September 11th, 2014 • 3h 6m
Shownotes
Every new episode of No Agenda is accompanied by a comprehensive list of shownotes curated by Adam while preparing for the show. Clips played by the hosts during the show can also be found here.
TODAY
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Stream address: broadcast.nashownotes.com
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Schiphol opt-out Global traveller not recognized
No mag, only pat down
Didn't need to see my microhone, but laptops and iPad neede to be awoken for her to see
Global Entry
JFK
Special roped off line, also used by crew and diplomats
Walk up to kiosk. Insert passport, remove 1 second later
Right hand fingerprints (4)
Photo went off almost the same time, too high for me LOL
Answer the standard immigration questions with 1 click to answer no to all
Print out
Guy leaning against the wall casually glances and waves me on right into the back of all the CBP officers booths. Straight into baggage claim
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FATA
the fata al qaeda - Google Search
Mon, 08 Sep 2014 08:34
About 499,000 results
Federally Administered Tribal Areas - Wikipedia, the free encyclopediaen.wikipedia.org/wiki/Federally_Administered_Tribal_Areas- Cached - SimilarWith the encouragement of the United States, 80,000 Pakistani troops enteredthe Federally Administered Tribal Areas in March 2004 to search for al-Qaeda ...Federally Administered Tribal Areas News, Photos and Videos ...abcnews.go.com/topics/news/.../federally-administered-tribal-areas.htm- Cached - Similar"During the past two years, al Qaeda's base of operations in the FederallyAdministered Tribal Areas [of Pakistan ] has been restricted considerably, limitingits ...Al-Qaeda continues to operate from FATA: Pentagon - thenews.com.pkwww.thenews.com.pk/article-140195-Al-Qaeda-continues-to-operate-from- FATA%3A-Pentagon- CachedMar 7, 2014 ... WASHINGTON: Al-Qaeda continues to operate from Pakistan's tribal areas, a topPentagon commander has said while adding that the ...Diversified, Not Diminished: Al Qaeda in Pakistan Since 9/11 ...www.criticalthreats.org/al-qaeda/jan-qaeda-pakistan-diversified-not- diminished-september-20-2011- Cached - SimilarSep 21, 2011 ... Many of al Qaeda's rank-and-file took shelter with friendly tribes in Pakistan'sFederally Administered Tribal Areas (FATA), while some of its ...Al Qaeda decimated in Fata: White House - Pakistan - DAWN.COMwww.dawn.com/news/1122774- CachedAug 2, 2014 ... WASHINGTON: The White House said on Friday that the United States hasdecimated the core leadership of Al Qaeda in Pakistan and ...Al-Qaeda continues to operate from FATA: Pentagon - The Nationwww.nation.com.pk/.../al-qaeda-continues-to-operate-from-fata-pentagon- Cached - SimilarMar 6, 2014 ... WASHINGTON- Al-Qaeda continues to operate from Pakistan's tribal areas, a topPentagon commander has said while adding that the ...[PDF] Disrupting the Taliban and al Qaeda in Pakistan - Come Let Us ...content.thirdway.org/.../Third_Way_Module_-_Disrupting_the_Taliban_and _al_Qaeda_in_Pakistan.pdf- Cached - SimilarAl Qaeda, bin Laden and the Taliban have created a new safe haven. President... Al Qaeda has reestablished a base in the FATA and is organizing attacks.Pakistan & #151; Al Qaeda's New Safe Haven - CBS Newswww.cbsnews.com/news/pakistan-151-al-qaedas-new-safe-haven/- Cached - SimilarOct 22, 2007 ... Although the accords ceded control over significant portions of the FATA to triballeaders aligned with al Qaeda and the Taliban, Washington ...Pentagon says Al-Qaeda still operates from Pak's FATA region ...www.firstpost.com/.../pentagon-says-al-qaeda-still-operates-from-paks-fata- region-1421479.html- CachedMar 6, 2014 ... "Al-Qaeda continues to operate in Pakistan's Federally Administered Tribal Areas(FATA) and, to a lesser extent, areas of eastern Afghanistan," ...FATA, no longer 'safe' nor a 'heaven' for Al Qaeda '' FATA Research ...frc.com.pk/.../fata-no-longer-safe-nor-a-heaven-for-al-qaeda/- Cached - SimilarThis time the victim has been identified as Sheikh Abu Zaid, who reportedly wasthe chief operational commander of Al Qaeda in the region at the time of his ...
ALWAYS SEND YOUR LINKS! Don't think other will have done it.
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Tourrettes email
Long-Time Boner, Soon to be Donor.
Thanks to all of your hilarious talk about Tourette's and superpowers, I've come to begin suspecting I had TS. Come to find out, after bringing it up with my parents, I was told in fact I do have a "mild case" of Tourette's. So, in a way, I can consider your talk of Tourette's as yet another service of the Curry/Dvorak Consulting Group. Now that I know that yes, I am a Tourette's "Sufferer" as you once put it, I have so far acknowledged every one of your superpowers from remembering long strings of numbers, being able to catch things that fall off things rather easily (even though I have no depth perception!), among others that I can't remember right now.
My tics range from extending my elbows to crack it, also the rolling of the ankle while walking (which I thought was HILARIOUS when you mentioned it on the air), along with individual shoulder shrugs and most recently a neck craning from side-to-side until it cracks. When I'm alone I look like a nutjob but little do they know about my data crunching/object catching superpowers...I keep it relatively under control but as soon as I'm alone it all comes out in a string of spasms and tics that probably looks ridiculous.
Anyways, I will be donating very soon by end of year when I have some extra cash from my tax return. I've been listening for a few years now, and I hit everyone in the mouth that I can. Thanks for the Tourette's Talks (Similar to Ted Talks?), and I hope you can enter 1 additional Anonymous person into the Honorary Tourette's Club so you can have a fifth member! Thanks!
PS I'm also reading Confessions of an Economic Hitman. Great book, will be passing it along to those that I hit in the mouth to borrow.
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Presidential Determination -- Trading With the Enemy Act
Mon, 08 Sep 2014 01:35
The White House
Office of the Press Secretary
For Immediate Release
September 05, 2014
MEMORANDUM FOR THE SECRETARY OF STATE
THE SECRETARY OF THE TREASURY
SUBJECT: Continuation of the Exercise of Certain
Authorities Under the Trading With the Enemy Act
Under section 101(b) of Public Law 95-223 (91 Stat. 1625; 50 U.S.C. App. 5(b) note), and a previous determination on September 12, 2013 (78 FR 57225, September 17, 2013), the exercise of certain authorities under the Trading With the Enemy Act is scheduled to terminate on September 14, 2014.
I hereby determine that the continuation for 1 year of the exercise of those authorities with respect to Cuba is in the national interest of the United States.
Therefore, consistent with the authority vested in me by section 101(b) of Public Law 95-223, I continue for 1 year, until September 14, 2015, the exercise of those authorities with respect to Cuba, as implemented by the Cuban Assets Control Regulations, 31 C.F.R. Part 515.
The Secretary of the Treasury is authorized and directed to publish this determination in the Federal Register.
BARACK OBAMA
Presidential Proclamation --- National Grandparents Day, 2014
Mon, 08 Sep 2014 01:30
The White House
Office of the Press Secretary
For Immediate Release
September 05, 2014
NATIONAL GRANDPARENTS DAY, 2014
- - - - - - -
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
A PROCLAMATION
Each year, we pause to salute the grandmothers and grandfathers who strengthen our families and shape our Nation. Through decades of hard work, they have broken down barriers and blazed pathways for the generations that followed, and they continue to provide inspiration and support to their children and grandchildren. On National Grandparents Day, we honor the anchors of our families and recognize the immeasurable ways they enrich our lives.
With grit and determination, our grandparents have built better lives for their loved ones and a better future for our country. From battlefields to factory floors, their relentless pursuit of progress has created new opportunities and made
America more equal and more just. They have ushered in revolutionary advances in science and technology, putting us at the forefront of innovation. And they have shared in some of life's most cherished memories -- from small moments to personal milestones -- and been a source of comfort in difficult times.
Across our country, grandparents continue to contribute to their families and communities in countless ways. They volunteer in their neighborhoods, and for more than 5 million grandchildren, they serve as the head of household, providing unconditional love and support. Their tenacious spirit, commitment to family, and sense of service remind us that after a lifetime of hard work, they deserve to retire with security and dignity.
Today, we pay tribute to our grandparents and all the older Americans who have reached across generations and played an important role in our lives. With profound gratitude, we celebrate all they have accomplished and given to our Nation.
NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim September 7, 2014, as National Grandparents Day. I call upon all Americans to take the time to honor their own grandparents and those in their community.
IN WITNESS WHEREOF, I have hereunto set my hand this fifth day of September, in the year of our Lord two thousand fourteen, and of the Independence of the United States of America the two hundred and thirty-ninth.
