ATTORNEY-CLIENT OR OTHERWISE PRIVILEGED. IF YOU BELIEVE YOU RECEIVED THIS MESSAGE IN ERROR,
PLEASE DELETE IT AND NOTIFY ME. THANK YOU.

From:
Sent:
To:

Subject:

Gigi Sohn
Thursday, May 15, 2014 2:58 PM
FOIA Exemption Ruth Milkman; Philip Verveer; Jonathan Sallet; Renee Gregory; Daniel Alvarez; Maria
Kirby; Meribeth McCarrick; Shannon Gilson; Sara Morris; Neil Grace; Mark Wigfield;
Diane Cornell; Kim Hart
FW: FCC inches Closer to Net Neutrality Rules, Not There Yet

61

-------------------------------

From: Bartees Cox, Jr. -[mailto:bartees=publicknowledge.org@mail79.atl51.rsgsv.net] On Behalf Of Bartees Cox, Jr.


Sent: Thursday, May 15, 2014 11:33 AM
To: Gigi Sohn
Subject: FCC inches Closer to Net Neutrality Rules, Not There Yet

Is this email not displaying correctly?


View I! in your browser.

More infonnation available at publicknowledae.oro/press

Public Kno\rvledge
Contact: Bartees Cox (o) 202-861-0020

(c) 202-815-6457

For Immediate Release


May 15,2014

FCC Inches Closer to Strong Net Neutrality Rules, But Not There Yet

Today, the Federal Communications Commission (FCC) introduced their proposal for new net neutrality
rules. While these rules to appear to represent a response to public outcry in support of net neutrality,
they do not go far enough.
The following can be attributed to Michael Weinberg, Vice President at Public Knowledge:
"This proposal from the FCC proves that the public is having an impact. After extensive public outcry, the
FCC is asking questions about the fundamental legitimacy of fast lanes and exploring the viability of Title
II. This shift simply would not have occurred without the outpouring of concern from organizations,
companies, Members of Congress, and individuals who rely on a truly open internet every day.

"Despite this response, we are convinced that the net neutrality pathway the FCC is exploring remains
insufficient to guarantee a truly open and neutral internet. The FCC's proposal still falls well short of real

net neutrality rules. It would create a two-tier Internet where "commercially reasonable" discrimination Is
allowed on any connections that exceed an unknown "minimum level of access

by the FCC. A

two-tier internet Is anathema to a truly open Internet, and rules under section 706 authority are Insufficient
to prevent harniful paid prioritization.
"This will be the summer of net neutralio/. Net neutrality supporters will make It clear to the FCC and
Congress that only robust net neutrality rules that prevent paid prioritization, grounded In clear Title II
authority, will suffice. Any rules that allow for harmful discrimination cannot truly be called net neutraHty.
And any rules based on creaky legal authority are just a waste of everyone's time.
This release Is linked here.

###
Public Knowledge Is a Washington D.C.- based public Interest group working to defend consumer rights
in the emerging digital culture. More Information Is available at htto:l/www.publlcknowledge,org

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From:

Sent:
To:

Subject:

Jonathan Levy
Tuesday, March 11, 2014 3:27 PM
Chuck Needy
FW: presentation in 2010

Hi Chuck:
Do you know if we have a recording of this by any chance?
Thanks.
Jonathan
From: Waterman, David H. [mailto:waterman@indiana.edu]
Sent: Thursday, January 09, 2014 12:48 PM
To: Jonathan Levy
Subject: presentation in 2010

Hi Jon, in response to an inquiry I got, do you know if there happens to be an available video recording of the
presentation at the commission I made about lessons for network neutrality from cable television on Feb. 25, 2010?
Hope things are well, David

From:

Sent:
To:
Subject:

Jonathan Levy
Tuesday, March 11, 2014 3:24 PM
'Waterman, David H.'
RE: presentation in 2010 MY BAD

Hi David:
I am so sorry that your inquiry fell through the cracks of my vast email system. I will look into this immediately although I
am pretty sure the answer is "no."
Hope you and your family are well.
Jonathan

From: Waterman, David H. [mailto:waterman@indiana.edu]


Sent: Thursday, January 09, 2014 12:48 PM
To: Jonathan Levy
Subject: presentation in 2010
Hi Jon, in response to an inquiry I got, do you know if there happens to be an available video recording of the
presentation at the commission I made about lessons for network neutrality from cable television on Feb. 25, 2010?
Hope things are well, David

From:

Sent:
To:

Subject:

Congressional Internet Caucus AC <icac@netcaucus.org>


Thursday, May 15, 2014 11:50 AM
Stephanie Weiner
Rayburn Debate on FCC Net Neutrality I Spectrum Plans- Lunch Friday 5/16

Dear Stephanie,
You are invited to Friday's lunch briefing on ....

The FCC's Grand Internet Plans: "Net Neutrality" and Massive Mobile Spectrum
Auctions: What Do You Need to Know?
Today the Federal Communications Commission (FCC) unveiled two major plans that may significantly affect the growth
and vibrancy of the Internet (FCC announcement here). You have undoubtedly heard about "Net Neutrality," also called
Open Internet, and the broadcast Spectrum auctions.
We have assembled a balanced panel of experts to explain these FCC plans and to provide some analysis on what
Members of Congress need to know and what they expect will happen next {boxed lunch will be served). Join this
important briefing on Friday, May 16 at 12:00 pm in the Rayburn House Office Building. The FCC's actions include 1) The
agency's new "Open Internet" Rules and 2) The auctioning of the prime slice of broadcast spectrum necessary to the
Mobile Internet.
Together with the Congressional Internet Caucus we share the fervent belief that the Internet is a powerful platform for
communications, commerce and democracy. These two issues are extremely important to the evolution of the Internet
and the FCC's plans will generate a lot of discussion.
Date: Friday, May 16, 2014
Time: 12:00 pm - 1:20 pm
Location: Rayburn House Office Building, Room 2226
RSVP: Register via EventBrite (Please: Only RSVP if you will attend)
Speakers on the Open Internet/Net Neutrality Plan

Matthew Brill, Partner, Latham & Watkins [Biol


Markham Erickson, Partner, Steptoe & Johnson [Biol
Gus Hurwitz, Assistant Professor of Law, University of Nebraska College of Law [Bio]
Sarah Morris, Senior Policy Counsel New America Foundation [Bio]

Speakers on the Spectrum Auction Plan

Allison Remsen, Executive Director, Mobile Future [Bio]


Tim Donovan, Competitive Carriers Association [Bio forthcoming]

This widely attended educational briefing is hosted by the Congressional Internet Caucus Advisory Committee (ICAC),
part of a 501 (c)(3) charitable organization. Congressional staff and members of the press welcome. The ICAC is a private
sector organization comprised of public interest groups, trade associations, non-profits, and corporations. The ICAC takes
no positions on legislation or regulation. Rather, it's a neutral platform where thought leaders debate important technology
1

issues that shape legislative and administration policy in an open forum. We vigilantly adhere to our mission to curate
balanced and dynamic debates among Internet stakeholders. Our volunteer board members ensure that we dutifully
execute that mission. More information on the !GAG is available at www.netcaucus.org.

This e-mail was sent from Internet Education Foundation (Congressional Internet Caucus AC ) to
Stephanie.Weiner@fcc.gov.

To unsubscribe, please click on this link and follow the instructions: Unsubscribe
0

Kirk Burgee
Public Knowledge < pk@publicknowledge.org >
Thursday, April 24, 2014 11:44 AM
Thomas Spavins
Net Neutrality Takes A Hit

From:

Sent:
To:

Subject:

pU bl.IC

nowled e

Net Neutrality Takes A Hit

Dear Thomas,

Yesterday, the FCC took a big step back from net neutrality. Instead of
establishing firm net neutrality rules, they proposed new rules that
guarantee the opposite; internet discrimination.
The new rules allow internet service providers, like Verizon or Comcast, to
accept payment from content providers, like Netflix, Skype, or Disney, for
preferential treatment. That means consumers will have better access to
powerful websites with more money.

Public

""ledge

Pay-to-play is not net neutrality, and it has serious consequences for an


innovative and equal internet environment. For the FCC to save the open
internet, they need to reclassify the internet as a Title II
"telecommunications service" . It's time to update the way the FCC looks at
the internet and put rules in place to preserve fairness and openness.
Public Knowledge will continue to f ight for net neutrality, but we can't
do it alone. Please consider making a contribution to help us fight the good
fight. And continue to follow us on Twitter @publicknowledge for updates.
Tweet This: Pay-to-play is NOT net neutrality. Time for the #FCC to
preserve an open Internet! #NetNeutrality http://bit.ly/1hp6hil
We are working on cleaning up our em ail lists and you may receive duplicate
emails. Please excuse the inconvenience. We hope to have this resolved quickly.

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Uodate Profile/Email Address Instant removal with SafeUnsubscrlbeTM Privacy Polley.
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' )I

Kirk Burgee
From:

Public Knowledge < pk@publicknowledge.org >


Friday, M arch 28, 2014 10:10 AM
Alison Neplokh
The Future of Open Internet

Sent:
To:

Subject:

Public

owl edge

What's Ahead for the Open Internet

Dear Alison,
In the coming weeks, the FCC will be making some important
decisions about the open internet.
The DC Circuit Court's decision in January to overturn the FCC Open
Internet Rules left the FCC commissioners to find a way to implement
meaningful net neutrality protections. They collected comments on this last
week, including comments from Public Knowledge.
The best course of action for the FCC to regain their ability to enforce net
neutrality is to reclassify the internet as a Title II "telecommunications
service". However, preserving an open internet goes beyond just net
neutrality.

Public Knowlcdg

Throughout the FCC phone transition process, stakeholders have agreed


that the five principles established by Public Knowledge must be
maintained: service to all Americans , competition and interconnection,
consumer protection, network reliability, and public safety. These
principles should also guide the FCC's process towards an open internet.
In the coming months, we expect the FCC to release their plan for open
internet and ask the public to comment on their proposal. While net
neutrality is an essential part of open internet, the values of a truly open
internet are broader. We need to tell the FCC that all of these values
must be maintained.
Public knowledge will continue to fight for open internet, but we can't
do it alone. Follow us on Twitter @publicknowledge and on our blog for
updates. And please consider making a contribution to help us continue to
fight the good fight.
Tweet This: RT @publicknowledge: The #FCC needs to get open internet
rules right! Here's how. #Open Internet #NetNeutrality http://ctt.ec/8 NIYO+

We are working on cleaning up our email lists and you may receive duplicate
emails. Please excuse the inconvenience. We hope to have this resolved quickly.

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From:

Sent:
To:

Subject:
Attachments:

Gigi Sohn
ay, May 15, 2014 3:35 PM
onathan Sallet; Kim Hart; Ruth Milkman; Philip Verveer; Diane Cornell; Renee
Gregory; Maria Kirby; Mark Wigfield; Shannon Gilson; Daniel Alvarez; Neil Grace; Kim
Hart; Meribeth McCarrick
FW: Centurylink media statement Net neutrality rules must not harm consumers
CTL Net Neut:ality Media Statement FINAL 15May2014.docx

From: Newman, Melissa [mailto:Melissa.Newman@Centurylink.com]

Sent: Thursday, May 15, 2014 2:29 PM


To: Gigi Sohn; Daniel Alvarez

Subject: Centurylink media statement: Net neutrality rules must not harm consumers
Here's our press statement
Melissa

MEDIAST TEME T

Centurylink

news.centurylink.com I centurylink.com
Facebook.com/Centurylink I @Centurylink

FOR IMMEDIATE RELEASE:

FOR MORE INFORMATION CONTACT:

May 15, 2014

Linda M. Johnson, 202-429-3130


linda.m.johnson@centurylink.com
CenturyLink: Net neutrality rules must not harm consumers

WASHINGTON- Please attribute the following statement on the Federal Communications


Commission's actions today proposing new net neutrality rules to CenturyLink, Inc. (NYSE: CTL)
Executive Vice President for Public Policy and Government Relations Steve Davis:
"CenturyLink's network is built so customers can access the Internet whenever, wherever and however
they choose. We strongly support a vibrant and open Internet. We believe that above all else, any
regulation of the Internet must help, nothann consumers. This means both assuring openness, as well
as assuring that the Internet continues to grow to meet rapidly escalating customer demand. Customers
who want higher speeds or better performance levels should be allowed to pay for them, but
regulations should not require those who don't want higher speeds or increased performance levels to
pay the same rates as those who do."
About CenturyLink
CenturyLink is the third largest telecommunications company in the United States and is recognized as
a leader in the network services market by technology industry analyst firms. The company is a global
leader in cloud infrastructure and hosted IT solutions for enterprise customers. CenturyLink provides
data, voice and managed services in local, national and select international markets through its highquality advanced fiber optic network and multiple data centers for businesses and consumers. The
company also offers advanced entertainment services under the CenturyLink Prism TV and
DIRECTV brands. Headquartered in Momoe, La., CenturyLink is an S&P 500 company and is
included among the Fortune 500 list of America's largest corporations. For more infonnation, visit
www.centurylink.com.
###

From:

Sent:
To:

Subject:

Zachem, Kathy <Kathy_Zachem@Comcast.com>


Thursday, May 15, 2014 12:36 PM
Jonathan Sallet; Gigi Sohn; Philip Verveer; Ruth Milkman
FW: Comcast Blog: FCC Begins Open Internet Rule Process

fyi

From: Fitzmaurice, Sena

Sent: Thursday, May 15, 2014 12:12 PM


To: Fitzmaurice, Sena

Subject: Comcast Blog: FCC Begins Open Internet Rule Process

FCC Begins Process to Establish Strong, Legally Enforceable Open Internet Rules
By David L Cohen, Executive Vice President
Today, the FCC voted to take the first step in what will be a months long comment and review process to establish
strong, legally enforceable Open Internet rules. As Commissioners noted, this Notice of Proposed Rulemaking (NPRM) is
just an initial step to examine what the rules should ultimately be, and there will be significant time to study the NPRM,
and for public input and comment before the final rules are voted on by the Commission later this year.
Comcast remains committed to a free and open Internet and working with the FCC on appropriate rules for all players
across the industry. Currently, Comcast is the only company in America that is legally bound by the FCC's now vacated
Open Internet rules. And we've promised to extend the Open Internet rules to millions of new customers in cities from
New York to Los Angeles through our transaction with Time Warner Cable.
A free and open Internet stimulates competition, promotes innovation, fosters job creation, and drives business. We
supported the FCC's 2010 Open Internet rules because they struck the appropriate balance between consumer
protection and reasonable network management rights for ISPs. Our customers want asecure and open Internet, we
are committed to delivering on our promise to ensure that experience, and we are comfortable supporting appropriate,
legally enforceable open Internet rules.
We remain confident that the Commission will continue to appropriately balance its strong commitment to consumer
protection with the need to allow network operators to manage their networks reasonably and to continue to
encourage private investment in our nation's broadband infrastructure. As strongly as we believe in the propriety of
legally enforceable open Internet rules, however, we have an equally strong belief that any proposal to reclassify
broadband Internet access as a telecommunications service subject to Title II of the Communications Act would spark
massive instability, create investor and marketplace uncertainty, derail planned investments, slow broadband adoption,
and kill jobs in America.
For over a decade, Commissions and Administrations led by both parties have consistently ruled that common carrier
regulation does not (and should not) apply to the broadband Internet industry. As a result, cable operators and other
Internet service providers have invested hundreds of billions of dollars to deploy increasingly robust broadband
networks, laying the groundwork for an explosion of innovation in the Internet ecosystem, and fostering the creation of
millions of jobs. Any effort to upend this legal framework would most certainly be subject to years of litigation with
uncertain outcomes that would risk decreased investment and derail the American economic success story.
1

