Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of

)
)
)
)

Restoring Internet Freedom

WC Docket No. 17-108

COMMENTS

Frank Pallone, Jr.
Ranking Member
Committee on Energy and Commerce
U.S. House of Representatives

Mike Doyle
Ranking Member
Subcommittee on Communications and
Technology
Committee on Energy and Commerce
U.S. House of Representatives

Anna G. Eshoo
Member of Congress

Diana DeGette
Member of Congress

Jan Schakowsky
Member of Congress

Doris Matsui
Member of Congress

Kathy Castor
Member of Congress

John Sarbanes
Member of Congress

Jerry McNerney
Member of Congress

Peter Welch
Member of Congress

Joseph P. Kennedy III
Member of Congress

August 4, 2017

 TABLE OF CONTENTS
EXECUTIVE SUMMARY ........................................................................................................... i
I.

Introduction ........................................................................................................................ 1

II. In adopting the public interest standard, we required the Commission to balance
national priorities—not concentrate on one to the exclusion of all others. ................. 1
a. Before acting, the FCC must first ask for public comment on whether its actions will
harm free speech and our democracy. ............................................................................ 3
b. Before acting, the FCC must first ask for public comment on whether its actions will
harm small businesses, economic development and jobs across the country. ............. 5
c. Before acting, the FCC must first ask for public comment on whether its actions will
harm people’s privacy. ..................................................................................................... 8
d. The raw dollar amount spent on networks in a two-year period is not an accurate
measure of the “public interest” and should not be the basis of public policy............ 9
e. The FCC must improve the accuracy of its broadband deployment data before it
can make decisions that are based on the level of broadband deployment. .............. 10
III. As part of the ’96 Act, Congress intended to treat services differently depending on
whether the service primarily created data or the service primarily transmitted the
data. Congress has chosen not to eliminate that distinction. ..................................... 12
IV. The FCC may have inappropriately violated its independence from the White House
by taking direction from the President. ........................................................................ 14

 EXECUTIVE SUMMARY
We, as members of Congress who also sit on the House Energy and Commerce
Committee, submit these comments out of deep concern that the FCC’s proposal to undo its net
neutrality rules fundamentally and profoundly runs counter to the law. As participants either in
the passage of the Telecommunications Act of 1996 or in decisions on whether to update the Act,
we write to provide our unique insight into the meaning and intent of the law.
Most importantly, the FCC’s proposal impermissibly ignores the Commission’s core
mandate to fully consider the public interest before taking action. When adopting a broad public
interest standard for the Commission, we gave the FCC a serious responsibility to consider the
effects of its policies on the entire public, not just a favored few. On this score, the FCC’s
proposal falls flat. The proposal simply ignores the most critical issues affecting our country
today—priorities such as free speech and democracy, small businesses, jobs and economic
development, and privacy. Instead, the Commission narrowly focused on a single ill-conceived
measure of broadband investment to the exclusion of all others.
The proposal fails to recognize that the internet has become one of the most powerful
communications tools in modern society and is home to some of the most important
conversations taking place today. The internet has been used by groups to organize social
movements from all political stripes. These benefits are particularly powerful in minority
communities, which are too often underrepresented in traditional media. However this dialogue
can only take place because citizens understand that no one—not their government and not their
broadband companies—can limit what they say.
Repealing net neutrality would undermine Americans’ ability to engage in these
conversations. Without the protections afforded by the 2015 net neutrality rules, internet service
providers (ISPs) will be subject to economic and political pressures to choke off unpopular
conversations or speed up viewpoints supported by the politically dominant.
This threat is real. In just the past year we have seen efforts by those in charge in
Washington to turn off video cameras on the House floor and even to block content from
websites. The FCC’s net neutrality protections may be the last guard at the gate to free
expression on our communications networks. But the Commission’s proposal inexplicably fails
to even mention the potential effects on free speech or how it could undermine our democracy.
The FCC’s proposal also overlooks the dramatic and detrimental effect it could have on
small businesses and jobs across the country. Small businesses are the engines that drive the
economy and the open internet is the fuel that powers them. From bakers to bike shops, from
retail to real estate, from cooking to construction—nearly all businesses today need to be online.
After mentioning the effects of its actions on small ISPs, the proposal’s discussion of
small business comes to a screeching stop. The Commission’s proposal makes no effort to
recognize how its actions could devastate other small businesses across the country. And with so
many of these businesses owned by minorities and women, any action the Commission takes that
harms small businesses could have a disproportionate effect on these entrepreneurs.

