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Internet Engineers Amicus Brief, No. 11-1355 (D.C. Cir.)

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Released: November 15, 2012
USCA Case #11-1355 Document #1405207 Filed: 11/15/2012 Page 1 of 45

No. 11-1355


ORAL ARGUMENT NOT YET SCHEDULED

_____________________________________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________

VERIZON ET AL.,

Appellants,
v.

FEDERAL COMMUNICATIONS COMMISSION,

Appellee.
_________________________

ON PETITION FOR REVIEW OF AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION
_________________________

BRIEF AMICUS CURIAE OF INTERNET ENGINEERS AND TECHNOLOGISTS

URGING THAT THE FCC’S ORDER BE AFFIRMED

_________________________

John Blevins
Loyola University New Orleans
College of Law
7214 St. Charles Ave., Box 901
New Orleans, LA 70118
Tel: 504.861.5853
Fax: 504.861.5733
jblevins@loyno.edu
Counsel of Record
November 15, 2012

USCA Case #11-1355 Document #1405207 Filed: 11/15/2012 Page 2 of 45

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES


A.
PARTIES AND AMICI

All parties, intervenors, and amici appearing in this Court are listed in the
Joint Brief of Appellants Verizon and MetroPCS and in the Brief for Appellee
Federal Communications Commission, except for the following parties who are
appearing as amici:
Marvin Ammori, Jack M. Balkin, Michael J. Burstein, Center for
Democracy and Technology, Anjali S. Dalal, Rob Frieden, Ellen P.
Goodman, David R. Johnson, Dawn C. Nunziato, David G. Post,
Pamela Samuelson, Rebecca Tushnet and Barbara van Schewick

Tim Wu

It is also our understanding that two additional amicus
briefs will be filed—one on behalf of various venture
capital investors, and one on behalf of former FCC
Commissioners.

B.
RULINGS UNDER REVIEW

References to the rulings at issue appear in the Joint Brief of Appellants
Verizon and MetroPCS.

C.
RELATED CASES

All related cases of which Amici are aware are listed in the Joint Brief of
Appellants Verizon and MetroPCS.



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TABLE OF CONTENTS


CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ............ ii  
TABLE OF CONTENTS ......................................................................................... iii  
TABLE OF AUTHORITIES ................................................................................... iv  
RULE 29 STATEMENTS ...................................................................................... vii  
INTERESTS OF AMICI ............................................................................................ 1  
SUMMARY OF ARGUMENT ................................................................................. 3  
BACKGROUND ....................................................................................................... 6  
A.  
A Brief Introduction to the Internet ............................................ 6  
B.  
How the Internet’s Design Generates Innovation and
Investment ................................................................................. 12  

ARGUMENT ........................................................................................................... 16  
I.  
OPENNESS CREATES INVESTMENT IN NETWORK
INFRASTRUCTURE .......................................................................... 16  

II.  
THE ORDER PROMOTES INNOVATION AND GROWTH BY
PRESERVING THE INTERNET’S TRADITIONAL OPENNESS .. 23  

A.  
Application-Specific Discrimination Threatens the Internet’s
Openness ................................................................................... 23  

B.  
The Order Preserves the Internet’s Openness by Preventing
Application-Specific Discrimination ........................................ 30  

CONCLUSION ........................................................................................................ 32  
CERTIFICATE OF COMPLIANCE ....................................................................... 33  




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TABLE OF AUTHORITIES


ADMINISTRATIVE DECISIONS

 
Comcast Network Management Order, 23 FCC Rcd 13028 (2008) ....................... 27
Deployment of Advanced Telecommunications Capacity: Second Report, 15 FCC
Rcd 20913 (2000) ................................................................................................. 20
Deployment of Advanced Telecommunications Capacity: Third Report, 17 FCC
Rcd 2844 (2002) ................................................................................................... 20
Madison River Consent Decree Order, 20 FCC Rcd 4295 (2005). ........................ 28
*Preserving the Open Internet, 25 FCC Rcd 17905 (2010) 1, 3, 4, 5, 10, 11, 20, 21,
22, 23, 25, 28, 30, 31
U.S. v. Comcast, Proposed Final Judgment and Competitive Impact Statement, 76
Fed. Reg. 5440 (2011) .......................................................................................... 29
Verizon Commc’ns and MCI Applications for Approval of Transfer of Control, 20
FCC Rcd 18433 (2005) .......................................................................................... 9

REGULATORY COMMENTS

 
Comments of AT&T, GN Docket No. 09-191 (July 15, 2010) ................................. 9
Comments of MetroPCS Commc’ns, GN Docket 09-191 (Jan. 14, 2010) ............. 21
Comments of Open Internet Coalition, GN Docket No. 09-191 (Jan. 14, 2010) .... 11
Comments of Verizon, GN Docket No. 09-191 (Jan. 14, 2010) ...................... 21, 22
Declaration of Vijay Gill, Reply Comments of Google, Appx. B, GN Docket No.
09-191 (Apr. 26, 2010) ........................................................................................ 12
Letter from MetroPCS to Chairman Julius Genachowski, GN Docket No. 09-191
(Feb. 14, 2011) (MetroPCS Letter) ...................................................................... 28
Letter from Zediva to Chairman Julius Genachowski, GN Docket 09-191 (Dec. 10,
2010) (Zediva Letter to FCC) .............................................................................. 26

* Authorities upon which we chiefly rely are marked with asterisks.

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SECONDARY AUTHORITIES

 
Barbara van Schewick, INTERNET ARCHITECTURE AND INNOVATION (2010) ... 14, 15
Barbara Van Schewick, Network Neutrality—What a Non-Discrimination Rule
Should Look Like, Version 1.0, Center for Internet and Society White Paper
(Dec. 14, 2010) (Van Schewick White Paper) ..................................................... 30
Hearing on Internet Security Before the H. Comm. on Science, Space, and
Technology, 103d Cong. (Mar. 22, 1994) (written testimony of Dr. Vinton G.
Cerf) ..................................................................................................................... 17
J. Kempf & R. Austein, The Rise of the Middle and the Future of End-to-End, RFC
3724 (2004) .......................................................................................................... 18
J.H. Saltzer, D.P. Reed, and D.D. Clark, End-to-End Arguments in System Design,
2D INT’L CONFERENCE ON DISTRIBUTED COMPUTING SYSTEMS (1981) ............... 14
Johnny Ryan, A HISTORY OF THE INTERNET AND THE DIGITAL FUTURE (2010) ...... 19
Jonathan E. Neuchterlein and Philip J. Weiser, DIGITAL CROSSROADS: AMERICAN
TELECOMMUNICATIONS POLICY IN THE INTERNET AGE (2005). ............................. 7
Julie Schmit, Demand Surges for Superfast Phone Lines, USA TODAY, Nov. 9,
1995 ...................................................................................................................... 19
Marjory S. Blumenthal & David D. Clark, Rethinking the Design of the Internet:
The End-to-End Arguments vs. the Brave New World, ACM TRANSACTIONS ON
INTERNET TECHNOLOGY, Vol. 1, No. 1 (2001) ............................................. 14, 15
Patricia L. Bellia, Paul Schiff Berman and David G. Post, CYBERLAW (3d ed.)
(2007) ..................................................................................................................... 8
Peter H. Lewis, Peering Out a ‘Real Time’ Window, N.Y. TIMES, Feb. 8, 1995 .... 19
Ryan Singel, MetroPCS 4G Data-Blocking Plans May Violate Net Neutrality,
WIRED (Jan 7, 2011), available at
http://www.wired.com/business/2011/01/metropcs-net-neutrality/all/ ............... 28
Stuart Minor Benjamin, Howard A. Shelanski, James B. Speta, & Philip J. Weiser,
TELECOMMUNICATIONS LAW AND POLICY (3d ed.) (2012) .................................. 18
Timothy J. Mullaney, Ciena Founder Resigns to Start New Venture, BALTIMORE
SUN, May 13, 1997 ............................................................................................... 19

