IN FRAMING THIS HISTORIC ORDERED TO BECAUSE OF YOUR EFFORTS, WE ARE BETTER ABLE TO ALLOW MILLIONS OF AMERICANS TO TELL THEIR STORIES, TO REACH THEIR POTENTIAL, AND TO REALIZE THE AMERICAN IDEAL. THANK YOU VERY MUCH. >> CHAIRMAN WHEELER: THANK YOU, COMMISSIONER. [APPLAUSE] THANK YOU FOR YOUR LEADERSHIP ON THIS, RECOGNIZING THAT AS MR. LEWIS SAID, EVERY VOICE MATTERS. COMMISSIONER ROSENWORCEL. >> COMMISSIONER ROSENWORCEL: SO THERE'S BEEN A LITTLE NOISE ON THE WAY TO THIS DECISION TODAY. SO I'M GOING TO DO SOMETHING RADICAL. I'M GOING TO BE BRIEF. OUR INTERNET ECONOMY IS THE ENVY OF THE WORLD. WE INVENTED IT. THE APPLICATION'S ECONOMY BEGAN RIGHT HERE ON OUR SHORES. THE BROADBAND BELOW US AND THE AIRWAVES ALL AROUND US DELIVER ITS COLLECTIVE MIGHT INTO OUR HOMES AND BUSINESSES ALL ACROSS THE COUNTRY. WHAT PRODUCED THIS DYNAMIC ENGINE OF ENTREPRENEURSHIP AND EXPERIMENTATION IS A FOUNDATION OF OPENNESS. AND SUSTAINING WHAT HAS MADE US INNOVATIVE, FIERCE AND CREATIVE SHOULD NOT BE A CHOICE. IT SHOULD BE AN OBLIGATION. WE ALSO HAVE A DUTY, A DUTY TO PROTECT WHAT HAS MADE THE INTERNET THE MOST DYNAMIC PLATFORM FOR FREE SPEECH EVER INVENTED. IT IS OUR PRINTING PRESS. IT IS OUR TOWN SQUARE. IT IS OUR INDIVIDUAL SOAP BOX AND OUR SHARED PLATFORM FOR OPPORTUNITY. THAT IS WHY OPEN INTERNET POLICIES MATTER. THAT IS WHY I SUPPORT NETWORK NEUTRALITY. WE CANNOT HAVE A TWO-TIERED INTERNET WITH FAST LANES THAT SPEED THE TRAFFIC OF THE PRIVILEGED AND LEAVE THE REST OF US LAGGING BEHIND. WE CANNOT HAVE GATE KEEPERS WHO TELL US WHAT WE CAN AND CANNOT DO AND WHERE WE CAN AND CANNOT GO ONLINE. AND WE DO NOT NEED BLOCKING, THROTTLING OR PAID PRIORITIZATION SCHEMES THAT UNDERMINE THE INTERNET AS WE KNOW IT. FOR THESE REASONS, I SUPPORT CHAIRMAN WHEELER'S EFFORTS AND RULES TODAY. THEY USE OUR EXISTING STATUTORY TOOLS, INCLUDING TITLE II AUTHORITY, TO PUT BACK IN PLACE BASIC OPEN INTERNET POLICIES THAT WE ALL RELY ON, BUT LAST YEAR OUR COURTS TOOK AWAY. THE RESULT HONORS THE CREATIVE COLLABORATIVE AND OPEN INTERNET ENVISIONED BY THOSE WHO WERE THERE AT THE START, INCLUDING THE LEDGE DEAR SIR TIM BURNERSLEA, THE CREATOR OF THE WORLDWIDE WEB, WHOM WE HAVE HAD THE PRIVILEGE TO HEAR FROM TODAY. THIS IS A BIG DEAL. WHAT IS ALSO A BIG DEAL IS 4 MILLION VOICES. 4 MILLION AMERICANS WROTE THIS AGENCY TO MAKE KNOWN THEIR IDEAS, THOUGHTS, AND DEEPLY HELD OPINIONS ABOUT INTERNET OPENNESS. THEY LIT UP OUR PHONE LINES, CLOGGED OUR EMAIL INBOXES AND JAMMED OUR ONLINE COMMENT SYSTEM. THAT MIGHT BE MESSY, BUT WHATEVER OUR DISAGREEMENTS ARE ON NETWORK NEUTRALITY, I HOPE WE CAN AGREE THAT THAT'S DEMOCRACY IN ACTION, AND SOMETHING WE CAN ALL SUPPORT. [APPLAUSE] >> CHAIRMAN WHEELER: THANK YOU FOR YOUR TRUNGEANT PRESENTATION. WHAT YOU EDITED OUT WAS YOUR LEADERSHIP THROUGHOUT THIS PROCESS. YOUR CHAMPIONING OF OPEN VOICES. AND WE'LL HEAR A LOT OF WORDS UP HERE TODAY, BUT THE MOST IMPORTANT WORDS IS ONE SIMPLE SHORT WORD, "I." THANK YOU. COMMISSIONER PAI. >> COMMISSIONER PAI: THANK YOU, MR. CHAIRMAN. AMERICANS LOVE THE FREE AND OPEN INTERNET. WE'VE RELISHED OUR FREEDOM TO SPEAK, TO POST, TO RALLY, TO LEARN, TO LISTEN, TO WATCH, AND TO CONNECT ONLINE. THE INTERNET HAS BECOME A POWERFUL FORCE FOR FREEDOM, HERE AND AROUND THE WORLD. SO IT IS SAD TO WITNESS THIS MORNING THE FCC'S UNPRECEDENTED ATTEMPTS TO REPLACE THAT FREEDOM WITH GOVERNMENT CONTROL. IT SHOULDN'T BE THIS WAY. FOR 20 YEARS, THERE HAS BEEN A BIPARTISAN CONSENSUS IN FAVOR OF A FREE AND OPEN INTERNET. A DEMOCRATIC PRESIDENT AND REPUBLICAN CONGRESS ENSHRINED IN THE TELECOMMUNICATIONS ACT OF 1996. THE PRINCIPLE THAT THE INTERNET SHOULD BE A VIBRANT AND COMPETITIVE FREE MARKET, QUOTE, UNFETTERED BY FEDERAL AND STATE REGULATION. AND DATING BACK TO THE CLINTON ADMINISTRATION, EVERY FCC CHAIRMAN, REPUBLICAN AND DEMOCRAT, HAS LET THE INTERNET GROW FREE FROM UTILITY-STYLE REGULATION. THE RESULTS SPEAK FOR THEMSELVES. BUT TODAY, THE FCC ABANDONS THOSE POLICIES. IT RECLASSIFIES BROADBAND INTERNET ACCESS SERVICE AS A TITLE II TELECOMMUNICATIONS SERVICE. IT SEES UNILATERAL AUTHORITY TO REGULATE INTERNET CONDUCT TO DIRECT WHERE ISPs MAKE THEIR INVESTMENTS, AND TO DETERMINE WHAT SERVICE PLANS WILL BE AVAILABLE TO THE AMERICAN PUBLIC. THIS IS NOT ONLY A RAD DAL DEPARTURE FROM THE BIPARTISAN POLICIES THAT HAVE SERVED US SO WELL OVER THE PAST TWO DECADES. IT IS ALSO AN ABOUT FACE FROM THE PROPOSALS THE FCC ITSELF MADE JUST LAST MAY. SO WHY IS THE FCC TURNING ITS BACK ON INTERNET FREEDOM? IS IT BECAUSE WE NOW HAVE EVIDENCE THAT THE INTERNET IS BROKEN? NO. WE ARE FLIP-FLOPPING FOR ONE REASON AND ONE REASON ONLY: PRESIDENT OBAMA TOLD US TO DO SO. >> I'M ASKING THE FCC TO RECLASSIFY INTERNET SERVICE UNDER TITLE II OF THE LAW KNOWN AS THE TELECOMMUNICATIONS ACT. PAY PAY ON NOVEMBER 10TH, PRESIDENT OBAMA ASKED THE FCC TO IMPLEMENT HIS PLAN FOR REGULATING THE INTERNET. ONE THAT FAVORS GOVERNMENT REGULATION OVER MARKETPLACE COMPETITION. AS HAS BEEN WIDELY REPORTED IN THE PRESS, THE FCC HAS BEEN SCAM BELLING EVER SINCE TO FIGURE OUT A WAY TO DO JUST THAT. THE COURTS WILL ULTIMATELY DECIDE THIS ORDER'S FATE. LITIGANTS ARE ALREADY LINING UP TO SEEK JUDICIAL REVIEW OF THESE NEW RULES. AND GIVEN THIS ORDER'S MANY GLARING LEGAL FLAWS, THEY'LL HAVE PLENTY OF FODDER. BUT IF THIS ORDER MANAGES TO SURVIVE JUDICIAL REVIEW, THESE WILL BE THE CONSEQUENCES: HIGHER BROADBAND PRICES, SLOWER BROADBAND SPEEDS, LESS BROADBAND DEPLOYMENT, LESS INNOVATION, AND FEWER OPTIONS FOR AMERICAN CONSUMERS. PUT SIMPLY, PRESIDENT OBAMA'S PLAN TO REGULATE THE INTERNET IS NOT THE SOLUTION TO A PROBLEM. HIS PLAN IS THE PROBLEM. THIS ORDER IMPOSES INTRUSIVE GOVERNMENT REGULATIONS THAT WON'T WORK TO SOLVE A PROBLEM THAT DOESN'T EXIST USING LEGAL AUTHORITY, THE FCC DOESN'T HAVE. ACCORDINGLY, I DISSENT. TO START, THE COMMISSION'S DECISION TO ADOPT PRESIDENT OBAMA'S PLAN MARKS A MONUMENTAL SHIFT TOWARD GOVERNMENT CONTROL OF THE INTERNET. IT GIVES THE FCC THE POWER TO MICROMANAGE VIRTUALLY EVERY ASPECT OF HOW THE INTERNET WORKS. IT'S AN OVERREACH THAT WILL LET A WASHINGTON BURE KRA HE SEE AND NOT THE AMERICAN PEOPLE DECIDE THE FUTURE OF THE ONLINE WORLD. ONE FACET OF THAT CONTROL IS RATE REGULATION. FOR THE FIRST TIME, THE FCC WILL REGULATE THE RATES THAT ISPs MAY CHARGE AND WILL SET A PRICE OF ZERO FOR CERTAIN COMMERCIAL ARRANGEMENTS. AND THE ORDER GOES OUT OF ITS WAY TO REJECT CALLS TO FORBEAR FROM SECTION 201'S AUTHORIZATION OF RATE REGULATION. AND IT EXPRESSLY INVITES PARTIES TO FILE SUCH COMPLAINTS WITH THE COMMISSION. A GOVERNMENT AGENCY DECIDING WHETHER A RATE IS LAWFUL IS THE VERY DEFINITION OF RATE REGULATION. NOW ALTHOUGH THE ORDER PLAINLY REGULATES RATES, THE PLAN TAKES PAINS TO CLAIM THAT IT IS NOT IMPOSING WHAT IT CALLS EX-ANTE RATE REGULATION. OF COURSE THAT CONCEIVES THAT THE NEW REGULATORY