BARACK OBAMA
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Continuation of the National Emergency Notice
Mon, 08 Sep 2014 01:27
The White House
Office of the Press Secretary
For Immediate Release
September 04, 2014
NOTICE - - - - - - - CONTINUATION OF THE NATIONAL EMERGENCY WITH RESPECT TO CERTAIN TERRORIST ATTACKS
Consistent with section 202(d) of the National Emergencies Act, 50 U.S.C. 1622(d), I am continuing for 1 year the national emergency previously declared on September 14, 2001, in Proclamation 7463, with respect to the terrorist attacks ofSeptember 11, 2001, and the continuing and immediate threat of further attacks on the United States. Because the terrorist threat continues, the national emergency declared on September 14, 2001, and the powers and authorities adopted to deal with that emergency must continue in effect beyond September 14, 2014. Therefore, I am continuing in effect for an additional year the national emergency that was declared on September 14, 2001, with respect to the terrorist threat. This notice shall be published in the Federal Register and transmitted to the Congress.
BARACK OBAMA
Continuation of the National Emergency Letter
Mon, 08 Sep 2014 01:27
The White House
Office of the Press Secretary
For Immediate Release
September 04, 2014
Dear Mr. Speaker: (Dear Mr. President:)
Section 202(d) of the National Emergencies Act,
50 U.S.C. 1622(d), provides for the automatic termination of a national emergency unless, within 90 days prior to the anniversary date of its declaration, the President publishes in the Federal Register and transmits to the Congress a notice stating that the emergency is to continue in effect beyond the anniversary date. Consistent with this provision, I have sent to the Federal Register the enclosed notice, stating that the emergency declared in Proclamation 7463 with respect to the terrorist attacks on the United States of September 11, 2001, is to continue in effect for an additional year.
The terrorist threat that led to the declaration on September 14, 2001, of a national emergency continues. For this reason, I have determined that it is necessary to continue in effect after September 14, 2014, the national emergency with respect to the terrorist threat.
Sincerely,
BARACK OBAMA
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NA-Tech
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Tech Obsessive Compulsive Disorder
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Apple Keynote
Tim was waving
Very strong performance opening up
Positioning iPhone as The BEST Phone. Of all phones.
Noticable non use of word 'smartphone'
Phil Schiller was borderline boring on iPhone6-es and iOS8
Gamer dudes were stupid, BUT they are already a bit of a meme
Apple Pay
Rebranding of all things "i" to Apple. WHERE IS THE APPLE LOGO KEY?
option-shift-k
Eddy Cue the iTunes guy now doing preso of Pay
I can see benefits to using it. I see how they have made it better and 'safer'
Eddy was good on timinig in his presentation. SHIT clothes Pink wrinkled shirt
Standing ovation for Watch video
It was a this point that I realized how horrible this really is going to be. And the masses are going willingly!
Digital Crown appears to be one of those unique Apple UI ideas.
Pricing is excellent. Very high ticket iitem. The douchebags will buy the 18k gold and it will definitely sell
It really seems like this is the equivalent of the many dials digital watch that only spport people, like douchey guys who sail or fly planes on the weekend will wear.
The product manager is about the WORST person to demo the product
A lot of Gay under and overtones. Surely this can be sold better to Women?
And where are the women on stage???
Taptic engine is interesting feedback mechanism
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Major solar flare measuring X1.6 erupts, sends Earth directed CME
Thu, 11 Sep 2014 13:57
A major solar flare measuring X1.6 at its peak time erupted on September 10, 2014. The source was geoeffective Active Region 2158 located almost at the center of the disk. The event started at 17:21, peaked at 17:45 and ended at 18:20 UTC.
Coronal Mass Ejection (CME) was generated and is headed directly toward our planet.
A Type II (velocity 3750 km/s) and Type IV radio emissions were associated with the event. Type IV emissions occur in association with major eruptions on the sun and are typically associated with strong coronal mass ejections and solar radiation storms.
Additionally, a 10cm Radio Burst (tenflare) lasting 57 minutes with peak flux of 1300 sfu was associated with the event. A 10cm radio burst indicates that the electromagnetic burst associated with a solar flare at the 10cm wavelength was double or greater than the initial 10cm radio background. This can be indicative of significant radio noise in association with a solar flare. This noise is generally short-lived but can cause interference for sensitive receivers including radar, GPS, and satellite communications.
Region 2158, the source of today's X-class solar flare, has 'beta-gamma-delta' magnetic configuration and is capable of producing more strong to major eruptions on the Sun. It will remain in geoeffective position for the next couple of days. Any CME from that region will most likely be Earth directed.
NOAA SWPC forecasters estimate 85% chance for M-class and 40% chance for X-class solar flares in the next two days.
Update, September 11:
The CME is expected to pass the Earth's magnetosphere mid to late day on September 12h. It follows the September 9th CME which is expected to arrive early on September 12.
A G3 (Strong) Geomagnetic Storm Watch has been issued for September 13th due to the combined influence of these two events with G1 (Minor) storming anticipated to continue into September 14th.
WSA-Enlil solar wind prediction. Check SWS-Solar Wind for updated model.
S1 (Minor) solar radiation storm is in progress as a result of the X1.6 eruption and is expected to persist for the next few days.
Alerts issued during and after X1.6 flare:Space Weather Message Code: SUMX01Serial Number: 103Issue Time: 2014 Sep 10 1827 UTC
SUMMARY: X-ray Event exceeded X1Begin Time: 2014 Sep 10 1721 UTCMaximum Time: 2014 Sep 10 1745 UTCEnd Time: 2014 Sep 10 1820 UTCX-ray Class: X1.6Optical Class: 2bLocation: N15E09NOAA Scale: R3 - StrongPotential Impacts: Area of impact consists of large portions of the sunlit side of Earth, strongest at the sub-solar point.Radio - Wide area blackout of HF (high frequency) radio communication for about an hour.
***
Space Weather Message Code: SUM10RSerial Number: 627Issue Time: 2014 Sep 10 1903 UTC
SUMMARY: 10cm Radio BurstBegin Time: 2014 Sep 10 1723 UTCMaximum Time: 2014 Sep 10 1732 UTCEnd Time: 2014 Sep 10 1826 UTCDuration: 57 minutesPeak Flux: 1300 sfuLatest Penticton Noon Flux: 159 sfu
NOAA Space Weather Scale descriptions can be found atwww.swpc.noaa.gov/NOAAscales
Description: A 10cm radio burst indicates that the electromagnetic burst associated with a solar flare at the 10cm wavelength was double or greater than the initial 10cm radio background. This can be indicative of significant radio noise in association with a solar flare. This noise is generally short-lived but can cause interference for sensitive receivers including radar, GPS, and satellite communications.
***
Space Weather Message Code: ALTTP4Serial Number: 477Issue Time: 2014 Sep 10 1815 UTC
ALERT: Type IV Radio EmissionBegin Time: 2014 Sep 10 1728 UTCDescription: Type IV emissions occur in association with major eruptions on the sun and are typically associated with strong coronal mass ejections and solar radiation storms.
***Space Weather Message Code: ALTTP2Serial Number: 960Issue Time: 2014 Sep 10 1814 UTC
ALERT: Type II Radio EmissionBegin Time: 2014 Sep 10 1727 UTCEstimated Velocity: 3750 km/sDescription: Type II emissions occur in association with eruptions on the sun and typically indicate a coronal mass ejection is associated with a flare event.
Image credit: NASA/ESA SOHO LASCO C2
Image credit: NASA/ESA SOHO LASCO C3
SunspotsThere are currently 8 numbered sunspot regions on the disk. Regions 2157 and 2158 have 'beta-gamma-delta' magnetic configuration and continue to be areas of interest as they are still the largest and most magnetically complex regions on the visible disk. Both are almost directly facing Earth and should they produce CMEs they will most likely be Earth directed.
Sunspots on September 10, 2014. Image credit: NASA SDO / HMI
2152 - Alpha2155 - Beta2157 - Beta-Gamma-Delta2158 - Beta-Gamma-Delta2159 - Beta2161 - Alpha2162 - Beta2163 - Beta
GeospaceGeomagnetic field was mostly quiet today but this will likely rapidly change on September 12th when the CME from September 9 is expected to impact Earth's magnetospere. Quiet to major storm (G2/Moderate) conditions are expected as a result.
Update, September 11:
G2 (Moderate) geomagnetic storms remain in the forecast for September 12th as a result of the coronal mass ejection (CME) associated with the R1 (Minor) solar flare observed on the 9th. The latest WSA-Enlil model run has the CME associated with X1.6 - R3 (Strong) solar flare arriving mid to late day on that same day.
A G3 (Strong) Geomagnetic Storm Watch has been issued for September 13th due to the combined influence of these two events with G1 (Minor) storming anticipated to continue into September 14th.
Featured image: NASA SDO / AIA 304
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Home Depot Hit By Same Malware as Target
Mon, 08 Sep 2014 14:48
The apparent credit and debit card breach uncovered last week at Home Depot was aided in part by a new variant of the malicious software program that stole card account data from cash registers at Target last December, according to sources close to the investigation.
Photo: Nicholas Eckhart
On Tuesday, KrebsOnSecurity broke the news that Home Depot was working with law enforcement to investigate ''unusual activity'' after multiple banks said they'd traced a pattern of card fraud back to debit and credit cards that had all been used at Home Depot locations since May of this year.