i

 The proposal also disregards the impact the Commission could have on jobs. Small
businesses create more than half of the jobs in the country. Moreover, in this time of
technological transition, Americans are increasingly using the internet to take classes, train for
new opportunities, and apply for jobs. Without net neutrality, many of the resources people use
today could slow down or even stop. In today’s uncertain economic environment, overlooking
how this administration’s policies could halt job creation and job training is simply unacceptable.
The Commission also overlooks the affect that its proposal would have on Americans’
privacy protections. Americans overwhelming support stronger and clearer privacy rules. Yet
the Commission—without comment—proposes to eliminate before-the-fact protections at the
FCC in favor of an enforcement-only approach. The FCC should not degrade people’s privacy
rights without thorough consideration.
Instead of considering these critical national priorities, the proposal single-mindedly
concentrates on one issue to the exclusion of all others: the raw dollars spent on network
deployment. This narrow focus is clearly contrary to the public interest—if we had intended
network investment to be the sole measure by which the FCC determines policy, we would have
specifically written that into the law.
But even so, the proposal relies on scant evidence and questionable assumptions to
support its conclusions. In fact, there is bipartisan consensus that the FCC’s broadband
deployment data is flawed. Even the privately-funded studies the proposal relies upon ignore
that most experts understand that computing power will increase and relative price will decrease
over time. The FCC’s proposal does not recognize these basic facts. Nonetheless, we agree that
the FCC does have a duty to consider the levels of broadband deployment, but it should use
better measures such as how many people the networks reach and the quality of the connections.
Aside from misunderstanding the public interest standard, the FCC’s proposal also
misstates the distinction we made in the Communications Act between telecommunications
services and information services. We directed the Commission to consider network
infrastructure differently than the content that runs over it. The FCC’s proposal impermissibly
reads this distinction out of the law. While we understand that some may disagree with the law,
Congress must make that decision—not the Commission.
Finally, we are concerned that the FCC has jeopardized its independence by taking its
instruction directly from the White House. Chairman Pai has refused to say whether he was
given direction from the President when they met in the Oval Office earlier this year. But the
President’s spokesman suggested publicly that the President may have asked the FCC to undo
the legal underpinnings of net neutrality. A few weeks after this White House announcement,
the FCC complied. If the President did instruct this action, the proceeding may be fatally flawed.

ii

 I.

Introduction

The undersigned members of Congress submit these comments in response to the Federal
Communications Commission’s (“Commission” or “FCC”) Notice of Proposed Rulemaking WC
Docket No. 17-108 (the “Proposal”), which proposes to undo the legal underpinning of net
neutrality protections. 1 We have either worked on the Telecommunications Act of 1996 or have
worked on telecommunications issues since the passage of the Act. We have the unique ability
to provide insight on the actual meaning and intent of the Act.
We write out of a deep concern that the FCC’s proposal fundamentally and profoundly
misstates the law. In particular, the proposal takes an impermissibly narrow view of the public
interest and therefore overlooks important national priorities such as the harm the proposal could
have on free speech and democracy, small businesses, jobs and economic development, and
privacy. The proposal also impermissibly reads out of the law the distinction between
information services and telecommunications services. Finally, the process through which the
proposal originated may be defective as it may be based on inappropriate influence by the
President. As such, any action the FCC takes based on the analysis contained in the proposal
will be legally flawed and contrary to the law.
II.

In adopting the public interest standard, we required the Commission to balance
national priorities—not concentrate on one to the exclusion of all others.

The public interest standard has served as the bedrock for communications policy since
the founding of the Federal Radio Commission 90 years ago. 2 When we passed the
Communications Act into law, we specifically continued our direction that the FCC adopt
policies in the “public interest, convenience, and necessity.” 3 We included the direction to act in
the public interest over 100 times in the Communications Act to stress that it forms the core of
the law, and it should form the heart of every decision the FCC makes.
Throughout its near-century of existence, both Congress and the courts have repeatedly
reaffirmed the sanctity of this standard. We intend this direction to give the FCC a broad
mandate to weigh all relevant factors before making a decision. This extensive review is not an
option that the FCC can exercise at its discretion—it is an obligation that the FCC must satisfy as
part of every policy decision it makes on behalf of the American people.
Some have incorrectly stated that we used this broad standard to give the Commission
wide discretion on how it chooses to act. To the contrary, we intended its breadth to instill an
obligation and a responsibility on the FCC. We did not want the FCC to pick favorite companies

1

Federal Communications Commission, Restoring Internet Freedom, Notice of
Proposed Rulemaking, WC Docket No. 17-108, FCC 17-60 (rel. May 23, 2017). [Hereinafter
Internet Freedom NPRM].
2

Radio Act of 1927, Pub. L. No. 69-632.

3

Communications Act of 1934, Pub. L. No. 73-416, inter alia.

1

 or preferred industries. We did not intend the agency to cherry pick data points to support
predetermined conclusions.
The direction is simple, even if its execution can be hard. The FCC must take into
account the interest of the entire public. 4 This standard was not meant to be met with a quick
calculus such as: regulation is equivalent to reduced investment in fiber which is equivalent to
the rule is not in the public interest. The agency’s responsibility is to the entire public and it is
required to balance multiple important considerations. This responsibility is not meant to be
taken lightly.
The FCC’s current proposal does not satisfy the Commission’s legal obligation to
consider the breadth of important national priorities. Instead, it narrowly focuses on a single illconceived measure of the public interest to the exclusion of all other priorities. Worse,
testimony given by two Commissioners demonstrates a fundamental misunderstanding of the
standard we require of them and twists the public interest standard into an impossible burden on
the public.
The Chairman seems to believe that his primary— and possibly only—consideration in
this proceeding is whether the tens of billions of dollars that ISPs have invested in their network
infrastructure is “substantially greater” than a hypothetical amount the companies would have
spent without the 2015 Order. Specifically, Chairman Pai stated that to change his mind about
undoing net neutrality, he would need to see in the record “an economic analysis that shows
credibly that infrastructure investment is increased dramatically.” 5 Commissioner O’Reilly
agreed and went on to state that many of the millions of “comments are empty and devoid of any
value, in my opinion.” 6 This testimony indicates that the Commissioners may be ignoring

