June 27, 2014
The Honorable Henry Waxman
U.S. House of Representatives
Committee on Energy and Commerce
2125 Rayburn House Office Building
Washington, D.C. 20515
Dear Congressman Waxman,
Thank you for writing to express your concerns regarding the need to reinstate rules to
preserve an open Internet for all Americans and for sharing your proposal on the use of Title II as
a backstop authority to the Section 706 framework. I share your sense of urgency on this matter.
For this reason, I moved with dispatch to initiate a proceeding to consider new open Internet
rules to replace those that were vacated by the D.C. Circuit Court of Appeals in the Verizon case.
As you know, the Notice of Proposed Rulemaking ("Notice") adopted by the Commission in
May 2014 begins that process. Therein, we ask a number of questions about the rules we need to
adopt, as well as the appropriate legal foundation for such rules. Your letter touches on some of
the most important issues presented in the Notice, and I will ensure that it is included in the
record of the proceeding and considered as part of the Commission's review. The Notice also
seeks comment on your proposal.
The Commission has struggled for over a decade with how best to protect and promote an
open Internet. While there has been bipartisan consensus, starting under the Bush
Administration with Chairman Powell, on the importance of an open Internet to economic
growth, investment, and innovation, we find ourselves today faced with the worst case scenario:
we have no Open Internet rules in place to stop broadband providers from limiting Internet
openness. The status quo is unacceptable. The Commission has already found, and the court has
agreed, that broadband providers have economic incentives and technological tools to engage in
behavior that can limit Internet openness and harm consumers and competition. As such, the
Commission must craft meaningful rules to protect the open Internet, and it must do so promptly.
I can assure you that I will utilize the best tools available to me to ensure the Commission adopts
effective and resilient open Internet rules. Unless and until the Commission adopts new rules,
broadband providers will be free to block, degrade, or otherwise disadvantage innovative
services on the Internet without threat of sanction by the FCC.
With respect to the legal foundation of the rules, I believe that the Section 706 framework
set forth by the court provides us with the tools we need to adopt and implement robust and
enforceable Open Internet rules. Nevertheless, the Commission is also seriously considering
moving forward to adopt rules using Title II of the Communications Act as the foundation for
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our legal authority. The Notice asks specific questions about Title II, including whether the
Commission should 1) revisit its classification of Broadband Internet Access as an information
service; or 2) separately identify and classify as a telecommunications service a service that
"broadband providers ... furnish to edge providers," as proposed by Mozilla in a May 5 Petition
filed with the agency. The Notice 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.
In addition, as suggested in your letter, the Notice includes and seeks comment on your
proposal for the Commission to proceed under Section 706 but use Title II as a backstop
authority in the event that the Section 706 rules are invalidated. This is a worthy suggestion and
I was pleased to include in it the Notice.
I look forward to the input and comment we receive on
With respect to the substance of the rules, the proposals and questions in the Notice are
designed to elicit a record that will give us a foundation to adopt strong, enforceable rules to
protect the open Internet and prevent broadband providers from harming consumers or
competition. I am especially sensitive to concerns about paid prioritization arrangements, and
the potential such arrangements have for creating an Internet that is fast for a few, and slow for
everyone else. Let me be crystal clear: there must only be one Internet. It must be fast, robust
and open for everyone. The Notice addresses this issue head-on, even asking if paid
prioritization should be banned outright. It also proposes clear rules of the road and aggressive
enforcement to prevent unfair treatment of consumers, edge providers and innovators. Small
companies and startups must be able to reach consumers with their innovative products and
services, and they must be protected against harmful conduct by broadband providers.
The Notice includes a number of proposals designed to empower consumers and small
businesses who may find themselves subject to harmful behavior by a broadband provider. For
example, the Court of Appeals did uphold our existing transparency rule, and the Notice
proposes to strengthen that rule to require that networks disclose any practices that could change
a consumer's or a content provider's relationship with the network. The Notice proposes the
creation of an ombudsperson to serve as a watchdog and advocate for start-ups, small businesses
and consumers. And the Notice 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
This Notice is the first step in the process, and I look forward to comments from all
interested stakeholders, including members of the general public, as we develop a fulsome record
on the many questions raised in the NPRM. To that end, in an effort to maximize public
participation in this proceeding, we have established an Open Internet email address -
firstname.lastname@example.org - to ensure that Americans who may not otherwise have the opportunity
to participate in an FCC proceeding can make their voices heard. In addition, to ensure sufficient
opportunity for broad public comment, we have provided a lengthy comment and reply period
through September 10, 2014, that will allow everyone an opportunity to participate.
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Again, I appreciate your deep interest in this matter and look forward to continued
engagement with you as the proceeding moves forward.
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