A source close to the investigation told this author that an analysis revealed at least some of Home Depot's store registers had been infected with a new variant of ''BlackPOS'' (a.k.a. ''Kaptoxa''), a malware strain designed to siphon data from cards when they are swiped at infected point-of-sale systems running Microsoft Windows.
The information on the malware adds another indicator that those responsible for the as-yet unconfirmed breach at Home Depot also were involved in the December 2013 attack on Target that exposed 40 million customer debit and credit card accounts. BlackPOS also was found on point-of-sale systems at Target last year. What's more, cards apparently stolen from Home Depot shoppers first turned up for sale on Rescator[dot]cc, the same underground cybercrime shop that sold millions of cards stolen in the Target attack.
Clues buried within this newer version of BlackPOS support the theory put forth by multiple banks that the Home Depot breach may involve compromised store transactions going back at least several months. In addition, the cybercrime shop Rescator over the past few days pushed out nine more large batches of stolen cards onto his shop, all under the same ''American Sanctions'' label assigned to the first two batches of cards that originally tipped off banks to a pattern of card fraud that traced back to Home Depot. Likewise, the cards lifted from Target were sold in several dozen batches released over a period of three months on Rescator's shop.
The cybercrime shop Rescator[dot]cc pushed out nine new batches of cards from the same ''American Sanctions'' base of cards that banks traced back to Home Depot.
POWERFUL ENEMIESThe tip from a source about BlackPOS infections found at Home Depot comes amid reports from several security firms about the discovery of a new version of BlackPOS. On Aug. 29, Trend Micro published a blog post stating that it had identified a brand new variant of BlackPOS in the wild that was targeting retail accounts. Trend said the updated version, which it first spotted on Aug. 22, sports a few notable new features, including an enhanced capability to capture card data from the physical memory of infected point-of-sale devices. Trend said the new version also has a feature that disguises the malware as a component of the antivirus product running on the system.
Contents of the new BlackPOS component responsible for exfiltrating stolen cards from the network. Source: Trend Micro.
Trend notes that the new BlackPOS variant uses a similar method to offload stolen card data as the version used in the attack on Target.
''In one the biggest data breach[es] we've seen in 2013, the cybercriminals behind it offloaded the gathered data to a compromised server first while a different malware running on the compromised server uploaded it to the FTP,'' wrote Trend's Rhena Onocencio. ''We surmise that this new BlackPOS malware uses the same exfiltration tactic.''
An Internet search on the unique malware ''hash'' signature noted in Trend's malware writeup indicates that the new BlackPOS verison was created on June 22, 2014, and that as late as Aug. 15, 2014 only one of more than two-dozen anti-malware tools (McAfee) detected it as malicious.
ANTI-AMERICAN MALWARE
Other clues in the new BlackPOS malware variant further suggest a link between the cybercrooks behind the apparent breach at Home Depot and the hackers who hit Target. The new BlackPOS variant includes several interesting text strings. Among those are five links to Web sites featuring content about America's role in foreign conflicts, particularly in Libya and Ukraine.
One of the images linked to in the guts of the BlackPOS code.
Three of the links point to news, editorial articles and cartoons that accuse the United States of fomenting war and unrest in the name of Democracy in Ukraine, Syria, Egypt and Libya. One of the images shows four Molotov cocktails with the flags of those four nations on the bottles, next to a box of matches festooned with the American flag and match ready to strike. Another link leads to an image of the current armed conflict in Ukraine between Ukrainian forces and pro-Russian separatists.
This is interesting given what we know about Rescator, the individual principally responsible for running the store that is selling all of these stolen credit and debit cards. In the wake of the Target breach, I traced a long list of clues from Rescator's various online identities back to a young programmer in Odessa, Ukraine. In his many personas, Rescator identified himself as a member of the Lampeduza cybercrime forum, and indeed this site is where he alerts customers about new batches of stolen cards.
As I discovered in my profile of Rescator, he and his crew seemed somewhat taken with the late despotic Libyan leader Muammar Gaddafi, although they prefer the phonetic spelling of his name. The Web site kaddafi[dot]hk was among four main carding shops run by Rescator's crew (it has since been retired and merged with Rescator[dot]cc). The domain kaddafi[dot]me was set up to serve as an instant message Jabber server for cybercrooks, advertising its lack of logging and record keeping as a reason crooks should trust kaddafi[dot]me to handle their private online communications.
When I reached out to Rescator last December to obtain comment about my findings on his apparent role in the Target break-in, I received an instant message reply from the Jabber address ''kaddafi@kaddafi[dot]me'' (in that conversation, the person chatting with me from that address offered to pay me $10,000 if I did not run that story; I declined). But I also discovered that the kaddafi[dot]me domain was a blog of sorts that hosted some harsh and frankly chilling anti-American propaganda.
The entire three-part manifesto posted on the kaddafi[dot]me home page is no longer available, but a professionally translated snippet of this tirade reads:
''The movement of our Republic, the ideology of Lampeduza '' is the opposition to Western countries, primarily targeting the restoration of the balance of forces in the world. After the collapse of the USSR, we have lost this fragile equilibrium face of the planet. We '' the Senate and the top people of the Republic are not just fighting for survival and our place under the sun, we are driven by the idea! The idea, which is ''living in all of us '' to return all that was stolen and taken from our friendly countries grain by grain! We are fighting for a good cause! Hot blood is flowing in us, in citizens, who want to change situation in the world. We do not bend to other people's opinions and desires, and give an adequate response to the Western globalism. It is essential to be a fighter for justice!
Perhaps we would be living completely differently now, if there had not been the plan of Allen Dulles, and if America had not invested billions in the collapse of the USSR. We were deprived of a common homeland, but not deprived of unity, have found our borders, and are even closer to each other. We saw the obvious principles of capitalism, where man to a man is a wolf [[see here for more context on this metaphor]]. Together, we can do a lot to bring back all the things that we have been deprived of because of America! We will be heard!
Citizens of Lampeduza '' ''free painters'' ready to create and live the idea for the good of the Motherland '-- let's first bend them over, and then insert deeper!!!
Google-translated version of Kaddafi[dot]me homepage.
Tags: American Sanctions, BlackPOS, Home Depot breach, home depot databreach, Kaptoxa, Muammar Gaddafi, point-of-sale malware, rescator, Rhena Onocencio, target data breach, trend micro
This entry was posted on Sunday, September 7th, 2014 at 11:14 pm and is filed under A Little Sunshine, Data Breaches. You can follow any comments to this entry through the RSS 2.0 feed. You can skip to the end and leave a comment. Pinging is currently not allowed.
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Amazon to give eBook 'credits' by default. in lawuit against Apple. Bandits
What the Apple Settlement Provides
The Apple Settlement provides for three possible outcomes, depending on the decision of an appeal of the District Court’s July 10, 2013 finding that Apple violated the antitrust laws (“Liability Finding”). First, if the Court’s Liability Finding is upheld, Apple will pay $400 million to Eligible Consumers. Second, if the Liability Finding is sent back to the District Court for further consideration of whether Apple violated the antitrust laws, Apple will pay $50 million to Eligible Consumers. Third, if the Liability Finding is reversed, Apple will make no payments.
If Apple is required to pay Eligible Consumers under either of the first two options and if the Court approves the Apple Settlement, you will receive an automatic credit to your customer account. The credit can be used for the purchase of products or services sold by Amazon. The amount of your payment, if any, will be determined based on the qualifying E-book purchases identified by Amazon in your customer account.
How to Receive your Benefit
If Apple is required to make a payment to Eligible Consumers, you do not need to do anything to receive your credit unless you change your email address. (If you do change your email address, you should update your Amazon profile or visit www.EbookLawsuits.com and click on the “Update Your Contact Information” link.) Because you are pre-qualified, your credit will be applied to your account by Amazon automatically, and you will receive another email letting you know when it’s available. If you bought E-books from more than one retailer, you may receive other notices with different instructions on how to receive a payment.
If Apple is required to make a payment to Eligible Consumers, you also will have the option to receive a check instead of your credit. You can request a check by calling 1-866-686-9333, or going to the Apple Settlement website listed below, and clicking on the Check Request Option link on or before October 31, 2014. Be sure to reference the Settlement ID number found at the top of this email. Customers who received a check from the earlier E-books settlements do not have to re-submit a check request for the Apple Settlement. However, if your mailing address changes before you receive your check, please visit www.EbookLawsuits.com and click on the “Update Your Contact Information” link to update your mailing address.
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Caliphate!
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HAVE HEARD-NOT SEEN-Poll: Americans feel unsafe, support action against ISIS | MSNBC
Wed, 10 Sep 2014 23:49
The percentage of Americans who believe the United States is less safe is at its highest point since the Sept. 11, 2001 terrorist attacks, according to a new NBC News/Wall Street Journal poll. Forty-seven percent say the country is less safe, while just 26% say it's safer. That's compared with the results from Sept. 2002 (when just 20% said the country was less safe) and from last year (when it was 28%). And the poll finds that more than six in 10 respondents think that taking military action against the Islamic militant group ISIS is in the nation's interest.