We look forward to working with Chairman Wheeler and the Commissioners to play a constructive role in finding an
appropriate regulatory balance going forward that will ensure the Internet remains vibrant and open for all Americans.
For more information about Comcast's commitment to net neutrality visit:
http://corporate.comcast.com/twctransaction/net-neutralitv-together

From:
Sent:
To:

Gigi Sohn
May 15, 2014 3:08 PM
Milkman; Philip Verveer; Jonathan Sallet; Renee Gregory; Diane Cornell; Maria
Daniel Alvarez; Shannon Gilson; Kim Hart; Neil Grace; Mark Wigfield; Sara Morris;
Meribeth McCarrick
FW: NetCompetition Statement on FCC Open Internet NPRM

Subject:

From: Scott Cleland [mailto:scleland@precursor.com]


Sent: Thursday, May 15, 2014 12:27 PM
To: Gigi Sohn
Subject: NetCompetition Statement on FCC Open Internet NPRM
Having trouble reading this email? View it in vour

Scott Cleland
Twitter @SCiefand
Precursor Bfog
Netcomgetition

r;1

LJ

NetCompetition Statement on
FCC Open Internet NPRM
NetCompetltlon
FOR IMMEDIATE RELEASE
May 15,2014
Contact: Scott Cleland -- 703-217-2407
FCC Consideration of Title II Broadband Regulation is a Blueprint for
Uncertainty
Encouraging Kilobit Regulation is No Way to Encourage a Gigabit Internet
Future
Title II Regulation Threatens to Slow Internet Upgrades to the Slow Speed of
Government
WASHINGTON D.C. -The following quotes on the FCC vote on an Open Internet NPRM
may be attributed to Scott Cleland, Chairman of NetCompetition:

o
o
o

FCC consideration of Title II broadband regulation is a blueprint for


unnecessary uncertainty.
Encouraging kilobit regulation is no way to encourage a Gigabit Internet future.
Rather than voting to quickly restore operative net neutrality rules, the FCC
has chosen the path of maximal uncertainty for everyone. The FCC cannot put
the Internet's infrastructure at grave risk without endangering-the entire
1

ecosystem built on top of it with grave risk and uncertainty as well.


The primary problem of Title II regulation is it would abruptly decelerate the
fast-speed of Internet business to the slow-speed of government. At core, Title
II is a "Mother may I?" regulatory regime that is as slow as its slowest part.
What could take hours or days to accomplish in business time could take
several months or even years in FCC Title II time.
Practically Title II regulation would require every business decision of
consequence to be approved by the FCC-- i.e. changes in services, prices,
terms, conditions, or infrastructure. Ironically, the obvious unil}tended
consequence here would be to put the American part of the Internet in the
slowest lane filled with interminable speed bumps, potholes, stop lights, and
inspection stations.
Snicon Valley's opposition to "commercially reasonable" market negotiations
for high-volume video streamingr because they want the FCC to create a
permanent zero-price entitlement for downstream Internet traffic, is the height
of adstechratic hubris and entitlement, because the richest, least regulated,
and least taxed sector is seeking massive and hidden government pricing
subsidies at the expense of American consumers.

e-forum representing broadband


NETCompetition.org is a
interests. See www.netcompetitign.org.

###

About Scott C!e!anq

Thanks,
Scott Cleland
President, Precursor LLC

Searcl1 CJ!.\9 Destrov:

Y:LtlY. You Can't Trust Goqg!JOG.


NETCompetition
1615 L St. NW, Suite 1000
Washington, District of Columbia 20036
(202) 828-7800 www.orecursor.corn info@precursor.corJ!
Subscribe to Newsletter!

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From:

Sent:
To:

Subject:

Ruth Milkman
Thursday, April 24, 2014 5:52 PM
Jonathan Sallet; Philip Verveer
FW: Obama's past stance in conflict with net proposal

From: POLITICO Pro [mailto:politicoemail@politicopro.com]

Sent: Thursday, April 24, 2014 5:50 PM


To: Ruth Milkman
Subject: Obama's past stance in conflict with net proposal

Obama's past stance in conflict with net proposal


ByTonyRomm
4/24/14 5:48PM EDT
An FCC net neutrality plan that could empower Internet providers to charge Netflix, Amazon, Facebook and
others for faster service has posed new political headaches for President Barack Obama and a sharply divided
Capitol Hill.
During his first presidential campaign, Obama explicitly rejected the possibility that "gatekeepers" someday
could "charge different rates to different websites" - a system, he said, that "destroys one of the best things
about the Internet- which is that there is this incredible equality there."
Obama' s 2007 comment seems at odds with the so-called fast lanes that might result from the open Internet
proposal from FCC Chainnan Tom Wheeler. But the president still "strongly supports" net neutrality, a White
House spokesman stressed Thursday, while declining to comment on the specifics of Wheeler's plan.
Obama hadn't yet seen the text, added the aide, who also pointed to the fact that the FCC is an independent
agency.
Meanwhile, old divisions in the familiar net neutrality debate quickly resurfaced on the Hill. Some Democrats,
including Rep. Anna Eshoo (D-Calif.) and Sen. AI Franken (D-Minn.), urged the FCC to harden its rule
proposal, while House Republicans criticized the telecom agency for trying to impose any requirements at all on
Internet providers.
"It is well past time for the commission to focus on areas where its work will foster new innovation,
competition, and job creation," said Reps. Fred Upton (R-Mich.) and Greg Walden (R-Ore.).

The early divides highlight the difficult politics of net neutrality, a perennial lightning-rod in Internet-policy
circles. A constantly warring and partisan Congress renders any legislative fix implausible, even after a January
court decision struck down the FCC's old net neutrality rules. And Wheeler, still a relatively new FCC
chairman, risks only more fighting if he imposes on Internet providers the same, strict rules that long have
applied to traditional phone companies.
1

Wheeler's proposed solution prohibits Internet providers from outright blocking websites or content. However,
it also creates an opening for those Internet service providers to charge content companies for better access to
their pipes. If an Internet provider does so on "commercially unreasonable" terms, then the FCC could take
action.
Already, the proposed system hasn't won much support- even among net neutrality's biggest congressional
defenders.
"Like many Internet users, I fear that the latest round of proposed net neutrality rules from the FCC will not do
enough to curtail discrimination of Internet traffic, but rather leave the door open to discrimination under more
ambiguous te1ms," said Eshoo, the top Democrat on the House's leading telecom committee.
Sen. Ed Markey (D-Mass.), another top net neutrality suppmter, stressed the "Internet's rules of the road must
not open up fast lanes to those who can pay, leaving others stuck in traffic." Sen. Bernie Sanders (I-Vt.),
meanwhile, called it a "terribly misguided proposal," and even wagered its implementation would mean "the
Internet as we have come to know it would cease to exist and the average American would be the big loser."
And Franken described the plan as "deeply disappointing and very troubling." The senator added, "Chairman
Wheeler's proposal would fundamentally change the open nature of the Internet, and I strongly urge him to
reconsider this misguided approach."
By and large, GOP reaction Thursday seemed muted -lawmakers still are away on recess, and Wheeler's
proposal isn't the most onerous legal avenue he could have taken. Still, a few Republican net neutrality
opponents slammed the Obama administration once the FCC detailed some of its plans.
"We have said repeatedly that the Obama administration's net neutrality rules are a solution in search of a
problem," said Upton and Walden, the leaders of the House Energy and Commerce Committee and its telecom
subcommittee, respectively. "The marketplace has thrived and will continue to serve customers and invest
billions annually to meet Americans' broadband needs without these rules."
Rep. Marsha Blackburn (R-Tenn.), another regular net neutrality critic, later charged that Wheeler's plans
amount to "regulatory action that could change the future of the Internet as we know it."
But the most closely watched reaction came from the White House.
An Obama administration spokesman said Thursday that the president has been "clear from the start that we
support" the open Internet. The aide said the president would be "closely following these developments as the
FCC launches its proceeding."
To view online:
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From:
Sent:

To:

Subject:

Gigi Sohn
May 15, 2014 3:06 PM
Sara Morris; Shannon Gilson; Meribeth McCarrick; Kim Hart; Ruth Milkman; Philip
, Diane Cornell; Neil Grace; Mark Wigfield; Jonathan Sailet; Renee Gregory; Maria
Kirby; Daniel Alvarez
FW: Statement by Michael Copps, Special Advisor to Common Cause's Media and
Democracy Reform Initiative, on Today's NPRM

From: Todd O'Boyle [mai!to:TOBoyle@commoncause.org)

Sent: Thursday, May 15, 2014 12:14 PM


To: Todd O'Boyle

Subject: Statement by Michael Copps, Special Advisor to Common Cause's Media and Democracy Reform Initiative, on
Today's NPRM

Colleagues- please see below for former FCC Commissioner Michael Copps statement on today's NPRM.

L::..H
For Immediate Release

Contact: Mary Boyle

May 15, 2014

(202) 736-5770

Statement by Michael Copps, Special Advisor to Common Cause's Media and Democracy Reform Initiative,
on Today's Notice of Proposed Rulemaking at the Federal Communications Commissioll

"This is an alarming day for anyone who treasures a free and open Internet- whlch should be all of us. The
FCC could have moved decisively to guarantee that the Internet remains an open platform for free expression
and the exchange of democracy-sustaining communications. Instead, the Commission again left broadband
users without the protections they deserve.
"Let's be clear. Any proposal to allow fast lanes for the few is emphatically not net neutrality. The clear
common-sense prerequisite for an Open Internet is Title II reclassification, guaranteeing the agency's authority
to protect consumers and ensure free speech online.
'"The FCC should conduct public hearings on the matter outside of Washington, DC, so it can hear from the
people who will have to live with the decisions it makes at this pivotal moment for the future of the Internet. It's
no exaggeration to say that every American has a stake in its deliberations.

From:

Sent:
To:

Cc:
Subject:
Attachments:

Matt Wood <mwood@freepress.net>


Thursday, March 20, 2014 6:25 PM
Jonathan Sallet; Philip Verveer; Gigi Sohn; Daniel Alvarez
Josh Stearns
Press Freedom Letter re: Net Neutrality
Free Press_Net Neutrality and Journalism letter.pdf

Greetings Jon, Phil, Gigi and Daniel:


Attached please find a letter to Chairman Wheeler that we filed today, along with 41 other journalism groups, regarding the
importance for press freedom of common carriage communications networks with strong nondiscrimination rules.
Other groups joining in this submission include the ACLU, Government Accountability Project, the National Hispanic Media
Coalition, PEN American Center, the Project on Government Oversight, Reporters Without Borders, the Society for
Professional Journalists, the Sunlight Foundation and the Writers Guild of America East.
The letter calls on the Commission to classify broadband access services as telecom services to achieve the vital goal of
protecting the Open Internet. As always, please do not hesitate to contact us with any questions.
Best regards,

Matt Wood
Policy Director
Free Press

www.freepress.net
(202) 265-1490 x. 36
Fight for your rfghts to connect and communicate

MASSACHUSETTS

WASHINGTON

40 main st, suite 301


florence, ma 01062
tel 413.585.1533
fax 413.585.8904

1025 connecticut ave. nw, suite 1110


washington, de 20036
tel 202.265.1490
fax 202.265.1489

March 20,2014
The Honorable Tom Wheeler
Chairman
Federal Communications Commission
445 12th Street, S.W.
Washington, D.C. 20554
Re:

GN Docket No. 14-28, Protecting and Promoting the Open Internet

Dear Chairman Wheeler:


The D.C. Circuit's decision in Verizon v. FCC dealt a huge blow to the open Internet, press
freedom and our right to access information. As advocates for free expression and open
government, we appreciate your agency's role in protecting our free speech rights online and call
on you to use your clear authority under Title II of the Communications Act to protect the open
Internet.
The open Internet is our main conduit for freedom of expression and information. It is our
library, our printing press, our delivery truck and our town square. Journalists, academics,
communities and govermrients depend on the Internet to connect, communicate and collaborate
every day. And as old models for news and information falter, the Internet has enabled new and
independent media outlets to emerge and thrive.
With the court's decision, however, broadband providers are now free to block or discriminate
against online content, services and applications. Allowing broadband providers to control this
once-open platform shifts power away from communities and individuals and toward entrenched
companies like AT&T, Comcast, Time Warner Cable and Verizon. This will have a chilling
effect on our rights to access, report and share information.
From the beginning, U.S. laws and leaders have protected these rights, acknowledging the
fundamental need for our speech to be delivered without discrimination. Freedom of the press
was not simply the freedom to print, but also the freedom to distribute speech across the country
through a common-carrier network: the postal service. Our ability to utilize that network (and its
successors) is central to our ability to self-govern.
That is why promoting and protecting our ability to exercise our free speech rights via common
carriage is enshrined in our communications laws. Common carriage recognizes that the ability
to have our speech carried free from undue discrimination is essential to our right to speak freely.

The issue is clear: Free speech depends on access to open and nondiscriminatory platforms for
that speech. Without such principles governing online networks, we cannot guarantee the
exercise of this most fundamental right.
Protecting free speech rights cannot be left to the promises of private entities, themselves
motivated by the desire to privilege certain speakers over others and increase the return to their
shareholders rather than their service to the public. That is why we need you and your colleagues
at the FCC to correct the agency's past mistakes and reassert the Commission's clear authority
over our nation's communications infrastructure.
To preserve the open Internet as a vibrant space for press freedom and freedom of information,
the FCC must reclassify broadband access services as telecommunications services to prevent
discrimination and blocking online.

American Civil Liberties Union


Association of Alternative Newsmedia
Bitch Media
Center for Media and Democracy
Coalition to Protect New York
Defending Dissent Foundation
Diversified Media Enterprises
Fairness & Accuracy In Reporting
Free Press
Globalvision, Inc.
Government Accountability Project
iSolon.org
The LAMP (Learning About Multimedia
Project)
Making Contact
Media Alliance
The Media Consortium
Mine Safety and Health News
Mother Jones
MuckRock
National Alliance for Media Arts + Culture
National Coalition Against Censorship

National Hispanic Media Coalition


National Priorities Project
News Taco
OpenTheGovernment.org
Park Center for Independent Media
Participatory Politics Foundation
PEN American Center
Personal Democracy Media
Project On Government Oversight
Reporters Without Borders
RootsAction
Society for Professional Journalists
Sunlight Foundation
Texas Observer
TheUpTake.org
Tikkun Magazine
Truthout
Tully Center for Free Speech
at Syracuse University
WITNESS
Women's Media Center
Writers Guild of America East

From:

Sent

To:
Cc:
Subject:
Attachments:

David Toomey
May 13, 2014 3:35 PM
Milkman; Gigi Sohn; Daniel Alvarez; Jonathan Sallet; Philip Verveer; Julie
ch; Shannon Gilson; Neil Grace; Kim Hart; Mark Wigfield
Sara Morris
FW: ICYMI: JOINT RELEASE: Senate Republican Leaders to FCC: Leave Internet Open and
Free
20140513 Senate R leadership Title II N N letter to FCC final. pdf

Press release and letter from Senate Republican leaders on 01.

