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FCC-14-61A6

Federal Communications Commission

FCC 14-61

DISSENTING STATEMENT OF

COMMISSIONER MICHAEL O’RIELLY

Re:
Protecting and Promoting the Open Internet, GN Docket No. 14-28.
It should come as no surprise that I cannot support today’s Notice. As I’ve said before, the
premise for imposing net neutrality rules is fundamentally flawed and rests on a faulty foundation of
make-believe statutory authority. I have serious concerns that this ill-advised item will create damaging
uncertainty and head the Commission down a slippery slope of regulation.
As anticipated, the Notice proposes to ground the net neutrality rules in section 706 of the
Telecommunications Act of 1996. I have already expressed my views that Congress never intended
section 706 to be an affirmative grant of authority to the Commission to regulate the Internet. At most, it
could be used to trigger deregulation.
But the Notice doesn’t stop there. It seeks comment on ways to construe additional language in
section 706 and even suggests using section 230(b) to broaden the scope of the Commission’s usurped
authority. This is absurd. I was worried enough that the Commission’s current reading of section 706
could be used to justify any number of regulatory interventions and could ultimately impact not just
broadband providers, but also edge providers. Now that the Commission is trying to cast an even wider
net of authority, I fear that other services and providers could become ensnared in the future.
And just in case section 706 proves to be inadequate for this regulatory boondoggle, the Notice
explores upending years of precedent and investment by reclassifying broadband Internet access as a Title
II service. That is, the Commission examines applying monopoly era telephone rules to modern
broadband services solely to impose unnecessary and defective net neutrality regulations. I cannot
support such a backward-looking, ends-driven approach—not in a Notice and certainly not in final rules.
While courts can recognize that an agency may legally reverse course as long as it adequately
explains the reasons for changing its position, I am concerned about the real world impact that such a
decision could have on the communications industry and the economy as a whole. The current
framework has provided a climate of certainty and stability for broadband investment and Internet
innovation. Upending that framework could disrupt the tremendous progress that has been made over the
last decade. I also worry about the credibility of an agency that consistently fails to meet statutory
deadlines to review and eliminate old rules, but is supposedly open to reapplying obsolete provisions.
The Notice suggests that reclassification could be accompanied by substantial forbearance from
the Title II requirements. But the need to forbear from a significant number of provisions in Title II
proves the point that Title II is an inappropriate framework for today’s dynamic technologies. Indeed,
Title II includes a host of arcane provisions on topics like interlocking directorates, valuation of carrier
property, uniform system of accounts and depreciation charges, telephone operator services,
telemessaging service, Bell Operating Company entry into interLATA services, manufacturing of
telecommunications equipment and customer premises equipment, and electronic publishing. Even if the
Commission granted forbearance from all of the provisions that it has eliminated for incumbent telephone
companies—and then some—advocates are ignoring that broadband providers and services would still be
subject to a host of unnecessary rules. The idea that the Commission can magically impose or sprinkle
just the right amount of Title II on broadband providers is giving the Commission more credit than it ever
deserves.
Additionally, before taking any action on any issue, the Commission should have specific and
verifiable evidence that there is a market failure. The Notice does not examine the broadband market
much less identify any failures. A true and accurate review of the U.S. broadband market—which must

Federal Communications Commission

FCC 14-61

include wireless broadband—would show how dynamic it is. The Notice does acknowledge that
innovation and investment have flourished, although it implausibly ascribes those successes to the vacated
net neutrality rules.
Moreover, the Notice fails to make the case that there’s an actual problem resulting in real harm
to consumers. The Notice identifies, at most, two additional examples of alleged harm. And in one
instance, the Commission concedes it did not find a violation. The Notice tries to explain away the
absence of net neutrality complaints, but the unpersuasive excuses cannot mask a lack of evidence. In a
last ditch attempt to find problems, the Notice points to supposed bad conduct occurring outside of the
United States without explaining how that is relevant to a very different U.S. broadband market and
regulatory structure.
Having come up empty handed, the Notice proceeds to explore hypothetical concerns. At the top
of the list is prioritization. But even ardent supporters of net neutrality recognize that some amount of
traffic differentiation or “prioritization” must be allowed or even encouraged. Voice must be prioritized
over email; video over plain data. Prioritization is not a bad word. It is a necessary component of
reasonable network management.
The Notice is particularly skeptical of paid prioritization and contemplates banning some or all
such arrangements outright. Yet companies that do business over the Internet, including some of the
strongest supporters of net neutrality, routinely pay for a variety of services to ensure the best possible
experience for their consumers. They’ve been doing it for years. And certain arrangements have even
been viewed as “good for the Internet.” In short, fears that paid prioritization will automatically degrade
service for other users, relegating them to a so-called “slow lane,” have been disproven by years of
experience.
Because there’s no evidence of actual harm that could help inform the proposed rules, they are
not narrowly tailored but hopelessly vague and unclear. We are left to puzzle over what it means to
provide a “minimum level of access” or what constitutes a “commercially unreasonable” practice,
especially in the absence of contractual relationships. The Notice suggests that providers could seek non-
binding staff guidance or prospective reviews of their practices. But it is very troubling when legitimate
companies are put in the position of having to ask the government for its blessing every time they need to
make a business decision in order to avoid costly enforcement or litigation. It is even more telling that the
Commission is suggesting new layers of enforcement options for which it has no experience. For
instance, where are ombudsmen mentioned in the statute and what are they to do exactly?
Finally, to say the cost-benefit “analysis” is woefully inadequate is an understatement. The
Notice devotes several pages to a wish list of disclosures, reporting requirements, and certifications that
will impose new burdens and carry real costs, but may not even be meaningful to end users. For example,
what will the average consumer do with information on packet corruption and jitter? However, there is
no attempt to quantify and compare the costs of the proposed new requirements against the supposed
benefits—just a single paragraph seeking comment on ways to reduce the burdens. Proposed rules should
be accompanied by a fulsome cost-benefit analysis that includes a detailed and extensive review of
current law, especially as it applies to other federal agencies that we seek to imitate. The Commission’s
short-shrift approach to cost-benefit analysis cannot continue, and I intend to spend time improving this
important function.
In sum, the proposed net neutrality rules and legal theories will stifle innovation and investment
by the private sector, provide no help to consumers, and thrust the Commission into a place it shouldn’t
be. I respectfully dissent.
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