4

In fact, even the administration agrees with this assessment. When instructing
executive branch agencies on how to perform proper benefit-cost analyses, OMB Circular 94
states that “Analyses should include comprehensive estimates of the expected benefits and costs
to society based on established definitions and practices for program and policy evaluation.”
Circular No. A-94 Revised at #6 (www.whitehouse.gov/omb/circulars_a094). The Circular goes
on to note that: “Both intangible and tangible benefits and costs should be recognized. The
relevant cost concept is broader than private-sector production and compliance costs or
government cash expenditures.” Id. at No. 6(a).
5

House Committee on Energy and Commerce, Testimony of FCC Chairman Ajit Pai,
Hearing on Oversight and Reauthorization of the Federal Communications Commission, 115th
Cong. (Jul. 25, 2017).
6

House Committee on Energy and Commerce, Testimony of FCC Commissioner
Michael O’Rielly, Hearing on Oversight and Reauthorization of the Federal Communications
Commission, 115th Cong. (Jul. 25, 2017).

2

 relevant points raised by the public 7 and may have impermissibly prejudged the issue without
fully considering the input from the public. 8
We put the obligation on the Commission to determine whether a new policy is in the
public interest, but the Chairman’s comments make it appear that he is flipping the burden to the
public to stop an unwanted Commission action. Requiring that the public demonstrate a
dramatic increase in spending over a hypothetical baseline is wholly arbitrary and would almost
certainly lead to a capricious result for most of the country. 9 Rather than imposing new burdens
on the public, before moving forward the Commission must instead consider the impact its
actions could have on free speech, small businesses, jobs and economic opportunity, and privacy.
a. Before acting, the FCC must first ask for public comment on whether its actions
will harm free speech and our democracy.
Net neutrality is crucial to protecting free speech. Without net neutrality protections,
ISPs could succumb to market forces to discriminate against competing content or could be
compelled by political forces into restricting unpopular content. The FCC must therefore weigh
the impact its actions would have on free speech before it takes steps that could undermine the
existing net neutrality rules.
The internet has become one of the most powerful communications tools in modern
society and is home to some of the most important conversations taking place today. The
internet has been used by social groups to organize social movements from all political stripes.
This online dialogue is now a critical component of our democracy.
For instance, the organizing behind the Women’s March and healthcare protests could
not have happened at the same scale if not for tools provided by social media. 10 But this kind of
activism is just as important on the political right. Even the President finds new ways to energize
his followers by using online platforms.
The internet has allowed citizens to reach across geographic and social boundaries to find
people with similar beliefs and those who do not. Within hours, these conversations can gain
prominence and become forces of change in national politics. This dialogue can take place only
because citizens understand that no one—not their government and not their broadband
companies—can limit what they say.
7

Safari Aviation Inc. v. Garvey, 300 F.3d 1144, 1151 (9th Cir. 2002); Am. Mining
Congress v. EPA, 965 F.2d 759, 771 (9th Cir. 1992).
8

Cinderella Career and Finishing Schools, Inc. v. FTC, 425 F.2d 583 (D.C. Cir. 1970).

9

5 U.S. Code §706(2)(A).

10

How Mainstream Media Missed the March that Social Media Turned into a
Phenomenon, Washington Post (Jan. 22, 2017); see also, Nish Acharya, The Women's March
After Trump's Inauguration Is A Perfect Example Of Social Entrepreneurship, Forbes (Jan. 19,
2017).

3

 These benefits are particularly powerful in minority communities, which are often
underrepresented in traditional media. 11 The internet has allowed these communities to connect
in unprecedented ways. For instance, activists were able to tap the power of the open internet
and use the single hashtag BlackLivesMatter to organize nationwide protests and build a
conversation that continues today. 12
But repealing net neutrality could undermine Americans’ ability to engage in these types
of conversations. Without the protections afforded by the 2015 net neutrality rules, ISPs can
choke off unpopular conversations or speed up viewpoints supported by the powerful.
The incentives to act can be both economic and political. Economic incentives arise
because the conglomerates that own network infrastructure are increasingly purchasing content
like news outlets. That means that ISPs have financial incentives to give preference to the shows
they own, the websites they run, and the news they report. In fact, these preferences are already
taking place as ISPs increasingly exempt their own content from consumers’ data caps. 13 If the
net neutrality rules are eliminated, ISPs will feel competitive pressures to expand this practice
unchecked.
Independent voices—those outside the mainstream—may be most at risk simply because
they don’t have an affiliation with the companies that run the internet. That is especially true for
minority-owned media outlets, which are more likely to be independent. 14
We specifically directed the Commission to put a premium on protecting these voices.
For instance, when we passed the Communications Decency Act (CDA), we wrote that the
internet offers “a forum for a true diversity of political discourse, unique opportunities for
cultural development, and myriad avenues for intellectual activity.” 15 We adopted a policy
directing the FCC to “maximize user control of what information is received by individuals,
families, and schools who use the Internet.” 16 We directed the Commission to “preserve the
11

Rebecca Stone and Kelly M. Socia, Boy With Toy or Black Male With Gun: An
Analysis of Online News Articles Covering the Shooting of Tamir Rice, Race and Justice (Jan. 29,
2017).
12

