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Chairman Response Regarding Open Internet

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Released: August 22, 2014
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F EDERAL COMMUN ICATIONS

COMM ISSION

W ASH I NGTON

OrFICE OF

July 16, 2014

THE CHAIRMAN

The Honorable Martin Heinrich

United States Senate

702 Hart Senate Office Building

Washington, D.C. 20510

Dear Senator Heinrich:

Thank you for writing to express your concerns regarding the need to reinstate rules to

preserve an open Internet for all Americans as well as your request for a series of field hearings

on the proposed rules.

I share your sense of urgency on the open Internet. 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 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 fmd 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 lim it 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 wiJI 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, as you specifically urge in your letter, the

Commission is also seriously considering moving forward to adopt rules using Title II ofthe

Communications Act as the foundation for our legal authority. The Notice seeks comment on the

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Page 2-

The Honorable Martin Heinrich

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.

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 your 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 fmd 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, sma!J 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

enforcement processes.

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 Notice. lam actively listening to the public and stakeholders

who are interested in sharing viewpoints on this issue in public and private forums both in

Washington, D.C., and across the country.

As you know, I recently visited New Mexico to

participate in a public forum where questions and concerns about the need for an open Internet

played a prominent role. I held on-the-record meetings with venture capitalists, start-up

companies, and public interest groups last month in Northern California, and I am holding

another series of meetings next week in New York City. My staff and I are in the midst of

planning other events at which there will be ample opportunity for public input and dialogue.

Moreover, in an effort to maximize public participation in this proceeding, we have

established an Open Internet email address -

openintemet@fcc.gov -

to ensure that Americans

who may not otherwise have the opportunity to participate in an FCC proceeding can make their

voices heard. [n 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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The Honorable Martin Heinrich

Again, I appreciate your deep interest in this matter and look forward to continued

engagement with you as the proceeding moves forward.

Sincerely,

"

'

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@1.-

Tom Wheeler

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