REGIME WILL INVOLVE EX-POST RATE REGULATION. BUT EVEN THE AGENCY'S SUGGESTION THAT IT TODAY, QUOTE, CANNOT ENVISION EX-ANTE REGULATIONS, AGAIN, QUOTE, IN THIS CONTEXT, SAYS NOTHING WHAT A FUTURE COMMISSION, PERHAPS THIS VERY COMMISSION, COULD ENVISION. JUST AS PERNICIOUS AS THE FCC'S NEW INTERNET CONDUCT STANDARD, A VAGUE STANDARD THAT GIVES THE FCC A ROVING MANDATE TO REVIEW BUSINESS MODELS AND UPEND PRICING PLANS THAT BENEFIT CONSUMERS. USAGE-BASED PRICING PLANS AND SPONSORED DATA PLANS ARE THE CURRENT TARGETS. SO IF A COMPANY DOESN'T WANT TO OFFER AN EXPENSIVE UNLIMITED DATA PLAN, THEY COULD FIND ITSELF IN THE FCC'S CROSSHAIR. OUR STANDARD SHOULD BE SIMPLE. IF YOU LIKE YOUR CURRENT SERVICE PLAN, YOU SHOULD BE ABLE TO KEEP YOUR CURRENT SERVICE PLAN. THE FCC SHOULDN'T TAKE IT AWAY FROM YOU. BANNING DIVERSE SERVICE PLANS WOULD JUST HURT CONSUMERS, ESPECIALLY THE MIDDLE CLASS AND LOW INCOME AMERICANS WHO ARE THE BIGGEST BENEFICIARIES OF THESE PLANS. IN ALL, THE FCC WILL HAVE ALMOST UNFETTERED DISCRETION TO DECIDE WHAT BUSINESS PRACTICES CLEAR THE BUREAUCRATIC BAR, SO THESE WON'T BE THE LAST PLANS TARGETED BY THE AGENCY. AS THE ELECTRONIC FRONTIER FOUNDATION WROTE JUST TWO DAYS AGO, THIS OPEN-ENDED RULE WILL, QUOTE, BE ANYTHING BUT CLEAR AND SUGGEST THAT THE FCC BELIEVES IT HAS BROUGHT AUTHORITY TO PURSUE ANY NUMBER OF PRACTICES. THE EFF WENT ON: AND A MULTIFACTOR TEST GIVES THE FCC AN AWFUL LOT OF DISCRETION, POTENTIALLY GIVING AN UNFAIR ADVANTAGE TO PARTIES WITH INSIDER INFLUENCE. WELL SAID. THEN, THERE IS THE TEMPORARY FORBEARANCE. ALTHOUGH THE ORDER -- FORBEARANCE FROM SOME TITLE II RULES -- LIGHT-TOUCH REGULATORY FRAMEWORK, IN REALITY, IT ISN'T LIGHT AT ALL. COMING AS IT DOES WITH THE CAVEAT THAT THE PUBLIC HAS COME TO EXPECT FROM WASHINGTON, D.C. IN ADDITION TO RATE REGULATION, TARIFFS, LAST MILE UNBUNDLING, BURDENSOME REQUIREMENTS, ACCOUNTING STANDARDS AND ENTRY AND EXIT REGULATION, THE PLAN ALSO REPEATEDLY STATES THAT IT IS ONLY FORBEARING AT THIS TIME. FOR OTHER RULES, THE FCC WILL REFRAIN, FOR NOW. AT THIS TIME, FOR NOW. HMM. TO BE SURE, WITH RESPECT TO SOME RULES, THE AGENCY SAID THAT IT CANNOT ENVISION GOING FURTHER. BUT AS THE HISTORY OF THIS VERY PROCEEDING MAKES CLEAR, ASSURANCES LIKE THESE DON'T TEND TO LAST VERY LONG. IN OTHER WORDS, EXPECT FORBEARANCE TO FADE AND THE REGULATIONS TO RATCHET UP AS TIME GOES ON. MOREOVER, CONSUMERS WILL BE WORSE OFF UNDER PRESIDENT OBAMA'S PLAN TO REGULATE THE INTERNET. CONSUMERS SHOULD EXPECT THEIR BILLS TO GO UP AND THEY SHOULD EXPECT THAT BROADBAND WILL BE SLOWER GOING FORWARD. THIS ISN'T WHAT ANYONE WAS PROMISED, TO SAY THE LEAST. FIRST, BROADBAND TAXES. ONE AVENUE FOR HIGHER BILLS IS THE NEW TAXES AND FEES THAT WILL BE APPLIED TO BROADBAND. AND HERE'S THE BACKGROUND. IF YOU LOOK AT YOUR PHONE BILL, YOU WILL SEE A LINE ITEM THAT SAYS "UNIVERSAL SERVICE FEE" OR SOMETHING LIKE THAT. THESE FEES, WHAT MOST AMERICANS CALL TAXES, ARE PAID BY AMERICANS ON THEIR TELEPHONE SERVICE. THEY FUNNEL ABOUT $9 BILLION EACH YEAR THROUGH THE FCC. NOW CONSUMERS HAVEN'T HAD TO PAY THESE TAXES ON THEIR BROADBAND BILLS BECAUSE BROADBAND HAS NEVER BEFORE BEEN A TITLE II SERVICE. BUT NOW, IT IS. SO THE ORDER EXPLICITLY OPENS THE DOOR TO BILLIONS OF DOLLARS IN NEW TAXES. INDEED IT REPEATEDLY STATES THAT IT IS ONLY DEFERRING A DECISION ON NEW BROADBAND TAXES, NOT PROHIBITING THEM. THIS IS FIG LEAF FORBEARANCE. INDEED THE FCC HAS ALREADY REFERRED THE QUESTION OF ASSESSING IT FEDERAL AND STATE TAXES ON BROADBAND TO THE FEDERAL STATE JOINT BOARD ON UNIVERSAL SERVICE AND HAS REQUESTED A RECOMMENDED DECISION BY APRIL 7TH, 2015, RIGHT BEFORE TAX DAY. IT'S NO SURPRISE THAT MANY VIEW THIS REFERRAL AS A QUESTION OF HOW, NOT WHETHER, TO TAX BROADBAND. STATES HAVE ALREADY BEGUN DISCUSSIONS ON HOW THEY WILL SPEND THE EXTRA MONEY. AND THE FCC'S OWN PREFERENCE IS PRETTY CLEAR. THE ORDER ARGUES THAT TAXING BROADBAND, QUOTE, POTENTIALLY COULD SPREAD THE BASE OF CONTRIBUTIONS AND COULD ADD TO THE STABILITY OF THE UNIVERSAL SERVICE FUND. FOR THOSE NOT FAMILIAR WITH THIS BELTWAY ARGOT, LET ME TRANSLATE. TAXING BROADBAND WOULD MAKE IT EASIER TO SPEND MORE OF YOUR MONEY WITH MINIMAL PUBLIC OVERSIGHT. AND WE'VE SEEN THIS GAME PLAYED BEFORE. DURING REFORM OF THE E RATE PROGRAM IN JULY OF 2014, THE FCC SECRETLY TOLD LOBBYISTS THAT IT WOULD RAISE USF TACKS AFTER THE ELECTION TO PAY FOR PROMISES IT WAS MAKING. SURE ENOUGH IN DECEMBER OF 2014, THE AGENCY DID JUST THAT. INCREASING E RATE SPENDING AND, WITH IT, THESE TELEPHONE TAXES BY $1.5 BILLION PER YEAR. PUBLIC REPORTS INDICATED THE FEDERAL GOVERNMENT IS EAGER TO TAP THIS NEW REVENUE STREAM AND SOON TO SPEND MORE OF CONSUMERS' HARD EARNED DOLLARS. SO WHEN IT COMES TO BROADBAND, READ MY LIPS: MORE NEW TAXES ARE COMING. IT'S JUST A MATTER OF WHEN. SECOND EFFECT ON CONSUMERS, SLOWER BROADBAND. THESE INTERNET REGULATIONS WILL WORK -- IN TERMS OF BROADBAND SPEEDS. THE RECORD IS REPLETE WITH EVIDENCE THAT TITLE II REGULATIONS WILL SLOW INVESTMENT AND INNOVATION IN BROADBAND NETWORKS. LET'S JUST REMEMBER THAT BROADBAND NETWORKS DON'T HAVE TO BE BUILT. CAPITAL DOESN'T HAVE TO BE INVESTED. RISKS TO DEPLOY -- TO BE TAKEN. THE MORE DIFFICULT THE FCC MAKES THE BUSINESS CASE FOR DEPLOYMENT, THE LESS LIKELY IT IS THAT BROADBAND PROVIDERS, BIG AND SMALL, WILL CONNECT AMERICANS WITH DIGITAL OPPORTUNITIES. THE OLD WORLD OFFERS A CAUTIONARY TALE HERE, COMPARE THE BROADBAND MARKETPLACE IN THE UNITED STATES TO THAT OF EUROPE. WHERE BROADBAND GENERALLY IS TREATED AS A PUBLIC UTILITY. TODAY, 82% OF AMERICANS HAVE ACCESS TO 25 MEGABIT PER SECOND BROADBAND SPEEDS. IN EUROPE, THAT FIGURE IS ONLY 54%. MOREOVER IN THE UNITED STATES, AVERAGE MOBILE BROADBAND SPEEDS ARE 30% FASTER THAN THEY ARE IN WESTERN EUROPE. IT'S NO WONDER THAT MANY EUROPEANS ARE PERPLEXED BY WHAT IS TAKING PLACE AT THE FCC. JUST THIS WEEK, THE SECRETARY-GENERAL OF THE EUROPEAN PEOPLE'S PARTY, THE LARGEST PARTY IN THE EUROPEAN PARLIAMENT, OBSERVED THAT THE FCC, AND I QUOTE, AT THE BEHEST OF PRESIDENT OBAMA, WAS ABOUT ABOUT TO IMPOSE THE TYPE OF REGULATION WHICH HAS LED EUROPE TO FALL BEHIND THE U.S. IN TERMS OF LEVELS OF INVESTMENT. MAKING ALL OF THIS WORSE IS THE FACT THAT THE FCC NOW WELCOMES LITIGATION FROM INDIVIDUAL CLAIMS ABOUT THE JUSTNESS AND REASONABLENESS OF ISP PRICING TO SPRAWLING CLASS ACTIONS FOR VIOLATIONS OF THE NEW INTERNET CONDUCT RULE AS AN APPROPRIATE MEANS OF REGULATING THE INTERNET ECONOMY. JUDGING FROM WHAT WE'VE SEEN IN THE PATENT WORLD THIS, WILL BE A BOON FOR TRIAL LAWYERS. WHAT I'VE MENTIONED SO FAR ARE JUST THE INTENDED CONSEQUENCES OF RECLASSIFICATION. THERE ARE UNINTENDED CONSEQUENCES AS WELL. THE FEES THAT BROADBAND PROVIDERS FROM SMALL TOWN CABLE COMPANIES TO NEW ENTRANTS LIKE GOOGLE MUST NOW PAY USING THINGS LIKE UTILITY