- - - ---------------

From: Quinalty, David (Commerce) [mailto:David Ouinalty@commerce.senate.gov]


Sent: Tuesday, May 13, 2014 3:27PM
To: Quinalty, David (Commerce)
Subject: ICYMI: JOINT RELEASE: Senate Republican Leaders to FCC: Leave Internet Open and Free
In case you missed it,
Please find below a joint release issued by Senate Republican leaders regarding a letter
regulation of the Internet.

sent to the FCC today about

0.
From: Strong, AshLee (Republican-Conf)
Sent: Tuesday, May 13, 2014 3:24 PM
Subject: JOINT RELEASE: Senate Republican Leaders to FCC: Leave Internet Open and Free

-----------

mntteb
Thune: AshLee Strong 202-228-5940
McConnell: Michael Brumas 202-224-2979
Cornyn: Megan Mitchell202-224-0704
Barrasso: Emily Schillinger 224-6441
Blunt: Amber Marchand 202-224-1403
Moran: Garrette Silverman 202-224-6521

FOR IMMEDIATE RELEASE


May 13,2014
http://l.usa.gov/1mngspB

Senate Republican Leaders to FCC: Leave Internet Open and Free


WASHINGTON, D.C.-U.S. Senate Republican leaders, including Leader Mitch McConnell (R-Kentucky),
Whip John Comyn (R-Texas), Conference Chairman and Ranking Member of the Commerce, Science, and;
Transportation Committee John Thune (R-South Dakota), Policy Chairman John Barrasso (R-Wyoming),
Conference Vice Chairman Roy Blunt (R-Missouri), and National Republican Senatorial Committee Chairman
Jerry Moran (R-Kansas), today sent a letter to Federal Communications Commission (FCC) Chairman Tom
Wheeler urging the Commission to abandon any efforts to impose so-called "net neutrality" regulations on the
Internet.
1

In their letter, the senators underscore the "politically corrosive" nature of the FCC's contemplated regulations,
and urge the FCC to reject calls to impose Title ll regulations on "the nation's competitive and dynamic
broadband economy." The letter highlights the danger to the Internet of treating it as a government-regulated
utility.
The Senate leaders say, "Rather than attempting further legal contortions to encumber modern communications
networks with last century' s rules, the Commission should work with the Congress to develop clear statutory
authority and direction for the agency so that it can be a productive regulator for the 21st century marketplace."
The full leadership letter is included below.
May 13,2014
The Honorable Thomas Wheeler
Chairman
Federal Communications Commission
445 12th Street, S.W.
Washington, D.C. 20554
Dear Chairman Wheeler:
We write to reiterate our strong concerns with any proposal that would have the Federal Communications
Commission (FCC) apply monopoly-era Title ll regulations to our nation's competitive and dynamic broadband
economy.
The growth of the Internet and the rapid adoption of mobile technology have beer;t great American success
stories, made possible by a light regulatory touch for the entire online ecosystem. This approach has freed
Internet innovators and users at the edge, the core, and the last mile to offer services, to build networks, and to
buy and sell products based on market demand; no government permission has been necessary.
Imposing common carrier-style regulation upon any part of the Internet would be.a dangerous rejection of this
successful policy course, potentially impeding the development and adoption of new Internet technologies and
services, and threatening future investment in next-generation broadband infrastructure.
The courts have twice struck down ill-advised and unauthorized attempts by the FCC to regulate the
corrosive rulemaking,
Internet. Unfortunately, you have chosen to have the FCC again undertake a
relying upon new and untested court-defined powers rather than upon clear Congressional intent and statutory
authority.
Of even greater concern would be using Title ll of the Communications Act to regul11te broadband, which some
voices have called for in recent days. So-called "net neutrality" restrictions are unnecessary, but using Title IT
reclassification to impose them would create tremendous legal and marketplace uncertainty and would
undermine your ability to effectively lead the FCC.
Rather than attempting further legal contortions to encumber modern communications networks with last
century's rules, the Commission should work with the Congress to develop clear statutory authority and
direction for the agency so that it can be a productive regulator for the 21st centuiy marketplace. If the
Commission will not do that, we urge it to reject new "net neutrality" regulations, particularly any which rely
.
upon Title ll.
2

From:

Sent:
To:
Subject:
Attachments:

Sara Morris
ay, April29, 2014 7:45PM
uth Milkman; Gigi Sohn; Philip Verveer; Daniel Alvarez; Jonathan Sallet; Shannon
Gilson; David Toomey
FW: Letter from Senator Franken
Letter from Senator Franken.pdf

From: Stager, Joshua (Judiciary-Dem) [mailto:Joshua Stager@judiciary-dem:senate.govJ

Sent:

Tuesday, April 29, 2014 4:01PM


To: Sara Morris
Subject: Letter from Senator Franken
Hi Sara,
Please find attached a letter to Chairman Wheeler from Senator Franken. Let me know if you have any questions.
I also wanted to let you know that we submitted a few municipal broadband questions to Comcast following our April 9
hearing. Their response should be coming in the next few weeks.
Thanks,
Josh
JOSHUA STAGER, Law Fellow
Senator AI Franken, Chairman
Subcommittee on Privacy, Technology and the Law
Senate Judiciary Committee
202.224.5204

SUITE

AL FRANKEN

SH-309

MINNESOTA

202-224-5641

WASHINGTON, DC 2051o-2309

April29, 2014
The Honorable Tom Wheeler, Chairman
Federal Communications Cominission
445 12th Street, SW
Washington, DC 20554
Dear Chaim1an Wheeler,
I am deeply disappointed that you are considering rules that would allow deeppocketed companies to pay for preferential access to Internet Service Providers (ISPs).
Pay-to-play deals are an affront to net neutrality and have no place in an online
marketplace that values competition and openness. This proposal would create an online
"fast lane" for the highest bidder-shutting out small businesses and increasing costs for
consumers. I strongly urge you to reconsider this misguided approach and recommit to
protecting the Open Internet for all Americans.
After the D.C. Circuit Court of Appeals remanded the FCC's Open Internet Order
last January, I wrote you urging the Commission to ''take any and all appropriate actions
necessary to preserve net neutrality." Instead, you appear to be taking the opposite
approach. Sanctioning pay-to-play arrangements would not preserve the Open Internet it would destroy it.
Your proposal would grant Verizon, Comcast, and other JSPs the power to pick
winners and losers on the Internet, which violates core net neutrality principles that you
have publicly supported in the past. Although you claim that this proposal is not a
"turnaround," it is difficult to understand how it does not flatly contradict your
Commission's Open Internet Order, which stated:
"(I]fbroadband providers can profitably charge edge providers for
prioritized access to end users, they will have an incentive to degrade or
decline to increase the quality of the service they provide to nonprioritized traffic. This would increase the gap in quality (such as latency
in transmission) between prioritized access and non-prioritized access,
induce more edge providers to pay for prioritized access, and allow
broadband providers to charge higher prices for prioritized access. Even
more damaging, broadband providers might withhold or decline to expand
capacity in order to 'squeeze' non-prioritized traffic, a strategy that would
increase the likelihood of network congestion and confront edge providers
with a choice between accepting low-quality transmission or paying fees
for prioritized access to end users."

WWW.FRANKEN.SENATE.GOV

In this Order, the Commission correctly identified pay-to-play deals as an anti competitive
threat to the Internet and to consumers. But rather than continue to fight this threat, your
new proposal appears to embrace it. By creating a "commercial reasonableness" rule, the
Commission would be formally sanctioning the very deals it sought to combat less than
three years ago.
Struggling to craft a ''commercially reasonable'' standard misses the point: Pay-toplay arrangements are inherently discriminatory and anticompetitive, and therefore
should be prohibited as a matter of public policy. They increase costs for consumers and
the FCC's
give ISPs a disincentive to improve their broadband
mission to protect the public interest and strengthen the nation's broadband infrastructure.
The Commission wisely recognized the fundamental problems with pay-to-play
arrangements three years ago, and the D.C. Circuit Court of Appeals deferred to your
Commission's substantive judgment on this issue, as well. I urge you to recommit to this
judgment. The Internet was developed at taxpayers' expense to benefit the public interest.
It belongs to all of us. The FCC should be working to sustain competition and consumer
benefits, not creating unnecessary tolls for businesses and consumers.
Thank you for your attention to this urgent matter. I look forward to continuing to
work with you on this vitally important issue.
Sincerely,

United States Senator

Sara Morris
April28, 2014 5:55PM
- R u t h Milkman; Diane Cornell; Gigi Sohn; Daniel Alvarez; Maria Kirby; Renee Gregory;
Philip Verveer; Jonathan Sallet; Shannon Gilson; Neil Grace; Mark Wigfield
FW: Walden Announces Hearing with FCC Chairman Tom Wheeler on May 20

From:

Sent:
To:

Subject:

FYI- E&C oversight hearing announced.

-------

..

-------------------------

From: Energy and Commerce News [mailto:ECNews@ECREP.housecommunications.gov]


Sent: Monday, April 28, 2014 4:31 PM
To: Sara Morris
Subject: Walden Announces Hearing with FCC Chairman Tom Wheeler on May 20

G --:---------

FOR IMMEDIATE RELEASE


April28, 2014

CONTACT: Press Office


{202) 226-4972

Walden Announces Hearing with FCC Chairman Tom Wheeler


on May 20
Wheeler to Appear Before Communications and Technology Subcommittee to
Discuss a Number of Issues Including Incentive Auctions, Net Neutrality
Rules, Broadcast Sharing Issues, FCC Process Reform, and #CommActUpdafe
WASHINGTON, DC- The Subcommittee on Communications and Technology, chaired by Rep.
Greg Walden (R-OR), will have a hearing to conduct oversight of the Federal Communications
Commission on Tuesday, May 20, 2014. FCC Chairman Tom Wheeler will be the sole witness.
"I am pleased that Chairman Wheeler will join us in May," said Walden. "This will be our first
opportunity to directly discuss issues important to our technology economy, including recent
proposals regarding the incentive auctions, the latest iteration of the administration's ill advised net
neutrality policies, and the broadcast joint sharing agreements and media ownership proceedings at
the commission. Process reform also remains a top priority for the committee, and we look forward to
discussing this with the chairman."
Walden continued, "We also welcome the opportunity to find areas of common ground as we work
toward updating the Communications Act. We look forward to what will surely be a thorough and
spirited discussion with Chairman Wheeler."
Additional hearing details, the Majority Memorandum, and witness testimony will be available here as
they are posted.

#
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From:
Sent:
To:

Cc:
Subject:

Sara Morris
May 13, 2014 3:00 PM
Milkman; Gigi Sohn; Philip Verveer; Shannon Gilson; Jonathan Sallet; Julie
Mark Wigfield; Kim Hart; Neil Grace; Daniel Alvarez
David Toomey
FW: Committee Leaders Sound Alarm on FCC's Attempt to Reclassify Internet- Jobs and
Innovation at Risk

E&C Rs' press release on their letter is below.

From: Energy and Commerce News [mailto:ECNews@ECREP.housecommunications.gov]


Sent: Tuesday1 May 13 1 2014 2:12 PM
To: Sara Morris
Subject: Committee Leaders Sound Alarm on FCC's Attempt to Redassify Internet- Jobs and Innovation at Risk

FOR IMMEDIATE RELEASE


May 13, 2014

CONTACT: Press Office


(202) 226-4972

Committee Leaders Sound Alarm on FCC's Attempt to


Reclassify Internet- Jobs and Innovation at Risk
"Such unwarranted and overreaching government intrusion into the
broadband marketplace will harm
halt job
curtail
investment, stifle innovation, and set America down a dangerous path of
micromanaging the Internet. u
WASHINGTON, DC- House Energy and Commerce Committee Republican leaders today wrote to
Federal Communications Commission Chairman Tom Wheeler regarding the commission's
consideration of reclassifying broadband Internet as a common carrier telecommunications service
under Title II of the Communications Act. Full committee Chairman Fred Upton (R-MI), Vice Chairman
Marsha Blackburn (R-TN), Communications and Technology Subcommittee Chairman Greg Walden
(R-OR), and Vice Chairman Bob Latta (R-OH) today expressed their "grave concern" regarding the
potential harm of such an ill-advised and unnecessary change.
The full text of the letter to Wheeler is below:

Dear Chairman Wheeler:


We write today to express our grave concern that the Commission continues to consider reclassifying
Internet broadband service as an old-fashione.d "Title II" common carrier service. Such unwarranted
and overreaching government intrusion into the broadband marketplace will harm consumers, halt job
creation, curtail investment, stifle innovation, and set America down a dangerous path of
micromanaging the Internet. The Commission must reject this approach.
Over a decade ago, the FCC wisely rejected calls to regulate broadband service as a Title II service,
noting Congress's explicit direction to leave the Internet "unfettered by federal or state regulation."
The result of this regulatory restraint has been bil!ions of dollars in private sector investment,
tremendous annual increases in broadband speeds, and an explosion of applications, content and
services available to consumers over the Internet.
Now, despite the incredible record of broadband success in America, the Commission may be
contemplating turning back the clock on this process and proceeding with a classification that gives
itself the authority to regulate every possible aspect of the Internet. Simply raising the prospect of
such stifling regulation harms broadband providers, the American economy, and ultimately broadband
consumers - actually doing so would be fatal to the Internet as we know it.
Indeed, consumers will fare the worst if the FCC proceeds with this "common carrier-ization" of
broadband. The FCC efforts to impose Title II regulation will prohibit pricing innovation and force
consumers to pay for the entire cost of building and operating American Internet access networks. As
demand for video and data continues to explode exponentially, this will ultimately result in broadband
becoming unaffordable for many Americans. Title II reclassification could deprive consumers of the
benefits of creative and flexible market-based pricing plans that would fit their video and data needs
at affordable prices.
Investors, investment analysts, and broadband companies have advised that regulating broadband as

a Title II service will create such regulatory uncertainty that stock values will drop and investment
capital will become much harder to find. Decreased investment leads to deferred maintenance,
infrequent upgrades, and stalled deployment, which, at best, leads to higher consumer prices and at
worst leaves consumers with fewer, if any, reliable choices. This market reaction is not speculation, it
is reality. When the FCC briefly considered its ''third way" implementation of Title II several years ago,
broadband provider stocks dropped sharply. Without capital, providers cannot innovate, upgrade their
networks, or create new jobs. This is not an outcome anyone wants.
Sixteen years ago, in a report to Congress, then-Chairman Bill Kennard and the FCC set a course for
this country that supports consumer choice and champions the freedom of the Internet. The
regulatory approach to date has done just that- by rejecting legacy regulation and supporting the jobcreating and investment potential of the private sector. The Commission needs to send a strong
thriving market and consumers by imposing
signal that it has no intention of harming
expansive new Title II regulation on broadband service and micromanaging the Internet under rules
designed for the legacy telephone network. We ask you to end this uncertainty by stating clearly your
intention to drop any consideration of the Title II approach, and closing your Title II docket.
To view a copy of the signed letter, click HERE.