Helen Margetts and Peter John, et. al., Political Turbulence: How Social Media Shape
Collective Action, at 59-60 (2016).
13

FCC Asking if Data Plans Violate Internet Rules, Los Angeles Times (Dec. 18, 2015);
see also Free Data Sounds Great, but the FCC Has Questions, National Journal (Dec. 17, 2015);
More Telecoms let You Watch Video Without Dinging Data Caps, Associated Press (Dec. 14,
2015); FCC Concerned About AT&T Exempting DirecTV from Data Caps, Associated Press
(Nov. 10, 2016); FCC: Verizon, AT&T Probably Violate Net Neutrality, PC Mag (Jan. 12, 2017).
14

Pillars of Black Media, Once Vibrant, Now Fighting For Survival, New York Times
(July 2, 2016).
15

47 U.S.C. §230(a)(3).

16

47 U.S.C. §230(b)(3).

4

 competitive free market that currently exists on the internet” and keep that market “unfettered by
federal or state regulation.” 17
Our intention was clear: the FCC’s priority should be protecting independent voices by
making sure that consumers are the ones who choose what content they access online—not the
government and not big corporations. Confusingly, the FCC’s proposal cites these provisions of
the law for the opposite contention. The proposal suggests that these sections of the law show
that we intended the FCC to remove consumer protections that allow people to decide for
themselves what they see online. 18 That contention is simply wrong and should not be used as
the basis for undoing net neutrality.
Unfortunately, ISPs have more than just financial reasons to choke off independent
content—the pressure can also be political. If net neutrality protections are removed, nothing
stops those in power from pushing broadband companies to censor dissenting voices or
unpopular opinions. Even large companies may feel pressure to please those in power out of fear
of reprisals. Indeed, in just the past year, we have seen efforts by the politically powerful to
block video content from being transmitted to the American people 19 and more recently, we have
seen efforts to block content from websites. 20 The FCC’s net neutrality protections may be the
last guard at the gate of free expression on our communications networks.
In the current heated political environment, the powerful have looked for ways to limit
conversations they deem objectionable. Without net neutrality, the companies who control the
networks would be caught in the middle. They would have to make a decision without any legal
protections. But under the current net neutrality protections, ISPs are shielded from having to
bow to these pressures.
We were dismayed that the FCC’s proposal does not mention the costs of its proposal to
free speech or to our democracy. The proposal also fails to acknowledge the disproportionate
effects its proposal could have on minority communities’ ability to connect and to organize. The
Commission would not be fulfilling its legal obligation to the public interest if it attempts to
move forward without balancing these important national priorities. The Commission must first
ensure that it has an adequate record to address these issues.
b. Before acting, the FCC must first ask for public comment on whether its actions
will harm small businesses, economic development and jobs across the country.
The FCC’s proposal is correct to consider the effects of its actions on small ISPs. But the
proposal fails to acknowledge the effects that its actions could have on other small businesses
17

47 U.S.C. §230(b)(2).

18

Internet Freedom NPRM, supra n. 1, at ¶ 1.

19

House Republicans Cut C-SPAN Cameras During Gun Control Sit-In, Time.com
(June 22, 2016) (http://time.com/4378912/congress-house-cspan-feed-cut/).
20

Hill Republicans Warn Big Tech: Tread Carefully, Axios, (July 12, 2017)
(www.axios.com/republicans-nudge-big-tech-over-net-neutrality-activism-2458262562.html).

5

 and jobs across the country. These small businesses are the engines that drive the American
economy and the open internet is the fuel that powers them. More than half of all sales in the
country are through small businesses 21 and, with eight in ten of all Americans shopping online, 22
these sales are increasingly made on the internet. These small businesses can be found
nationwide. . From bakers to bike shops, from retail to real estate, from cooking to
construction—nearly all businesses today need to be online.
The internet is creating new opportunities not only in the big cities and suburbs, but also
in rural America. By the end of President Obama’s term, almost half of new startups were
sprouting in regions outside the top 35 metro areas. 23 And these businesses mean jobs. The jobs
of today are either online or can be found online. The internet is essential for training and
applying for new jobs. As technology shifts cause large corporations to shave off jobs, small
businesses have been more than making up the difference by providing 55 percent of all jobs in
the country. 24
But the real power of the internet is that with just an idea and a website, anyone can
become an entrepreneur. With a working broadband connection, anyone can work from home,
sell their own products online, and connect with companies a world away. This is especially true
for minority-owned and woman-owned businesses. Over 17 percent of firms with employees are
minority-owned. 25 And nearly 20 percent of these firms are women-owned. 26 Any action the
Commission takes that harms small businesses could have a disproportionate effect on minority
communities and women-owned businesses. 27
Small businesses have thrived online because the costs to launch are so much lower. 28
With the current protections in place, entrepreneurs pay only once to get their new businesses
21

U.S. Small Business Administration, Small Business Trends (www.sba.gov/managingbusiness/running-business/energy-efficiency/sustainable-business-practices/small-businesstrends).
22

Pew Research Center, Online Shopping and E-Commerce, at 2 (Dec. 19, 2016).

23

Michael Mandel, How the Startup Economy is Spreading Across the Country — and
How It Can Be Accelerated, TechNet (Mar. 29, 2017).
24

Small Business Trends, supra n. 21.

25

U.S. Census Bureau, Nearly 1 in 10 Businesses With Employees Are New, According
to Inaugural Annual Survey of Entrepreneurs (Sep. 1, 2016) (press release).
26

Id.