These numbers serve as the backdrop for the prime-time speech President Obama will deliver on Wednesday night outlining his plan to combat ISIS, which has taken over parts of Iraq and Syria and which beheaded two American journalists in gruesome videos.
''A very war-weary country '... seems to have woken up to the real threat that ISIS may present,'' says Republican pollster Bill McInturff, who conducted this survey with Democratic pollster Peter Hart and his colleagues at Hart Research.
''The beheadings are so chilling to the American public,'' added Hart. ''The only things I think of equal impact are the self-immolations back in Vietnam.''
Indeed, a whopping 94% of Americans say they have heard about the news of the beheaded journalists '' higher than any other news event the NBC/WSJ poll has measured over the past five years.
That includes the 2011 debt-ceiling debate (77%), the 2012 health-care decision by the U.S. Supreme Court (78%), Syria's reported use of chemical weapons in 2013 (79%) and this year's botched execution in Oklahoma (68%).
Sixty-one percent say military action against ISIS is in nation's interest
According to the poll, 61% of American voters believe that the United States taking military action against ISIS is in the United States' interest, versus 13% who don't. (Another 24% said they don't know enough to have an opinion.) That's a significant change when a similar question was asked last year about the U.S. taking possible action against Syria's government after its reported use of chemical weapons. Back then, only 21% said action was in the nation's interest, while 33% said it wasn't.
''The results couldn't be more different,'' McInturff, the GOP pollster, says.
In addition, 40% of respondents say U.S. military action against ISIS should be limited only to air strikes; another 34% say it should include both air strikes and combat troops; and 15 percent say military action shouldn't be taken.
And while a plurality of Americans (40%) think that the United States should be less active in world affairs, that's a seven-point drop on this question from April (when it was 47%). By comparison, 27% say the U.S. should be more active '' an eight-point increase from April.
Approval of Obama's foreign policy sinks to all-time low
Obama's speech Wednesday comes as the NBC/WSJ poll finds that just 32% of voters approve of his handling of foreign policy '' an all-time low on this question.
And that appears to be hurting his party. The poll shows that Republicans have an 18-point advantage (41% to 23%) on which party best deals with foreign policy. That's up from the GOP's seven-point edge (33% to 26% a year ago).
Additionally, Republicans hold a 38-point lead (54% to 16%) on which party ensures a strong national defense '' the GOP's biggest advantage in more than 10 years on this question
Yet the NBC/WSJ pollsters say that Obama's speech '' followed by action against ISIS '' could turn things around for the president and his party. ''It might allow him to perhaps use September and October to be a more strongly perceived figure than he's been,'' McInturff says.
Demonstrating presidential leadership, he adds, could at a minimum strengthen could strengthen him among key Democratic groups that need to turn out for the party to have success in November.
Midterm advantage on GOP's side
And for Democrats, an Obama turnaround needs to come sooner rather than later, because Republicans currently have the advantage heading into the midterm elections.
Two-thirds of voters believe the country is headed in the wrong direction '' a higher percentage than at this point in the 2006 and 2010 midterm elections. Obama's overall approval rating stands at 40%, tied for his all-time low in the poll. And Republicans hold a two-point advantage, 45% to 43%, on which party should control Congress.
That margin expands to 10 points '' 50% to 40% '' In the states holding this year's most-competitive Senate contests.
''With 56 days until Election Day, our poll provides greater insight into what is likely to happen, and the news is not good for the Democrats,'' says Democratic pollster Fred Yang of Hart Research.
The NBC/WSJ poll was conducted Sept. 3-7 of 1,000 registered voters (including 350 cell phone-only respondents and another 32 reached on a cell phone but who also have a landline), and it has an overall margin of error of plus-minus 3.1 percentage points.
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In place of 'boots on the ground,' US seeks contractors for Iraq - News - Stripes
Wed, 10 Sep 2014 18:17
Wary of putting combat troops in Iraq, the U.S. government is gauging contractors' interest in advising the Iraqi Defense Ministry and Counter Terrorism Service in a range of capacities, including force development, logistics and planning and operations.
The U.S. Army Contracting Command posted a notice last month seeking contractors willing to work on an initial 12-month contract, who should be ''cognizant of the goals of reducing tensions between Arabs and Kurds, and Sunni and Shias.''
They would focus on administration, force development, procurement and acquisition, contracting, training management, public affairs, logistics, personnel management, professional development, communications, planning and operations, infrastructure management, intelligence and executive development, the notice stated.
Those services ''fall within the existing mission'' of the Office of Security Assistance-Iraq, ''which is to help build institutional capacity of Iraq's security ministries,'' Defense Department spokesman Commander Bill Speaks said in an email.
The rapid advance of Islamic State militants in Iraq in recent months has spurred the deployment of almost 1,000 American troops to protect U.S. diplomatic facilities in Iraq's capital Baghdad and the northern city of Irbil, in the semi-autonomous Kurdistan region.
Almost 100 additional servicemembers are there as advisers with the Office of Security Assistance''Iraq, and civilian advisers may not be far behind.
President Barack Obama last month authorized airstrikes against Islamic State militants, who have overrun large swathes of Iraq, when their advances threatened U.S. personnel in Baghdad and Irbil. But he has ruled out deploying ground combat units to Iraq less than three years after bringing the last of U.S. forces home from there.
Analysts say hiring contractors is a way to avoid deploying such forces.
David Johnson, a former Army lieutenant colonel who is executive director of the Center for Advanced Defense Studies in Washington, said contractors aren't considered ''boots on the ground'' in conflict zones.
''The government always seeks to minimize boots on the ground to reduce domestic political risk,'' he said in an email. ''The American people and media do not consider a paid contractor to represent them in the same way that they do a soldier.''
Using contractors, who, most studies show, are cheaper than soldiers, trims the official presence and still accomplishes the logistical and security objectives, he said.
Defense contractors have plenty of experience in Iraq. During the U.S. occupation, thousands of armed security contractors and support personnel worked alongside foreign and Iraqi troops to help stabilize the country.
U.S. Central Command public affairs director Air Force Col. Patrick Ryder said in an email that the notice posted by the Army last month merely seeks to roll over a contract for civilian mentors and advisers in Iraq that has existed since 2012.
''The basic services being requested (go) back'... to when there was a significant U.S. military presence in Iraq,'' he said.
The contract is not a vehicle to increase U.S. presence in Iraq while avoiding the deployment of additional military forces or ''boots on the ground,'' he said.
Allison Stanger, a professor of international politics and economics at Middelbury College and author of a book on wartime contracting, said new Pentagon contracts for Iraq differ from security contractors hired by the State Department, which is seeking support ''for a diplomatic mission, not a military one.''
''When the Pentagon does the same, it is another matter,'' said Stanger, author of the book: ''One Nation Under Contract: The Outsourcing of American Power and Future of Foreign Policy.'' ''In the era of contractors wars, there are many ways to avoid putting boots on the ground, while committing significant U.S. resources and actually being very much militarily involved.''
Michael O'Hanlon, of the Brookings Institute, said the U.S. government has employed as many contractors as it has deployed troops in Iraq and Afghanistan.
''As the political premium seems always to be placed on how many troops we have abroad, the pressure to have contractors do as much as possible only grows,'' he said in an email.
Incidents such as the killing of civilians by Blackwater employees in Baghdad in 2007 remind policymakers of the dangers of having contractors as trigger pullers, but the pressure to minimize troop deployments means the ratio of contractors to troops may grow, he said.
Contractors are carrying a greater share of the load in Afghanistan these days as well. The U.S. plans to reduce the number of troops deployed there to fewer than 10,000 by year's end but, according to a Congressional Research Service report, the number of contractors in Afghanistan ballooned to 108,000 last March at a time when 65,700 U.S. troops were there.
Johnson said vast numbers of contractors would likely remain in Afghanistan as troop levels declined.
The contractors provide services that local nationals wouldn't be able to sustain in an impoverished, illiterate country, he said.
Stars and Stripes reporter Josh Smith contributed to this report.
robson.seth@stripes.comTwitter: @SethRobson1
This article has been updated to include a comment from the public affairs director of U.S. Central Command.
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Netherlands back in Anti-ISIS coalition talks: Ministers - NL Times
Wed, 10 Sep 2014 15:04
NetherlandsPoliticsThe Cabinet is in discussions with the United States about how the Netherlands can contribute to the international coalition in the fight against the terrorist movement Islamic State (IS).
Ministers Timmermans (Foreign Affairs) and Hennis (Defense) wrote to the Second Chamber that all options are being considered. According to the Ministers, the United States welcomes the Netherlands' willingness to form part of the coalition.
The Ministers also wrote that the nine countries that are now part of the coalition were approached first by the United States for practical reasons, NOS.nl reports. These countries are Australia, Canada, Denmark, Germany, France, Italy, Poland, Turkey and the United Kingdom.
According to Timmermans and Hennis, the participation of other countries will be made more clear in the speech that US President Obama will give later today. They point out that it has been clear from the start that the United States wants a broad coalition, which includes more countries than those that are already involved.