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STATUTES AND REGULATIONS


All applicable statutes and regulations are contained in the Joint Brief of
Appellants Verizon and MetroPCS and in the Brief for Appellee Federal
Communications Commission.



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RULE 29 STATEMENTS


Pursuant to Fed. R. App. P. 29(c)(5), counsel for amici certifies that no
counsel for any other party authored this brief either in whole or in part, and no
persons made any monetary contribution to its preparation or submission.
Pursuant to Circuit Rule 29(d), counsel certifies that a separate brief is
necessary. Amici include some of the nation’s most preeminent Internet engineers,
computer scientists, and technologists who provide a unique technical expertise
and perspective to help inform the Court’s decision. The technical background for
these issues has not been fully developed by the parties and, to the best of
counsel’s knowledge, will not be fully addressed by other amici.


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INTERESTS OF AMICI

Amici urge the Court to uphold the FCC’s Order. Preserving the Open
Internet, 25 FCC Rcd 17905 (2010) (Order). We are Internet engineers, computer
scientists and technologists, many of whom have played important roles in creating
and improving the protocols and technologies that gave rise to the Internet. Our
interest is to ensure that the Internet remains an open platform for innovation, new
markets, and economic growth. Other parties are addressing the constitutional and
statutory questions, and we do not attempt to interpret the relevant statutes. We
write instead to provide the Court with a technical perspective on both the practical
benefits of open networks and the concrete threats to innovation and economic
growth posed by abandoning traditional openness principles. We also address
some of the technological arguments that Verizon and MetroPCS raise in their
Joint Brief (“Verizon Br.”). All parties and intervenors have consented to this
brief.
The amici joining this brief in their personal capacity include:

Scott Bradner

, Senior Technical Consultant, Office of CTO, Harvard
University; involved in the design, operation and use of data networks since
the early days of the ARPANET; held numerous management roles in the
Internet Engineering Task Force.


Lyman Chapin

, Interisle Consulting Group; former Chair, Internet
Architecture Board; former Chief Scientist, BBN Technologies.

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Dr. David Cheriton

, Professor, Computer Science Department, Stanford
University.

Dr. Douglas Comer

, Distinguished Professor of Computer Science, Purdue
University.

Phil Karn

, Formerly with Qualcomm, Bell Labs, and Bellcore; wrote first
general-purpose computer Internet software widely used by individuals and
early Internet Service Providers.


Dr. Leonard Kleinrock

, Distinguished Professor of Computer Science,
University of California, Los Angeles; Member, National Academy of
Engineering; supervised UCLA lab that served as first node of the
ARPANET
; Recipient, 2007 National Medal of Science.

Dr. John Klensin

, Former Chair, Internet Architecture Board; played early
and continuing role in design of Internet applications and administrative
policies; former Internet Architecture Vice-President at AT&T Labs; first
MCI Distinguished Engineering Fellow.


Dr. James Kurose

, Distinguished University Professor in the Department
of Computer Science, University of Massachusetts.

Dr. Nick McKeown

, Professor of Electrical Engineering and Computer
Science, Stanford University; Member, National Academy of Engineering.

Dr. Craig Partridge

, early member of the Internet Engineering Task Force
and Internet Engineering Steering Group; architect of how email is routed
through the Internet; Fellow, Institute of Electrical and Electronics
Engineers; Fellow, Association for Computing Machinery.


Dr. Vern Paxson

, Professor in Electrical Engineering and Computer
Sciences Department, University of California-Berkeley.

Dr. David P. Reed

, past member of FCC’s Technological Advisory
Council; contributor to early development of local area networks, TCP/IP
and the User Datagram Protocol; co-authored foundational paper on the
end-to-end design principle.

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Dr. Scott Shenker

, Professor in Electrical Engineering and Computer
Sciences Department, University of California-Berkeley; Member, National
Academy of Engineering.


Dr. Don Towsley

, Distinguished University Professor in the Department of
Computer Science, University of Massachusetts.

Dr. Paul Vixie

, Chairman and Founder of Internet Systems Consortium;
author of BIND, the most widely-used DNS server software.

Steve Wozniak

, Co-Founder, Apple Computer, Inc.


SUMMARY OF ARGUMENT


The Internet’s remarkable ability to generate innovation, investment, and
economic growth is a product of its openness. On the Internet, innovation requires
no permission. It is a general-purpose platform that supports a wide variety of
applications and services at its edges. The network has not traditionally
discriminated against specific applications, nor has it been optimized for any one
application. In this respect, its openness is similar to the electricity grid, which
treats Dell computers the same as Maytag refrigerators or any other device that
may be plugged into it.
The Order is a modest measure that preserves the economic, social, and
civic benefits of an open and accessible Internet, while simultaneously ensuring
that access providers have wide latitude to address their network’s needs. We
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support the Order, and write to provide the Court with additional technical
background to help inform its decision. We begin with an overview of how the
Internet works and how individual networks collaborate to form a larger “network
of networks” that can transmit any type of data across many types of technological
mediums. We also describe some of the specific architectural features that allow
the Internet to generate innovation. Following the technical background, we make
the following points:
First, protecting openness promotes not only application innovation, but also
leads to greater investment in network infrastructure and deployment. Innovative
applications cause people to demand better and faster networks. Verizon and
MetroPCS, however, challenge this view, but we respectfully disagree with their
position. History illustrates that edge innovation does drive network deployment.
Indeed, the rise of the World Wide Web, a classic example of edge innovation, was
the “killer app” that created skyrocketing demand for Internet access, which led
access providers to invest in and improve their networks in the 1990s. Further, the
relationship between application innovation and demand for faster networks is not
a novel concept, but was acknowledged by the FCC over a decade ago, and has
even been recognized in Verizon and MetroPCS’s comments in this proceeding.