POLES WILL GO UP BY AN ESTIMATED 150 MILLION TO $200 MILLION PER YEAR. RECLASSIFICATION WILL EXPOSE MANY SMALL COMPANIES TO HIGHER STATE AND LOCAL TAXES. HERE IN WASHINGTON, D.C., FOR INSTANCE, COMPANIES WILL FACE AN INSTANT 11% INCREASE IN TAXES UNDER GROSS RECEIPTS. THAT'S A BIG BITE THAT'S GOING TO LEAVE A WELT ON CONSUMERS' W WALLETS. ALL OF THESE ADD UP. EVERY DOLLAR SPENT ON FEES AND NEW COSTS LIKE LAWYERS AND ACCOUNTANTS HAS TO COME FROM SOMEWHERE. EITHER FROM THE POCKETS OF THE AMERICAN CONSUMER OR PROJECTS TO DEPLOY FASTER BROADBAND. AND SO, THESE HIGHER COSTS WILL LEAD TO LOWER SPEEDS AND HIGHER PRICES. IN SHORT, LESS VALUE FOR THE AMERICAN CONSUMER. NOW THAT'S CERTAINLY NOT WHAT I HEARD CONSUMERS WANTED WHEN I HOSTED THE TEXAS FORUM ON INTERNET REGULATION IN COLLEGE STATION, TEXAS. THE FCC'S ONLY FIELD HEARING ON NET NEUTRALITY WHERE AUDIENCE MEMBERS WERE ALLOWED TO SPEAK. NOW THERE, INTERNET INNOVATORS, STUDENTS, EVERYDAY PEOPLE TOLD ME THEY WANTED SOMETHING ELSE FROM THE FCC, SOMETHING THAT I THOUGHT HAD A FAMILIAR RING TO IT. THEY WANTED COMPETITION, COMPETITION, COMPETITION. AND YET, LITERALLY NOTHING IN THIS ORDER WILL PROMOTE COMPETITION AMONG ISPs. TO THE CONTRARY, RECLASSIFYING BROADBAND WILL DRIVE COMPETITORS OUT OF BUSINESS. MONOPOLY RULES, DESIGNED FOR THE MONOPOLY ERA, WILL INEVITABLY MOVE US IN THE DIRECTION OF A MONOPOLY. PRESIDENT OBAMA'S PLAN TO REGULATE THE INTERNET IS NOTHING MORE THAN A KINGSBURY COMMITMENT FOR THE DIGITAL AGE. IF YOU LIKED THE MA BELL MONOPOLY IN THE 20TH CENTURY, YOU WILL LOVE PA BROADBAND IN THE 21ST. BUT THIS ISN'T JUST MY VIEW. THE PRESIDENT'S OWN SMALL BUSINESS ADMINISTRATION, APPARENTLY ACTING INDEPENDENTLY, ADMONISHED THE FCC THAT ITS PROPOSED RULES WOULD UNDULY BURDEN SMALL BUSINESSES. AND FOLLOWING THE PRESIDENT'S LEAD, THE FCC IGNORES THIS ADMONITION BY APPLYING HEAVY HANDED TITLE 2 REGULATIONS TO EACH AND EVERY SMALL BROADBAND PROVIDER AS IF IT WERE AN INDUSTRIAL GIANT. NOT SURPRISINGLY, SMALL INTERNET SERVICE PROVIDERS ARE WORRIED. AND I HEARD THIS FOR MYSELF AT THE TEXAS FORUM ON INTERNET R REGULATION OF THE ONE OF THE PANELISTS OWNS ALAMO BROADBAND, WHICH IS A WIRELESS ISP THAT SERVES ONLY 700 PEOPLE ACROSS 500 SQUARE MILES SOUTH OF SAN ANTONIO. WHAT DID JOE THINK OF TITLE II? HE THINKS IT'S PRETTY MUCH A TERRIBLE IDEA. HIS STAFF IS, AND I QUOTE, PRETTY BUSY JUST DEALING WITH THE LOADS WE ALREADY CARRY. MORE STAFF TO COVER REGULATIONS MEANS LESS FUNDS TO RUN THE NETWORK AND PROVIDE THE VERY SERVICE OUR CUSTOMERS DEPEND ON. OTHER WISTs FEEL THE SAME WAY. LAST WEEK 142 OF THEM JOINED THE CHORUS. THEY'VE DEPLOYED WIRELESS BROADBAND TO CUSTOMERS WHO OFTEN HAVE NO ALTERNATIVES, INCLUDING MY PARENTS. THEY OFTEN RUN ON A SHOESTRING BUDGET WITH JUST A FEW PEOPLE TO RUN THE BUSINESS, INSTALL EQUIPMENT, AND HANDLE SERVICE CALLS. THEY HAVE NO INCENTIVE, AND EVEN IF THEY DID, THEY HAVE NO ABILITY TO TAKE ON COMMERCIAL GIANTS LIKE NETFLIX. AND THEY SAY THAT THE FCC'S NEW REGULATORY INTRUSIONS INTO OUR BUSINESSES WOULD LIKELY FORCE US TO RAISE PRICES, DELAY DEPLOYMENT EXPANSION, OR BOTH. OR CONSIDER THE VIEWS OF 24 OF THE COUNTRY'S SMALLEST ISPs. EACH WITH FEWER THAN 1,000 RESIDENTIAL BROADBAND CUSTOMERS. THEY TOLD US THAT TITLE II WILL BADLY STRAIN OUR LIMITED RESOURCES, BECAUSE WE HAVE NO IN-HOUSE ATTORNEYS AND NO BUDGET LINE ITEMS FOR OUTSIDE COUNSEL. OR HOW ABOUT THE 43 MUNICIPAL BROADBAND PROVIDERS THAT FLATLY TOLD THE FCC THAT TITLE II WILL TRIGGER CONSEQUENCES BEYOND THE COMMISSION'S CONTROL AND RISK SERIOUS HARM TO OUR ABILITY TO FUND AND DEPLOY BROADBAND WITHOUT BRINGING ANY CONCRETE BENEFIT FOR CONSUMERS OR EDGE PROVIDERS THAT THE MARKET IS NOT ALREADY PROVING TODAY WITHOUT THE AID OF ADDITIONAL REGULATIONS. AND THERE'S A SPECIAL IRONY THAT GIVEN THAT RIGHT BEFORE THIS VOTE AS YOU HEARD, THE FCC VOTED TO PREEMPT STATE LAWS REGARDING CITY-OWNED BROADBAND PROJECTS. THIS IS AN INCENTIVE PRESIDENT OBAMA HIMSELF ANNOUNCED JUST LAST MONTH IN CEDAR FALLS, IOWA. THE FCC DUTIFULLY IS IMPLEMENTING IT. BUT CEDAR FALLS UTILITIES, THE VERY MUNICIPAL BROADBAND PROVIDER THE PRESIDENT PROMOTED, TELLS US THAT TITLE II IS, QUOTE, A TREMENDOUS MISTAKE. SO WHAT DOES THE ORDER TELL AMERICANS WHOSE ISP ISN'T A C COMCAST, AN AT&T A GOOGLE OR A SPRINT? WHAT DOES IT TELL THOSE WHOSE SERVICE WILL BE MORE EXPENSIVE AS A DIRECT RESULT OF RECLASSIFICATION? WHAT DOES IT TELL THOSE WHO MAY LOSE THEIR INTERNET SERVICE IF THEIR SMALL PROVIDER GOES OUT OF BUSINESS? WHAT DOES IT TELL THOSE WHO WORKED FOR YEARS TO SERVE THEIR COMMUNITY AND BUILD A BUSINESS? ONE THAT'S FINALLY IN THE BLACK. THERE'S NO EXPLANATION. THERE'S NOT EVEN AN ACKNOWLEDGMENT. INSTEAD, THERE'S JUST A SMUG AND IMPLICIT ASSURANCE THAT IT WON'T BE THAT BAD AND YOU PROBABLY HAD IT COMING ANYWAY. SO THE FCC IS ABANDONING A 20-YEAR BIPARTISAN FRAMEWORK FOR KEEPING THE INTERNET FREE AND OPEN IN FAVOR OF GREAT DEPRESSION ERA LEGISLATION DESIGNED TO REGULATE MA BELL. BUT AT LEAST WE'RE GETTING SOMETHING IN RETURN, RIGHT? WRONG. THE INTERNET IS NOT BROKEN. THERE IS NO PROBLEM FOR THE GOVERNMENT TO SOLVE. THAT THE INTERNET WORKS, THAT INTERNET FREEDOM WORKS, SHOULD BE APPARENT TO ANYONE WITH AN APPLE IPHONE OR MICROSOFT SURFACE. A SAMSUNG SMART TV OR ROCU, A THERMOSTAT OR FIT BIT. WITH WE LIVE IN A TIME WHERE YOU CAN BUY A MOVIE FROM iTUNES, WATCH A MUSIC VIDEO ON YOUTUBE, LISTEN TO A PERSONALIZED PLAY LIST ON PANDORA, WATCH YOUR FAVORITE NOVEL COME TO LIFE ON AMAZON STREAMING VIDEO, HELP SOMEONE MAKE A POTATO SALAD ON KICK STARTER, CHECK OUT THE LATEST COMIC ON XKCD, SEE WHAT SEINFELD HAS BEEN UP TO ON CRACKLE, NAVIGATE BAD TRAFFIC WITH WAVES, WATCH AN EVENTFUL FCC MEETING ONLINE, AND DO LITERALLY HUNDREDS OF OTHER THINGS WITH AN ONLINE CONNECTION. AT THE START OF THIS MILLENNIUM, WE DIDN'T HAVE ANY OF THIS INTERNET INNOVATION. AND NO, THE FEDERAL GOVERNMENT DIDN'T BUILD THAT. SOMEBODY ELSE MADE THAT HAPPEN. FOR ALL INTENTS AND PURPOSES, THE INTERNET, AS WE KNOW IT, DIDN'T EXIST UNTIL THE PRIVATE SECTOR DEVELOPED IT IN THE 1990s. AND IT'S BEEN THE COMMERCIAL INTERNET THAT HAS LED TO THE CREATIVITY, THE INNOVATION, FRANKLY THE ENGINEERING G GENIUS WE SEE TODAY. NEVERTHELESS, IT ARGUES THAT BROADBAND PROVIDERS HOLD ALL THE TOOLS NECESSARY TO DECEIVE CONSUMERS, DEGRADE CONTENT, OR DEFAVOR THE CONTENT THAT THEY DON'T LIKE. AND IT ASSERTS THAT THE FCC CONTINUES TO HEAR CONCERNS ABOUT OTHER BROADBAND PROVIDERS INVOLVING BLOCKING OR DEGRADING THIRD PARTY APPLICATIONS. THE EVIDENCE OF THESE CONTINUING THREATS? THERE IS NONE. IT'S ALL ANECDOTE, HYPOTHESIS, AND HYSTERIA. AND IF YOU ARE ALLOWED TO SEE THIS PLAN, YOU WOULD SEE THAT FOR YOURSELF. A SMALL ISP IN NORTH CAROLINA ALLEGEDLY BLOCKED VOIP CALLS A DECADE AGO. COMCAST CAPPED BIT TORRENT TRAFFIC EIGHT YEARS AGO. APPLE