27

For instance, according to Etsy, 88 percent of their sellers are women, the majority of
which are sole-proprietors with an average household income of $44,900. Redefining
Entrepreneurship: Etsy Sellers’ Economic Impact 2013
(https://extfiles.etsy.com/Press/reports/Etsy_RedefiningEntrepreneurshipReport_2013.pdf).
28

See, e.g., Babson College, The State of Small Businesses in America 2016, at 13
(showing that cost of IT is one of the lowest barriers for small businesses).

6

 online. But under the Commission's proposal, these businesses could need to pay over and over
just to compete—once to their own ISP and then to every other ISP to get access to their
subscribers at the same speeds as their competitors. That cost may simply be too much for these
small businesses in today's economy, considering that the census bureau found that nearly one in
ten companies with employees are new and still getting off the ground. 29 The situation is even
starker for minority and women-owned businesses, which both tend to be newer than the national
averages. 30
The entrepreneurs running these small businesses—real, hardworking people—used the
internet to get started, to create new opportunities, and to create jobs for others. But these
entrepreneurs need access to the same internet at the same speeds as large corporate interests.
The Commission’s proposal suggests the FCC should allow paid prioritization so that big
businesses can pay for faster speeds that their smaller competitors cannot. 31 The proposal
suggests that ISPs should be allowed to charge extra for fast lanes or other advantages to access
their subscribers. 32
This proposal is a dramatic change from the regime that has made the online economy so
successful. The internet has been such a powerful tool precisely because small businesses can
have websites as powerful as the world’s largest corporations. The only limits are their
imaginations—not their bank accounts. Once an entrepreneur pays to plug into the web, they are
equipped to compete with anyone. That is how the internet has always kept costs for new
businesses so low.
But these opportunities will dry up if the FCC follows through with its proposal. If small
businesses cannot get access to the same internet at the same speeds as their larger competitors,
their survival is put at risk. The FCC’s proposal would put a new hurdle in front of new and
aspiring entrepreneurs. For too many of them, that will be one obstacle too many.
Worse, the Commission’s proposal has the potential to rip the internet in half, creating a
first class section for those with deep pockets and a lower class version for small businesses.
Under this regime, the innovative startups of today and tomorrow may simply disappear because
they will lose access to the internet that has allowed them to compete against larger corporations.
This loss could slow the entire economy, eliminate existing jobs and take away opportunities for
the future.
When we included the public interest standard in the Communications Act, we required
the Commission to account for these kinds of losses. Before taking actions that could harm
small businesses and kill jobs, the FCC must balance the damage this policy could inflict on the
public.

29

U.S. Census Bureau Press Release, supra n. 25.

30

Id.

31

Internet Freedom NPRM, supra n. 1, at ¶ 85-88.

32

Id. at ¶ 85.

7

 c. Before acting, the FCC must first ask for public comment on whether its actions
will harm people’s privacy.
When we passed the Communications Act, we specifically included provisions to account
for people’s privacy when they use network infrastructure. We understood how important
people’s personal information can be and how vulnerable that information is when people must
send it over communications networks. We therefore laid out specific privacy rules of the road
for when people use network infrastructure, 33 and those protections currently extend to
broadband. 34
These protections are now more important than ever. Eighty-four percent of Americans
say they are worried about their online privacy and security35 and 91 percent of adults think they
have already lost control over how companies collect and control their personal information. 36
Nearly three-quarters of people who use the internet say they want more control over their
information. 37 Americans simply do not want their financial, medical, and other personal
information shared without their permission.
These concerns not only have an impact on people’s well-being; they can have a
detrimental effect on the economy as well. According to a study by the National
Telecommunications and Information Administration, people limit their economic and civic
activities online when they are concerned about their privacy. 38
The Commission’s current proposal would remove the statutory privacy rules that can
protect broadband users before they are harmed. Instead, the Commission has proposed that the
Federal Trade Commission could act on privacy violations only after the damage has been done.
Nearly half of internet users surveyed say privacy regimes like this have left them confused,
discouraged, and impatient. 39

33

47 U.S.C. §222.

34

Federal Communications Commission, Protecting and Promoting the Open Internet,
Report and Order on Remand, Declaratory Ruling, and Order, GN Docket No. 14-29, FCC 15-24
at ¶461 (rel. March 12, 2015).
35

National Telecommunications and Information Administration, Lack of Trust in
Internet Privacy and Security May Deter Economic and Other Online Activities (May 13, 2016)
(www.ntia.doc.gov/blog/2016/lack-trust-internet-privacy-and-security-may-deter-economic-andother-online-activities).
36

Pew Research Center, The State of Privacy in Post-Snowden America (Sept. 21, 2016)
(www.pewresearch.org/fact-tank/2016/09/21/the-state-of-privacy-in-america/).
37

Id.

38

National Telecommunications and Information Administration, supra n. 35.

39

Pew Research Center, supra n. 36.