Second, the Order preserves the benefits of the open Internet by preventing
extreme forms of application-specific discrimination by access network owners.
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Traditionally, the Internet has generated innovation because it is a level playing
field where users independently choose the applications they prefer. Application-
specific discrimination—the act of singling out certain websites and services for
preferential or discriminatory treatment—not only distorts markets, it strikes at the
very foundation of the Internet’s ability to generate low-cost innovation and new
markets. Indeed, Verizon and MetroPCS candidly acknowledge that the discretion
they seek includes the ability to impose these most extreme forms of
discrimination. Verizon Br. 16-17 (“The [FCC’s] no blocking rule denies
broadband providers discretion in deciding which traffic from so-called edge
providers to carry[.] . . . [and] denies broadband providers discretion over carriage
terms by setting a uniform price of zero[.]”). The Order represents a modest effort
to prevent these measures. The Order, quite appropriately, does not prevent
network owners from adopting measures to protect the network’s security, to
address congestion, to monetize their networks, to adopt reasonable network
management practices, or to adopt uniform pricing structures. Instead, it merely
ensures that these practices will be adopted in a manner that does not threaten the
next World Wide Web from being introduced.



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BACKGROUND


The Internet’s ability to fuel innovation and investment stems from its
flexibility and expansive reach. The Internet is not tethered to any specific
technology. It allows users to receive any type of content, across any type of
network, using any type of device. The Internet allows computers to connect with
any other computer on the network. This global connectivity creates markets of
unprecedented scope and variety. Every new startup has instant access to billions
of potential customers, just as each customer has access to a seemingly infinite
variety of services and content. In this section, we explain the sources of these key
characteristics. We begin with a general introduction of the Internet, and then
explain some of the network design principles that enable innovation and
investment.
A.
A Brief Introduction to the Internet
The story begins with the “packet.” Digital technology allows any type of
information to be represented by strings of 1s and 0s, which are known as binary
digits or “bits.” Computers translate these strings of bits and display them as
emails, video streams, music, or any other type of content. To transmit
information across the Internet, computers break down this content—these strings
of bits—into smaller discrete blocks of bits (or data) called packets. Packets are
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similar to envelopes that the Postal Service transmits. They include addressing
information on the outside and content (the “payload”) on the inside.
The Internet is therefore a “packet-switched” network. The information it
sends is first broken down into individual packets, which are then routed
independently across the network to the final destination. The individual packets
may take very different paths to reach the destination. The process is similar to
separating a book into individual pages, placing each into a separate envelope, and
sending each envelope along a separate path to a final destination where they are
reassembled in order.1 Packet-switched networks thus differ from circuit-switched
telephone networks in which the provider creates a dedicated connection between
two callers (or nodes) that lasts the duration of the call.
Packet-switched networks have many advantages over traditional circuit-
switched telephone networks. For one, they are more resilient. If one part of the
network fails, the packets can be quickly rerouted along another path. Second,
packet-switched networks are generally more efficient. The traditional circuit-
switched telephone network wasted network capacity. The dedicated connection

1 Jonathan E. Neuchterlein and Philip J. Weiser, DIGITAL CROSSROADS: AMERICAN
TELECOMMUNICATIONS POLICY IN THE INTERNET AGE 42-43 (2005).
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required capacity even if the callers were not speaking.2 In packet-switched
networks, no dedicated capacity is necessary and more users can “share” the line.
The Internet “knows” where to send the packets because all computers on
the network share communications protocols. Much like a language, a protocol is
a set of agreed-upon rules and conventions that enable computers to share
information. One key protocol is the “Internet Protocol” (IP), which creates a
universal addressing system that allows the network to route packets to their proper
destination.3 Routers—computers within the network that direct packets—
traditionally looked only at the packet’s addressing information and determined the
most efficient path to its destination. The payload data inside the packet was
irrelevant to the routing process.
In this respect, the Internet Protocol is similar to the zip code “protocol” that
the Postal Service uses to “route” mail across the country. The zip code system
can route mail across a diversity of physical “networks” (planes, trucks, mail
carriers) regardless of the content inside the packages. Like the zip code system,
the Internet Protocol addresses are independent from any underlying technological
medium, and can be used to route any type of content.

2 Patricia L. Bellia, et al., CYBERLAW 16 (2007).
3 DIGITAL CROSSROADS, supra note 1, at 121-25.
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“The Internet,” then, is not a single network, but the aggregation of millions
of smaller networks—a network of networks. No single centralized server
oversees it. The Internet appears to be a seamless network because the individual
networks and computers adhere to open, non-proprietary protocols such as the
Internet Protocol that allow them to communicate with each other. Although a
wide variety of networks and computers comprise “the Internet,” we focus here on
three categories that are especially relevant to this case: (1) backbone networks;
(2) access networks; and (3) edge providers and end users. All three are essential
components in exchanging information across the Internet.
Backbone Networks. Backbone networks are the interstate highways of the
Internet. Specifically, they are “high capacity long-haul transmission facilities”
that interconnect with each other and with access networks.4 They include high-
speed routers and generally consist of fiber-optic links capable of transmitting high
volumes of data. Comments of AT&T at 48-50, GN Docket No. 10-127 (July 15,
2010). JA __. Backbone networks exchange traffic with each other through
peering agreements (under which data is mutually exchanged at no charge), transit
agreements (under which one backbone provider charges another to transmit its
data), or some variation of these two forms of agreement. Id. Today, there are