INTRODUCED FACETIME OVER WI-FI FIRST, CELLULAR NETWORKS LATER. SCATTERED EXAMPLES THIS -- AREN'T ENOUGH TO TELL A STORY ABOUT NET NEUTRALITY. THE BOOGEY MAN NEVER HAD IT SO EASY. SO WHAT IS THERE TO FEAR? THE ONLY THING WE HAVE TO FEAR IS FEAR ITSELF. BUT IF THE FCC INSTEAD INTONES THE SCARIEST WORDS FOR ANY FRIEND OF INTERNET FREEDOM: I'M FROM THE GOVERNMENT, AND I'M HERE TO HELP. TO PUT IT ANOTHER WAY, TITLE II IS NOT JUST A SOLUTION IN SEARCH OF A PROBLEM, IT'S A GOVERNMENT SOLUTION THAT CREATES A REAL WORLD PROBLEM. THIS IS NOT WHAT THE INTERNET NEEDS AND IT'S NOT WHAT THE AMERICAN PEOPLE WANT. SO THAT'S SUBSTANCE. A FEW WORDS ON PROCESS BRIEFLY. WHEN THE COMMISSION LAUNCHED THIS RULE MAKING, I SAID THAT WE NEEDED TO GIVE THE AMERICAN PEOPLE A FULL AND FAIR OPPORTUNITY TO PARTICIPATE IN THIS PROCESS. UNFORTUNATELY, WE HAVE FALLEN WOEFULLY SHORT OF THAT STANDARD. MOST IMPORTANTLY, THE PLAN IN FRONT OF US TODAY WAS NOT FORGED WITH WITHIN THIS BUILDING THROUGH A TRANSPARENT NOTICE AND COMMENT RULE MAKING PROCESS. INSTEAD, "THE WALL STREET JOURNAL" REPORTS THAT IT WAS DEVELOPED THROUGH, QUOTE, AN UNUSUAL SECRETIVE EFFORT INSIDE THE WHITE HOUSE, UNQUOTE. INDEED WHITE HOUSE OFFICIALS, ACCORDING TO THE JOURNAL, FUNCTIONED AS A PARALLEL VERSION OF THE FCC. THE WORK LED TO THE PRESIDENT'S ANNOUNCEMENT IN NOVEMBER OF ITS PLAN FOR INTERNET REGULATION. A PLAN WHICH THE REPORT SAYS BLIND SIGHTED THE FCC AND SWEPT ASIDE MONTHS OF WORK BY CHAIRMAN WHEELER TOWARD A COMPROMISE. NOW OF COURSE, A FEW INSIDERS WERE CLUED IN ABOUT WHAT WAS TRANSPIRING. HERE IS WHAT A LEADER FOR THE GOVERNMENT FUNDED GROUP "FIGHT FOR THE FUTURE" HAD TO SAY: WE'VE BEEN HEARING TO WEEKS FROM OUR ALLIES IN D.C. THAT THE ONLY THING THAT COULD STOP FCC CHAIRMAN TOM WHEELER FROM MOVING AHEAD WITH HIS SHAM PROPOSAL TO GUT NET NEUTRALITY WAS IF WE COULD GET THE PRESIDENT TO STEP IN. SO WE DID EVERYTHING IN OUR POWER TO MAKE THAT HAPPEN. WE TOOK THE GLOVES OFF AND PLAYED HARD. AND NOW WE GET TO CELEBRATE A SWEET VICTORY. CONGRATULATIONS. WHAT THE PRESS HAS CALLED A PARALLEL FCC AT THE WHITE HOUSE, OPENED ITS DOOR TO A PLETHORA OF SPECIAL INTEREST ACTIVISTS. DAILY -- DEMAND PROGRESS, FIGHT FOR THE FUTURE, FREE PRESS, AND PUBLIC KNOWLEDGE JUST TO NAME A FEW. INDEED, EVEN BEFORE ACTIVISTS WERE BLOCKING THE CHAIRMAN'S DRIVEWAY LATE LAST YEAR, SOME OF THEM HAD MET WITH EXECUTIVE BRANCH OFFICIALS. BUT WHAT ABOUT THE REST OF THE AMERICAN PEOPLE? THEY CERTAINLY COULDN'T GET WHITE HOUSE MEETINGS. THEY WERE SHUT OUT OF THE PROCESS ALL TOGETHER. THEY WERE BEING PLAYED FOR FOOLS. AND THE SITUATION DIDN'T IMPROVE ONCE THE WHITE HOUSE ANNOUNCED PRESIDENT OBAMA'S PLAN. AND, QUOTE, ASKED THE FCC TO IMPLEMENT IT. THE DOCUMENT IN FRONT OF US TODAY DIFFERS DRAMATICALLY FROM THE PROPOSAL THAT THE FCC PUT OUT FOR COMMENTS LAST MAY. AND IT DIFFER SO IS DRAMATICALLY THAT EVEN ZEALOUS NET NEUTRALITY ADVOCATES FRANTICALLY RUSHED IN IN RECENT DAYS TO MAKE LAST MINUTE FILINGS REGISTERING THEIR CONCERNS THAT THE FCC MIGHT BE GOING TOO FAR. YET THE AMERICAN PEOPLE TO THIS DAY HAVE NOT BEEN ALLOWED TO SEE PRESIDENT OBAMA'S PLAN. IT HAS REMAINED HIDDEN. ESPECIALLY GIVEN THE UNIQUE IMPORTANCE OF THE INTERNET, COMMISSIONER O'RIELLY AND I ASKED FOR THE PLAN TO BE RELEASED TO THE PUBLIC. SENATE COMMERCE COMMITTEE CHAIRMAN JOHN THUNE AND HOUSE COMMITTEE -- HOUSE OF REPRESENTATIVES ENERGY AND COMMERCE CHAIRMAN FRED UPTON DID THE SAME. AND ACCORDING TO A SURVEY LAST WEEK BY A RESPECTED DEMOCRATIC POLLING FIRM, 79% OF THE AMERICAN PEOPLE FAVORED MAKING THE DOCUMENT PUBLIC. BUT STILL, THE FCC HAS INSISTED ON KEEPING IT BEHIND CLOSED DOORS. WE HAVE TO PASS PRESIDENT OBAMA'S 317-PAGE PLAN SO THE AMERICAN PEOPLE CAN FIND OUT WHAT'S IN IT. THIS ISN'T HOW THE FCC SHOULD OPERATE. WE SHOULD BE AN INDEPENDENT AGENCY, MAKING DECISIONS IN A TRANSPARENT MANNER BASED ON THE LAW AND THE FACTS AND THE RECORD. WE SHOULDN'T BE A RUBBER STAMP FOR POLITICAL DECISIONS MADE BY THE WHITE HOUSE. AND, WE SHOULD HAVE RELEASED THIS PLAN TO THE PUBLIC, SOLICITED THEIR FEEDBACK, INCORPORATED THAT INPUT INTO THE PLAN AND THEN PROCEEDED TO A VOTE. THERE WAS NO NEED FOR US TO RESOLVE THIS MATTER TODAY. THERE IS NO IMMEDIATE CRISIS IN THE INTERNET MARKETPLACE THAT DEMANDS IMMEDIATE ACTION. NOW THE BACKERS OF THE PRESIDENT'S PLAN KNOW THIS, BUT THEY ALSO KNOW THE DETAILS OF THE PLAN CANNOT STAND UP TO THE LIGHT OF DAY. THEY KNOW THAT THE MORE THE AMERICAN PEOPLE LEARN ABOUT IT, THE LESS THEY WILL LIKE IT. THAT IS WHY THIS PLAN WAS DEVELOPED BEHIND CLOSED DOORS AT THE WHITE HOUSE. AND THAT IS WHY THE PLAN HAS REMAINED HIDDEN FROM PUBLIC VIEW. THESE ARE MY ONLY CONCERNS, A CURSORY LOOK AT THE PLAN REVEALS GLARING LEGAL FLAWS ENSURING LITIGATION FOR A LONG, LONG TIME. RATHER THAN ADDRESS THEM TODAY, I WILL RESERVE THEM FOR MY WRITTEN STATEMENT. AT THE BEGINNING OF THIS PROCEEDING, I QUOTED GOOGLE'S FORMER CEO ERIC SCHMIDT WHO ONCE SAY THE INTERNET IS THE FIRST THING HUMANITY HAS BUILT THAT HUMANITY DOESN'T UNDERSTAND. THIS PROCEEDING MAKES IT ABUNDANTLY CLEAR THAT THE FCC STILL DOESN'T GET IT. BUT THE AMERICAN PEOPLE CLEARLY DO. THE PROPOSED GOVERNMENT REGULATION OF THE INTERNET HAS AWAKENED A SLEEPING GIANT, AND I'M OPTIMISTIC THAT WE WILL LOOK BACK ON TODAY'S VOTE AS AN ABERRATION AND TEMPORARY DEVIATION FROM THE BIPARTISAN CONSENSUS THAT HAS SERVED US SO WELL. I DON'T KNOW WHETHER THIS PLAN WILL BE VACATED BY A COURT, REVERSED BY CONGRESS, OR OVERTURNED BY A FUTURE COMMISSION. I DO BELIEVE ITS DAYS ARE NUMBERED. FOR ALL OF THESE REASONS, I DISSENT, AND I WOULD LIKE TO TAKE A MOMENT TO THANK THE HARD WORKING STAFF IN MY OFFICE, MATTHEW BARRY, NICK DEGANI, BRENDAN CARR, AND ALL OF THE OTHERS WHO HAVE LABORED THESE MANY WEEKS ON A VERY DIFFICULT ITEM UNDER TRYING PERSONAL CIRCUMSTANCES TO DELIVER THE PRODUCT WE DELIVERED TODAY. THANK YOU, MR. CHAIRMAN. >> CHAIRMAN WHEELER: COMMISSIONER? I TRIED TO KEEP SCORE ON ALL THE THINGS I DISAGREED WITH THAT YOU SAID, BUT I'VE GOT YOU ON MY SCORECARD NOW AS UNDECIDED BUT PROBABLY WAVERING AGAIN. [LAUGHTER] COMMISSIONER O'RIELLY. >> COMMISSIONER O'RIELLY: THANK YOU, MR. CHAIRMAN. LOOK FORWARD TO MY SCORECARD AS WELL. [LAUGHTER] I HAD A CHANCE TO REVIEW SOME OF THE TWEETS WHILE YOU WERE GIVING YOUR LAST STATEMENT. DON'T WORRY, I WAS MULTITASKING, I HEARD YOUR STATEMENT. THERE'S QUITE A CRITIQUE OF THE LENGTH OF MY LAST STATEMENT. WELL, SIT BACK. [LAUGHTER] PUT YOUR FEET UP. YOU HAVEN'T SEEN ANYTHING YET. >> [INAUDIBLE] >> COMMISSIONER O'RIELLY: I PROMISE I'LL PUT MY EVEN LONGER ONE IN THE RECORD. TODAY THE MAJORITY OF THE COMMISSION ATTEMPTS TO USURP THE AUTHORITY OF CONGRESS BY REWRITING THE COMMUNICATIONS ACT TO SUIT ITS OWN VALUES AND POLITICAL ENDS. THE ITEM CLAIMS TO FORBEAR FROM CERTAIN MONOPOLY ERA TITLE II REGULATIONS WHILE