The Netherlands has already delivered thousands of bullet proof vests and helmets to Kurdish fighters in Iraq. The Netherlands will also contribute to the transport of weapons and ammunition to the Kurds.
'Nederland gaat toch meestrijden tegen IS' | Spitsnieuws.nl
Wed, 10 Sep 2014 15:02
Nederland zal toch meedoen aan het door de Verenigde Staten geleide offensief tegen Islamitische Staat. Dat schrijft Trouw op basis van een goed ingevoerde Haagse bron. Den Haag en Washington hebben volgens de bron gisteravond nog overlegd waar behoefte aan is en wat Nederland kan leveren.
Het kabinet zal vandaag voor 12 uur een brief aan de Tweede Kamer sturen met informatie op basis van de gesprekken. 's Avonds vindt er een debat plaats over de opmars van IS in Irak. Voor een grote Nederlandse bijdrage lijkt een Kamermeerderheid te bestaan.
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ISIS Tweets Call for Assassination of Twitter Employees
Wed, 10 Sep 2014 15:05
An ISIS-related Twitter account has issued the group's first direct call for attacks on specific American targets, but it's not going after political or national icons. It wants Twitter employees assassinated. The call for retribution against the online platform was first announced Sunday night in a series of tweets asking ''lone wolves'' in the U.S. and Europe to make Twitter employees the focus of their attacks.
Twitter has been engaged in a prolonged game of whack-a-mole with ISIS, closing its accounts and those of similar organizations as they come to prominence, in an attempt to stifle their extremist propaganda and exhortations to violence. ISIS and other groups have consistently thwarted these efforts, now they're going one step further, urging ''lone wolf'' actors to target Twitter employees.
The series of ISIS tweets are below, translated one by one.
''#The_Concept_of_Lone_Wolf_Attacks The time has arrived to respond to Twitter's management by directly attacking their employees and physically assassinating them!! Those who will carry this out are the sleepers cells of death.''
''#The_Concept_of_Lone_Wolf_Attacks Twitter management should know that if they do not stop their campaign in the virtual world, we will the bring the war to them in the real world on the ground.''
''#The_Concept_of_Lone_Wolf_Attacks Every Twitter employee in San Francisco in the United States should bear in mind and watch over himself because on his doorstep there might be a lone wolf assassin waiting.''
''#Attacking_Twitter_Employees is on the agenda of mujahedeen and lone wolves who are across Europe.''
The Twitter handle in question, @dawlamoon, purportedly represents Al Nusra Al Maqdisia (The Supporters of Jerusalem)'--a Jerusalem-based group that pledged loyalty to ISIS in February and claimed to have participated in the Gaza war on its behalf. It is not possible to independently verify whether or not this account is a reflection of official ISIS policy, but the group and its accounts are well-known and frequently referenced in online ISIS forums. Twitter suspended the @dawlamoon account around 2 p.m. Eastern time on Monday, after the threats to Twitter staff were posted.
Followers of the account were largely ISIS sympathizers, as made clear by their iconography.
The account, for the most part, published official ISIS materials, as well as news and updates on the group's activities in Iraq and Syria, including images from field operations. Twitter had suspended it several times, and it had reopened with slight amendments to the username. The latest iteration had nearly 3,000 followers before it was suspended. An analysis of the account revealed that over 11 percent of its interactions over the past 30 days have been with American-based accounts. A handful of those followers claimed to be in the United States. Individual users were also identified in Canada, Switzerland, the Netherlands and Germany.
Twitter has been working furiously to shut down accounts that ISIS opened to use as free, instantaneous communications tools. The group's propaganda has been extremely effective in terms of making its media and messages fit in with journalistic norms. Having to constantly fight with Twitter's internal police is an increasing source of frustration for ISIS, it seems.
ISIS is constantly ducking Twitter's efforts to shut it out of the platform, and that running online battle has become a hot topic in the ISIS forums Vocativ monitors. The group constantly advises its followers on how to avoid account suspensions and what to do if accounts are closed down. The techniques are simple but effective; opening new accounts by subtly changing names, usernames, passwords and pictures of suspended accounts, using numerals to replace letters and changing one character to create a similar username.
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So We're Going to War Again, and All Anyone Wants to Talk About is the Optics? - The Intercept
Wed, 10 Sep 2014 18:14
President Obama has started describing his new strategy to confront the Islamic State, and despite it being a mishmash of wishful thinking and perpetual militarism, the focus of the Washington elites in the press and elsewhere has been almost entirely on the optics: Is he overcoming the perception that he wasn't doing enough? What will the political reaction be?
The question we should be asking, as I noted on Friday, is: Why the hell does he think it has any chance of working?
Granted Obama isn't talking about launching another all-out invasion. ''You'... cannot, over the long term or even the medium term, deal with this problem by having the United States serially occupy various countries all around the Middle East,'' he said in an interview for NBC's ''Meet the Press'' broadcast on Sunday. ''We don't have the resources. It puts enormous strains on our military. And at some point, we leave. And then things blow up again.''
But he is apparently planning on re-upping the country for another 3-year hitch in the endless war he used to talk about wrapping up.
Obama will talk about his plans in a speech to the nation on Wednesday, one day shy of the 13th anniversary of the 9/11 attacks. He gave a preview on Friday, during a press conference in Wales, and then again in the NBC interview.
His plan calls for stepped-up airstrikes, inevitably leading to civilian casualties; for the kind of Middle-Eastern diplomatic needle-threading that has consistently eluded him in the past; for a political miracle in Iraq; and, despite all the precedent to the contrary, for American-trained indigenous military forces that actually fight.
Despite all the cause for skepticism, however, the press coverage of his remarks was largely stenographic '-- with the aforementioned overlay of politics and optics.
It was also understated. As my colleague Glenn Greenwald tweeted:
Patrick O'Connor, Dion Nissenbaum and Carol E. Lee wrote in the Wall Street Journal about Obama's ''appeal for support to a divided Congress and a doubtful American public'':
Facing growing pressure from lawmakers to articulate a strategy for a military campaign he began a month ago, the president plans for the first time to offer details about his strategy.
The White House has come under repeated fire from Republicans and Democrats alike for sending mixed signals about Mr. Obama's goals in confronting Islamic militants.
David Nakamura wrote in The Washington Post:
The interview marked the start of a concerted effort by the White House this week to more clearly enunciate the administration's strategy to deal with the Islamic State'.... Obama was criticized by members of Congress for saying two weeks ago that ''we don't have a strategy yet'' for increased action.
One notable exception to the stenography and conventional wisdom was a story filed Friday evening by Hannah Allam and Jonathan S. Landay of the McClatchy Newspapers Washington bureau. They called it like this:
The U.S.-led international strategy to combat the Islamic State that President Barack Obama sketched out Friday is likely to require years of thorny diplomacy and deeper U.S. military involvement in conflicts that he's struggled to avoid'...
Even limited success for this new effort, analysts say, hinges on an unenviable to-do list for the Obama administration: foster cozier relations with Iran, gamble on the so-called ''moderate'' Syrian rebels, strong-arm Iraq's Shiite Muslim leaders into power-sharing with the Sunni Muslim minority, and persuade Sunni-ruled nations in the Persian Gulf region not to undermine the whole effort by striking out on their own.
Allam and Landay describe all sorts of other challenges, including the fact that the Saudis and their pals may still see the Islamic State '-- the supremely brutal Sunni extremists also known as ISIS and ISIL '-- as a potential Sunni asset in the eternal proxy war between Sunnis and Shiiites. Indeed, the most likely option for a relaxation of those hostilities, they wrote, could be a de facto swap of sorts, where previously Sunni-run Iraq formally joins the Shiite team, and currently-Shiite-dominated Syria signs up with the Sunnis.
What could possibly go wrong with that?
Monday's New York Times front-pager, by Eric Schmitt, Michael R. Gordon and Helene Cooper, also put the plan in some actual policy context:
The next phase, which would begin sometime after Iraq forms a more inclusive government, scheduled this week, is expected to involve an intensified effort to train, advise or equip the Iraqi military, Kurdish fighters and possibly members of Sunni tribes.
The final, toughest and most politically controversial phase of the operation '-- destroying the terrorist army in its sanctuary inside Syria '-- might not be completed until the next administration. Indeed, some Pentagon planners envision a military campaign lasting at least 36 months.
The Times story noted that, for better or worse, ''The military campaign Mr. Obama is preparing has no obvious precedent.''
And it quoted a Sunni tribal leader who illustrated the challenge of counting on people who don't trust you. ''In the past, we fought against Al Qaeda and we cleaned the area of them,'' the sheikh told the Times. ''But the Americans gave control of Iraq to [Shiite former prime minister Nouri al-] Maliki, who started to arrest, kill, and exile most of the tribal commanders who led the fight against Al Qaeda.''
Even Obama's first step is in doubt. Loveday Morris, Craig Whitlock and Greg Jaffe report for the Washington Post that Iraq's political crisis has suddenly deepened ''as Kurds withdrew from negotiations on a new government.'' That means Iraq's prime minister-designate, Haider al-Abadi, may not be able to form a government before a deadline expires on Wednesday.