4 Verizon Commc’ns and MCI Applications for Approval of Transfer of Control, 20
FCC Rcd 18433, 18493 (2005).
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multiple backbone providers and the current market is generally considered
competitive. The Order’s rules do not apply to backbone networks. Order at ¶47
(noting that “broadband Internet access service” does not include “Internet
backbone services”).
Broadband Access Networks. If backbone networks are the interstate
highways, broadband access networks are the local roads. As the name suggests,
these networks—for a fee—provide individual users and edge services with access
to the global Internet. (The term “broadband” refers to higher-speed Internet
access.) These networks thus provide the link between end users and the Internet
backbone. Critically, access networks include “last mile” facilities that connect the
premises of an end user (or edge provider) to the larger network. They therefore
include the “side streets” and “driveways” that ultimately lead to the user’s house.
The most common last-mile access networks consist of coaxial cable, copper wire,
fiber, or wireless technologies. The Order’s rules apply only to broadband access
providers. Order at ¶50 (“[T]hese rules apply only to the provision of broadband
Internet access service[.]”).
Edge Services and End Users. Edge services and end users represent the
“ends” of the network—the origin and destination of Internet data. Edge services
refer broadly to any entity that uses the Internet as an information-delivery
platform to make content, applications, and services available to end users. Edge
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providers thus encompass websites such as the Washington Post, eBay, and
Google; applications such as the World Wide Web, Internet Explorer, and iTunes;
and mobile applications and services such as Netflix (a video streaming service)
and Instagram (a photo-sharing “app”). Both end users and edge providers
typically pay access providers for their connections to the Internet. Comments of
Open Internet Coalition at 27, GN Docket No. 09-191 (Jan. 14, 2010) (“In the
Internet ecosystem, each user . . . pays a broadband Internet access provider to
provide and receive content from the Internet.”). JA __. The Order’s rules do not
apply to edge services or end users. Order at ¶50 (“[T]hese rules apply only to the
provision of broadband Internet access service and not to edge provider
activities[.]”).
Collectively, these three components of the Internet facilitate data
transmission. To illustrate, consider the (simplified) example of a user in Florida
accessing the eBay website whose content is stored on a server in California. The
user “requests” the data by clicking a link. That request is broken down into
individual packets that travel through the end user’s access network in Florida,
through one or more backbone networks, and then through eBay’s local access
network in California where the packets are reassembled and translated by the
eBay server. The response is then repeated in the opposite direction.
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This example illustrates that all three components are essential for data
transmission. It also highlights the unique leverage that access providers enjoy
within this system. See Declaration of Vijay Gill, Reply Comments of Google,
Appx. B at ¶¶14-15 (“Given the realities of network engineering, providers of last
mile broadband infrastructure to end user customers occupy a unique place of
control.”) (“Gill Declaration”). JA __. Access providers are the last stop on the
way to the end user. Although the eBay data packets may travel over many
different paths along the backbones, there is typically only one path to the end
user’s premises—the last mile access network (i.e., the “driveway”). All the
packets must ultimately reunite at this point in the network. In this respect, access
providers enjoy a “terminating access monopoly” with respect to their users. They
are therefore uniquely positioned to differentiate among the packets that their
customers request. They can speed some packets up, slow them down, or even
block them based on information on the outside or, increasingly, the inside of the
packets.
B.
How the Internet’s Design Generates Innovation and Investment
The Internet’s architectural design is the specific source of its flexibility—
and thus its ability to generate innovation and economic growth. While the
Internet has evolved in important ways, it has remained faithful to certain broad
design principles since its inception. Below, we describe two of these features that
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work together to create an open platform for innovation: (1) layering and (2) end-
to-end designs.
Layering. The Internet is a layered network, which means that different
functional tasks are assigned to distinct parts of the network. Layering relieves
engineers from the difficult task of designing a single protocol to handle all
network functions.5 Instead, the Internet relies on a division of labor. “Physical”
layer protocols govern the electrical transmission of data across the physical
infrastructure. “Network” and “transport” layer protocols (including the Internet
Protocol) route packets to their proper location, while “application” layer protocols
send and receive packets across the Internet to implement the services (e.g., email,
video streams) we use every day.
These layers can be conceptualized in terms of “stacks”—just like stacked
boxes.6 The physical layer sits at the bottom of the stack as the foundation, while
the application layer rides on top. A key benefit of layering is that changes can be
implemented in one layer without impacting any other layer. This design thus
enables application independence in that the underlying protocols allow arbitrary
applications to be built and deployed without changing the Internet itself or its
routers. Indeed, the Internet existed and was being used long before the World

5 Gill Declaration, at ¶¶8-9. JA __.
6 CYBERLAW, supra note 2, at 16-19.
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Wide Web, iTunes, or Skype were invented. Further, these same high-level
applications operate unchanged whether the access network is cable, copper wire,
fiber, or cellular wireless technology.
End-to-End Design. The Internet’s “end-to-end” design is an important
source of its openness to new technologies.7 In simple terms, the concept means
the network should be as general as possible in order to support a wide range of
applications. In more technical terms, end-to-end refers to the design principle that
application-specific functions (e.g., the ability to translate bits into a Netflix movie
within a browser) should be located within the higher layers of the stack.8 In other
words, the specific functionality needed to operate Netflix itself should rest not
with the network but with the computers on the edge sending and receiving the
Netflix packets.
In this respect, application-specific functionality is located at the “ends” of
the networks where applications are sent and received—rather than within the
network’s core. By contrast, the network itself was purposely designed to be as

7 The concept was initially articulated in J.H. Saltzer, D.P. Reed, and D.D. Clark,
End-to-End Arguments in System Design, 2D INT’L CONFERENCE ON DISTRIBUTED
COMPUTING SYSTEMS (1981). JA __.
8 Marjory S. Blumenthal & David D. Clark, Rethinking the Design of the Internet:
The End-to-End Arguments vs. the Brave New World
, ACM TRANSACTIONS ON
INTERNET TECHNOLOGY, Vol. 1, No. 1 (2001). Professor Barbara van Schewick
refers to this concept as the “broad” version of the end-to-end design principle.
Barbara van Schewick, INTERNET ARCHITECTURE AND INNOVATION 57-60, 67-75
(2010).
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general as possible. This combination of a general network core that is open to
new and unanticipated edge technologies is the secret of the Internet’s success in
generating innovation. Blumenthal & Clark, supra note 8 (“The edge orientation
for applications and comparative simplicity within the Internet together have
facilitated the creation of new applications, and they are part of the context for
innovation on the Internet.”). Optimizing the lower layers to benefit specific
applications would limit the network’s generality—just as replacing roads with
train tracks would limit the types of vehicles the roads can support in the future.
The end-to-end design further promotes innovation by creating a level
playing field for new applications in at least two respects. First, end-to-end design
prevents discrimination against applications. A network that respects the layering
and end-to-end principles is unable to distinguish among the applications running
over its network. Thus, the “application-blindness” of the network shields
applications from discrimination and blocking by network providers.
Second, end-to-end design protects user choice.9 The Internet is a general
purpose technology that creates value not through its own existence, but by
enabling users to do what they want. The Internet thus creates maximum value
when users remain free to choose the applications they most highly value. An
application-blind network ensures that users—as opposed to network providers—

9 INTERNET ARCHITECTURE, at 349-51, 362-63, 293-94.
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will decide which applications will succeed in the global marketplace. In this
respect, end-to-end design allows markets to work more efficiently by ensuring
that consumption is driven by consumer utility rather than by contractual
agreements with access network owners.
Consider, for instance, how these design principles collectively facilitated
the rise of the World Wide Web application. Because the network is general, its
founder Tim Berners-Lee could introduce it without requiring any changes to—or
permission from—the underlying physical network. Instead, he could simply
“plug” it into the network in the same way he could have plugged a new lamp into
the wall. In addition, because the Internet was application-blind, the network did
not treat the World Wide Web differently than any other application. Users were
free to adopt it if they valued it.