RESERVING THE RIGHT TO IMPOSE THEM USING OTHER PROVISIONS OR AT SOME POINT IN THE FUTURE. THE COMMISSION ABDICATES ITS ROLE AS AN EXPERT AGENCY BY DEFINING AND CLASSIFYING SERVICES BASED ON UNSUPPORTED AND UNREASONABLE FINDINGS. IT FAILS TO ACCOUNT FOR SUBSTANTIAL DIFFERENCES BETWEEN FIXED AND MOBILE TECHNOLOGIES. IT OPENS THE DOOR TO APPLY THESE RULES TO EDGE PROVIDERS. IT DELEGATES SUBSTANTIAL AUTHORITY TO BUREAUS INCLUDING HOW THE RULES ARE INTERPRETED AND ENFORCED ON A CASE-BY-CASE BASIS. AND LEST WE FORGET HOW THIS PROCEEDING STARTED. IT ALSO REINSTATES NET NEUTRALITY RULES. INDEED, IT SEEMS EVERY BAD IDEA EVER FLOATED IN THE NAME OF NET NEUTRALITY HAS COME HOME TO ROOST IN THIS ITEM. TO READ PUBLIC STATEMENTS OVER THE LAST FEW WEEKS, ONE MIGHT THINK THAT THIS ITEM USES TITLE II IN SOME LIMITED WAY SOLELY TO PROVIDE SUPPORT FOR NET NEUTRALITY RULES AND TO PROTECT CONSUMERS. AND THE CASUAL OBSERVER MIGHT BE MISLED TO BELIEVE THAT THE ENDS JUSTIFY THE MEANS. ALONG THE WAY, HOWEVER, THE MEANS BECAME THE END. NET NEUTRALITY IS NOW THE PREIT TEXT FOR DEPLOYING TITLE II AS FAR GREATER EXTENT THAN ANYONE COULD HAVE IMAGINED JUST MONTHS AGO. AND THAT IS THE REALITY THAT THIS COMMISSION TRIED TO HIDE BY KEEPING THE DRAFT FROM THE PUBLIC AND RELEASING A CAREFULLY WORDED FACT SHEET IN ITS PLACE. I SEE NO NEED FOR NET NEUTRALITY RULES. I AM FAR MORE TROUBLED BY THE DANGEROUS COURSE THAT THE COMMISSION IS NOW CHARTING ON TITLE TWO, AND THE CONSEQUENCES IT WILL HAVE FOR FUTURE BROADBAND INVESTMENT, EDGE PROVIDERS AND CONSUMERS. THE COMMISSION ATTEMPTS TO DOWNPLAY THE SIGNIFICANCE OF TITLE II BUT MAKE NO MISTAKE, THIS IS NOT SOME MAKE-BELIEVE MODERNIZED TITLE II LIGHT THAT IS SOMEHOW TAILORED TO RESERVE INVESTMENT WHILE PROTECTING CONSUMERS FROM BLOCKING OR THROTTLING. IT IS FORBEARANCE. ALL OF TITLE II APPLIED THROUGH THE BACK DOOR OF SECTIONS 201 AND 202 OF THE ACT, AND SECTION 706 OF THE '96 ACT. MOREOVER, ALL OF ITS PREMISED ON A MYTHICAL VIRTUOUS CYCLE, NOT ACTUAL HARMS TO EDGE PROVIDERS OR CONSUMERS. IN SOME WAYS, THIS EVOLUTION IS NOT SURPRISING. I'VE CONSISTENTLY EXPRESSED CONCERNS ACROSS A NUMBER OF PROCEEDINGS. TECH TRANSITIONS, TEXT TO 911, OVER THE TOP VIDEO, VOIP SYMMETRY, THAT THIS COMMISSION HAS BEEN SLOWLY BUT STEADILY ATTEMPTING TO BRING OVER THE TOP AND OTHER IP SERVICING WITHIN ITS REACH. NOW THE COMMISSION GOES ALL IN AND SUBJECTS BROADBAND NETWORKS, THE FOUNDATION OF THE INTERNET, TO TITLE II ITSELF. FURTHERMORE, BECAUSE THERE IS NO LIMITING PRINCIPLE, THE OTHER PROVIDERS WILL EVENTUALLY BE DRAWN IN AS WELL. I CANNOT SUPPORT THIS MONUMENTAL AND UNLAWFUL POWER GRAB. WHILE THE ITEM CLAIMS THAT THE DECISIONS ARE A LOGICAL OUTGROWTH OF A FEW OPEN-ENDED QUESTIONS TACKED ON TO THE NPRM, THAT ARGUMENT IS NOT AT ALL PERSUASIVE. THIS IS CLEARLY A SITUATION WHERE INTERESTED PARTIES WOULD HAVE TO DIVINE THE AGENCY'S UNSPOKEN THOUGHTS BECAUSE THE FINAL RULE WAS SURPRISINGLY DIFFERENT -- DISTANT -- EXCUSE ME -- FROM THE PROPOSED RULE. INTERESTED PARTIES EFFECTIVELY HAD NO NOTICE OR OPPORTUNITY TO RESPOND TO THE VAST EVOLUTION THAT TOOK PLACE FROM NPRM TO FINAL ORDER. KEY POINTS INCLUDE THE SCOPE OF A NEWLY DEFINED SERVICE INCLUDING HOW THEY RELATE TO EACH OTHER, THE LEGAL ANALYSIS UNDER ITLYING THE CLASSIFICATION OR RECLASSIFICATION OF EACH SERVICE, HOW FORBEARANCE WOULD APPLY IN THE CONTEXT OF THESE NEWLY DEFINED SERVICES, AND THE THEORY UNDERLYING FORBEARANCE INCLUDING USING SECTION 201, 202, 706 TO BE BACKFILL OTHER PROVISIONS. IT'S HARD FOR ME TO BELIEVE THAT THE COMMISSION IS ESTABLISHING AN ENTIRE TITLE II NET NEUTRALITY REGIME TO PROTECT AGAINST HYPOTHETICAL HARMS. THERE'S NOT A SHRED OF EVIDENCE THAT ANY ASPECT OF THIS STRUCTURE IS NECESSARY. THE D.C. CIRCUIT CALLED THE PRIOR SCALED DOWN VERSION A PROPHYLACTIC APPROACH. I CALL IT GUILT BY IMAGINATION. MOREOVER, THE COMMISSION ONCE AGAIN TAKES A PASS ON PERFORMING A MARKET POWER ANALYSIS IN FAVOR OF REPETITIVE INVOCATION OF THE VIRTUOUS CYCLE NONSENSE THAT MAY HAVE BEEN GOOD ENOUGH TO NARROWLY SURVIVE REVIEW WHEN ALL THAT WAS AT STAKE WAS NET NEUTRALITY RULES. BUT THAT'S NO GUARANTEE TO SUCH FLIMSY REASONING WHILE WE WITHSTAND ANOTHER ROUND OR TWO OF SCRUTINY NOW THAT ALL OF TITLE II HANGS IN THE BALANCE AS WELL. WHILE SOME PROVIDERS MAY HAVE BEEN WILLING TO LIVE WITH NET NEUTRALITY RULES UNDER SECTION 706 BASED ON NOTHING MORE THAN SPECULATIVE HARMS, IT'S AN ENTIRELY DIFFERENT MATTER TO IMPOSE TITLE 2 WITHOUT CONCRETE EVIDENCE THAT DOING SO WAS ABSOLUTELY NECESSARY. THE ITEM SUPPOSEDLY INVOKES TITLE II IN ORDER TO PUT NET NEUTRALITY RULES ON THE FIRMEST LEGAL GROUND. BUT TITLE II IS FAR MORE THAN A CONVENIENT LEGAL THEORY. IT IS A COMPREHENSIVE SET OF REGULATION DESIGNED TO REIN IN MONOPOLY TELEPHONE COMPANIES, AND IT'S LADEN WITH CAN DECADES OF PRECEDENT THAT CAN THE NOT BE SHRUGGED OFF WITH SIMPLE INCANTATIONS LIKE TO THE EXTENT OUR PRIOR PRECEDENTS SUGGEST OAR WISE, THE REASONS DISCUSSED IN THE TEST, WE DISAVOW SUCH INTERPRETATION AS PLIED TO THE OPEN INTERNET CONTEXT. THERE IS A REASON THAT TITLE II HAS BEEN CALLED THE NUCLEAR OPTION. NO MATTER WHAT THE FCC TRIES TO DO TO LIMIT THE FALLOUT, AND IT'S NOT TRYING VERY HARD TO DO THAT HERE, THE DECISION WILL STILL IMPACT INVESTMENT. AS ONE ANALYST REPORTEDLY WROTE LAST WEEK, TERMINAL GROWTH RATE ASSUMPTIONS NEED TO BE LOWERED. TITLE II IS ABOUT PRICE REGULATION. AND IT WOULD BE NAIVE TO BELIEVE THAT THE IMPOSITION OF A REGIME THAT FUNDAMENTALLY IS ABOUT PRICE REGULATION IN AN INDUSTRY THAT THE FCC NOW HAS REPEATEDLY DECLARED TO BE NON-COMPETITIVE WOULDN'T INTRODUCE RISK TO FUTURE PRICING POWER. WILL THE FCC TAYLOR CERTAIN STATE FRMENTS PROVIDERS TO REJECT ASSERTIONS THAT TITLE II WILL SUBSTANTIALLY DIMINISH OVERALL BROADBAND INVESTMENT THAT DOESN'T GIVE ME A LOT OF COMFORT. EVEN A MODEST REDUCTION IS TOO GREAT A PRICE TO PAY WHEN WEIGHED AGAINST PURE SPECULATIVE HARMS. MOREOVER, THE HARMS TO SMALL ISPs WILL DISPROPORTIONATELY BE SEVERE AND THE FCC GIVES THEM NO REPRIEVE FROM TITLE II WHATSOEVER. INCREDIBLY, THE ITEM GIVES SIGNIFICANT WEIGHT TO A THEORETICAL COST OF FOREGONE INNOVATION BUT GIVES ESSENTIALLY NO WEIGHT TO THE COST OF FOREGONE INVESTMENT. I'M FAR MORE CONCERNED ABOUT AMERICANS THAT WILL REMAIN UNSERVED AS A RESULT OF OUR RULES. FORGET ABOUT OPEN INTERNET. THEY HAVE NO INTERNET. WE NEED TO BE FOCUSED ON WAYS TO PROMOTE DEPLOYMENT AND NOT IN SOME ROUNDABOUT VIRTUOUS CYCLE WAY BUT THROUGH PROVEN DEREGULATORY MEASURES. I'M VERY CONCERNED THAT THE FAR -- THAT FAR FROM VIRTUOUS CYCLE WE ARE CREATING A VICIOUS CYCLE WHERE REGULATION DETERS INVESTMENT IN BROADBAND, AND THAT BEGETS MORE REGULATION TO STIMULATE COMPETITION AND DEPLOYMENT THAT WILL FURTHER DETER INVESTMENT. IN OTHER WORDS, THE BEATINGS WILL CONTINUE UNTIL MORALE