Looking for wisdom? Go take a look (or another look) at the questions Paul R. Pillar, formerly the CIA's top Middle East analyst, suggested for my Friday article. Among them:
Have we considered whether part of the group's purpose is to provoke more U.S. intervention, and therefore show themselves as the group standing up to the U.S.? Would we not indeed be playing into their hands by doing so?
Looking for lunacy? Marc Thiessen '-- torture apologist, Bush lackey and Washington Post op-ed columnist (I apologize for the redundancy) '-- proclaimed that George W. Bush deserves to tell Obama ''I told you so.'' Per Thiessen:
In Iraq, we are seeing what happens when the United States cuts and runs and allows evil to run rampant. The results were entirely predictable.
Indeed, they were predicted '-- by George W. Bush.
Sorry, friend. They were predicted a long time before that, by the few people brave enough to speak truth to power '-- after Bush invaded Iraq under false pretenses, and with no idea what to do then.
Some Final Thoughts
In his interview with Obama, NBC's Chuck Todd predictably asked about the optics '-- specifically, about when Obama went to play golf right after making a statement about the beheading of journalist James Foley by the Islamic State.
''I should've anticipated the optics,'' Obama said. ''[P]art of this job is also the theatre of it. A part of it is, you know, how are you, how, how are you, well, it's not something that'' that always comes naturally to me. But it matters. And I'm mindful of that.''
Similarly focusing on optics, New Yorker editor David Remnick wrote Monday about how ''Obama's halting cool at the lectern now reads too often as weakness, and when he protests against the charges of weakness he can seem just tired.''
But Remnick also noted that despite the mockery it has elicited, Obama's basic foreign policy rule '-- ''Don't do stupid stuff'' '-- really isn't a bad one. Remnick wrote: ''[W]hen your aim is to conduct a responsive and responsible foreign policy, the avoidance of stupid things is often the avoidance of bloodshed and unforeseen strife.''
All that leaves me pondering this question: Is Obama's new plan something he genuinely believes in? Or does he recognize it's stupid, and is just doing it for the optics?
There's a dismal precedent for the latter option: His decision to extend what he knew was a dead-end war in Afghanistan for two years because of the bellicose promises he'd made in order to look tough during his first political campaign. That time, he traded about 1,300 American lives for optics.
Who knows what the trade might be this time?
Photo: Charles Dharapak/AP
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Boston bombers' mosque tied to ISIS | New York Post
Wed, 10 Sep 2014 15:34
When it was revealed that the Boston Marathon bombers attended a Cambridge, Mass., mosque, its leaders were quick to disavow their actions.
Elder brother Tamerlan Tsarnaev's ideology was not their own, the leaders of the Islamic Society mosque claimed. In fact, he was admonished for an extremist outburst he made during one sermon.
So, one crackpot in a congregation. Who can blame the mosque?
But what about eight '-- including a prominent member of ISIS?
As it turns out, worshippers at the Islamic Society have included:
'Abdurahman Alamoudi, the mosque's founder and first president, who in 2004 was sentenced to 23 years in prison for plotting terrorism. In 2005, the Treasury Department issued a statement saying Alamoudi raised money for al Qaeda in the US.'Aafia Siddiqui, an MIT scientist-turned-al Qaeda agent, who in 2010 was sentenced to 86 years in prison for planning a New York chemical attack. Known as ''Lady al Qaeda,'' she is related to 9/11 mastermind Khalid Sheik Mohammed. ISIS has tried to trade her release for journalist hostages.'Tarek Mehanna, who in 2012 got 17 years in prison for conspiring to use automatic weapons to murder shoppers in a suburban Boston mall.Yusuf al-Qaradawi, a mosque trustee and Egyptian Muslim Brotherhood leader banned from the US after issuing a fatwa that called for the killing of US soldiers.Jamal Badawi, another former trustee who in 2007 was named an unindicted co-conspirator in a plan to funnel more than $12 million to Palestinian suicide bombers.Now it can be revealed that another regular worshipper at the Islamic Society mosque was Ahmad Abousamra, who is now the top propagandist for ISIS.
Ahmad Abousamra
Abousamra's father, a prominent doctor, even sat on the board of directors of the Muslim organization that runs the mosque. He stepped down after the FBI began questioning his son.
The FBI suspects Abousamra now operates ISIS's sophisticated media wing promoting the group's beheadings and other atrocities through slick videos posted on the Internet. The brutally effective English-language propaganda campaign has helped attract thousands of Western jihadists, including at least 300 Americans.
Steven Sotloff before he was tragically beheadedPhoto: EPA
The FBI says Abousamra, 32, traveled to Pakistan and Yemen to train to kill Americans while enrolled at Boston colleges. He justified murdering civilians because ''they paid taxes to support the government and were kufar [nonbelievers],'' Boston FBI Agent Andrew Nambu testified in an affidavit.
Another agent, Heidi Williams, says Abousamra, who has a $50,000 bounty on his head, was inspired by the 9/11 attacks and, in fact, ''celebrated it.''
An Islamic State militant about to behead journalist James Foley.Photo: Reuters
A federal indictment says he even plotted to randomly gun down shoppers, then emergency responders, in a Boston mall. But when he couldn't obtain the automatic weapons for the attack, he abandoned the plan and moved to Syria, where he could enter Iraq and kill US soldiers as part of ''violent jihad.''
Where did he learn his views about Islam and jihad?
The Islamic Society insists it's moderate '-- that these extremists were fed by online forums. But Charles Jacobs, head of Boston's Americans for Peace and Tolerance, says the mosque has hosted pro-jihad speakers and has stocked its library with classic jihadi texts '-- including writings by Osama bin Laden mentor Syed Qutb.
And Islamic Society leaders have openly defended their worshippers convicted of terrorism '-- including Siddiqui and Mehanna '-- despite overwhelming evidence against them. At their hearings and trials, officials have sought their release or lenient sentences. They have also held fundraisers and rallies for the terrorists.
Tamerlan TsarnaevPhoto: AP
Recently, investigators found a mosque prayer card for Mehanna tucked in a Russian dictionary in Tsarnaev's Cambridge apartment.
Abousamra's father, Dr. Abdulbadi Abousamra, was president of the Islamic Center of New England mosques until 2007, when he moved to Detroit. The FBI began questioning his son a year earlier. As mosque president, internal documents show, Dr. Abousamra hired Hafiz Masood, brother of a known Pakistani terrorist, to be the imam of a mosque in Sharon, Mass., which his son also attended.
Aafia Siddiqui
Dr. Abousamra, now chief of endocrinology at Wayne State University in Detroit, did not return emails and phone calls seeking comment.
As for the Islamic Society, it insists it isn't preaching hate.
But how many terrorists does it take before people are convinced it isn't a coincidence?
Paul Sperry is a Hoover Institution media fellow and author of ''Infiltration: How Muslim Spies and Subversives Have Penetrated Washington.''
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Maps! Franklin D. Roosevelt: Fireside Chat
Thu, 11 Sep 2014 03:29
My fellow Americans:
WASHINGTON'S BIRTHDAY is a most appropriate occasion for us to talk with each other about things as they are today and things as we know they shall be in the future.
For eight years, General Washington and his Continental Army were faced continually with formidable odds and recurring defeats. Supplies and equipment were lacking. In a sense, every winter was a Valley Forge. Throughout the thirteen states there existed fifth columnists--and selfish men, jealous men, fearful men, who proclaimed that Washington's cause was hopeless, and that he should ask for a negotiated peace.
Washington's conduct in those hard times has provided the model for all Americans ever since- a model of moral stamina. He held to his course, as it had been charted in the Declaration of Independence. He and the brave men who served with him knew that no man's life or fortune was secure, without freedom and free institutions.
The present great struggle has taught us increasingly that freedom of person and security of property anywhere in the world depend upon the security of the rights and obligations of liberty and justice everywhere in the world.
This war is a new kind of war. It is different from all other wars of the past, not only in its methods and weapons but also in its geography. It is warfare in terms of every continent, every island, every sea, every air lane in the world.
That is the reason why I have asked you to take out and spread before you a map of the whole earth, and to follow with me the references which I shall make to the world-encircling battle lines of this war. Many questions will, I fear, remain unanswered tonight; but I know you will realize that I cannot cover everything in any one short report to the people.
The broad oceans which have been heralded in the past as our protection from attack have become endless battlefields on which we are constantly being challenged by our enemies.
We must all understand and face the hard fact that our job now is to fight at distances which extend all the way around the globe.
We fight at these vast distances because that is where our enemies are. Until our flow of supplies gives us clear superiority we must keep on striking our enemies wherever and whenever we can meet them, even if, for a while, we have to yield ground. Actually, though, we are taking a heavy toll of the enemy every day that goes by.
We must fight at these vast distances to protect our supply lines and our lines of communication with our allies- protect these lines from the enemies who are bending very ounce of their strength, striving against time, to cut them. The object of the Nazis and the Japanese is to separate the United States, Britain, China, and Russia, and to isolate them one from another, so that each will be surrounded and cut off from sources of supplies and reinforcements. It is the old familiar Axis policy of "divide and conquer."