ARGUMENT

I. OPENNESS CREATES INVESTMENT IN NETWORK

INFRASTRUCTURE


The Internet’s openness has long been recognized as an important source of
its ability to generate new applications, services, and markets. Indeed, these edge
services are the reason people use the Internet. These innovations, however, can
also drive network investment by causing users to demand faster and better
networks for the services they enjoy. Verizon and MetroPCS reject this argument
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USCA Case #11-1355 Document #1405207 Filed: 11/15/2012 Page 24 of 45
as “conjectural.” Verizon Br. 28-31. History illustrates, however, that edge
innovation has led directly to increased network investment. The best example is
the rise of the World Wide Web.
To begin, innovation often creates the initial demand for infrastructure. One
of the designers of the original Internet protocols, Dr. Vinton Cerf, raised this point
in a congressional hearing in 1994 on Internet security, well before the disputes at
issue in this case had developed. He stated:
Infrastructure development is almost always preceded by
critical inventions which motivate the need for the
infrastructure. The light bulb preceded and motivated the need
for power generation and distribution. The invention of the
internal combustion engine and its application in automobiles
motivated the need for better roads, service stations, gasoline
refining and distribution. Once the roads were in place, their
ubiquity and easy accessibility stimulated the production of a
vast array of different vehicles[.] . . . The products and
services which can be built atop the computer and
communication infrastructure simply have no logical limits. It
is this ceaselessly changing, growing, transmuting information
resource which will fuel the economic engine of the
information infrastructure.10

The history of the Internet’s growth confirms this vision. In its early years,
the Internet was used primarily by government agencies and academic research

10 Hearing on Internet Security Before the H. Comm. on Science, Space, and
Technology
, 103d Cong. (Mar. 22, 1994) (written testimony of Dr. Vinton G.
Cerf).
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USCA Case #11-1355 Document #1405207 Filed: 11/15/2012 Page 25 of 45
institutions.11 Although several factors led to its sudden exponential growth in the
mid-1990s, one key factor was the development of the Mosaic browser, which was
the precursor to the popular Netscape Navigator browser. Prior to Mosaic, the
World Wide Web was far more difficult to navigate. The Mosaic browser—and its
successors—became the “killer app” that allowed a technically unsophisticated,
mass audience of users to navigate the World Wide Web for the first time.12 Stuart
Minor Benjamin, et al., TELECOMMUNICATIONS LAW AND POLICY 720 (2012)
(noting that Mosaic and Netscape browsers “led to the Web we know today” and
“provided the killer app to drive the widespread growth of the Internet”). The
World Wide Web, in turn, made possible a new era of e-commerce as new
websites and applications were introduced to a global audience of unprecedented
size.
The public’s demand for the World Wide Web (as enabled by the Mosaic
and Netscape Navigator browsers) generated, in turn, a strong demand for better
and faster networks. Contemporary newspapers illustrate this relationship. In
1995, USA Today reported that the World Wide Web’s growth was fueling demand

11 J. Kempf & R. Austein, Rise of the Middle and the Future of End-to-End, RFC
3724, at 6 (2004) (“[T]he end users in the Internet of 15 years ago were few, and
were largely dedicated to . . . academic research[.]”).
12 Peter H. Lewis, Why Java May Sound Like Magic, N.Y. TIMES, at C5 (1996)
(stating that it was the “Mosaic . . . browser that opened up the World Wide Web
to a general audience and led to that service’s phenomenal growth.”).
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USCA Case #11-1355 Document #1405207 Filed: 11/15/2012 Page 26 of 45
for new Integrated Services Digital Network (ISDN) lines that provided faster
transmission. Julie Schmit, Demand Surges for Superfast Phone Lines, USA
TODAY, Nov. 9, 1995 (“For a growing number of homes and businesses, simple
telephone lines no longer are enough. For those who want speedier computer
connections, an ISDN line [] is a must. … The speed is enticing to the growing
number of telecommuters and to computer users accessing the Internet’s World
Wide Web.”). See also Peter H. Lewis, Peering Out a ‘Real Time’ Window, N.Y.
TIMES, Feb. 8, 1995 (“Internet bandwidth capacity is already being expanded
rapidly to meet the growing demands by businesses for such services as the World
Wide Web.”) (emphasis added); Timothy J. Mullaney, Ciena Founders Resigns to
Start New Venture, BALTIMORE SUN, May 13, 1997 (“Ciena’s business got a boost
from the development of the World Wide Web, which caused an explosion in the
demand for high-capacity long-distance links capable of rapidly carrying pictures,
video and text[.]”) (emphasis added).
The effects of this dynamic relationship between the World Wide Web and
network investment continue to be felt today. Consider, for instance, the evolution
of video-streaming. The World Wide Web made personal video broadcasting
possible to a mass audience for the first time. Johnny Ryan, A HISTORY OF THE
INTERNET AND THE DIGITAL FUTURE 116 (2010) (“Users quickly found novel ways
to use the Web. Among these was the web cam.”) Because these streams were
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USCA Case #11-1355 Document #1405207 Filed: 11/15/2012 Page 27 of 45
initially sluggish, it created demand for higher-speed networks. The higher-speed
networks, in turn, created the necessary conditions for even better video-streaming
services such as YouTube and Netflix that would have been impossible in the dial-
up era. Even today, the investments in access networks are motivated by consumer
demand for ever-improving video-streaming applications and services. Order at
¶14. (“Streaming video and e-commerce applications . . . have led to major
network improvements such as fiber to the premises, VDSL, and DOCSIS 3.0.”).
Thus, many of the investments today were initially motivated by two critical edge
applications—the World Wide Web and the browsers that made it accessible to all.
The FCC itself has recognized the relationship between application
innovation and network investment in prior reports that predate the current
disputes. Deployment of Advanced Telecommunications Capacity: Third Report,
17 FCC Rcd 2844, 2871 (2002) (“Analysts predict that new and unforeseen
capacity hungry applications that require advanced service platforms will drive
demand, and in turn deployment, in the future.”); Deployment of Advanced
Telecommunications Capacity: Second Report, 15 FCC Rcd 20913, 20916-17
(2000) (“We [] recognize that the speed and ubiquity of advanced
telecommunications capability deployment will depend in large measure on
consumers’ demand for content and services that require this capability.”).
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The parties challenging the Order have also acknowledged the relationship
between network investment and application innovation. Specifically, both
MetroPCS and Verizon acknowledged in the record of this proceeding that
innovative applications can create demand that fuels network investment. In its
comments, MetroPCS writes:
[The Internet] is the model of the virtuous cycle: innovators are
creating content and application products that consumers desire,
which drives consumers to purchase from service and equipment
providers, which in turn drives investment in infrastructure and new
technology in response to consumer demand.

Comments of MetroPCS at 16, GN Docket 09-191 (Jan. 14, 2010). JA __.
Verizon made a similar point in its comments:
[T]he social and economic fruits of the Internet economy are the result
of a virtuous cycle of innovation and growth between that ecosystem
and the underlying infrastructure—the infrastructure enabling the
development and dissemination of Internet-based services and
applications, with the demand and use of those services . . . driving
improvements in the infrastructure which, in turn, support further
innovation in services and applications.