8

 We were disturbed that the Commission’s proposal failed to recognize the potential harm
it could cause to people’s privacy. To fulfill its obligation to act in the best interest of the public,
the Commission must first develop a record that allows it to balance the effects of its actions on
people’s personal information.
d. The raw dollar amount spent on networks in a two-year period is not an
accurate measure of the “public interest” and should not be the basis of public
policy.
To support its contention that the 2015 Open Internet Order is contrary to the public
interest, the current proposal relies almost exclusively on a claim that the 2015 Order has
depressed investment in network infrastructure. 40 But the proposal relies on scant evidence and
questionable assumptions. 41 The FCC acknowledges that others have drawn opposite
conclusions, but gives these contrary views short shrift. 42 The proposal fails to recognize that
the Congressional record—including hearing testimony from Republican witnesses—questions
whether these analyses actually support the conclusion that investment decisions could be traced
back to the FCC’s 2015 decision. 43
Unlike the Commission’s proposal, we understood when we voted on the
Communications Act that any number of factors could affect how much specific companies
spend on their network at any one time. Most experts believe that computing power will
increase and relative price will decrease over time. 44 And this law has held true for network
technology since the 2015 Order was passed. The cost of fiber has decreased by nearly 20
percent since 2003. 45 And the more widespread use of small cell technology has led to the cost
of deploying wireless networks to go down dramatically. 46
The national priority the FCC should consider is not the amount spent on network
infrastructure, but instead on how many people the networks reach and the quality of the
connections. To measure this national interest, the Commission must also include factors such as
40

Internet Freedom NPRM, supra n. 1, at ¶ 44-47.

41

Id. at ¶ 45, fn. 113-115.

42

Id. at ¶ 45, fn. 116.

43

See, e.g., House Committee on Energy and Commerce, Testimony of Michael Mandel,
Hearing on Common Carrier Regulation of the Internet: Investment Impacts, 114th Cong. (Oct.
27, 2015) (Testifying in response to questions about whether PPI’s study shows Title II impacted
investment that “[w]e don't know what is going to happen [under Title II] as things change,
evolve over the next several years, because I tend to agree with the other panelists that this is not
a short‐term thing. These are long‐term issues that evolve over time.”).
44

Intel, 50 Years of Moore’s Law: Fueling Innovation We Love and Depend On
(accessed July 13, 2017).
45

U.S. Bureau of Labor Statistics, Producer Price Index by Industry: Fiber Optic Cable
Manufacturing: Fiber Optic Cable, Federal Reserve Bank of St. Louis (Jul. 13, 2017).
46

CNET, The Carriers’ Not-So-Secret Weapon to Improve Cell Service (Jun. 9, 2017).

9

 actual deployment, relative speeds, and investment and innovation from ancillary business like
websites and apps. The proposal impermissibly overlooks all of these factors.
Regardless of whether the studies cited in the recent proposal actually support the
Commission’s assertions, this factor alone cannot satisfy the heavy responsibility of determining
whether a policy is in the interest of the pubic. If we had intended network investment to be the
sole measure by which the FCC determines policy, we would have specifically written that into
the law. We did not.
In fact, the FCC would violate its mandate if it bases its final order on only one narrow
data point, rather than taking a wider scope including actual deployment, relative speeds,
investment and innovation from ancillary business like websites and apps. And as discussed
above, the Commission is prohibited from ignoring the effects of its actions on important
national priorities such as free speech, democracy, small businesses, economic opportunity, jobs,
and privacy.
Unfortunately, the Commission’s proposal fails on this basic test. If the FCC determines
that its proposal does not give sufficient notice or that the record does not allow the Commission
to weigh all of the relevant priorities, the law requires the Commission to issue a further notice
before repealing or weakening the existing protections.
e. The FCC must improve the accuracy of its broadband deployment data before it
can make decisions that are based on the level of broadband deployment.
The Commission’s sole rationale for its proposal is that the FCC’s 2015 Order is harming
broadband competition and deployment. 47 However, in the Administrative Procedures Act, we
required that the Commission base its policy decisions on reliable and accurate data. 48
Unfortunately, the FCC’s broadband deployment data is widely known to be faulty and that it
systematically overstates broadband coverage. Since the FCC cannot base its decision on data
that it knows to be incorrect, it must update its data before moving forward. 49
The Congressional record is replete with concerns about the FCC’s current broadband
deployment data. 50 Members of Congress—both bipartisan and bicameral—have consistently
rejected its reliability. 51 We know our districts well and we know which of our constituents have
47

See generally, Internet Freedom NPRM, supra n. 1, at ¶ 2.

48

5 U.S.C. §706(2)(a).

49

Id.

50

House Committee on Energy and Commerce, Hearing on Broadband: Deploying
America’s 21st Century Infrastructure, 115th Cong. (Mar. 21, 2017); see also House Committee
on Energy and Commerce, Hearing on Defining and Mapping Broadband Coverage in America,
115th Cong. (June 21, 2017).
51

House Committee on Energy and Commerce, Hearing on Broadband: Deploying
America’s 21st Century Infrastructure, 115th Cong. (Mar. 21, 2017); see also House Committee

10

 coverage. We recognize that the FCC’s maps overstate coverage. However, it is not just us;
both Republican and Democratic witnesses have testified about the many flaws with the FCC’s
data and how the FCC cannot base decisions on its faulty information. 52 These problems have
prompted both Republicans and Democrats to pursue legislation to spur the FCC to fix its faulty
data. 53
According to witness testimony, the FCC’s reporting presumptions make the data illsuited for making policy decisions. 54 Experts widely agree that these presumptions lead to FCC
data that shows more competition than what actually exists. This overstatement distorts the
Commission’s view of broadband deployment and undermines its decision making.
The FCC has recognized the shortcomings in its data and has begun considering a process
to improve it. 55 However, we directed the Commission to base its decisions on reliable
deployment data. In Section 706 of the Telecommunications Act of 1996 we required the FCC
to perform an annual inquiry “concerning the availability of advanced telecommunications

on Energy and Commerce, Hearing on Defining and Mapping Broadband Coverage in America,
115th Cong. (June 21, 2017).
52