There are those who still think in terms of the days of sailing ships. They advise us to pull our warships and our planes and our merchant ships into our own home waters and concentrate solely on last-ditch defense. But let me illustrate what would happen if we followed such foolish advice.
Look at your map. Look at the vast area of China, with its millions of fighting men. Look at the vast area of Russia, with its powerful armies and proven military might. Look at the British Isles, Australia, New Zealand, the Dutch Indies, India, the Near East, and the continent of Africa, with their resources of raw materials, and of peoples determined to resist Axis domination. Look too at North America, Central America, and South America.
It is obvious what would happen if all of these great reservoirs of power were cut off from each other either by enemy action or by self-imposed isolation:
First, in such a case, we could no longer send aid of any kind to China--to the brave people who, for nearly five years, have withstood Japanese assault, destroyed hundreds of thousands of Japanese soldiers and vast quantities of Japanese war munitions. It is essential that we help China in her magnificent defense and in her inevitable counteroffensive--for that is one important element in the ultimate defeat of Japan.
Second, if we lost communication with the Southwest Pacific, all of that area, including Australia and New Zealand and the Dutch Indies, would fall under Japanese domination. Japan in such a case could release great numbers of ships and men to launch attacks on a large scale against the coasts of the Western Hemisphere- South America and Central America, and North America- including Alaska. At the same time, she could immediately extend her conquests in the other direction toward India, and through the Indian Ocean to Africa, to the Near East, and try to join forces with Germany and Italy.
Third, if we were to stop sending munitions to the British and the Russians in the Mediterranean, in the Persian Gulf, and the Red Sea, we would be helping the Nazis to overrun Turkey, Syria, Iraq, Persia, Egypt and the Suez Canal, the whole coast of North Africa itself, and with that inevitably the whole coast of West Africa- putting Germany within easy striking distance of South America- fifteen hundred miles away.
Fourth, if by such a fatuous policy we ceased to protect the North Atlantic supply line to Britain and to Russia, we would help to cripple the splendid counteroffensive by Russia against the Nazis, and we would help to deprive Britain of essential food supplies and munitions.
Those Americans who believed that we could live under the illusion of isolationism wanted the American eagle to imitate the tactics of the ostrich. Now, many of those same people, afraid that we may be sticking our necks out, want our national bird to be turned into a turtle. But we prefer to retain the eagle as it is--flying high and striking hard.
I know that I speak for the mass of the American people when I say that we reject the turtle policy and will continue increasingly the policy of carrying the war to the enemy in distant lands and distant waters--as far away as possible from our own home grounds.
There are four main lines of communication now being traveled by our ships: the North Atlantic, the South Atlantic, the Indian Ocean, and the South Pacific. These routes are not one-way streets- for the ships that carry our troops and munitions outbound bring back essential raw materials which we require for our own use.
The maintenance of these vital lines is a very tough job. It is a job which requires tremendous daring, tremendous resourcefulness, and, above all, tremendous production of planes and tanks and guns and also of the ships to carry them. And I speak again for the American people when I say that we can and will do that job.
The defense of the world-wide lines of communication demands relatively safe use by us of the sea and of the air along the various routes; and this, in turn, depends upon control by the United Nations of many strategic bases along those routes.
Control of the air involves the simultaneous use of two types of planes--first, the long-range heavy bomber; and second, light bombers, dive bombers, torpedo planes, and short-range pursuit planes, all of which are essential to the protection of the bases and of the bombers themselves.
Heavy bombers can fly under their own power from here to the Southwest Pacific; but the smaller planes cannot. Therefore, these lighter planes have to be packed in crates and sent on board cargo ships. Look at your map again; and you will see that the route is long- and at many places perilous- either across the South Atlantic all the way around South Africa and the Cape of Good Hope, or from California to the East Indies direct. A vessel can make a round trip by either route in about four months, or only three round trips in a whole year.
In spite of the length, and in spite of the difficulties of this transportation, I can tell you that in two and a half months we already have a large number of bombers and pursuit planes, manned by American pilots and crews, which are now in daily contact with the enemy in the Southwest Pacific. And thousands of American troops are today in that area engaged in operations not only in the air but on the ground as well.
In this battle area, Japan has had an obvious initial advantage. For she could fly even her short-range planes to the points of attack by using many stepping stones open to her--bases in a multitude of Pacific islands and also bases on the China coast, Indo-China coast, and in Thailand and Malay coasts. Japanese troop transports could go south from Japan and from China through the narrow China Sea which can be protected by Japanese planes throughout its whole length.
I ask you to look at your maps again, particularly at that portion of the Pacific Ocean lying west of Hawaii. Before this war even started, the Philippine Islands were already surrounded on three sides by Japanese power. On the west, the China side, the Japanese were in possession of the coast of China and the coast of Indo-China which had been yielded to them by the Vichy French. On the north are the islands of Japan themselves, reaching down almost to northern Luzon. On the east are the Mandated Islands- which Japan had occupied exclusively, and had fortified in absolute violation of her written word.
The islands that lie between Hawaii and the Philippines these islands, hundreds of them, appear only as small dots on most maps. But they cover a large strategic area. Guam lies in the middle of them--a lone outpost which we have never fortified.
Under the Washington Treaty of 1921 we had solemnly agreed not to add to the fortification of the Philippines. We had no safe naval bases there, so we could not use the islands for extensive naval operations.
Immediately after this war started, the Japanese forces moved down on either side of the Philippines to numerous points south of them--thereby completely encircling the Philippines from north, south, east, and west.
It is that complete encirclement, with control of the air by Japanese land-based aircraft, which has prevented us from sending substantial reinforcements of men and material to the gallant defenders of the Philippines. For forty years it has always been our strategy--a strategy born of necessity--that in the event of a full-scale attack on the Islands by Japan, we should fight a delaying action, attempting to retire slowly into Bataan Peninsula and Corregidor.
We knew that the war as a whole would have to be fought and won by a process of attrition against Japan itself. We knew all along that, with our greater resources, we could out build Japan and ultimately overwhelm her on sea, on land, and in the air. We knew that, to attain our objective, many varieties of operations would be necessary in areas other than the Philippines.
Now nothing that has occurred in the past two months has caused us to revise this basic strategy of necessity- except that the defense put up by General MacArthur has magnificently exceeded the previous estimates of endurance; and he and his men are gaining eternal glory therefor.
MacArthur's army of Filipinos and Americans, and the forces of the United Nations in China, in Burma, and the Netherlands East Indies, are all together fulfilling the same essential task. They are making Japan pay an increasingly terrible price for her ambitious attempts to seize control of the whole Asiatic world. Every Japanese transport sunk off Java is one less transport that they can use to carry reinforcements to their army opposing General MacArthur in Luzon.
It has been said that Japanese gains in the Philippines were made possible only by the success of their surprise attack on Pearl Harbor. I tell you that this is not so.
Even if the attack had not been made your map will show that it would have been a hopeless operation for us to send the fleet to the Philippines through thousands of miles of ocean, while all those island bases were under the sole control of the Japanese.
The consequences of the attack on Pearl Harbor--serious as they were- have been wildly exaggerated in other ways. And these exaggerations come originally from Axis propagandists; but they have been repeated, I regret to say, by Americans in and out of public life.
You and I have the utmost contempt for Americans who, since Pearl Harbor, have whispered or announced "off the record" that there was no longer any Pacific Fleet--that the fleet was all sunk or destroyed on December 7--that more than a thousand of our planes were destroyed on the ground. They have suggested slyly that the Government has withheld the truth about casualties--that eleven or twelve thousand men were killed at Pearl Harbor instead of the figures as officially announced. They have even served the enemy propagandists by spreading the incredible story that shiploads of bodies of our honored American dead were about to arrive in New York Harbor to be put into a common grave.
Almost every Axis broadcast--Berlin, Rome, Tokyo--directly quotes Americans who, by speech or in the press, make damnable misstatements such as these.
The American people realize that in many cases details of military operations cannot be disclosed until we are absolutely certain that the announcement will not give to the enemy military information which he does not already possess.
Your Government has unmistakable confidence in your ability to hear the worst, without flinching or losing heart. You must, in turn, have complete confidence that your Government is keeping nothing from you except information that will help the enemy in his attempt to destroy us. In a democracy there is always a solemn pact of truth between Government and the people; but there must also always be a full use of discretion and that word "discretion" applies to the critics of Government ,as well.
This is war. The American people want to know, and will be told, the general trend of how the war is going. But they do not wish to help the enemy any more than our fighting forces do; and they will pay little attention to the rumor-mongers and the poison peddlers in our midst.
To pass from the realm of rumor and poison to the field of facts: The number of our officers and men killed in the attack on Pearl Harbor on December 7 was 2,340, and the number wounded was 946. Of all the combatant ships based at Pearl Harbor--battleships, heavy cruisers, light cruisers, aircraft carriers, destroyers and submarines--only three are permanently put out of commission.