Comments of Verizon at 42, GN Docket No. 09-191 (Jan. 14, 2010) (quoting
Comments of NTIA) (Verizon Comments). JA __. Verizon also submitted the
declaration of Dr. Michael D. Topper, who observed “the virtuous cycle that exists
where next-generation broadband networks stimulate innovation in applications
and content, requiring more bandwidth, and in turn encouraging even more
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USCA Case #11-1355 Document #1405207 Filed: 11/15/2012 Page 29 of 45
advanced networks[.]” Verizon Comments at 52, Appx. C, Declaration of Michael
D. Topper. JA __.
These statements illustrate that the parties’ actual dispute is a narrow one.
The challenging parties acknowledge that innovative applications can create
demand that leads to more network deployment. The only issue in dispute is the
source of the initial innovation. Verizon and MetroPCS essentially argue that it is
the access networks’ own actions that will stimulate the innovation that initiates
the virtuous cycle. Their argument, however, is too narrow. The better answer to
the question of “what creates innovation?” is “all of the above.” The Internet’s
traditional openness—which the Order preserves—has been recognized for
decades as a key source of generating innovation (as the World Wide Web
illustrates). Indeed, with open networks, anyone with a broadband connection can
introduce a new idea. And innovation will more likely result from the imagination
of millions of users than from the more centralized decision making of a few
access providers. At the same time, though, network investment helps enable
higher-capacity innovative applications. In short, both openness and investment
generate innovation, and both should be protected. The Order—by preserving
openness while maintaining flexibility for access providers—strikes this balance.

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II. THE ORDER

PROMOTES INNOVATION AND GROWTH BY

PRESERVING THE INTERNET’S TRADITIONAL OPENNESS


A.
Application-Specific Discrimination Threatens the Internet’s
Openness

The Internet’s openness—and thus its ability to generate innovation and new
markets—is a product of its architectural design. Specifically, the Internet’s end-
to-end “application-blind” design made it impossible for access providers to
discriminate against the applications and content on their networks. Verizon,
however, argues that the Order violates law by preventing access providers from
differentiating among edge applications and services. Verizon Br. 11. We are
concerned by the scope of the parties’ asserted authority, particularly their candid
acknowledgement that it includes the ability to engage in extreme forms of
discrimination such as blocking, and imposing access fees upon, individual
websites and edge providers. Verizon Br. 16-17 (“The [FCC’s] no blocking rule
denies broadband providers discretion in deciding which traffic from so-called
edge providers to carry[.] . . . [and] denies broadband providers discretion over
carriage terms by setting a uniform price of zero”); id. at 14-15 (critiquing the
Order for “requiring broadband providers to carry the traffic of all edge providers .
. . at a common nondiscriminatory rate of zero”); id. at 18 (critiquing the “no
blocking rule [which] effectively prohibits price discrimination”).
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In this section, we explain why these types of application-specific
discrimination threaten the open Internet and provide specific examples of such
practices. By “application-specific discrimination,” we refer to the practice of
leveraging the terminating access monopoly to single out individual websites (e.g.,
Netflix) or specific classes of applications (e.g., all video-streaming services) for
preferential or discriminatory treatment. Such practices are similar to addressing
traffic jams by selectively removing Nissan brand automobiles from the highway
rather than through more neutral means such as limiting all types of traffic equally.
Access providers have the unique ability to impose application-specific
discrimination because of their location in the overall network. As noted earlier,
access networks include the last-mile “driveways” that connect the end user’s
house to the broader network. When an end user requests data from a site like
YouTube, all the packets must necessarily pass through the local access network’s
terminating facilities. This location gives access networks the ability to block and
discriminate against disfavored applications. For instance, Verizon could
conceivably charge application providers for the right to access Verizon customers,
or to obtain prioritized “first-class” delivery to them. (We refer to these additional
charges on edge providers as “access fees.”). And though edge providers (like end
users) already pay their own access providers for access to the Internet (see supra
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USCA Case #11-1355 Document #1405207 Filed: 11/15/2012 Page 32 of 45
at 10-11), they have never paid their users’ access providers additional charges to
reach individual users who have requested these applications.
Access providers are capable of implementing these measures through new
technologies that could effectively eliminate the Internet’s traditional application-
blindness. These technologies include “deep packet inspection,” a practice that
allows access providers to look inside the packet’s payload and discriminate
against the packet on that basis. In other words, access providers can open their
customers’ mail to determine whether to transmit, delay, or discard it. Further,
access providers also have the financial incentive to block applications and
services that compete with their own services. The record indicates, for instance,
that access providers who offer video services view edge providers such as iTunes
and Netflix as “a potential competitive threat to their core video subscription
service.” Order at ¶22.
In sum, access providers have both the means and the incentive to eliminate
application-blindness. Implementing such practices, however, would undermine
the level playing field that innovation requires and would enable anticompetitive
conduct. Blocking, for instance, prevents applications from reaching users who
might prefer to use them. In this respect, blocking prevents the Internet from
creating maximum value because it allows network owners—rather than users—to
pick winners and losers. Consider, for instance, if network providers had blocked
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USCA Case #11-1355 Document #1405207 Filed: 11/15/2012 Page 33 of 45
the social networking site Facebook in order to give preference to a site like
MySpace or to their own proprietary social networking service. In this
hypothetical world, MySpace might have outperformed Facebook not because
users valued it most highly, but because the access network—in its unfettered
discretion—chose not to block it.
The threat of blocking also threatens innovation both by reducing
developers’ incentives to introduce new services and by making it more difficult to
obtain funding. The record includes examples of startup companies who faced
difficulties obtaining capital because of the threat of blocking. For instance, the
founders of an online DVD rental company called Zediva explained that potential
investors “repeatedly” raised the concern that access providers with competing
video services might “exploit their control over the provision of broadband access
to put us [Zediva] at a competitive disadvantage.” Zediva Letter to FCC, at 2. JA
__. The inability to obtain funding will fall most heavily on smaller startup
companies and innovators who lack access to capital. Raising the entry costs for
new applications in this manner would be particularly harmful given that so many
of the Internet’s most popular services were created by small startups with little
capital—or even by individuals as hobbies or in dorm rooms.
Imposing novel access charges on edge providers would harm innovation in
similar ways. Specifically, it would increase the transaction costs involved with
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USCA Case #11-1355 Document #1405207 Filed: 11/15/2012 Page 34 of 45
developing and introducing new applications. In such a world, application
developers could be forced to negotiate with network providers across the country
to obtain preferential treatment or to avoid discriminatory treatment. Alternatively,
access providers could wait until an application becomes sufficiently popular—or
goes “viral”—before imposing access fees from them. The ability of access
providers to impose such fees without warning would create significant
uncertainty, thus making it more difficult (and more expensive) to obtain venture
capital or other investment funding—particularly for smaller startups.
These harms are not abstract fears. In recent years, access providers have
implemented or proposed concrete measures that threaten the Internet’s openness
by singling out specific applications for differential treatment. In 2007, the FCC
discovered that Comcast (a broadband access provider) was secretly blocking peer-
to-peer applications through the use of deep packet inspection. Comcast Network
Management Order, 23 FCC Rcd 13028, 13050-51 (2008). Because this
discrimination was concealed, users had no way of knowing what caused it—and
likely blamed the application. As a result, users were harmed because they could
not use their preferred applications, and application providers were harmed
because they had no other means of reaching their users. Comcast’s blocking also
affected future applications in that any new bandwidth-intensive applications that
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USCA Case #11-1355 Document #1405207 Filed: 11/15/2012 Page 35 of 45
included a peer-to-peer component would face more difficulty in obtaining
funding.
Comcast, however, was not alone in discriminating against peer-to-peer
applications that were potential competitors. As the Order indicates, evidence
exists that cable access providers Cox Communications and RCN also blocked
these applications. Order at ¶36. Similarly, in 2005, the FCC found that a rural
telephone company called Madison River was blocking Voice-over-Internet-
Protocol (“VoIP”) applications that competed with its traditional voice services.
Madison River Consent Decree Order, 20 FCC Rcd 4295 (2005).
Recent proposals by MetroPCS further illustrate these potential market
distortions. In late 2010, MetroPCS proposed a new set of wireless broadband
access service plans (or “data plans”). Under its proposal, the lowest-priced data
plan would not include access to any video streaming website other than
YouTube.13 To access other video streaming websites, customers would have to
pay a higher fee. For these customers, the optimal video streaming website would
be selected not by individual users, but by MetroPCS itself.