###
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This email was sent to sara.morris@fcc.gov using GovDe!ivery. on behalf of: House Committee on Energy and Commerce 2125 Rayburn
House Ollice Building. Washington, DC 20515

From:

Gigi Sohn
April 29, 2014 5:50 PM
Milkman; Jonathan Sallet; Philip Verveer; Daniel Alvarez; Sara Morris; Shannon
Gilson
FW: Blog post on 01

Sent:
To:
Subject:

From: Michael Weinberg [mailto:mweinberg@publicknowledge.org]


Sent: Tuesday, April291 2014 5:48PM
To: Gigi Sohn
Cc: Harold Feld; Genekimmelman@gmail.com

Subject: Re: Blog post on

or

yes, highly encouraging. Thanks!


On Tue, Apr 29,2014 at 5:33PM, Gigi Sohn <Gigi.Sohn@fcc.gov> wrote:
Thanks!

From: Harold Feld [mailto:hfeld@publicknowledge.org)


Sent: Tuesday, April29, 2014 5:21PM
To: Gigi Sohn
Cc: Genekjmmelman@gmail.com; mweinberg@publicknowl:lge.org
Subject: Re: Blog post on 01

A much better blog post, IMO.

Harold Feld, Senior VP


202-861-0020 I @haroldfeld

Public Knowledge I @publicknowled.ge I www.publicknowledge.org


1818 N St. NW, Suite 410 I Washington, DC 20036

Promoting a Creative & Connected Future.


1

Promoting a Creative & Connected Future.

On Tue, Apr 29, 2014 at 4:48PM, Gigi Sohn <Gigi.Sohn@fcc.gov> wrote:


Note change in tone re: just a proposal and all options still on the table.

http:llwww.fcc.gov/blog/finding-best-path-forward-protect-ogen-internet

\lidliid \Veinberg, Vice President, PK Thinks


''
l-0020 (o)! @mweinbergPK

Public Knowledge I @publicknowled.ge I www.publicknowledge.org


1818 N St. NW, Suite 410 I Washington, DC 20036
Promoting a Creative & Connected Future.

From:

Sent:
To:

Subject:

Ruth Milkman
Thursday, April 03, 2014 4:44
Philip Verveer; Jonathan Sail
FW: Dish & Netflix Get Boost at FCC Today; Broadcasters Hope for JSA Waivers Guggenheim Securities, LLC

From: Gallant, Paul [mailto:Paui.Gallant@guggenheimpartners.com]

Sent: Thursday, April 03, 2014 4:36 PM


To: Ruth Milkman

Subject: Fw: Dish & Netflix Get Boost at FCC Today; Broadcasters Hope for JSA Waivers - Guggenheim Securities, LLC
Hi Ruth- Just fyi. This didn't go to my DC list.
Paul

From: Gallant, Paul [mailto:paul.gallant@guggenheimpartners.com]

Sent: Monday, March 31, 2014 03:15PM


To: Gallant, Paul

Subject: Dish & Netflix Get Boost at FCC Today; Broadcasters Hope for JSA Waivers - Guggenheim Securities, LLC

GUGGEnHEim

Two pages withheld pursuant to FOIA Exemption 4

From:
Sent:
To:

Subject:

Gigi Sohn
Thursday, May 15, 2014 3:02 PM
FOIA Exemption 6
Ruth Milkman; Philip Verveer; Diane Cornell; Shannon Gilson; Meribeth McCarrick;
Neil Grace; Mark Wigfield; Renee Gregory; Daniel Alvarez; Maria Kirby; Kim Hart;
Jonathan Sallet; Sara Morris
FW: Statement on FCC's Net Neutrality Proposal

From: Michael Beckerman [mailto:beckerman@internetassociation.org]


Sent: Thursday, May 15, 2014 11:52 AM
To: Gigi Sohn
Subject: Fwd: Statement on FCC's Net Neutrality Proposal

FYL
And hang in there.

The Internet
Associatfon

Mkhael' Beckerman
President & CEO

202.80 3.57 83 wwvo;.lnternetAssociation .o rg


1100 H St NW Suite 1020
VVashington, DC 20005

Begin forwarded message:

From: The Internet Association <News@lnternetAssociation.org>


Subject: Statement on FCC"s Net Neutrality Proposal
Date: May 15,201411:48:42 AM EDT
To: <beckerman@internetassociation .org>
Reply-To: The Internet Association <News@lnternetAssociation.org>

View this email in your browser

FOR 1M MEDIATE RELEASE


DATE: Thursday, May 15,2014

Internet Association Statement on FCC's Net


Neutrality Proposal and Request for Comments
WASHINGTON, D.C.- The Internet Association's President and CEO, Michael

Beckerman issued the following statement regarding FCC's proposal on net


neutrality:
"The Internet Association supports strong nondiscrimination and no blocking rules
to protect consumers, startups, and the continued innovation of the Internet
economy. In the debate about keeping the Internet open there has been too much
rhetoric surrounding the FCC's legal tools. Protecting an open Internet, free from
discriminatory or anticompetitive actions by broadband gatekeepers should be the
cornerstone of Net Neutrality policy. The Internet Association will advocate for the
FCS to use its full legal authority to enforce rules that lead to an open Internetnothing should be taken off the table as this discussion evolves.
2

Broadband gatekeepers should not have the ability to create slow lanes and fast
lanes on the Internet that discriminate against websites and harm users. We look
forward to working with Chairman Wheeler and his fellow commissioners at the
FCC to ensure that the Internet remains a vibrant platform for consumer choice
and economic growth."

###
About The Internet Association
The Internet Association, the unified voice of the Internet economy, represents the
interests of the leading Internet companies including Airbnb, Amazon, AOL, eBay,
Expedia, Facebook, Gilt, Google, lAC, Linked!n, Lyft, Monster Worldwide, Netflix,
Practice Fusion, Rackspace, reddit, Saiesforce.com, SurveyMonkey, TripAdvisor,
Twitter, Uber Technologies, Inc., Yelp, Yahoo!, and Zynga. The Internet
Association is dedicated to advancing public policy solutions to strengthen and
protect Internet freedom, foster innovation and economic growth, and empower
users. http://wvvw. internetassociation .orq.
Media Contact
The Internet Association
Betsy Barrett

202.997.3266
betsy@Jnternetassociation.org
The Internet Association
Michael Hacker

202.789.4365
mhacker@hdmk.ora

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Greenfield, Richard < rgreenfield@ btig.com >


Friday, March 28, 2014 3:59 PM
Happy Friday

From:
Sent:
Subject:

Good weekend watch on the Comcast/Time Warner deal:

The Communicators with David Cohen

Favorite line is where Cohen talks about how broadband market share is a local issue, not a national
one and that it unquestionably has to include wireless competition now

Cohen also discusses his views on Reed Hastings blog post from last week tied to
peering/interconnection/net neutrality

The video from one of our most-watched & disturbing blogs of 2013 is back up online and is now in a
contest, so please watch/re-watch and vote for Noah

Blog post A (Disturbing & Amazing) Short Film Every Media Exec and Investor Should Watch- Defines
a Generation

Watch Noah here (if you haven't seen, this video is worth your time): http://www.viewster.com/festivaldetails/1251-17085-000/noah

Richard Greenfield

Media & Tech Analyst 1646-4508680

BTIG Research Blog

Disclaimer: https://btig.com/disclaimer.php

AOL IM: rgreenfieldbtig

I Twitter: @RichBTIG

From:
Sent:
Subject:
Attachments:

Greenfield, Richard < rgreenfield@btig.com>


Friday, April 25, 2014 10:48 AM
Happy Friday- Two Netflix/Net Neutrality Items to Be Aware Of If You Have Not Seen
140424NetflixResponse.pdf; ATTOOOOl.htm; imageJpeg; A TT00002.htm

1) Reed Hastings' Public Facebook status update calling out the FCC on Net Neutrality "What is the FCC
thinking": https://twitter.com/richbtig/status/459466482712608768 and attached pic below
2) Netflix's Letter to Senator AI Franken (link and attached pdf):
http://www.franken.senate.gov/files/letter/140424NetflixResponse.pdf

Disclaimer: https ://btig. com/disclaimer.php

April23, 2014
The Honorable AI Franken
United States Senate
309 Hart Senate Office Building
Washington, D:c. 20510-2309

Dear Senator Franken:


Thank you for your letter. Netflix shares your concerns about the power of a merged
Comcast!Time Warner Cable and is committed to sharing facts with policymakers to increase
their understanding of this issue. Netflix has seen firsthand how Comcast can leverage its
existing market power to extract arbitrary tolls to reach consumers, particularly from Internet
video companies like Netflix that pose a competitive threat to Comcast's own video services.
Below are Netflix's answers to the questions posed in your letter. We are also taking this
opportunity to correct statements regarding our agreement with Comcast and the way the transit ,
market currently functions made by Comcast Senior Vice President David Cohen during the
Senate Judiciary Committee's recent hearing.
1) Will Comcast's acquisition of Time Warner Cable increase Comcast's ability to extract
payments from non-affiliated entities as a condition of access to Comcast's broadband
Internet consumers. If so, please explain how and why, noting also any consequences for
consumers.
Yes.
Comcast is limiting the capacity of connections between its network and other networks, unless
the network agrees to pay Comcast for access. This congestion causes delays when traffic
enters Comcast's network through the settlement-free connections. Consumers experience
these delays as slow page loads, poor streaming quality, and frequent streaming pauses.
Few Americans have a meaningful choice in broadband service providers: Comcast subscribers
are largely stuck with Comcast. And the only way for content providers to reach the millions of
broadband subscribers currently controlled by Comcast is to go through Comcast. By degrading
consumers' experience, Comcast can demand that content providers pay them a toll to avoid

congestion and reach their captive subscribers. If content providers cannot effectively reach
Comcast subscribers, they cannot compete. So they have little alternative for an uncongested
connection unless they agree to Comcast's terms.
If the Comcast and Time Warner Cable merger is approved, the combined company will
represent 40 percent of wired broadband subscribers, 1 including those in 19 of the top
metropolitan areas, with many of those homes having Comcast as the only option for truly
high-speed broadband (>10Mbps). As DSL fades in favor of cable Internet, Comcast could
control high-speed broadband to the majority of American homes. Comcast is already dominant
enough to be able to capture unprecedented fees from transit providers and services such as
Netflix. The combined company would possess even more anti-competitive leverage to charge
arbitrary interconnection tolls for access to their customers.

2) Do you agree with Comcasfs testimony describing interconnection arrangements


generally and Comcast's new interconnection arrangement with Netflix in particular? If
not, please explain.
No.
During the Senate Judiciary hearing on the proposed merger, Mr. Cohen said that it was
"Netflix's desire to pay us directly and cut out a middleman." That is not an accurate description.
Netflix agreed to paid peering with Comcast to reverse an unacceptable decline in our members'
video experience. Netflix developed an entire CDN architecture, called "Open Connect" based
on settlement-free peering. This no-fee interconnection norm avoids the gamesmanship and
blackouts that plague cable carriage and retransmission-consent negotiations in the traditional
video space. Indeed, Netflix is directly interconnected with ISPs all over the U.S. and
internationally without any exchange of payment from either side. Our agreement with Comcast
is the first time that Netflix was forced to pay an ISP for what amounts to access to their
subscribers.
In a subsequent statement, Comcast said "[i]f Netflix did not like the terms of our agreement, or if
they do not like the terms Comcast provides at any time in the future, Netflix can work with any
of the multiplicity of partners that connect with Comcast. ... Transit is a highly competitive
marketplace and Netflix and other Internet content providers have many choices."
The fatal flaw in this assertion is that the number of transit providers or pathways into Comcasfs
network is irrelevant to this issue. Every transit provider must ultimately negotiate with Comcast

Com cast-Time Warner Merger Application, Israel Declaration at 32. Consumers do not view mobile broadband as
a substitute for a wired broadband connection, particularly for data-rich media like streaming video because of

reliability issues and data caps.

for a connection to Comcast's network and Comcast controls the terms of that access. Simply
put, there is still one and only one way to reach Comcast's subscribers: through Comcast.
Prior to our agreement to interconnect directly with Comcast, Netflix purchased all available
transit capacity into Comcast's networks from multiple transit providers. Every single one of
those transit links to Comcast was congested (even though the transit providers requested extra
capacity), resulting in poor video quality for our members. Until Netflix agreed to pay Comcast,
the more that Comcast subscribers requested Netflix content, the more congested these
connections became, and the more that their Netflix video quality suffered. That is where
Comcast is able to leverage its market power most effectively. It can restrict transit capacity into
its network to force content providers into paying for uncongested interconnection.
It is inaccurate for Comcast to suggest that by paying Comcast directly, Netflix is simply
swapping out payment for services that it used to pay transit providers to perform. For a content
company such as Netflix, paying an ISP like Comcast for interconnection is not the same as
paying for transit service. Transit providers are paid by companies like Netflix because they
carry Internet traffic over great distances and provide connections to all of the networks that
comprise the global Internet.
Comcast does not connect Netflix to other networks. Comcast does not carry Netflix traffic over
long distances. Netflix connects to Comcast in locations all over the US, and has offered to
connect in as many locations as Comcast desires. Netflix is itself bearing the costs and
performing the transport function for which it used to pay transit providers. It is Netflix that incurs
the cost of moving Netflix content long distances, closer to the consumer, not Comcast.
3) Comcast argues that it operates in a highly competitive marketplace in which
consumers have ample choices for high speed Internet service and therefore will not
tolerate slow streaming speeds or artificially high costs. What do you make of that
argument?
Few Americans have a meaningful choice in broadband Internet access service provider.
According to the FCC, about 70 percent of U.S. households have at best two options for 6 Mbps
or greater broadband Internet access, which is the floor for data-rich applications like streaming
video. As stated above, consumers do not view mobile broadband as a wireline broadband
substitute for applications like streaming video because of low data caps and reliability issues.
Couple all of this with the high costs of switching from one provider to another, and most
consumers feel that they have to take whatever their ISP offers.
To conclude, Netflix is committed to providing our users with great video quality whenever they
chose to watch Netflix. Unfortunately, Comcast appears willing to sacrifice the quality of its own
subscribers' broadband experience to extract fees from the content providers that Comcast's
own subscribers are paying Comcast to access. The fact that Netflix paid to protect our

consumers is evidence of Comcast's power. Acquiring Time Warner Cable will only increase
this leverage.
The proposed merger will result in online video content providers paying higher prices for
access to Comcast customers or delivering poorer service to customers who depend on
Comcast for broadband access. Ultimately, competition and consumers will suffer. That is why
Netflix opposes the merger.