IMPROVES. NOTABLY, THE ITEM IS NOT ONLY REVERSES ITS DECISIONS TO TREAT BROADBAND INTERNET ACCESS SERVICE AS AN INFORMATION SERVICE, BUT IT ALSO DETERMINES THE FIRST TIME THAT TITLE II APPLIES TO THE ENTIRE SERVICE, NOT JUST THE TRANSMISSION COMPONENT. AS ONE PROVIDER PUT IT, THE CONCLUSION THAT RETAIL BROADBAND INTERNET ACCESS IS A TELECOMMUNICATION SERVICE IS CONTRARY TO THE PLAIN TEXT OF MULTIPLE -- OF THE COMMUNICATIONS ACT, DECADES OF COMMISSION DECISIONS, AND VIEWS OF ALL NINE SUPREME COURT JUSTICES IN BRAND X. THE ITEM ALSO GIVES SHORT SHRIFT TO THE ARGUMENT THAT PRIOR DECISIONS TO CLASSIFY BROADBAND ACCESS ENDANGERED SERIOUS RELIANT INTERESTS THAT MUST BE TAKEN INTO ACCOUNT. I'M JUST AS TROUBLED BY THE SUBSTANTIAL FACTUAL ERRORS UNDERLYING THE DECISION. ADHERENCE TO FACTUALLY UNSUPPORTABLE ASSERTIONS SHOWS THAT THE COMMISSION HAS ABDICATED ITS ROLE AS AN EXPERT FEDERAL AGENCY ON COMMUNICATION NETWORKS AND SERVICES, IGNORED THE ADMINISTRATIVE RECORD IN THIS PROCEEDING. THE RECORD IS REPLETE WITH EVIDENCE THAT CONTENT PROVIDERS AND NETWORK OPERATORS ENTER INTO INTERCONNECTION RELATIONSHIPS WITH ISPs THROUGH INDIVIDUALLY NEGOTIATED PRIVATE ARRANGEMENTS. REGARDLESS OF THE FORUM THEY TAKE, PEERING, TRANSIT OR ON NET ONLY, PROVIDERS DO NOT HOLD THEMSELVES OUT TO SERVE THE PUBLIC INDIFFERENTLY. AS SUCH, THESE ARRANGEMENTS WHICH SOME MISTAKENLY REFER TO AS INTERCONNECTION HAVE NEVER BEEN REGULATED AT COMMON CARRIAGE SUBJECT TO TITLE II. I'M DETERRED BY THIS LONG HUSBAND TRI, THE ITEM CONCOCTS A NOVEL SERVICE LAUNDERING SCHEME. IT ATTEMPTS TO TRANSFORM THIS INTERCONNECTION INTO TELECOMMUNICATIONS SERVICE BY SUBSUMING IT INTO ANOIR SERVICE, BROADBAND INTERNEAT NET ACCESS SERVICE, AND JUST LIKE THAT, RETAIL BROADBAND EXHIBIT NET SERVICE IS NO LONGER A LAST MILE SERVICE, IT'S THE ENTIRE INTERNET PATH, INCLUDING ALL INTERNET TRAFFIC RELATIONSHIPS. THIS APPROACH IS RIDDLED WITH HOLES. FIRST, SUCH INTERCONNECTION HAS ALWAYS BEEN UNDERSTOOD TO BE A DISTINCT FOR THE LAST MILE, INCLUDING THIS PROCEEDING. SECOND, THE ITEM DOES NOT SHOW HOW THIS SERVICE LAUNDERING SCHEME IS CONSISTENT WITH PRECEDENT. THIRD, IT DEPENDS ON BROADBAND INTERNET ACCESS SERVICE BEING A TELECOMMUNICATIONS SERVICE, WHICH IT IS NOT. FOURTH, THERE WAS ABSOLUTELY NO NOTICE FOR THIS NOVEL APPROACH. EVEN PARTIES THAT GUESS THAT INTERCONNECTION MIGHT BE SUBJECT TO TIE IT TELL TWO, DESPITE THE LACK OF NOTICE, CLEELY DID NOT UNDERSTAND THAT THE PRIMARY MECHANISM FOR DOING SO WOULD BE TO REINTERPRET BROADBAND INTERNET ACCESS SERVICE TO INCLUDE INTERCONNECTION. MOREOVER, THIS SHIFT TO REGULATE INTERNET TRAFFIC EXCHANGE HIGHLIGHTS THAT THE COMMISSION'S REAL END GAME HAS BECOME IMPOSING TITLE II ON ALL PARTS OF THE INTERNET, NOT JUST SETTING UP NET NEUTRALITY RULES. AND SUBJECTING A THRIVING COMPETITIVE MARKET TO REGULATION IN THE NAME OF NET NEUTRALITY, THE COMMISSION IS TRYING TO USE A SMALL HOOK AND A THIN LINE TO REEL IN A VERY LARGE WHALE. THIS LINE WILL SURELY BREAK. SIMILARLY, THIS ITEM, FOR THE IT FIRST TIME, SUBSUMES MOBILE BROADBAND SERVICES UNDER TITLE II COMMON CARRIER REGULATION -- DECADES OF PRECEDENT. UNTIL NOW, THE COMMISSION HAS FOLLOWED CONGRESS' MANDATE UNDER SECTION 332 OF THE COMMUNICATIONS ACT, AND HAS CORRECTLY EXERCISED REGULATORY RESTRAINT BY CLASSIFYING MOBILE BROADBAND AS AN INFORMATION SERVICE, FREE FROM COMMON CARRIER REGULATION AS REQUIRED BY THE STATUTE. YET TODAY WE USE A SLIGHT OF HAND TO CHANGE OUR DEFINITION SO THAT OVERNIGHT, MOBILE BROADBAND MAGICALLY FALLS UNDER THE CONFINES OF TITLE II. AND SUBJECTING WIRELESS BROADBAND TO TITLE II, THE MAJORITY IGNORES FUNDAMENTAL DIFFERENCES BETWEEN WIRELESS AND FIXED BROADBAND INDUSTRIES AND TECHNOLOGIES. UNLIKE LAST CENTURY'S VOICE-ONLY TELEPHONE SERVICE, THE WIRELESS SECTOR HAS DEVELOPED AND FLOURISHED IN A FIERCELY COMPETITIVE ENVIRONMENT. WIRELESS CONSUMERS HAVE AMPLE CHOICES AND THEY CAN READILY SWITCH BETWEEN OFFERINGS. THIS COMPETITION HAS YIELDED UNPARALLELED INVESTMENT AND INNOVATION, LOWER PRICES, HIGHER SPEEDS, AND PRODUCT DIFFERENTIATION AS SECTOR PARTICIPANTS VIE FOR AN EDGE TO ATTRACT AND RETAIN SUBSCRIBERS. APPLYING A REGULATORY REGIME ESTABLISHED BY NO MOPLY VOIP SERVICE TO DYNAMIC MOBILE SECTOR DEFIES LOGIC. THE MAJORITY ALSO FLAGRANTLY IGNORES THE FUNDAMENTAL -- OPERATIONAL REQUIREMENTS NECESSARY FOR MOBILE BROADBAND NETWORKS. UNLIKE FIXED SYSTEMS, MOBILE NETWORK CAPACITY IS CONSTRAINED BY THE RELATIVE SCARCITY OF SPECTRUM RESOURCES. WIRELESS PROVIDERS MUST MAINTAIN THEIR ABILITY TO VIGOROUSLY AND NIMBLY MITIGATE THE CONGESTIONS INHERENT TO WIRELESS NETWORKS. I EXPECT RIGID TILE TELL TWO RULES ADOPTED TODAY WILL HAMSTRING THE SMOOTH FUNCTIONING OF THESE NETWORKS. ALTHOUGH SOME MAY ARGUE THAT THE EXCEPTION FOR REASONABLE NETWORK MANAGEMENT WILL ALLOW SUCH FLEXIBILITY, A CASE BY CASE APPROACH WHEREBY A WIRELESS PROVIDER CAN CONGESTION MANAGEMENT PRACTICES ARE JUDGED AFTER THE FACT BY THE COMMISSION'S ENFORCEMENT BUREAU IS UNLIKELY TO PROVIDE MUCH COMFORT OR CERTAINTY TO WIRELESS PROVIDERS. FINALLY, THE MAJORITY DEFINES BROADBAND AS A TELL COMEUNCATIONS SERVICE WITHOUT ADEQUATELY EXPLAINING ITS RATIONALE FOR THE DRASTIC CHANGE OF COURSE. IN ADDITION, THERE'S BEEN NO MEANINGFUL OPPORTUNITY FOR PUBLIC COMMENT ON THIS CHANGED DEFINITION. THIS ACTION IS NOTHING LESS THAN AN ATTEMPT TO IMPROPERLY CAPTURE MOBILE BROADBAND UNDER TITLE II, IN DIRECT CONTRAVENTION OF CONGRESSIONAL INTENT. AND IT'S NOT LIKELY TO SURVIVE JUDICIAL SCRUTINY. PERHAPS THE MOST SURPRISING AND TROUBLING ASPECT OF THE ITEM IS THAT IT PROMISES FORBEARANCE FOR MOST OF TITLE II. BUT IT DOES NOT IT ACTUALLY FORBEAR FROM THE SUBSTANCE OF THOSE PROVISIONS. INSTEAD, THE ITEM INTENDS TO PROVIDE THE SAME PROTECTIONS USING A FEW OF THE CORE TITLE II PROVISIONS THAT ARE RETAINED, CHIEFLY, SECTIONS 201, 202 AND 706. I CALL THIS MANEUVER FAUXBEARANCE. STATING, APPLYING SECTION 201 AND 202 ENABLES US TO PROTECT CONSUMERS FRO IN POTENTIALLY HARMFUL CONDUCT FOR THE INTERNET RULES AND IMPORTANT STATUTORY BACK STOP THEY PROVIDE REGARDING BROADBAND PROVIDER PRACTICES MORE GENERALLY. INDEED, SECTION AFTER SECTION, THE ITEM CLAIMS TO FORBEAR FROM A PROVISION, THEN QUICKLY POINTS TO AVAILABLE PROTECTIONS IN OTHER PROVISIONS THAT EFFECTIVELY GUT THE FORBEARANCE. IT'S AN END RUN FOR PURPOSES OF SPIN, AND ALLOWS PROPONENTS TO CLAIM THAT IT'S A NEW MODERN TITLE II, WHEN REALLY, IT ONLY WOULD EXCLUDE 56% DIRECTLY AND EVEN THEN, ALLOW THE INEXCUSABLY BROAD LANGUAGE OF CERTAIN SECTIONS TO GOVERN. SUFFICE IT TO SAY, THE MAJORITY SEEMS COMFORTABLE WITH THE SUGGESTION THAT THEY CAN FORBEAR FROM PARTS OF TITLE II BECAUSE SECTION 201 DOES IT ALL ANYWAY. I WILL HIGHLIGHT JUST A FEW EXAMPLES IN THIS MEETING TO MAKE MY POINT. FORBEARANCE FROM TARIFFING. TO QUOTE THE ITEM, IT IS OUR PREDICTIVE