13 Ryan Singel, MetroPCS 4G Data-Blocking Plans May Violate Net Neutrality,
WIRED (Jan 7, 2011) (“MetroPCS, the nation’s fifth largest mobile carrier,
announced . . . data plans . . . that would block online video streaming—except for
YouTube—for its lowest level plan, and block the use of internet-phone calling
apps for all plans[.]”). See also MetroPCS Letter at 8-10, GN Docket No. 09-191
(Feb. 14, 2011) (explaining rationale for these proposals). JA __.
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USCA Case #11-1355 Document #1405207 Filed: 11/15/2012 Page 36 of 45
Application-specific discrimination also threatens to distort the future of the
video market. The Department of Justice has recognized the disruptive potential of
online video distributors (“OVDs”) such as YouTube and iTunes to compete with
traditional video providers such as cable and satellite companies. Accordingly, in
approving Comcast’s recent merger with NBC-Universal, the Department took
steps to prevent Comcast from discriminating against these particular services. In
short, it ensured the video market would develop on a level playing field.
Comcast . . . could disadvantage OVDs in ways that would prevent
them from becoming better competitive alternatives to Comcast’s
video programming distribution services. OVDs are dependent upon
ISPs’ access networks to deliver video content to their subscribers.
Without [these] protections . . . Comcast would have the ability, for
instance, to give priority to non-OVD traffic on its network, thus
adversely affecting the quality of OVD services that compete with
Comcast’s own [video] or OVD services. Comcast also would be able
to favor its own services by not subjecting them to the network
management practices imposed on other services.

U.S. v. Comcast, Proposed Final Judgment and Competitive Impact Statement, 76
Fed. Reg. 5440, 5456 (2011).
We recognize, of course, that network owners need flexibility to achieve
objectives such as protecting security, managing congestion, or monetizing their
networks. Our concern, therefore, is not with these objectives per se, but with the
application-specific manner in which they may be implemented. As the record
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USCA Case #11-1355 Document #1405207 Filed: 11/15/2012 Page 37 of 45
indicates, these objectives can all be achieved in an application-agnostic manner
that does not threaten the Internet’s openness.14

B.
The Order Preserves the Internet’s Openness by Preventing
Application-Specific Discrimination

The Order is a limited and conservative measure that protects the Internet’s
openness by preventing the extreme forms of discrimination described above. At
the same time, it ensures that access network owners have the flexibility to address
their networks’ needs.
To begin, the Order applies only to broadband access service. Order at ¶50
(“[T]hese rules apply only to the provision of broadband Internet access
service[.]”). In engineering terms, these protections thus apply only to activities of
access network owners. In short, the rules apply only to local roads, and not to
vehicle manufacturers. For this reason, any criticism premised on the idea that the
Order treats applications differently than access providers confuses the crucial
differences between network operators and edge services providers. Verizon Br.
52 (“The Order is also arbitrary and capricious because . . . other players in the
Internet ecosystem are not so restrained.”). Such arguments are similar to
criticizing electricity grid rules regarding the delivery of power because the same

14 Van Schewick White Paper, at 14-16 (submitted in GN Docket No. 09-191, Dec.
14, 2010). JA __.
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USCA Case #11-1355 Document #1405207 Filed: 11/15/2012 Page 38 of 45
rules are not applied to the items (such as hair dryers and lamps) plugged into the
network.
The content of the Order’s specific rules also protect openness by
maintaining a level playing field for applications and edge services. Indeed, these
rules are not novel, but merely track and protect the design principles that are the
source of the Internet’s ability to generate innovation. For instance, the Order’s
“no blocking” rule helps preserve the competitive benefits of the Internet’s end-to-
end design by preventing fixed access providers from blocking applications,
content, and specific users. Order at ¶¶62-67. It also prevents wireless access
providers from blocking lawful websites or applications that compete with their
voice or video telephony services. Id. at ¶¶93-96. These protections collectively
ensure that the network will not distort competition by favoring specific
applications over others or by reducing user choice.
The Order’s “no unreasonable discrimination” rule further preserves these
benefits. Id. at ¶¶68-79. In determining what discrimination is “unreasonable,” the
FCC listed several factors it would consider. These include: (1) the transparency
of the practice; (2) its effect on end-user control; (3) whether the practice was “use-
agnostic”; and (4) whether it conformed to “standard practices.” Id. at ¶¶68-76.
Critically, these factors do not prevent access providers from adopting measures to
protect their networks, to manage congestion, or even to monetize their network in
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USCA Case #11-1355 Document #1405207 Filed: 11/15/2012 Page 39 of 45
innovative ways. Instead, they merely ensure that access providers will enact these
measures in a manner consistent with the Internet’s openness. For instance, the
emphasis on “use-agnosticism” and “end-user control” are simply means to ensure
that the network remains a level playing field for innovative applications even
when network management measures become necessary.

CONCLUSION


The Internet’s unprecedented ability to generate innovation has created new
markets, increased economic growth, and improved productivity. This ability
stems directly from an open and application-blind architecture that creates a level
playing field where users pick winners and losers. The Order merely preserves the
benefits of openness and we respectfully request that it be affirmed.