Respectfully,

Christopher Libertefli
Vice President 1 Global Public Policy
Netflix, Inc.

From: Sara Morris

Sent: Thursday, ARril 24 2014 4:40PM


To: Shannon Gilsoiiiil' Jonathan Sallet; Philip Verveer; Ruth Milkman; Gigi Sohn; David Toomey
Cc: Mark
Subject: RE: +Eshoo, Walden, Markey, Matsui, Booker statement on 01
REP RESENT A Tl V E Ar'H.J A G E S H 0 0 { C A -18)
For Immediate Release

Contact: Charles Stewart

April 24, 2014


http://eshoo.house.gov

(202) 225-8104
charles.stewart@mail.house.gov

ESHOO STATEMENT ON PROPOSED FCC NET NEUTRALITY


RULES
PALO ALTO, Calif.-Rep. Anna G. Eshoo (D-Calif.), Ranking Member ofthe Communications and Technology
Subcommittee, issued the following statement regarding the Federal Communications Commission's (FCC) draft Open
Internet Notice of Proposed Rulemaking:

"Like many Internet users, I fear that the latest round of proposed net neutrality rules from the FCC will not do
enough to curtail discrimination of Internet traffic, but rather leave the door open to discrimination under more
ambiguous terms.
"For me to support 'commercially reasonable' agreements between financially liquid online content companies
and broadband providers for faster Internet speeds, there must be zero uncertainty left in the minds of
consumers, small businesses and innovators that they are competing on a level playing field with their peers.
Fundamentally, consumers and businesses must be protected from actions by online gatekeepers that threaten
free speech, harm competition or diminish the continued openness of the Internet.
"I will stringently evaluate the Chairman's proposal to ensure that these core values are elevated by any final net
neutrality rules."
###

From: Sara Morris

Sent: Thursday,

4:19PM
To: Shannon Gilso
onathan Sallet; Philip Verveer; Ruth Milkman; Gigi Sohn; David Toomey
Cc: Mark Wigfield; e1 race
Subject: RE: + Markey, Matsui, Booker statement on 01
FOIA Exemption 5

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COMMIITEE
nrrrnr
wmr:zwn
= ON ENERGY AND COMMERCE
m r:

zrr::turt't7tr"tt'1T-zn::mcnz

rzzz:

Chairman Fred Upton

(1 !Sln COrigrt'SS.

FOR IMMEDIATE RELEASE


April 24, 2014

CONTACT: Press Office

(202) 226-4972

Upton and Walden Respond to Administration's Latest Net


Neutrality Proposal
WASHINGTON, DC- House Energy and Commerce Committee Chairman Fred Upton (R-MI) and
Communications and Technology Subcommittee Chairman Greg Walden (R-OR) today issued the
following statement responding to the Federal Communication Commission's latest proposal
regarding net neutrality:

"We have said repeatedly that the Obama administration's net neutrality rules are a solution in search
of a problem. The marketplace has thrived and will continue to serve customers and invest billions
annually to meet Americans' broadband needs without these rules. Chairman Wheeler's approach to
regulation seeks to freeze current market practices, which will cast a chill on technological
breakthroughs and cause American consumers to lose out."
Upton and Walden continued, "Further underscoring the needlessness of the rules, Internet service
providers have made clear they will continue to adhere to the spirit of the rules that were already
struck down by the courts. It is well past time for the commission to focus on areas where its work will
foster new innovation, competition, and job creation."

###
PERMALINK

From: Sara Morris

Sent: Thursday, AP-ril 24 2014 2:50PM

To: Shannon Gilso.onathan Sallet; Philip Verveer; Ruth Milkman; Gigi Sohn; David Toomey
Cc: Mark Wigfield; e1 race
Subject: RE: + Markey, Matsui, Booker statement on OI
Sen. Markey quote to press:
"Openness is the Internet's heart and nondiscrimination is its soul, and infringements on either of these features
undermines the spirit and intent of net neutrality. No one should have to ask permission to innovate, and we need to
retain the ability of all Internet users to communicate and compete on a level playing field, preventing the presence of
fast and slow lanes that are contrary to the essence of the Internet. The Internet's rules of the road must not open up
fast lanes to those who can pay, leaving others stuck in traffic. As this process moves forward, I plan to closely review
the proposal and work to ensure that it properly safeguards the openness and vitality of the Internet for all users,
entrepreneurs and our economy for generations to come."
As picked up by Politico:

From: POUTICO Pro Whiteboard [mailto:politicoemail@politicopro.com]

Sent: Thursday, April 24, 2014 11:52 AM


To: David Toomey

Subject: Markey opposes 'fast lane' provision of FCC's net neutrality proposal
4/24/14 11:52 AM EDT

Sen. Ed Markey, a top net neutrality supporter in Congress, already has some reservations with FCC Chairman
Tom Wheeler's new open Internet plan.
"Openness is the Internet's heart and nondiscrimination is its soul, and infringements on either of these features
undermines the spirit and intent of net neutrality," the senator said in a statement. "No one should have to ask
permission to innovate, and we need to retain the ability of all Internet users to communicate and compete on a
level playing field, preventing the presence of fast and slow lanes that are contrary to the essence of the
Internet. 11
"The Internet's rules of the road must not open up fast lanes to those who can pay, leaving others stuck in
traffic, 11 added Markey, a Commerce Committee member, noting he plans to review the proposal going forward:

-TonyRomm

****
FOR IMMEDIATE RELEASE
Thursday, April 24, 2014

CONTACT: JONELLE TRIMMER


(202) 225-7163

Congresswoman Matsui Statement on the FCC's Net Neutrality Announcement


WASHINGTON, DC- Today, Congresswoman Doris Matsui (D-CA), a member of the House Energy and Commerce
Subcommittee on Communications and Technology, issued the following statement following the FCC's net neutrality
announcement:
, "The FCC should adopt and enforce strong and clear net neutrality rules. It should not turn back from its responsibility
to preserve an open and free Internet that spurs innovation and protects consumers. I am hopeful that through working
with various stakeholders in the Internet ecosystem, the Chairman will propose a set of rules that will accomplish this
goal."

###

From: Sara Morris

Sent: Thursday, ARril 24 2014 9:52AM

.
To: Shannon Gilso.Jonathan Sallet; Philip Verveer; Ruth Milkman; Gigi Sohn; David Toomey
Cc: Mark Wigfield; e1 race
Subject: Hill Booker statement on or

U.S. Sen. Cory Booker Statement on Potential FCC Change to Internet Access Rules
Washington, D.C.- U.S. Sen. Cory Booker (D-NJ) today issued the following statement responding to news
reports that the Federal Communications Commission (FCC) is considering changing a rule to allow Internet
service providers to adjust the speed of content delivery based on price, a change that could dramatically alter
the online experience ofmany Americans.
concerned by reports that the FCC is preparing to reverse ground on so-called net neutrality rules,
"I am
potentially creating a pay-to-play system for Internet content that would advantage the fortunate and imperil
content access for millions. Equal access to the Internet has a powerful positive effect- on education,
government, even entrepreneurship. We should not jeopardize those gains, as well as progress still to come, by
undermining the democratizing power of the Internet. I will be following the development of the FCC's new
rule proposal closely."

From:

Sent:
To:
Subject:

FOil\ Exemption 6

Tuesday, May 13, 2014 3:01AM


Ruth Milkman; Philip VeNeer; Jonathan Sallet; Gigi Sohn;_ Shannon Gilson; Daniel Alvarez
More about Roku

-----Original Message---From: Greenfield, Richard [mailto:rgreenfield@btig.com]


Sent: Monday, M!?J2, 201410:25 PM

Tci1Mf"1 n:!!:

Subject: RE: Maybe changing wording could help

Time Warner Cable's Roku (and ios/Android apps) inside the home function as managed or specialized network services.
The content originates from Time Warner Cable's digital center in Denver and is transported only over TWC
infrastructure- it never touches the public internet
Its been described to me as dedicating a channel- you could dedicate to a new HD channel, or more internet bandwidth
or voip or in this case to a dedicated IP-based stream of time warner cable linear and on-demand content for third-party
devices
It is not removing bandwidth from the Internet service that TWC delivers to me, it is separate pathway-- essentially a
fast lane that never gets congested ... which I think is exactly what was envisioned in the last FCC rule making. There is no
cost to the consumer- the cost is on TWC as they have to allocate bandwidth.
TWC subs do not pay extra for this as they are simply watching content in the home via IP vs. traditional QAM- meaning
they've already paid for this IP-access. While this is an internal managed service there is nothing that stops a third party
from delivering their content to TWC and paying to have it go over a separate channel. That is not what Netflix is paying
for today, but nothing would stop Netflix from connecting directly to TWC and delivering a separate IP channel of
content
Blog and demo below
In terms of others- Cablevision and Cox have iDS apps that function as managed services and Comcast on the Xbox is a
managed service. Dedicated IP-channels, not internet- appears to be the biggest misconception out there right now ..
Let me know if a quick phone call can help tomorrow

Roku App Demo:


https://www .youtube.com/watch ?v=hp3 N6AFM p1c
Latest Roku App blog post
http://www.btigresearch.com/2013/12/23/time-warner-cable-roku-lower-capex-and-superior-user-interface-takeoutprice-rising-watch-our-demo/

Fro
Sent: Monday, May 12, 2014 1:04PM
To: Greenfield, Richard
Subject: RE: Maybe changing wording could help
Thanks RichHave read (repeatedly) your Friday piece.
Can you tell me more about the Roku example? I didn't realize that this relationship was in place. Are there other MSOs
or other edge services that have something similar? Specifically, how does it work in terms of cost, etc.?
Thanks
T

-----Original Message----From: Greenfield, Richard [mailto:rgreenfield@btig.com]


14 8:45PM
help

There will not be two internets -there is and can only be one
But there can be dedicated ip services called managed services that never touch the public internet
That was in the prior rulemaking and never caused this insanity from the tech world- even though they were effectively
fast lanes
I honestly think everyone spins to their advantage and doesnt know what they are talking about
Hope u enjoyed our piece from friday- we submitted to the official record too
Disclaimer: https://btig.com/disclaimer.php .

From:
Sent:
To:
Subject:
Attachments:

FOIA E.-:emplion 6
Wednesday, May 14, 2014 7:54 AM
Ruth Milkman; Philip Verveer; Jonathan Sallet; Gigi Sohn; Shannon Gilson; Daniel Alvarez
Letter from John Chambers in support of 706
Letter from John Chambers to Thomas Wheeler.pdf

From: John Chambers (chambers)

Sent: Tuesday, May 13, 2014 07:4

FOIA

..

To: Tom Wheeler

Cc: Deborah Ridley; Jeff Campbell (jeffrcam) FO!A Exemption 6

Subject: Letter for Chairman Wheeler


Dear Chairman Wheeler,
Thank you for taking the time to speak with me on the phone today. Please review the attached letter. I hope we will have
the chance to meet in person on my next trip to Washington, DC.
Sincerely,
John

John T. Chambers
Chairman and Chief Executive Officer
Cisco Systems, Inc.
170 West Tasman Drive
San Jose. CA 95134-1706 USA
v.rww.c;isco.com

May 13,2014

Via Email and ECFS


Mr. Thomas Wheeler
Chairman
Federal Communications Commission
445 Twelfth Street, SW
Washington, DC 20554

Re: Protecting and Promoting the Open Internet (GN Docket No. 14-28)
Dear Chairman Wheeler:
Thank you for taking the time to speak to me today on the phone about Cisco's
concerns relating to the FCC's Open Internet proceeding. Cisco has supported an open and
innovative Internet for over a decade and was one of the original drafters of the "Connectivity
Principles" that stated that Internet consumers should not be blocked from accessing and using
all legal content and applications.
Cisco strongly supports the balanced approach that you have proposed as the
Commission develops new rules for the Open Internet. In order to
innovation on the
Internet, it is important to protect end users and content providers fiom unwarranted blocking.
It is equally important to protect innovation inside the network by allowing new technology
and business models to be deployed without onerous regulation. Your approach of applying a
"commercially reasonable" test to new offerings by Internet service providers allows
innovative new products and services to develop, while at the same time protecting consumers
and competition.
Cisco is deeply troubled by the proposals of some advocates to impose the oldfashioned telephone regulations of Title II of the Communications Act to broadband Internet
access service. By keeping the heavy hand of Title II regulation out of the Internet, the FCC
has encouraged huge investment in Internet infrastructure. Indeed, over $60 billion per year is
spent to improve broadband networks of all types. Cisco's Visual Networking Index
demonstrates the enormous explosion of Internet traffic that U.S. networks currently handle
and that U.S. networks are starting to become world class again. Our research indicates, for
instance, that almost 50% of the world's LTE subscribers are in the United States- a clear
result of investment encouraged by sound FCC policy.
If Title II regulation is brought to broadband Internet access services, investment in
new infrastructure will be severely hamstrung. New, innovative services may not be brought
to market because entrepreneurs fear telecommunications regulation. The competitiveness of
our nation will be threatened because, in a global world, investment and jobs will move to
countries that encourage innovation.