JUDGMENT THAT THE PROTECTIONS IN SECTION 201 AND 202 OF THE ACT WILL BE ADEQUATE TO PROTECT THE INTEREST OF CONSUMERS INCLUDING THE INTEREST IN JUST, REASONABLE AND NON-DISCRIMINATORY CONDUCT THAT OTHERWISE MIGHT BE THREATENED BY THE ACTIONS OF BROADBAND PROVIDERS. IMPORTANTLY, BROADBAND PROVIDERS ARE ALSO SUBJECT TO COMPLAINTS AND COMMISSION ENFORCEMENT IN THE EVENT THAT THEY VIOLATE SECTION 201 OR 202 OF THE ACT, THE OPEN INTERNET RULES OR OTHER ELEMENTS OF CORE BROADBAND INTERNET ACCESS REQUIREMENTS. THIS IS BACK DOOR RATE SETTING AUTHORITY. TWO, FAUXBEARANCE -- THE CONDUCT STANDARDS IN OUR OBSERVE INTERNET RULES PROVIDE IMPORTANT PROTECTION AGAINST REDUCTION OR IMPAIRMENT OF BROADBAND INTERNET ACCESS SERVICE SHORT OF COMPLETE SUCCESSION OF PROVIDING THAT SERVICE. FAUXBEARANNCE FROM INTERCONNECTION AND ITEM OPENING. THE COMMISSION RETAINS AUTHORITY UNDER 201 AND 202 AND THE OPEN INTERNET RULES TO REQUIRE A PROVIDER OF BROADBAND INTERNET ACCESS TO ADDRESS INTERCONNECTION ISSUES SHOULD THEY ARISE, INCLUDING EVALUATING WHETHER BROADBAND PROVIDERS' CONDUCT IS JUST AND REASON ANL ON A CASE-BY-CASE BASIS. WE THEREFORE CONCLUDE THAT THESE REMAINING LEGAL PROTECTIONS THAT APPLY WITH WITH RESPECT TO PROVIDERS OF BROADBAND INTERNET ACCESS SERVICE WILL ENABLE US TO ACT IF NEEDED TO ENSURE THAT BROADBAND PROVIDER DOES NOT UNREASONABLY REFUSE TO PROVIDE SERVICE OR INTERCONNECT. THE SUPREME COURT HAS MADE CLEAR THAT AN AGENCY HAS NO POWER TO TAILOR LEGISLATION TO BUREAUCRATIC POLICY GOALS BY INTERPRETING A STATUTE TO CREATE A REGULATORY SYSTEM UNRECOGNIZABLE TO THE CONGRESS THAT DESIGNED IT. YET THE ITEM ATTEMPTS TO DO JUST THAT BY ENGAGING IN A WHOLESALE REWRITE OF THE COMMUNICATIONS ACT TO ADVANCE ITS OWN VISION FOR THE INTERNET. THE ITEM TASKED ITS REWRITE AS A MODERNIZED VERSION OF TITLE II. IN DOING SO, THE COMMISSION FORGETS IT MAY NOT EXERCISE ITS AUTHORITY IN A MANNER THAT IS INCONSISTENT WITH THE ADMINISTRATIVE STRUCTURE THAT CONGRESS ENACTED INTO LAW. CONGRESS GAVE US 48 PROVISIONS IN TITLE II, BUT APPARENTLY ALL WE NEED IS REALLY 151 AND 201, OR PERHAPS TO PUT IT ANOTHER WAY, PRESTO, WE HAVE A NEW STATUTE. MOREOVER, THE COMMISSION CANNOT CAST ASIDE SPECIFIC PROVISIONS IN FAVOR OF MORE GENERAL PROVISIONS OF THE ACT. IF CONGRESS HAD THOUGHT THAT SECTIONS 201 AND 202 PROVIDED THE AUTHORITY NECESSARY TO REGULATE INTERCONNECTION, FOR EXAMPLE, THEN WHY WAS IT THAT CONGRESS FELT COMPELLED TO ACTION 251 IN THE '96 ACT? ADDITIONALLY, THE FACT THAT THE AGENCY HAS FORBEARANCE AUTHORITY DOES NOT JUSTIFY THE REWRITE. USING TITLE II COMBINED WITH FORBEARANCE AUTHORITY TO CHERRY PICK ITS PREFERRED PROVISION IS AN EGREGIOUS ABUSE OF FORBEARANCE AUTHORITY. AS A D.C. CIRCUIT HAS EXPLAINED TO FURTHER THE DEREGULATORY AIMS UNDERLINED IN THE '96 OVERHAUL OF THE COMMUNICATIONS ACT, CONGRESS PROVIDED THE FCC WITH THE UNUSUAL AUTHORITY TO FORBEAR FROM ENFORCING PROVISIONS OF THE ACT AS WELL AS ITS OWN REGULATIONS. THAT IS, FORBEARANCE WAS INTENDED TO RELIEVE CARRIERS OF EXISTING REGULATIONS DURING A TIME OF REGULATORY TRANSITION. IT WAS NOT MEANT TO BE USED AS A TOOL TO SELECTIVELY SUBJECT NEW SERVICES TO PREVIOUSLY INAPPLICABLE PROVISIONS. THESE -- OF CONGRESSIONAL AUTHORITY IS ESPECIALLY TROUBLING GIVEN THAT CONGRESS STARTED THE PROCESS TO LEGISLATE IN THIS SPACE. THE FCC LEADERSHIP DID NOT EVEN CONSIDER A BRIEF PAUSE TO SEE THAT THAT PROGRESS PLAYED OUT. INSTEAD, THEY INVITED CONGRESS TO SUPPLEMENT THE FCC'S REWRITE. NOT SURPRISING, THE FCC'S ARROGANCE HAS ALREADY INVITED GREATER CONGRESSIONAL SCRUTINY, AND THE FCC ULTIMATELY COULD SEE ITS AUTHORITY CURTAILED IN MANY AREAS. THE FCC'S FACT SHEET PROMISED BRIGHT LINE RULES BUT THE REALITY IS THAT THE BULK OF THIS RULE MAKING WILL BE CONDUCTED THROUGH CASE BY CASE ADJUDICATION, MOST LIE THROUGH THE COURTS. TO BE SURE THERE ARE THREE BRIGHT LINE RULES, NO BLOCKING, THROAT ELING OR PAID PRIORITIZATION. THOSE ARE MERE NEEDLES IN A TITLE II HAYSTACK. MANY PRACTICES WILL BE REVIEWED UNDER THE GENERAL CONDUCT STANDARD THAT WILL BE QUITE LITERALLY A CATCH-ALL. MOREOVER, RATES, CHARTERS AND CLASSIFICATIONS WILL ALSO BE REVIEWED UNDER THE EE MORE FIS JUST AND REASONABLE STANDARD IN SECTIONS 201 AND 202. PARTIES WILL HAVE NO WAY OF KNOWING IN ADVANCE HOW A BUREAU OR COMMISSION MUCH AS THE COURTS ACTING PURSUANT TO SECTIONS 206 AND IT 207 WILL RULE ON A PARTICULAR MATTER. THERE WILL BE NO CERTAINTY. INDEED ONE PUBLIC INTEREST GROUP CALLED THE CATCH-ALL A RECIPE FOR OVERREACH AND CONFUSION. THE ITEM NOTES THAT PARTIES MAY SEEK AN ADVISORY OPINION WHICH APPEARS UTTERLY USELESS. THEY'RE ONLY AVAILABLE IN CERTAIN CIRCUMSTANCES AND ARE NON-BINDING. I'M ALSO NOT SURE WHY ANY PARTY WOULD WANT TO REFER ITSELF TO THE ENFORCEMENT BUREAU WHEN ITS REQUEST COULD BE USED AGAINST IT LATER. ALTHOUGH THERE ARE MANY CAVEATS ABOUT WHAT THIS ITEM DOES, THE COMMISSION'S PASS FORWARD IS CLEAR. FOR EXAMPLE, THE COMMISSION CLAIMS THIS ITEM DOES NOT REQUIRE BROADBAND PROVIDERS TO CONTRIBUTE TO THE FEDERAL UNIVERSAL SERVICE FUND AT THIS TIME. BUT THAT'S BECAUSE IT DEFERS THAT DECISION TO A PENDING PROCEEDING, WHICH IS LIKELY TO RESULT IN NEW FEES ON BROADBAND SERVICES. NOR CAN PROVIDERS TAKE ANY COMFORT IN THE ITEM'S OTHER PROMISES TO REFRAIN FROM FURTHER REGULATION. IN PARTICULAR, THE ITEM REPEATEDLY DISAVOWS ANY PRESENT INTENT TO ADOPT EX-ANTI RATE PREG LAITIONS. BANNING PAID PRIORITIZATION ITSELF IS A FORM OF EX-ANTI-RATE REGULATION. THE COMMISSION -- ON A CASE-BY-CASE BASIS WHETHER INTERCONNECTION AGREEMENTS ARE JUST AND REASONABLE UNDER SECTION 201 AND 202. THAT NE SAIRLY INCLUDES AN -- OF THE RATES, TERMS AND CONDITIONS OF SUCH ARRANGEMENTS. THE COMMISSION ALSO INTENDS TO REVIEW DATA ALLOWANCES AND USAGE SPACE PRICING ON A CASE-BY-CASE BASIS. MOREOVER, LAST MILE ISPs ARE THE -- AREN'T THE ONLY ONES THAT SHOULD BE CONCERNED ABOUT TODAY'S ACTIONS. THE ITEM ATTEMPTS, ALBEIT IT IN A FAILED WAY, TO CARVE OUT FOR NOW CDNs, TRANSIT PROVIDERS, BACKBONE PROVIDER, EDGE PROVIDERS AND CERTAIN SPECIALIZED SERVICES INCLUDING E READERS. BUT THE NEW LEGAL FRAMEWORK FOR TELECOMMUNICATIONS SERVICES HAS LET THE PROVERBIAL GENIE OUT OF THE BOTTLE. THE FACT THAT CERTAIN DECISIONS WILL HAPPEN LATER DOES NOTHING TO DIMINISH THE CULPABILITY OF THE CURRENT MAJORITY. THANK YOU, MR. CHAIRMAN. >> CHAIRMAN WHEELER: SO FOR THOSE OF YOU WHO ARE KEEPING SCORE AT HOME, YOU'VE SEEN THE KIND OF WHOLESOME DEBATE THAT GOES ON EVERY DAY HERE AT THIS COMMISSION. AND IT GETS RESOLVED BY THE DEMOCRATIC PROCESS OF TAKING A VOTE. LET ME START THE PROCESS TOWARDS THAT VOTE BY THANKING THE NEARLY 4 MILLION PEOPLE WHO PARTICIPATED IN THIS PROCEEDING. YOU TOLD US YOU WERE CONCERNED ABOUT THE FUTURE OF THE INTERNET, AND YOUR PARTICIPATION HAS MADE THIS THE MOST OPEN PROCEEDING IN FCC HISTORY. NOT