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CERTIFICATE OF COMPLIANCE


This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) and 29(d) and because this brief contains 6,973 words, excluding the
parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and Circuit R.
32(a)(1).
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using the 2010 version
of Microsoft Word in 14 point Times New Roman.

Respectfully submitted,

By: s/John Blevins
John Blevins
Loyola University New Orleans
College of Law
7214 St. Charles Ave, Box 901
jblevins@loyno.edu
(504) 861-5853

New Orleans, LA 70118



COUNSEL FOR INTERNET ENGINEERS


AND TECHNOLOGISTS



Dated:
November 15, 2012



33



USCA Case #11-1355 Document #1405207 Filed: 11/15/2012 Page 41 of 45

CERTIFICATE OF SERVICE

I, John Blevins, hereby certify that on November 15, 2012, I filed a copy of
this brief electronically with the Clerk of the United State Court of Appeals for the
D.C. Circuit via the Court’s CM/ECF system, which will send notice of such filing
to all counsel who are registered CM/ECF users. Others, marked with an asterisk,
will receive service by mail unless another attorney representing the same party
and sharing the same address is receiving electronic service.


Respectfully submitted,

By: s/John Blevins
John Blevins
Loyola University New Orleans
College of Law
7214 St. Charles Ave, Box 901
jblevins@loyno.edu
(504) 861-5853
New Orleans, LA 70118

Counsel for Internet Engineers and
Technologists


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USCA Case #11-1355 Document #1405207 Filed: 11/15/2012 Page 42 of 45

SERVICE LIST


Helgi C. Walker
Michael E. Glover
William S. Consovoy
Edward Shakin
Eve Klindera Reed
William H. Johnson
Brett A. Shumate
Verizon
Wiley Rein LLP
Ninth Floor
1776 K Street, NW
1320 North Courthouse Road
Washington, DC 20006-2359
Arlington, VA 22201
Counsel for Verizon
Counsel for Verizon


John Thompson Scott, III
Walter E. Dellinger
1300 Eye Street, NW
O’Melveny & Myers LLP
Suite 400 West
1625 Eye Street, NW
Washington, DC 20005
Washington, DC 20006-4001
Counsel for Verizon
Counsel for Verizon

Samir C. Jain
Carl W. Northrop
Wilmer Culter Pickering Hale and Dorr Michael Lazarus
LLP
Andrew Morentz
1875 Pennsylvania Avenue, NW
Telecommunications Law Professionals
Washington, DC 20006-1420
PLLC
Counsel for Verizon
875 15th Street, Suite 750

Washington, DC 20005-2400
Counsel for MetroPCS Communications

Mark Atkerson Stachiw
Peter Karanjia
General Counsel, Secretary & Vice
Jacob M. Lewis
President
Austin C. Schlick
MetroPCS Communications, Inc.
Richard K. Welch
2250 Lakeside Blvd.
Joel Marcus
Richardson, TX 75082
FCC Office of General Counsel
Counsel for MetroPCS Communications 445 12th Street, SW

Washington, DC 20554
Counsel for FCC
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USCA Case #11-1355 Document #1405207 Filed: 11/15/2012 Page 43 of 45
Henry Goldberg
James Bradford Ramsay
Goldberg, Godles, Wienger & Wright
General Counsel
1229 19th Street, NW
National Association of Regulatory
Washington, DC 20036-2413
Utility Commissioners
Counsel for Open Internet Coalition
1101 Vermont Avenue, Suite 200

Washington, DC 20005-0000
Counsel for NASUCA

Genevieve Morelli
Harold Feld
Independent Telephone &
Public Knowledge
Telecommunications Alliance
1818 N Street, NW, Suite 410
1101 Vermont Avenue, NW
Washington, DC 20036
Suite 501
Counsel for Public Knowledge
Washington, DC 20005

Counsel for ITTA

Nickolai Gilford Levin
R. Craig Lawrence
Catherine G. O’Sullivan
U.S. Attorney’s Office
Robert J. Wiggers
(USA) Civil Division
U.S. Department of Justice
555 4th Street, NW
(DOJ) Antitrust Division, Appellate
Washington, DC 20530
Section
Counsel for United States
Office 3224

950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
Counsel for United States

Jeffrey J. Binder
Earle Duncan Getchell, Jr.
Law Office of Jeffrey J. Binder
*Wesley Glenn Russell, Jr.
2510 Virginia Avenue, NW
Office of the Attorney General,
Suite 1107
Commonwealth of Virginia
Washington, DC 20037
900 East Main Street
Counsel for Vonage
Richmond, VA 23219

Counsel for Commonwealth of Virginia

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USCA Case #11-1355 Document #1405207 Filed: 11/15/2012 Page 44 of 45
Brendan Daniel Kasper
John P. Elwood
*Kurt Matthew Rogers
Vinson & Elkins LLP
Vonage Holding Company
2200 Pennsylvania Avenue, NW
23 Main Street
Suite 500 West
Holmdel, NJ 07733
Washington, DC 20037-1701
Counsel for Vonage
Counsel for Cato Institute, Competitive

Enterprise Institute, and TechFreedom

David Bergmann
Stephen B. Kinnaird
Law Office of David C. Bergmann
Paul Hastings LLP
3293 Noreen Drive
875 15th Street, NW
Columbus, OH 43221-4568
Washington, DC 20005-2400
Counsel for NASUCA
Counsel for MetroPCS

Quentin Riegel
Russell Paul Hanser
National Association of Manufacturers *Bryan Nicholas Tramont
1331 Pennsylvania Avenue, NW
Wilkinson Barker Knauer, LLP
North Tower—Suite 1500
2300 N Street, NW
Washington, DC 20004-1790
Suite 700
Counsel for National Association of
Washington, DC 20037-1128
Manufacturers
Counsel for National Association of
Manufacturers

Kevin Stuart Bankston
*Sam Kazman
Emma Jornet Llanso
Competitive Enterprise Institute
Center for Democracy and Technology 1899 L Street, NW
1634 I Street, NW
12th Floor
Suite 1100
Washington, DC 20036
Washington, DC 20006
Counsel for Competitive Enterprise
Counsel for CDT
Institute

*Randolph J. May
Ilya Shaprio
The Progress & Freedom Foundation
The Cato Institute
1444 Eye Street, NW
1000 Massachusetts Avenue, NW
Suite 500
Washington, DC 20001
Washington, DC 20005
Counsel for Cato Institute
Counsel for PFF



37



USCA Case #11-1355 Document #1405207 Filed: 11/15/2012 Page 45 of 45

Respectfully submitted,

By: s/John Blevins
John Blevins
Loyola University New Orleans
College of Law
7214 St. Charles Ave, Box 901
jblevins@loyno.edu
(504) 861-5853

New Orleans, LA 70118



COUNSEL FOR INTERNET ENGINEERS


AND TECHNOLOGISTS



Dated:
November 15, 2012






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