I am passionate about this issue because it is crucial to the future of the Internet. Will
we have rules that only seek to protect innovation on the edge of the network by imposing
onerous regulation on the core of the network? Or will we take a balanced approach that
encourages innovation everywhere in the Internet ecosystem while protecting consumers and
competition? I strongly urge the FCC to take the balanced approach as it deliberates on this
important proceeding.
Thank you for your leadership on this crucial issue. It is important that the FCC gets it
right and ensures that innovation can thrive throughout the Internet. CiscQ stands ready to
work with you on achieving the right balance as the Commission moves forward to complete
its work.
Respectfully submitted,

John T. Chambers
Chairman and Chief Executive Officer

One page withheld- not responsive to request

From: Sara Morris


ay, May 15, 2014 2:47PM
Milkman; Philip Verveer; Gigi Sohn; Daniel Alvarez; Jonathan Sallet; Shannon Gilson; Kim Hart; Neil Grace;
Renee Gregory; Maria Kirby; Stephanie Weiner; Julie Veach; Roger Sherman
Cc: David Toomey
Subject: FW: AT&T Open Internet Statement
ICYMI

From: BALMORIS, MICHAEL F [mailto:mb8156@att.com]

Sent: Thursday, May 15, 2014 2:41 PM


To: BALMORIS, MICHAEL F
Subject: AT&T Open Internet Statement

on the FCC's Proposed

Posted by: AT&T Blog Team on May 15, 2014 at 2:38pm


The f91/owing may be attributed tb Jim Cicconi, AT&T Senior Executive Vice President of External and
Legislative Affairs:
"AT&T is committed to an Open Internet We supported the Commission's 2005 Open Internet Policy
Statement, as well as the Commission's 2010 Open Internet Rules which codified that policy. Our network
management practices are designed to comply with those rules. Those practices are described on our website
today, in accordance with FCC rules that were not vacated by the DC Circuit, and are still today fully
enforceable by the FCC. In short, broadband customers throughout the United States have access to AT&T's
open broadband networks which comply fully with Open Internet principles that have been in place for almost a
decade.
"The framework adopted by the Commission in 2010 achieved a delicate balance that ensures openness, while
maintaining a stable environment for investment. As a result, infrastructure providers have invested hundreds of
billions of dollars to provide American consumers with the most robust wireline and wireless broadband
networks in the world.
2

"This debate has been falsely labeled as a debate over fast lanes and slow lanes. It is not about that at all. This
debate is over whether we will continue to foster an investment environment that has allowed US companies to
build the world's best networks so that all consumers can have the fastest Internet lanes in the world.
"Going backwards 80 years to the world of utility regulation would represent a tragic step in the wrong direction.
Utility regulation would strangle investment, hobble innovation, and put government regulators in charge of
nearly every aspect of Internet-based services. It would deprive America of the world's most robust broadband
infrastructure, and place a cloud over every application or website that delivers products and content to
consumers. In short, it would place government in control of the Internet at the expense of private companies,
inventors and entrepreneurs, and ultimately at the expense of the American people.
"Such an approach would also send an alarming message to the rest of the world-a message that says the
United States believes it is appropriate for governments to place onerous regulations on the Internet. This could
encourage other countries to pursue their own goals, whether to suppress 'dangerous' speech or extract
economic value from American Internet and content companies.
"AT&T will participate constructively in the upcoming proceeding. It is our hope that we can once again find an
appropriate balance that preserves an Open Internet while ensuring American consumers will continue to have
access to the world's most robust broadband infrastructure."

http://www.attpublicpolicy.com/broadband-policy/att-statement-on-the-fccs-proposed-open-internetrulemaking/

Michael Balmoris
202.457.3008 (Office) I 202.907.6453 (Mobile)

attpublicpolicy.com

From:
Sent:
To:
Subject:

Ruth Milkman
ay, May 11, 2014 3:39 PM
Jonathan Sallet; Shannon Gilson; Philip Verveer
Fw: New Uncertainty Around FCC's Net Neutrality Rewrite - Guggenheim Securities, LLC

Ruth Milkman
Chief of Staff
Federal Communications Commission
445 12th Street S.W.
Washington, D.C. 20554
202 418 2107

From: Gallant, Paul [mailto:Paui.Gallant@guggenheimpartners.com}


Sent: Sunday, May 11, 2014 01:34 PM Eastern Standard Time
To: Ruth Milkman
Subject: Fw: New Uncertainty Around FCC's Net Neutrality Rewrite - Guggenheim Securities, LLC
Ruth-- Here is a not from last week that didn't go to my DC list.

From: Gallant, Paul [mailto:paul.gallant@guggenheimpartners.com}


Sent: Thursday, May 08, 2014 06:17AM
To: Gallant, Paul
Subject: New Uncertainty Around FCC's Net Neutrality Rewrite - Guggenheim Securities, LLC

Three pages withheld pursuant to FOIA Exemption 4

From:

Sent:
To:

Cc:
Subject:

Sara Morris
Friday, April
Shannon
n Sallet; Philip Verveer; Ruth Milkman; Gigi Sohn; David
Toomey
Mark Wigfield;
Grace; Meribeth McCarrick
RE: +Waxman, Doyle, Sanders, Eshoo, Walden, Markey, Matsui, Booker statement on OI

From: "Roehrenbeck, Jean" <Jean.Roehrenbeck@mail.house.gov>


To: "Roehrenbeck, Jean" <Jean.Roehrenbeck@mail.house.gov>
Subject: PRESS RELEASE: Doyle Responds to Proposed FCC Net Neutrality Rules

For Immediate Release

Contact: 202-225-2135

Doyle Responds to Proposed FCC Net Neutrality Rules


Washington, DC- April 25, 2014- Today, Congressman Mike Doyle (D-Pennsylvania) reacted strongly to the Federal
Communication Commission's proposed rules regarding net neutrality:
1

'1 have long been an ardent proponent of the strongest net neutrality rules. I believe it is the responsibility of the

Federal Communications Commission (FCC) to adopt strong regulations to protect the open internet.

'1 have serious concerns about the FCC's proposal and the effects it might have on access, content, innovation, and
consumers' pocketbooks. An open internet is essential to fostering innovation, protecting small businesses, and
protecting the consumer's ability to access and evaluate unadulterated content.
1

"I strongly urge the FCC to take the necessary steps to ensure that the Internet remains an open and accessible platform
for all."
###

Committee on Energy and Commerce


Rep. Henry A. Waxman, Ranking Member
For Immediate Release: April24, 2014
Karen Lightfoot: (202) 225-3641

Ranking Member Waxman Statement on FCC's Draft Open Internet Rules


WASHINGTON, DC- Today Ranking.Merriber Henry A. Waxman released the following statement
in response to the FCC's draft Open Internet Notice of Proposed Rulemaking:

"An open internet is vital to our economy. I spoke with Chairman Wheeler today and he assured me
that he is committed to ensuring an open internet and banning any arrangements that hinder
innovation and competition or impinge on consumer choice. These are the right goals, and I want to
work with him to make sure they are achieved in the final rule."

#=##
Statement of Sen. Bernie Sanders:
http:Uwww.sanders.senate.gov/newsroom/recent-business/net-neutralitv
The Federal Communications Commission is considering a proposal to let Internet service providers pay for faster
service. The proposal would stifle the free flow of information, lead to higher prices for consumers and discourage
technological innovation. "Under this terribly misguided proposal, the Internet as we have come to know it would cease
to exist and the average American would be the big loser. We must not let private corporations turn bigger and bigger
profits by putting a price tag on the free flow of ideas," Sen. Bernie Sanders said. "Our free and open Internet has made
invaluable contributions to democracy both here in the United States and around the world. Whether you are rich, poor,
young or old, the Internet allows all people to seek out information and communicate globally. We must not turn over
our democracy to the highest bidder."
From: Sara Morris

Sent: Thursday, Ap-2014 6:27 PM


To: Shannon Gilson
Jonathan Sallet; Philip Verveer; Ruth Milkman; Gigi Sohn; David Toomey
Cc: Mark Wigfield; Nei Grace; Meribeth McCarrick
Subject: RE: +Eshoo, Walden, Markey, Matsui, Booker statement on OI

...

. .... :.'s.W.W.WDEMGRA:TIGLEADERuOV

. . .

Contact: Drew Hammill, 202-226-7616

April 24, 2014

Pelosi Statement on FCC's New Open Internet Proposal


Washington, D.C.- Democratic Leader Nancy Pelosi released the following statement today on the Federal
Communications Commission's new draft proposed rule on protecting the open Internet:
"Press accounts of the draft proposal from the FCC raise serious concerns that the Internet might soon Jose the
core of what it is- an open space for innovation, entrepreneurship, connection and communication. Clearly, the
American people believe in preserving an open Internet where anyone can bring an idea to the table without
seeking permission or paying a toll to each internet provider.
"Success should be founded on merit and good ideas; not on who has the deepest pockets. We must not allow
broadband providers to relegate competing ideas, products, and services to slow, congested speeds.
"I urge Internet entrepreneurs, experts, and users to contact the FCC to make their voices heard and urge the
Commissioners to establish rules ofthe road that protect the freedom, entrepreneurship and openness that must
always define the Internet and American innovation."

###
2

From:
Sent:
Subject:

Greenfield, Richard <rgreenfield@btig.com>


Tuesday, May 13, 2014 2:03 PM
Internet Regulation Continues to Heat Up Major US ISPs just responded to FCC with a
letter
ISP CEO Letter to FCC.pdf; Tech-Company-Sign-On-Letter.pdf; SenatorLetter.pdf

Attachments:

Given the potential impact on a wide range of TMT stocks- please let us know if you'd like to discuss any of the
documents/blog posts below- we have a very differentiated view on Internet Regulation
1) ISP letter just filed with FCC attached
2) Last week's Tech Company letter to FCC attached
3) Last week's US Senator letter to FCC attached
4) Today's blog on why Fast lanes do not have to affect Internet Speeds
5) Our blog from last week Should the Internet be Regulated

Richard Greenfield

fv!edia & Tech Analyst [646-450 8680 i /;01. Irv1: rqre<-nhe!dbtiq [ Twitte:-: @RichBTIG

BTIG Research Blog

Global Commissions for Charity Day


Tuesday, May 13, 2014
Proudly Suppcrting Cha
Fccused en Children

Disclaimer: https://btig.com/disclaimer.php

May 13, 2014

Federal Communications Commission


445 12th Street, S W
Washington D.C. 20554

Dear Chairman Wheeler and Commissioners Clyburn, Rosenworcel, Pai, and O'Rielly:
For more than a decade, America's broadband companies (including companies that depend on
the broadband ecosystem) have worked to ensure that their customers can enjoy access to worldclass broadband services consistent with the Commission's dearly ruticulated core Internet .
freedoms. An open Intemet is central to how America's broadband providers operate their
networks, and the undersigned broadband providers remain fully committed to openness going
forward. We are equally committed to working with the Commission to find a sustainable path
to a lawful regulatory framework for protecting the open Internet during the course of the
rulemaking you are launching this week. That framework must promote investment and
opportunity across the Internet economy, from network providers to app developers, for the
benefit of American consumers.
In recent days, we have witnessed a concerted publicity campaign by some advocacy groups
seeking sweeping government regulation that conflates the need for an open Internet with the
purported need to reclassify broadband Internet access services as Title fi telecommunications
serviCes subject to common carrier regulation. As demonstrated repeatedly, the future of the
open Internet has nothing to.do with Title II regulation, and Title II has nothing to do with the
open Internet. As it did in 2010, the Commission should categorically reject efforts to equate the
two once and for all.
The high stakes of this debate have already been demonstrated. Today's regulatory framework
helps support nearly 11 million jobs annually in the U.S. and has unleashed over $1.2 trillion
dollars of investment in advanced wired and wireless broadband networks, as well as an entirely
new apps economy. We see an average of over $60 billion poured into cable, fiber, fixed and
mobile wireless, phone, and satellite broadband networks each and every year. And broadband
gets better every year: the average broadband speeds jumped 25 percent in 2013 alone,
highlighting there are no "slow lanes" in today's Internet.
Yet even the potential threat of Title II had an investment-chilling effect by erasing
approximately ten percent of some ISPs' market cap in the days immediately surrounding the
Title Tl announcement in 2009/10. Today, Title If backers fail to explain where the next
hundreds of billions of dollars of risk capital will come from to improve and expand today' s

networks under a Title II regime. They too soon forget that a decade ago we saw billions newly
invested in the latest broadband networks and advancements once the Commission affirmed that
Title II does not apply to broadband networks.
Reclassification of broadband Internet access offerings as Title II "telecommunications services"
would impose great costs, allowing unprecedented government micromanagement of all aspects
of the Internet economy. It is a vision under which the FCC has plenary authority to regulate
rates, terms and conditions, mandate wholesale access to broadband networks and intrude into
the business of content delivery networks, transit providers, and connected devices. Indeed,
groups pushing the Title II approach fail to acknowledge that their path forward is in fact a
slippery slope that would provide the Commission sweeping authority to regulate all Internetbased companies and offerings. In defending their approach, Title II proponents now argue that
reclassification is necessary to prohibit "paid prioritization," even though Title II does not
discourage-Jet alone outlaw- paid prioritization models. Dominant carriers operating under
Title II have for generations been permitted to offer different pricing and different service quality
to customers.
Not only is it questionable that the Commission could defensibly reclassify broadband service
under Title II, such an action would greatly distort the future development of, and investment in,
tomorrow's broadband networks and services. America's economic future, as envisioned by
President Obama and congressional leaders on both sides of the aisle, critically depends on
continued investment and innovation in our broadband infrastructure and app economy to drive
improvements in health care, education and energy. Under Title II, new service offerings,
options, and features would be delayed or altogether foregone. Consumers would face less
choice, and a less adaptive and responsive Internet. An era of differentiation, innovation, and
experimentation would be replaced with a series of"Government may I?" requests from
American entrepreneurs. That cannot be, and must not become, the U.S. Internet oftommTow.
We should seek out a path forward together. All affected stakeholders need and want certainty
and an end to a decade of legal and political
All parts of the Internet community
should be focused on working together to develop next-generation networks, applications, and
services that will be critical to our global competitiveness and enhance opportunities for all
Americans. Yet, those demanding the Title II common carrier approach are effectively
compelling years-if not decades-of endless litigation and debate. The issues at stake would
include not simply regulating the Internet under Title II, but also which specific provisions of the
monopoly-era statute apply to modern broadband networks. Collectively, we would face years
more of uncertainty and, as a result, an economy deprived of the stable regulatory framework
needed to promote future investment, innovation and consumer choice.

As it begins its rulemaking process, the Commission should reaffirm its commitment to the lighttouch approach that has ensured America's leadership throughout the Internet ecosystem, from
networks to services, from applications to devices. The U.S. experience was not a foregone
conclusion. It was the result of courageous and bipartisan leadership that rejected old regulatory
mandates in favor of a new, nimble paradigm of government oversight. We urge you to continue
down that path at this critical juncture.
Sincerely,

Thomas R. Stanton
Chairman & CEO
ADTRAN

Anand Vadapalli
President & CEO
Alaska Communications

Randall L. Stephenson
Chairman & CEO
AT&T

Amy Tykeson
CEO
BendBroadband

Steve Miron
Chairman & CEO
Bright House Networks

(/

Brian Sweeney
President
Cablevision

1LyY
Glen Post
President & CEO
Century Link

Tom Rutledge
President & CEO
Cha1ter Communications

Brian L. Roberts
Chairman & CEO
Comcast

Robe1t Currey
Chairman & CEO
Consolidated Communications

Patrick J. Esser
President
Cox Communications

Steve Largent
President & CEO
CTIA- The Wireless
Association

Gary Shorman
President & CEO
Eagle Communication

Paul H. Sunu
CEO
FairPoint

Maggie Wilderotter
Chairman & CEO
Frontier

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{/) o-6 czcll)!}

Ronald Duncan
President & CEO
GCI

Eric Yeaman
President & CEO
Hawaiian Telcom

Rocco Commisso
Chairman & CEO
Mediacom Communications

Patrick McAdaragh
President & CEO
Midcontinent Communications

John Evans
Chairman & CEO
Nelson County Cable and
Evans Telecommunications
Co.

Michael Powell
President & CEO
National Cable &
Telecommunications
Association

Chris French
President & CEO
ShenTel Communications

Richard J. Sjoberg
President & CEO
Sjoberg's Cable

Jerald L. Kent
Chairman & CEO
Sudden link

Grant Seiffeii
President
Telecommunications Industry
Association

Robert D. Marcus
Chairman & CEO
Time Warner Cable

Walter B. McCormick, Jr.