See House Committee on Energy and Commerce, Testimony of James Stegeman,
Hearing on Broadband: Deploying America’s 21st Century Infrastructure, 115th Cong. at 19-22
(Mar. 21, 2017); see also House Committee on Energy and Commerce, Testimony of Steven
Berry, Hearing on Broadband: Deploying America’s 21st Century Infrastructure, 115th Cong. at
13-14 (Mar. 21, 2017); see also House Committee on Energy and Commerce, Testimony of
LeRoy T. Carlson, Hearing on Broadband: Deploying America’s 21st Century Infrastructure,
115th Cong. at 9-16 (Mar. 21, 2017); see also House Committee on Energy and Commerce,
Testimony of Brian Darr, Hearing on Broadband: Deploying America’s 21st Century
Infrastructure, 115th Cong. at 3-5 (Mar. 21, 2017); see also House Committee on Energy and
Commerce, Testimony of Brent Legg, Hearing on Defining and Mapping Broadband Coverage
in America, 115th Cong. at 6-7 (June 21, 2017); see also House Committee on Energy and
Commerce, Testimony of Brian Darr, Hearing on Defining and Mapping Broadband Coverage
in America, 115th Cong. at 2-3 (June 21, 2017).
53

H.R. 1546; S. 1104.

54

House Committee on Energy and Commerce, Testimony of James Stegeman, Hearing
on Broadband: Deploying America’s 21st Century Infrastructure, 115th Cong. at 19-22 (Mar.
21, 2017). For example, the data is reported based on a one-served, all-served presumption,
meaning that if even one home is served by a carrier in a census block, the entire census block
will be deemed served. The approach can lead to particularly skewed results because some
census blocks are the size of Connecticut. House Committee on Energy and Commerce,
Testimony of Brent Legg, Hearing on Defining and Mapping Broadband Coverage in America,
115th Cong. at 6-7 (June 21, 2017).
55

Federal Communications Commission, Modernizing the FCC Form 477 Data
Program, Further Notice of Proposed Rulemaking, WC Docket No. 11-10, FCC-Cir1708-03, at ¶
6 (rel. []).

11

 technology.” 56 And we specifically tied this inquiry directly to the Commission’s legal authority
to take action. We similarly required the FCC to report on competition among mobile services. 57
We wanted the FCC to base its decisions on sound, un-biased data. 58
Before moving forward, the FCC should first correct its data, as we required. The FCC
may not simply paper over these flaws by relying on privately-funded third-party analyses. 59
III.

As part of the ’96 Act, Congress intended to treat services differently depending on
whether the service primarily created data or the service primarily transmitted the
data. Congress has chosen not to eliminate that distinction.

The proposal fundamentally misunderstands our purpose in passing the Communications
Act. The proposal treats telecommunications services as though they are synonymous with
information services. While some commenters may prefer this approach 60— that is not what the
Act says nor is it what we intended when we crafted the law.
The Telecommunications Act of 1996 famously mentions the word “internet” only 11
times. 61 It mentions the word “broadband” once. That’s because broadband was not widely
used for several more years after the passage of the Act. 62
However that does not mean that Congress intended the fundamental principles
underlying the Communications Act to become obsolete in a few years with the development of
new equivalent technology. After all, the Act itself took more than six years to craft. Instead,
Congress intended the principles developed in the Act to survive and persist regardless of the
specific technology used. That’s why it codified a term called “advanced telecommunications
services,” to anticipate new technologies.
So, what were those fundamental principles? When it comes to telecommunications,
Congress intended the FCC to treat services that create content differently than those services
that transmit that content. In the Act, we labeled services that create content as “information
services,” which we defined as those that offer the capability to generate content among other

56

47 U.S.C. §1302.

57

47 U.S.C. §332(c)(1)(C).

58

47 U.S.C. §1302.

59

Internet Freedom NPRM, supra n. 1, at ¶ 45.

60

American Enterprise Institute, ‘The Real Slow Lane’ Threat to the Internet (Jun. 2,

61

Telecommunications Act of 1996, Pub. L. No. 104-104 (1996).

2014).
62

National Telecommunications and Information Administration, Nation Online: How
Americans are Expanding Their Use of the Internet (2002)
(www.ntia.doc.gov/legacy/ntiahome/dn/html/toc.htm).