ALL OF YOU AGREED WITH EACH OTHER AND NOT ALL OF YOU AGREED WITH THE ACTION THAT WE ARE GOING TO TAKE TODAY. BUT YOU MADE OUR PROCESS, AND THUS OUR DECISION, STRONGER. WE LISTENED AND WE LEARNED. I BELIEVE THAT'S WHAT CONGRESS INTENDED WHEN THEY ESTABLISHED THE RULES BY WHICH THIS AGENCY OPERATES. THOSE 4 MILLION COMMENTS ALSO ILLUSTRATE THE IMPORTANCE OF AN OPEN AND UNFETTERED NETWORK AND THE ROLE IT PLAYS AS A CORE OF FREE EXPRESSION AND DEMOCRATIC PRINCIPLES. WELL, SOME OTHER COUNTRIES TRY TO CONTROL THE INTERNET, THE ACTION THAT WE TAKE TODAY IS AN IRREFUTABLE REFLECTION OF THE PRINCIPLE THAT NO ONE, WHETHER GOVERNMENT OR CORPORATE, SHOULD CONTROL FREE AND OPEN ACCESS TO THE INTERNET. [APPLAUSE] THE INTERNET -- THE INTERNET IS THE MOST POWERFUL AND PERVASIVE PLATFORM ON THE PLANET. IT'S SIMPLY TOO IMPORTANT TO BE LEFT WITHOUT RULES AND WITHOUT A REFEREE ON THE FIELD. THINK ABOUT IT. THE INTERNET HAS REPLACED THE FUNCTIONS OF THE TELEPHONE AND THE POST OFFICE. THE INTERNET HAS REDEFINED COMMERCE, AND AS THE OUTPOURING FROM 4 MILLION AMERICANS HAS DEMONSTRATED, THE INTERNET IS THE ULTIMATE VEHICLE FOR FREE EXPRESSION. THE INTERNET IS SIMPLY TOO IMPORTANT TO ALLOW BROADBAND PROVIDERS TO BE THE ONES MAKING THE RULES. [APPLAUSE] SO LET'S ADDRESS AN IMPORTANT ISSUE HEAD-ON. THIS PROPOSAL HAS BEEN DESCRIBED BY ONE OPPONENT AS, QUOTE, A SECRET PLAN TO REGULATE THE INTERNET. NONSENSE! THIS IS NO MORE A PLAN TO REGULATE THE INTERNET THAN THE FIRST AMENDMENT IS A PLAN TO REGULATE FREE SPEECH. [APPLAUSE] THEY BOTH STAND FOR THE SAME CONCEPT: OPENNESS, EXPRESSION, AND AN ABSENCE OF GATE KEEPERS TELLING PEOPLE WHAT THEY CAN DO, WHERE THEY CAN GO AND WHAT THEY CAN THINK. THE ACTION THAT WE TAKE TODAY IS ABOUT THE PROTECTION OF INTERNET OPENNESS. NOW LET'S MAKE NO MISTAKE ABOUT IT, BROADBAND ACCESS PROVIDERS HAVE THE TECHNICAL ABILITY AND THE ECONOMIC INCENTIVE TO IMPOSE RESTRICTIONS ON THE INTERNET. AS THE D.C. CIRCUIT SAID IN ITS DECISION REMANDING THIS MATTER TO US, QUOTE, BROADBAND PROVIDERS REPRESENT A THREAT TO INTERNET OPENNESS AND COULD ACT IN WAYS THAT WOULD ULTIMATELY INHIBIT THE SPEED AND EXTENT OF FUTURE BROADBAND DEPLOYMENT. UNQUOTE. BUT TODAY, A MAJORITY OF THIS COMMISSION ESTABLISHES THAT WILL NOT COME TO PASS. TODAY IS A RED LETTER DAY FOR INTERNET FREEDOM. FOR CONSUMERS WHO WANT TO USE THE INTERNET ON THEIR TERMS. FOR INNOVATORS WHO WANT TO REACH CONSUMERS WITHOUT THE CONTROL OF GATE KEEPERS. FOR A FUTURE IN WHICH THERE ARE RULES TO PROTECT THE INTERNET AND ITS USERS. BUT IMPORTANTLY TODAY IS ALSO A DAY THAT GIVES NETWORK OPERATORS WHAT THEY REQUIRE IF THEY'RE TO CONTINUE TO EXPAND BROADBAND SERVICE AND COMPETITION. THE RULES FOR A FAIR AND OPEN INTERNET ARE NOT OLD STYLE UTILITY REGULATION, BUT A 21ST CENTURY SET OF RULES FOR A 21ST CENTURY SERVICE. RATE REGULATION, TARIFFING AND FORCED UNBUNDLING HAVE BEEN SUPERSEDED BY A MODERNIZED REGULATORY APPROACH THAT HAS ALREADY BEEN DEMONSTRATED TO IT WORK IN ENCOURAGING INVESTMENT IN WIRELESS VOICE NETWORKS. IT IS IMPORTANT FOR CONSUMERS AS WELL AS COMPANIES THAT NOTHING IN TODAY'S ORDER ALTERS THE ECONOMIC MODEL FOR CONTINUED NETWORK EXPANSION. THE ISPs' REVENUE STREAM WILL BE THE SAME TOMORROW AS IT WAS YESTERDAY. BEFORE TODAY, THAT REVENUE ENABLED COMPANIES TO BUILD EVER FASTER NETWORKS. NOTHING IN WHAT WE DO TODAY CHANGES THE EQUATION FOR CONSUMER REVENUES TO ISPs FOR TOMORROW. AND I BELIEVE THAT'S WHY SPRINT, T-MOBILE, FRONTIER COMMUNICATIONS AND GOOGLE FIBER ALONG WITH HUNDREDS OF SMALLER PHONE COMPANY ISPs HAVE SAID THEY'RE COMFORTABLE WITH THE COMMISSION'S MODERN REGULATORY APPROACH, AND, BULLETIN, ACCORDING TO THIS MORNING'S "WALL STREET JOURNAL," AND THE HEADLINE, QUOTE, CABLEVISION CEO PLAYS DOWN BUSINESS EFFECT OF FCC PROPOSAL, WHICH QUOTES THE CEO OF CABLEVISION AS SAYING, QUOTE, WE DON'T SEE AT LEAST WHAT THE CHAIRMAN HAS BEEN DISCUSSING AS HAVING ANY REAL IMPACT ON OUR BUSINESS. UNQUOTE. TODAY'S ORDER IS MORE POWERFUL AND MORE EXPANSIVE THAN ANY PREVIOUSLY CONSIDERED OR SUGGESTED. IT PROVIDES A STATUTORY ONE-TWO PUNCH, IF YOU WILL, THAT COMBINES TITLE II OF THE COMMUNICATIONS ACT WITH THE SIGNIFICANT POWERS OF SECTION 706 OF THE TELECOMMUNICATIONS ACT. THIS IS THE FCC USING ALL THE TOOLS IN OUR TOOLBOX TO PROTECT INNOVATORS AND CONSUMERS TO BAN PAID PRIORITIZATION, THE SO CALLED FAST LANE, THEY WILL NOT DIVIDE THE INTERNET INTO HAVES AND HAVE-NOTS, TO BAN BLOCKING, CONSUMERS WILL GET WHAT THEY PAY FOR, UNFETTERED ACCESS TO ANY LAWFUL CONTENT ON THE INTERNET, AND TO BAN THROTTLING. BECAUSE DEGRADING ACCESS TO LEGAL CONTENT AND SERVICES CAN HAVE THE SAME EFFECT AS BLOCKING, AND IT WILL NOT BE PERMITTED TO EXIST. THESE ARE ENFORCEABLE BRIGHT LINE RULES. THEY WILL ALLOW CONSUMERS TO GO WHEREVER THEY WANT WHEN THEY WANT. THEY WILL ALSO PROTECT THE RIGHTS OF INNOVATORS TO INTRODUCE NEW PRODUCTS WITHOUT ASKING ANYONE'S PERMISSION. THE ORDER ALSO INCLUDES A GENERAL CONDUCT RULE THAT CAN BE USED TO STOP NEW AND NOVEL THREATS TO THE INTERNET. ANY ACTION MUST NOT UNREASONABLY INTERFERE WITH OR UNREASONABLY DISADVANTAGE THE ABILITY OF CONSUMERS AND CONTENT PROVIDERS TO USE THE INTERNET. THERE'S ONE THING WE CAN ALL AGREE ON UP HERE, I'M SURE. AND THAT IS THAT WE CANNOT POSSIBLY IMAGINE WHAT'S GOING TO HAPPEN NEXT ON THE INTERNET. WE WANT TO ENCOURAGE THAT KIND OF INNOVATION BY MAKING SURE THAT THERE ARE GROUND RULES. THOSE GROUND RULES ARE IN PLACE. EVERYBODY KNOWS WHAT'S EXPECTED. AND FOR THE FIRST TIME, THOSE GROUND RULES WILL APPLY TO BOTH WIRED AND WIRELESS ACCESS TO THE NETWORK. MOBILE NETWORKS ACCOUNT FOR THE VAST MAJORITY OF INTERNET ACCESS. MOBILE IS A CRITICAL PATHWAY, AND IT MUST BE OPEN AND FAIR. TODAY'S ORDER ALSO FOR THE FIRST TIME ASSERTS JURISDICTION OVER THE CONNECTIONS BY WHICH ISPs PLUG IN TO THE INTERNET. AND THE CORE PRINCIPLE THERE IS THE SAME A AS ELSEWHERE. THE INTERNET MUST REMAIN OPEN. WE WILL PROTECT THE VALUES OF AN OPEN INTERNET. BOTH IN THE LAST MILE AS WELL AS AT THE POINT OF INTERCONNECTION. SO LET ME CLOSE WHERE I BEGAN. WITH A SHOUT OUT TO 4 MILLION AMERICANS WHO TOOK THEIR TIME TO SHARE WITH US THEIR VIEWS. TODAY HISTORY IS BEING MADE BY A MAJORITY OF THIS COMMISSION. AS WE VOTE FOR A FAST, FAIR AND OPEN INTERNET, AND WITH THAT, I WILL CALL FOR THE YEAS AND NAYS. ALL IN FAVOR SAY AYE. AYE. OPPOSED? NO. THE AYES HAVE IT. [APPLAUSE] >> THE REQUEST FOR EDITORIAL PRIVILEGES IS GRANTED. >> COMMISSIONER O'RIELLY: OBJECTION. >> CHAIRMAN WHEELER: THERE HAS BEEN TWO -- THERE'S AN OBJECTION NOW ON THE LAST TWO REQUESTS FOR EDITORIAL PRIVILEGES. SO LET ME JUST TURN TO MY COLLEAGUES AND ASK FOR A VOTE ON GRANTING EDITORIAL PRIVILEGES ON BOTH THE MUNICIPAL BROADBAND AS WELL AS THIS. ALL IN FAVOR OF GRANTING EDITORIAL PRIVILEGES, SAY AYE. AYE. OPPOSED? NO. THE AYES HAVE IT.