President & CEO
USTelecom

Lowell C. McAdam
Chairman & CEO
Verizon

Federal Communications Commission


445 12th Street, SW
Washington D.C. 20554
May 7, 2014
Dear Chairman Wheeler and Commissioners Clyburn, Rosenworcel, Pai, and O'Rielly:
We write to express our support for a free and open internet. Over the past twenty years, American
innovators have created countless Internet-based applications, content offerings, and services that
are used around the world. These innovations have created enormous value for Internet users, fueled
economic growth, and made our Internet companies global leaders. The innovation we have seen to
date happened in a world without discrimination. An open Internet has also been a platform for free
speech and opportunity for billions of users.
The Commission's long-standing commitment and actions undertaken to protect the open Internet
are a central reason why the Internet remains an engine of entrepreneurship and economic growth.
According to recent news reports, the Commission intends to propose rules that would enable phone
and cable Internet service providers to discriminate both technically and financially against Internet
companies and to impose new tolls on them. If these reports are correct, this represents a grave
threat to the Internet.
Instead of permitting individualized bargaining and discrimination, the Commission's rules should
protect users and Internet companies on both fixed and mobile platforms against blocking, discrimination, and paid prioritization, and should make the market for Internet services more transparent.
The rules should provide certainty to all market participants and keep the costs of regulation low.
Such rules are essential for the future of the Internet. This Commission should take the necessary
steps to ensure that the Internet remains an open platform for speech and commerce so that America
continues to lead the world in technology markets.
Sincerely,
Amazon
Cogent
Drop box
Ebay
Etsy
Facebook
Foursquare
Google
Kickstarter
Level3

Linked in
Lyft
Microsoft
Netflix
Reddit
Tumblr
Twitter
Vonage Holdings Corp.
Yahoo! Inc.
Zynga

2600hz, Inc.

Contextly

lnstapaper

2redbeans

Coursera

inXile Entertainment

4chan

Crowd Tilt

Kaltura

8x8, Inc.

Cube, Co

LawGives

Addy

dasData

Leaflad

AdviserDeck

Digg

Lend Up

Agile Learning Labs

Distinc.tt

Linearair

Airdroids

DuckDuckGo

Linknovate

AirHelp

Duo lingo

little Bits

AnalyticsMD

DynaOptics

Lucipher.net

Appar

Embedly

MDDHosting LLC

Apportable

Fandor

Medium

AppRebates

Floor64

Meet up

Apptology

Flowroute

Meteor Development Grouo

Assembly Made, Inc.

Flurry

Minds+ Machines

Authentise

Fonebook

Misk

Automattic/WordPress.com

Funeral Innovations

MixRank

BadgerMapping

Gandi

MobileWorks

Bitnami

Gawker

Motionry

BitTorrent

General Assembly

MozartMedical

Blu Zone

Github

Mozilla

(Beyond

Grid

NOTCOTinc

Chirply

Handy Networks

O'Reilly Media

Clef

Haystack. tv

OfficeNinjas

Cloud Fare

Heavybit Industries

Open Materials

Codecademy

HelloSign

Open Spectrum

CodeCombat

HeyZap

OpenDNS

CodeHS

iFixit

Opera Software ASA

CodeScience

iLost

PayTango

Colourful Rebel

lmgur

Pocket/Readitlater

Poll Everywhere, Inc

UberConference

Printrl;>ot

UltiMachine

Publitas.com

Ustream

Rallyware

Vidmaker

Recrout

Volary Foundation

Redbubble

Voys Telecom

Rewheel!Digital Fuel Monitor

Waxy

Reylabs

Worldly

Rogue Labs

Xola

Shapeways

Yanomo

Sidecar
Sift Science
Simpolaris
Sketch Deck
Skytree
SlidePay, Inc
Socialscope
Solidoodle
SpiderOak
Spoon Rocket
Spotfront
StackExchange
StartX Stanford
Statwing
Tastemaker .
The Next Web
Trigg it
Tsumobi
Tucows
Twilio

ilnited
WASHINGTON, DC 20510

May 9, 2014

The Honorable Thomas Wheeler


Chairman
Federal Communications Commission
445 lih Street, SW
Washington, DC 20554
Dear Chairman Wheeler:
We are writing today to express serious concern over reports that the Federal Communications
Commission (FCC) has plans to reverse its earlier commitment to preserving a free and open Internet
for all Americans.
It is our understanding that the Commission may soon vote on a Notice of Proposed Rulemaking
(NPRM) for new Open Internet rules. This vote comes in the wake of the United States Court of
Appeals for the District of Columbia's recent decision vacating the Commission's 2010 Open
Internet Order. This NPRM is a necessary step forward. As the potential to profit from
monopolistic, anti-competitive, anti-innovation, and anti-consumer practices has grown, the need for
explicit, enforceable rules has become more urgent. However, it will only be a positive step if you
and your staff can craft meaningful rules.

You must act promptly to prevent blocking- both intentional and incidental- ban discrimination,
and promote increased transparency in the Internet marketplace. The Commission clearly recognizes
the benefits of an open Internet, and the need for reasonable market rules that will preserve
Americans' access to the services and sites of their choosing. The court's decision did nothing
change the need for such rules. lt merely overturned the FCC's legal theory regarding its authority
for the 20 I 0 order.
Unf01tunately, we fear that specific provisions of the NPRM may be insufficient to accomplish the
task. The current Internet is a free market of products and ideas unparalleled in human history, and
the FCC must preserve the type of Jnternet access that allows that marketplace to
thrive. Unf01tunately, reports on your current proposal suggest it may have unintended, deleterious
effects. While several posts and statements from the Chairman's office offer assurances about your
goals, we worry that the NPRM language would permit broadband providers to collect new tolls
from innovators, entrepreneurs and all manner of speakers on the Internet.
Particularly concerning are reports that the NPRM will allow "paid prioritization arrangements" as
long as they are "commercially reasonable," as determined by a complicated series oftests that the
Commission has yet to develop. Changing the rules -to let broadband Internet Service Providers
(fSPs) demand payment from websites and app developers- would eradicate Net Neutrality, not
preserve it. Any time one group of packets is favored on an IP network the rest ofthe traffic is, by
definition, discriminated against. Given the current state of congestion the ISPs have allowed to

Letter to Wheeler on NPRM


May 9, 2014
develop at their interconnections with the Internet, any discrimination results in a degradation or
blocking of services to the consumer- services the consumer has paid for.
The genius of the Internet is that it allows innovation without permission, not innovation only after
cutting a deal with the ISP and receiving the FCC's blessing for it.
Sanctioning paid prioritization would allow discrimination and irrevocably change the Internet as we
know it. Small businesses, content creators and Internet users must not be held hostage by an
increasingly consolidated broadband industry. Start-ups should not find themselves unable to get a
foot in the door, deterred from making the kind of investments that make the Internet the engine for
creativity and economic growth we know today. Consumers should not be faced with fewer choices
at ever higher prices while ISPs monetize their data and dictate who succeeds and who fails online.
The D.C. Circuit decision is clear. The Commission has to allow substantial discrimination if it
chooses to base its Open Internet policies on section 706 of the Telecom Act. The court said that the
FCC cannot, under Section 706, adopt rules that resemble "common carrier" requirements to serve
everyone. Yet that is exactly what Net Neutrality means: keeping the Internet open to all, and
making sure that Internet access is free from the threat of blocking, discrimination, and pay-to-play
schemes.
Fortunately, the Commission stili has the time and ability to rectify this problem. We ask you to
ensure that the NPRM includes specific questions about Title II and the more robust rules that you
could base on this authority. The item should facilitate discussion of the best option for protecting
the Open Internet- not merely accept that the Commission has no choice but to permit toll lanes and
other kinds of unreasonable discrimination. Consumers and innovators cannot afford to wander
through this regulatory murk any longer. The time has come for the FCC to adopt Net Neutrality
rules that provide clear, strong protections for the Open Internet and all Americans, once and for all.
Sincerely,

Charles E. Schumer

Bernard Sanders

AI Franken

Kirsten E Gillibrand

RichardBI umenthal

/,.e.r

From:

Sent:
To:

Cc:

Subject:
Attachments:

David Toomey
Wednesday, May 14, 2014 5:20 PM
Milkman; Gigi Sohn; Daniel Alvarez; Jonathan Sallet; Philip Verveer; Julie
Shannon Gilson; Neil Grace; Kim Hart; Mark Wigfield
Sara Morris
FW: CPC Title IT Letter
2014 CPC Net Neutrality Letter.pdf

Attached is a pro Title II letter from the House Progressive Caucus.

----------------------------------------------------------------------------------From: Darner, Michael [mailto:Michaei.Darner@mail.house.gov]

Sent: Wednesday, May 14, 2014 4:48PM


To: David Toomey
Cc: Edgerton, Vic; Mishkin, Kelsey
Subject: CPC Title II Letter
David,
It was a pleasure meeting with your team yesterday. Please find attached a letter from the Co-Chairs of the FCC and 34
of their House Democratic colleagues to Chairman Wheeler. Please let me know if I can answer any other questions you
may have.
Best,
-Mike-

Mike Darner
Executive Director
Congressional Progressive Caucus
(202) 225-2435

O!nngre.an nf tire lllniteir $fates


Uaslfingtnn, 1il@: 20515
May14, 2014
The Honorable Thomas Wheeler
Chairman
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554
Dear Chainnan Wheeler,
As you develop a proposal to oversee access to the Internet, we urge you to adopt strong
and enforceable open Internet rules that proactively protect Internet users from unfair
practices, including the blockage of lawful traffic or discrimination among content
providers by Internet Service Providers (ISPs). The rules must preserve the Internef as the
open platfonn that it is today by recognizing our nation's communications providers as
common carriers. Without strong protections, the Internet could devolve into a closed
platform in which those who pay the most can overwhelm other views and ideas.

We agree with your previous statements and those from President Obama that expressed
similar concerns. JSPs will continue to explore ways to boost revenue by imposing
discriminatory charges that will decrease the openness of the Internet There is ample
evidence that protecting the open Internet against such threats is critical for users and
businesses alike. However, reports indicate that the current FCC prop<;>sal creates an
Internet fast lane that would prioritize some Internet traffic and allow ISPs to discriminate
against everyone else. The FCC cannot protect the open Internet by allowing
discrimination.
We urge the FCC to use its clear authority under Title II of the Communications Act to
reclassifY the transmission component of broadband Internet access as a
telecommunications service. Recognizing our nation's communications providers as
common carriers under the law is common sense. Reclassification would also complement
the Commission's efforts to promote innovation, competition and investment in universally
available, reliable and affordable broadband infrastructure.
Over one million people have already gone on the record in support of reclassification. We
urge the FCC to consider this support for strong, enforceable open Internet rules as it
moves forward with the rulemaking process.
Sincerely,

PRINTED ON RECYCLED PAPER

Keith Ellison
Member of Congress

&,......... .
Earl Blumenauer

Michael E. Capuano

Member of Congress

Member of Congress

Andre D. Carson
Member of Congress

David N. Cicilline
Member of Congress

Member of Congress

Alan Grayson
Member of Congress

Mike Honda
Member of Congress

Member of Cong

Member of Con ess

atu.

Alan Lowenthal
Member of Congress

Eleanor Holmes Norton


Member of Congress

Beto O'Rourke
Member of Congress

MarkPocan
Member of Congress

Charles B. Rangel
Member of Congress

Member of Congress

Carol Shea-Porter
Member of Congress

MarkTakano
Member of Congress

CC:

Mignon Clyburn, Commissioner, Federal Communications Commission


Jessica Rosenworcel, Commissioner, Federal Communications Commission
Ajit Pai, Commissioner, Federal Communications Commission
Michael O'Reilly, Commissioner, Federal Communications Commission

William Sharkey
Wednesday, April 02, 2014 9:50AM
'Pierre de Vries'; Mark Bykowsky
RE: How the broadband farmers and cowmen can be friends

From:
Sent:
To:
Subject:

Thanks Pierre,
The blog was both amusing and highly relevant to the work that Mark and I have been doing in both spectrum issues and
net neutrality issues.
Bill

From: Pierre de Vries


Sent: Tuesday, April
To: Mark Bykowsky; William Sharkey
Subject: PN: How the broadband farmers and cowmen can be friends
Importance: Low
An engineering view on trading spaces- perhaps amusing given your current struggles ...

From: Geddes- Future of Communications Newsletter [mailto:newsletter=martingeddes.com@mail52.atl71.mcdlv.net]


On Behalf Of Geddes - Future of Communications Newsletter
Sent: Tuesday, March 25, 2014 3:04PM
To: =?utf-S?Q??=
Subject: How the broadband farmers and cowmen can be friends

Fresh thinking about telecommunications


View this email in vour browser

GEDDES

Fresh thinking

How the broadband farmers and cowmen can


be friends
The farmer and the cowman should be friends,
Oh, the farmer and the cowman should be friends.
One man likes to push a plough, the other likes to chase a cow,

But that's no reason why they cain't be friends.


-Oklahoma! by Rodgers and Hammerstein
A previous newsletter explained why it is inappropriate to naively impose historical
common carriage regulations on broadband ISPs. The notion of common carriage
simply doesn't match the nature of the statistically multiplexed broadband
resource. However, that doesn't mean all is well. There are real unresolved
problems of fair and equitable access to that resource, and these are a source of
legitimate disquiet. WhJ'lst today one side of that 'neutrality' conflict is angry and
fearful, the cycle will continue, and at some point the roles will switch.

I have been continuing my discussion with Dr Neil Davies about why the 'telco
supply farmers' and 'user demand cowmen' are at loggerheads. Neither side is
able to hear and empathise with the other side's pain, nor are they able to resolve
their differences outside of law courts. This process is ultimately damaging to all
parties. Everyone needs to make a living from tf?e same shared fertile
communications territory. In the long run, the farmers and the cowmen both have
to succeed, and not at the expense of the other.

How can they become friends again?

False assumptions cause conflict

Many years ago, I came across a 'thinking tool' by Eli Goldratt called the
Evaporating Cloud. Go!dratt taught that "every problem is a conflict, and that
conflicts arise because we create them by believing at least one erroneous
assumption." Thus any route to resolution of this conflict requires the surfacing of
erroneous assumptions of one or both sides.

Both the telco farmers and user cowmen are, in my and many others' experience,
generally people of good intent. They even share the same over-arching goal and
need: a large and thriving broadband-enabled digital economy. They are all wholly
dependent on the vitality of that ecosystem and their shared communications land.

Yet there is bitter division between them. Why so?

The conflict that exists between them is due to the way that they have framed the
nature of broadband as a resource, and their erroneous assumptions about its
capabilities and costs. The telcos are not realising the full potential of the
broadband networks they creating, and users are hoping broadband will do things
that it can't do.
Broadband networks are not 'pipes'

These errors all have their root in a common failure to engage in three simple facts
about broadband networks:

1. They are a shared, and thus contended, resource.


2. That contention cannot be destroyed, only re-allocated.
3. Every choice over re-allocating that contention is always a trade
That implies networks are trading spaces (and at all timescales). This is because
when you grant access for a shared resource to one source of demand, you
implicitly deny it to everyone else. There are no exceptions! Even a lowly FIFO taildrop queue is doing trades, whether or not consciously observed and managed.