12

 things. 63 We also created a distinct classification of services that transmit information that we
called “telecommunications services.” We defined these services as ones that offer
telecommunications for a fee directly to the public. 64 We then defined “telecommunications” as
the transmission of the content between two points of the users’ choosing without change. 65
We based this distinction on a clear policy goal that remains true today. Americans have
fewer options about which networks they buy their subscription services from than they do when
it comes to the information they communicate using those networks. Moreover, we were
concerned that networks could use their market power to control the information that Americans
could communicate online, whether for commercial or political reasons. In contrast, we intended
to set strict limitations on the government’s reach into the content communicated between
Americans. This was not an easy compromise to reach and should not be dismissed easily.
This distinction comes into focus when considering the technology most Americans used
at the time we passed the law. Most Americans in 1996 had copper phone lines as their primary
mode of telecommunications. To the extent our constituents had internet service in their home, it
was likely an additional dial-up service that used the copper phone lines to connect. In fact,
many of these internet services were not open, but rather curated walled gardens with only a
preselected portion of the internet’s content.
To be sure, the technology has changed rapidly and continuously in the two decades since
we passed the Act. Americans have migrated away from copper phone lines as their primary
form of communication. Now, nearly half of Americans do not have any type of landline at
home. In a total reversal from 20 years ago, many of those that do have home landline service
buy it as a service that rides over their internet service.
The way Americans use the internet has changed as well. Since we voted for the
Telecommunications Act in 1996, Americans rejected the curated internet services in favor of an
open platform. Now, anyone with a subscription to an ISP can get access to any legal website or
application of their choice. Americans’ ISPs no longer pick and choose what online services
their customers can access.
While the technology has changed, the policies to which we agreed have remained firm—
the law still directs the FCC to look at the network infrastructure carrying data as distinct from
the services that create the data. Using today’s technology that means the law directs the FCC to
look at ISP services as distinct from those services that ride over the networks.
The FCC’s proposal contravenes our intent—the FCC should tread carefully before
interfering with content creation. While some may argue that this distinction should be
abandoned because of changes in today’s market, that choice is not the FCC’s to make. The

63

47 U.S.C. §153(24).

64

47 U.S.C. §153(53).

65

47 U.S.C. §153(50).

13

 decision remains squarely with those of us in Congress—and we have repeatedly chosen to leave
the law as it is.
The Commission’s proposal performs a historical sleight of hand that impermissibly
conflates this fundamental distinction. The FCC proposes to treat network infrastructure as
information services because the infrastructure gives access to the services running over their
networks. 66 The FCC contends that ISPs are therefore “offering the capability” to use the
services that create the content. 67 However this suggestion obliterates the distinction that
Congress set in to law—we meant for the FCC to consider services that carry data separately
from those that create data. The FCC’s proposal would therefore read this fundamental choice
that we made out of the law. Under the proposal’s suggestion, no service could be a
telecommunications service going forward.
IV.

The FCC may have inappropriately violated its independence from the White House
by taking direction from the President.

Finally, the process through which the proposal was developed appears to be irreparably
flawed. As Chairman Pai himself has stated repeatedly, we created the FCC as an independent
agency. 68 We delegated some of our authority to the Commission, but we tried to keep
communications policy isolated from the political whims of the executive branch. While the
President and his administration are certainly entitled to voice an opinion, it is not permitted to
direct the actions of the agency. 69
Unfortunately, this process has been wrought with indications that the President is
actually directing the actions of the Commission. As an initial matter, Chairman Pai met
personally with the President in the Oval Office. The Chairman has not been willing to disclose
whether the President gave specific direction on what policy directions the FCC should take.
The White House has given an indication, however, that it did direct the FCC to
undermine net neutrality. At a March 30 press conference, the President’s spokesperson, Sean
Spicer, specifically said that the President intended to take away Americans’ privacy rights. 70
He then implied that the President intended to follow through with his campaign promises to
undermine the legal foundations of net neutrality. 71 Shortly after this announcement, Chairman
66

Internet Freedom NPRM, supra n.1, at ¶ 27.

67

Id. at ¶ 28..

68

Federal Communications Commission, Statement of FCC Commissioner Ajit Pai on
the Release of Senate Report on How the White House Bowled Over FCC Independence (Mar. 2,
2016).
69

Congressional Research Service, Administrative Law Primer: Statutory Definitions of
‘Agency’ and Characteristics of Agency Independence (Mar. 22, 2014).
70

See White House, Remarks of Press Secretary Sean Spicer at Press Briefing 32 (Mar.
30, 2017) (www.whitehouse.gov/the-press-office/2017/03/30/press-briefing-press-secretarysean-spicer-3302017-32).
71

Id.

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 Pai circulated a draft proposal that tracked precisely with the announcement from the White
House.
Before and after the adoption of the 2015 net neutrality order, Chairman Pai often said
that President Obama improperly influenced the FCC by releasing a video supporting a path
forward for net neutrality and submitting a proper ex parte filing in the docket. As has been well
established, the Chairman’s comments were certainly an overstatement, but the potential
influence of this White House goes much further. It appears that the President directly ordered
Chairman Pai to repeal net neutrality, potentially during a visit to the Oval Office. If true, this
proposal clearly violates our intention to create an agency independent of the executive.

Respectfully submitted,
Frank Pallone, Jr.
Ranking Member
Committee on Energy and Commerce
U.S. House of Representatives

Mike Doyle
Ranking Member
Subcommittee on Communications and
Technology
Committee on Energy and Commerce
U.S. House of Representatives

Anna G. Eshoo
Member of Congress

Diana DeGette
Member of Congress

Jan Schakowsky
Member of Congress

Doris Matsui
Member of Congress

Kathy Castor
Member of Congress

John Sarbanes
Member of Congress

Jerry McNerney
Member of Congress

Peter Welch
Member of Congress

Joseph P. Kennedy III
Member of Congress

August 4, 2017

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