Networks are \]1ore like derivatives exchanges than 'pipes': there are 'buyers' and
'sellers' of present and future contention, based on an underlying physical
'information translocation' resource.

The 'neutrality' issue is at its hea1i about control over this trading space to access
the resource. The conflict gets its poisonous energy because both sides reason
about broadband through analogies and metaphors, pejoratively couching the
other side's framing as manifestly wrong. Yet neither side has engaged with the
true nature of the system under discussion!

So what is each side's relationship to the trading space, and the false assumptions
they have?

The telco farmers' beliefs

The telcos have tried (and often failed) to use traffic management and QoS
mechanisms to help them make better resource trades. Their ability to configure
these mechanisms to meet a particular performance or cost outcome is relatively
weak. Indeed, they construct and run multiple (single class of service) overlay
networks, delivering voice, video and Internet access. This prevents any dynamic
trades between these statically allocated resources.

They also fear political or regulatory punishment for 'unreasonable' traffic shaping
that exploits trades, as they become lightning rods for the inherent tensions in the
broadband model. The idea of creating new advanced assured services that
exploit resource trades is seen as highly controversial, and may indeed be actively
discouraged by some regulators.

As a result, they feel there is no alternative to getting a return on their investment


other than good old fashioned way: exploit any termination monopoly available.

What they don't realise is that the trading space is far richer than their networking
textbooks tell them, which only hinted at the trades on offer. The QoS mechanisms
their vendors supply only expose them to a small proportion of the possible 'good'
trades.

Indeed, much of the focus in network research and development has, erroneously,
been on making contention disappear. This defeats the purpose of packet
networking, which is to enable more intense resource utilisation through sharing. It
is the equivalent of building roads to ensure there is always capacity to avoid a
jam. As a result, they are only squeezing out a fraction ofthe value-creating
capability of their networks. Their capital is grossly under-utilised because of the
way they have constructed and configured the trades.

Meanwhile, users are frustrated with the poor performance of important

applications, and many would be delighted to get new services that deliver
experiences they can't get using commodity Internet access. There just isn't any
appropriately formed wholesale market yet where the access providers, CONs and
applications can create the necessary supply chain.

The user cowmen beliefs

The users and their policy representatives often have a na'ive view of the network
trading space. There is an entitlement culture that believes that users should
receive the experience of the wide open country where no other cowmen (and their
associated livestock movements) will ever get in their way. Any failure to deliver is
down to mean and evil telcos 'degrading' their experience and failing to invest in
the network to create artificial scarcity.

The user cowmen believe that any kind of 'trades' will be exploited by the telco
farmers to their disadvantage. After all, the telco farmers have a long and
inglorious histo1y of exploitative monopolistic behaviour: they erect fences to
enclose the land, and assert ownership over unused territory, forcing it to lie fallow
even there are others who could eke out a meagre existence upon it.

Therefore the user cowmen endlessly demand more capacity to reduce contention
effects, for which they are not prepared to pay any premium. They too seek to
defeat the point of packet networking, which is to intensify the use of a shared
resource. Telcos find this economically unsustainable, and thus ultimately must
refuse to play the game.

As a result, users they feel there is no alternative to getting a decent experience


other than good old fashioned way: call in the regulator to prevent the telco from
exploiting its natural termination monopoly to fund the users' own unsustainable
demands.

What they don't realise is that there are ways of constructing networks that can
exploit the trades, but don't turn the telcos into exploitative toll keepers. Control

can be kept with the users, individually and collectively.

The regulator is stuck in the middle

The regulator is left in an impossible situation. On the one hand, they are being
tasked to promote the development of broadband. That means raising capital, for
which telco farmers must get a good return to ensure the land gets improved. You
can only get a good return if you deliver valuable experiences (which means good
performance and dependability), and have low costs.
On the other hand, they are being told by users and broadband campaigners that
they don't want to have the telco involved in any way in helping to create those
good experiences and manage the costs.

Regulators aren't helped by the lawyer and academic classes clinging to a fantasy
that FIFO queues represent some kind of 'neutral' mechanism, and that all packets
were created equal in some kind of Rawlsian system of information justice. (Don't
even ask about their cost models.)

The real issues

To come to some kind of reconciliation, everyone is going to have to align with a


non-negotiable broadband reality: there is a shared resource, and a trading space
for its allocation. There is only one land, and they both have to extract their
livelihoods from it.

Both sides want good application outcomes (revenue to telcos, good experiences
to users), and high resource use (makes it profitable to telcos, and lowers prices to
users). The only way to achieve this is to make lots of good resource trades.

The issues that should be on the table are:


o

What resource trading capability should be created?

Who controls the trades?

..

How do they get offered commercially?

At that point we're in a rational un.iverse of discourse, and reasonable people (and
even their regulatory lawyers) can negotiate based on a shared and reality-based
understanding of the resource in question.

How the farmer and cowman can be friends

We can see that there is only one long-term way of resolving this conflict: to
understand and embrace the trading space, not to try to make contention
disappear. This means a polyservice network that properly exploits the trades. This
should not come as a shock, since every Internet Protocol packet has bits reserved
in its header in anticipation of such a thing. It's just up until now some basic
misconceptions about the nature of the network as a trading space have gotten in
the way.

One you have such a network, which can offer differential levels of quality and
assurance, you can then begin to talk about terms of access. What you care about
is the ability to contract to some kind of outcome for service assurance in a nondiscriminatory manner.

'Network neutrality' is a category error, because it misattributes the equality to


packets. What matters is equality between network users, and their fair access to

whatever services the network offers that exploit the trading space.

After all, if broadband networks are trading spaces by their nature, then they are
also naturally marketplaces. The telco farmers can produce crops of high
performance, which gets sold to the user cowmen to feed their application stock;
those animals in return help fertilise the land with dirty old cash. Everyone gets to
eat a feast of great customer experience beef at the end of the day, washed down
with profit-infused beer brewed from the farmers' crops.

Once that happens, everyone can be friends again.

Martin Geddes (with credit for the original ideas to Neil Davies)

Upcoming public speaking engagements


1st-2nd April, London - WebRTC Global Summit.
29th April-1st May, Barcelona- IMS World Forum.
1Oth-11th June, Munich- Next Generation Services Platforms.
21 st-23rd October, Amsterdam - Broadband World Forum.

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From:

Sent:
To:

Subject:

Henning Schulzrinne
Wednesday, May 14, 2014 5:50PM
'Vishal Misra'
RE: Thoughts on Network Neutrality and Fast Lanes

Also, at some point (e.g., during the formal comments period), I'd like to hear more about why you believe that
discrimination (which I take to be scheduling priority, RST or blocking, among others, as well as peering starvation) is
easily hidden and why a provider would do that if the goal is revenue maximization.
-----Original Message----From: Vishal Misra [mailto:misra@cs.columbia.edu]
Sent: Wednesday, May 14, 2014 5:46PM
To: Henning Schulzrinne
Subject: Re: Thoughts on Network Neutrality and Fast Lanes
I know about the UK broadband paper that Alissa Cooper published -I will look more.
Thanks,
-Vis hal

On May 14, 2014, at 5:36PM, Henning Schulzrinne <Henning.Schulzrinne@fcc.gov> wrote:


>Thanks, Vishal. You may want to look at Barbara van Schewick's and Alissa Cooper's thesis material on the interaction
between 01 issues and competition. It's a bit more complicated, I think.
>
>From: Vishal Misra [mailto:misra@cs.columbia.edu]
>Sent: Wednesday, May 14, 2014 11:59 AM
>To: Openlnternet
> Cc: Henning Schulzrinne
>Subject: Thoughts on Network Neutrality and Fast Lanes
>
>Dear FCC,
>
>I am a faculty in the computer science department of Columbia University and have been looking at the Internet
economic ecosystem from a technical and game theoretic (and not legal) point of view for a number of years. I have
blogged about some of it here: http://peerunreviewed.blogspot.com.
>
> 1 am also an entrepreneur and have founded/co-founded multiple companies in the Internet/networking space so I
understand some of the concerns from that viewpoint.
>
>I wanted to make a few points regarding the Open Internet.
>
>-Ex ante description of "Network Neutrality" is extremely difficult from a technical/networking standpoint. While we
all agree to the concept that all packets should be treated equally, technically it is actually impossible to achieve. What is
actually discrimination can easily be achieved and hidden by routing/peering tricks and what appears to be

discrimination can simply be explained by normal load fluctuations. I am yet to find a consistent technical definition of
the principal of Network Neutrality and it is evident FCC is having trouble as well.
>
>-Fast lanes per se are not bad, fast lanes in a monopolistic market are bad. As an east coast academic/entrepreneur,
one of our biggest sources of pride is Akamai. They revolutionized the web experience in the late 90s by creating "fast
lanes" for web publishers. However fast lanes that are created by using captive customers as leverage, as everyone
suspects in the case of Comcast/Verizon and Netflix is not the right way.
>
>-All companies (including mine) want to make money. Netflix is no different from Comcast in that regards, and I am
sure executives of the 100 companies that sent you the letter like to travel by first class (paid prioritization). When the
Dream liner flies, it is a better experience for all consumers- first class as well as coach.
>
>-The real problem for the Internet, as I have no doubt you are well aware, but let me repeat- is lack of competition at
the access layer. That's what makes the content providers different from access ISPs. Content providers have to
compete in the open market, access ISPs rarely face competition. It is always in the public's benefit if companies are
competing for their dollars. Unbundling of the last mile and/or municipal broadband appears to me to be the best way
to promote competition in the last mile.
>
>-Antitrust or merger reviews are the best time to propose open access regulations. I humbly suggest that the two
issues of the Comcast-TWC merger and Open Internet be linked, and unbundling be made a condition for the merger.
Researchers are eager to tackle any technical challenges, e.g., in making HFC unbundling economical and scalable.
>
>-Around the world, Network Neutrality has never been an issue when there is true competition at the last mile. These
two studies have a lot of data to support that:
>
> http://www .oecd-ili bra ry.o rg/d ocserver /down load/5 k49qgz7 crm r .pdf
>and
> http://workspace.unpan.org/sites/internet/documents/B00010%20A%20Comparison%20of%20Network.pdf
>
>We should be focusing our regulatory, legislative and activism energy in solving the real problem, that of access
competition. If we do that, Network Neutrality is gained "for free". Otherwise it is whack-a-mole.
>
>Regards,
> -Vishal
>
> ->

From:

Sent:
To:

Subject:

Henning Schulzrinne
Thursday, May 01, 2014 11:34 PM
Ken Calvert
Re: the net neutrality debate

Ken,
great to hear from you!
I don't think we have tried this before, partially because it's difficult to do this during the rule-making process. As tends to
get lost during much of the press coverage, the document to be voted on May 15 is a "notice of proposed rule making",
which has probably a question-mark-to-period ratio of close to 1:1 (I'm exaggerating, but only slightly). The draft, as is
common, raises many possible options, along a spectrum and, while reaching some tentative conclusions, has to be fairly
open. It would be hard to reproduce the balance struck (which needs to reflect the vote of at least three of the five
commissioners) in a video, I think.
Another alternative is to have a university or other non-carrier-affiliated entity do this [insert sound of hint dropping], which
might be a lot easier. You might even be able to get interviews from some of the FCC staff.
I'll forward your note to some colleagues.
Henning

Hi Henning - Hope things are well with you and your family.
Executive Summary: I think a documentary video explaining all sides of the "net neutrality debate" would be very
useful. We have a group here that has done similar documentaries in the past, and they were well-received. I'm
wondering if the FCC might be interested in producing something of that nature, and hoping you might be able to
put me in touch with someone to talk to about it.
Longer version: I'm writing as Interim Director of the Center for Visualization and Virtual Environments at
Kentucky. We have an excellent media group whose mandate is to tell the story of the research in the Center and
across campus. They are good at what they do. About four years ago they made an hour-long documentary
(funded by the state) called "Coal in Kentucky". (see vis.uky.edu/vis-media/) It did a great job presenting the many
diverse viewpoints about the coal industry in this state.
I'm motivated to write because media coverage of the recent FCC proposal is making my head explode on a daily
basis. I talk to people - including some of my colleagues- who are clueless about how the internet works, but are
convinced the proposal is evil, because the media are telling them it's going to destroy free speech and the
freedom of the internet.
1 think a documentary that explained the situation from all sides- technical, business, and political- in an unbiased
way, would be a Really Good Thing. Do you know whether the FCC is doing anything like that? Or might be
interested? Any pointers would be appreciated.
Best regards,
Ken
PS. Looking forward to seeing you and hearing your talk in Trondheim!

Ken Calvert
Professor. Computer Science
Interim Director, Center for Visualization and Virtual Environn1ents
University of Kentucky

From:

Sent:
To:

Subject:

Robert Cannon
Wednesday, April 02, 2014 5:48 PM
'Bill Woodcock'
RE: Internet interconnection

Let's try to set up a time, sort of at our convenience. Meaning I have been moving so fast I am finding I need to slow
down and catch my breath. If you are going to be here any time in person, I would prefer that. But if not, then maybe a
video conference (Google Chat- I don't think I can use skype inside this building?).
Below is from today's Communications Daily. It is an issue that is readily before us. Again, your OECD research has been
referenced. But I think, you know, one of the big concerns here isn't interconnection between core networks, its
interconnection between core and access networks- and whether access networks can use their position to gain an
improper advantage (sometimes called a terminating monopoly). Or, in other words, what do you do about the Netflix I
Com cast problem. Is it your position (based on your OECD paper) that the market will just solve this?
Think about it. kc claffy and David Clark will be here Friday.
B

New Net Neutrality Rules Won't Cover Peering, Interconnection Issues FCC Chairman Tom Wheeler doesn't intend to
consider interconnection or peering in any net neutrality redo, an FCC spokesman confirmed Tuesday. Tomany industry
and agency officials, this doesn't come as a surprise. "It's not really a change in the status quo," one agency official told
us. But it's disappointing to net neutrality proponents who thought the discriminatory effects of interconnection fights
might finally get the regulatory oversight the issue deserves.
Netflix CEO Reed Hastings asked the FCC last month (CD March 24 pl) to consider mandating "no-fee" interconnection
agreements as it takes on a rewrite of the net neutrality rules post Verizon v.
FCC. At Monday's commissioner meeting, Wheeler said that while the government has a role to play in overseeing how
networks connect to each other, peering and interconnection are "not a net neutrality issue."
A spokesman elaborated: Peering was never part of the open Internet rules, and Wheeler doesn't intend to change the
scope of those rules. Wheeler just plans to restore those rules through use of the court's guidance, the spokesman said.
The FCC is keeping an eye on interconnection in "other contexts,"
he said, but wouldn't elaborate on which that might be.
It's just another way of phrasing what Wheeler has been saying for months, industry and agency officials said. An AT&T
spokesman pointed to Wheeler's comments at January's State of the Net conference,