Very many of the ships of the Pacific Fleet were not even in Pearl Harbor. Some of those that were there were hit very slightly; and others that were damaged have either rejoined the fleet by now or are still undergoing repairs. And when those repairs are completed, the ships will be more efficient fighting machines than they were before.
The report that we lost more than a thousand planes at Pearl Harbor is as baseless as the other weird rumors. The Japanese do not know just how many planes they destroyed that day, and I am not going to tell them. But I can say that to date--and including Pearl Harbor--we have destroyed considerably more Japanese planes than they have destroyed of ours.
We have most certainly suffered losses--from Hitler's U-boats in the Atlantic as well as from the Japanese in the Pacific- and we shall suffer more of them before the turn of the tide. But, speaking for the United States of America, let me say once and for all to the people of the world: We Americans have been compelled to yield ground, but we will regain it. We and the other United Nations are committed to the destruction of the militarism of Japan and Germany. We are daily increasing our strength. Soon, we and not our enemies will have the offensive; we, not they, will win the final battles; and we, not they, will make the final peace.
Conquered Nations in Europe know what the yoke of the Nazis is like. And the people of Korea and of Manchuria know in their flesh the harsh despotism of Japan. All of the people of Asia know that if there is to be an honorable and decent future for any of them or any of us, that future depends on victory by the United Nations over the forces of Axis enslavement.
If a just and durable peace is to be attained, or even if all of us are merely to save our own skins, there is one thought for us here at home to keep uppermost--the fulfillment of our special task of production.
Germany, Italy, and Japan are very close to their maximum output of planes, guns, tanks, and ships. The United Nations are not- especially the United States of America.
Our first job then is to build up production--uninterrupted production--so that the United Nations can maintain control of the seas and attain control of the air--not merely a slight superiority, but an overwhelming superiority.
On January 6 of this year, I set certain definite goals of production for airplanes, tanks, guns, and ships. The Axis propagandists called them fantastic. Tonight, nearly two months later, and after a careful survey of progress by Donald Nelson and others charged with responsibility for our production, I can tell you that those goals will be attained.
In every part of the country, experts in production and the men and women at work in the plants are giving loyal service. With few exceptions, labor, capital, and farming realize that this is no time either to make undue profits or to gain special advantages, one over the other.
We are calling for new plants and additions to old plants. We are calling for plant conversion to war needs. We are seeking more men and more women to run them. We are working longer hours. We are coming to realize that one extra plane or extra tank or extra gun or extra ship completed tomorrow may, in a few months, turn the tide on some distant battlefield; it may make the difference between life and death for some of our own fighting men. We know now that if we lose this war it will be generations or even centuries before our conception of democracy can live again. And we can lose this war only if we slow up our effort or if we waste our ammunition sniping at each other. Here are three high purposes for every American:
1. We shall not stop work for a single day. If any dispute arises we shall keep on working while the dispute is. solved by mediation, conciliation, or arbitration- until the war is won.
2. We shall not demand special gains or special privileges or special advantages for any one group or occupation.
3. We shall give up conveniences and modify the routine of our lives if our country asks us to do so. We will do it cheerfully, remembering that the common enemy seeks to destroy every home and every freedom in every part of our land.
This generation of Americans has come to realize, with a present and personal realization, that there is something larger and more important than the life of any individual or of any individual group- something for which a man will sacrifice, and gladly sacrifice, not only his pleasures, not only his goods, not only his associations with those he loves, but his life itself. In time of crisis when the future is in the balance, we come to understand, with full recognition and devotion, what this Nation is, and what we owe to it.
The Axis propagandists have tried in various evil ways to destroy our determination and our morale. Failing in that, they are now trying to destroy our confidence in our own allies. They say that the British are finished- that the Russians and the Chinese are about to quit. Patriotic and sensible Americans will reject these absurdities. And instead of listening to any of this crude propaganda, they will recall some of the things that Nazis and Japanese have said and are still saying about us.
Ever since this Nation became the arsenal of democracy--ever since enactment of lend-lease- there has been one persistent theme through all Axis propaganda.
This theme has been that Americans are admittedly rich, that Americans have considerable industrial power- but that Americans are soft and decadent, that they cannot and will not unite and work and fight.
From Berlin, Rome, and Tokyo we have been described as a Nation of weaklings- "playboys"--who would hire British soldiers, or Russian soldiers, or Chinese soldiers to do our fighting for us.Let them repeat that now!Let them tell that to General MacArthur and his men.
Let them tell that to the sailors who today are hitting hard in the far waters of the Pacific.Let them tell that to the boys in the Flying Fortresses.Let them tell that to the Marines!
The United Nations constitute an association of independent peoples of equal dignity and equal importance. The United Nations are dedicated to a common cause. We share equally and with equal zeal the anguish and the awful sacrifices of war. In the partnership of our common enterprise, we must share in a unified plan in which all of us must play our several parts, each of us being equally indispensable and dependent one on the other.
We have unified command and cooperation and comradeship.We Americans will contribute unified production and unified acceptance of sacrifice and of effort. That means a national unity that can know no limitations of race or creed or selfish politics. The American people expect that much from themselves. And the American people will find ways and means of expressing their determination to their enemies, including the Japanese Admiral who has said that he will dictate the terms of peace here in the White House.
We of the United Nations are agreed on certain broad principles in the kind of peace we seek. The Atlantic Charter applies not only to the parts of the world that border the Atlantic but to the whole world; disarmament of aggressors, self-determination of Nations and peoples, and the four freedoms--freedom of speech, freedom of religion, freedom from want, and freedom from fear.
The British and the Russian people have known the full fury of Nazi onslaught. There have been times when the fate of London and Moscow was in serious doubt. But there was never the slightest question that either the British or the Russians would yield. And today all the United Nations salute the superb Russian Army as it celebrates the twenty-fourth anniversary of its first assembly.
Though their homeland was overrun, the Dutch people are still fighting stubbornly and powerfully overseas.
The great Chinese people have suffered grievous losses; Chungking has been almost wiped out of existence--yet it remains the Capital of an unbeatable China.
That is the conquering spirit which prevails throughout the United Nations in this war.
The task that we Americans now face will test us to the uttermost. Never before have we been called upon for such a prodigious effort. Never before have we had so little time in which to do so much.
"These are the times that try men's souls." Tom Paine wrote those words on a drumhead, by the light of a campfire. That was when Washington's little army of ragged, rugged men was retreating across New Jersey, having tasted nothing but defeat.
And General Washington ordered that these great words written by Tom Paine be read to the men of every regiment in the Continental Army, and this was the assurance given to the first American armed forces:
"The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the sacrifice, the more glorious the triumph."So spoke Americans in the year 1776.So speak Americans today!
Citation: Franklin D. Roosevelt:"Fireside Chat," February 23, 1942.Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=16224.
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Al Jazeera Retracts Story Suggesting ISIS Videos Of Foley, Sotloff Were Staged
Mon, 08 Sep 2014 12:27
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Statement: Al Jazeera Arabic retracts US journalists article
Mon, 08 Sep 2014 12:23
Statement: Al Jazeera Arabic retracts US journalists articleAl Jazeera Arabic, the sister channel of Al Jazeera English, has retracted an article from its website which suggested the beheading of two US journalists by the Islamic State group had been staged.
Al Jazeera Arabic's managing director, Yasser Abu Hilalah, said in a statement on Saturday that the article was misleading.
''In respect to families of the victims and as we share their grief, Al Jazeera Arabic's website decided to retract an inaccurate article that questioned the legitimacy of James Foley and Steven Sotloff's beheading videos after a theory surfaced on a number of American social media sites claiming they were produced as a pretext ahead of a possible US invasion of Syria.
"We want to take this as an opportunity to reiterate Al Jazeera's previous position in condemning the kidnapping of the two journalists and condemning their killing as a heinous crime.
"We would like to also renew our call for the release of all kidnapped journalists throughout the world who were only carrying out their professional duty in seeking truth and providing a fair and comprehensive account of events and issues.
"Al Jazeera had previously issued a statement before the killing of Sotloff, appealing to the kidnappers to release him and aired Sotloff's mother's message appealing to the kidnappers to release him.
"We, in Al Jazeera, would like to emphasise our policy of supporting the freedom of journalists and to protect them from any harm anywhere around the world."
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Grammar Girl : Unlawful Versus Illegal :: Quick and Dirty Tips '
Black’s Law Dictionary defines unlawful as not authorized by law, illegal. Illegal is defined as forbidden by law, unlawful.
Semantically, there is a slight difference. It seems that something
illegal is expressly proscribed by statute, and something unlawful is
just not expressly authorized.
Jaywalking
is a good example of an unlawful act. Traffic regulations do not
typically say that you cannot walk diagonally through an intersection.
So, it is not illegal. Rather, traffic regulations typically provide
that you can cross within a crosswalk when the little walky-man appears.
Crossing in any other way is unlawful because it is not expressly
permitted.
Selling cocaine is a good example of an illegal act. A federal law
specifically provides that you may not do so. - See more at:
http://www.quickanddirtytips.com/business-career/legal/unlawful-versus-illegal#sthash.y0HTmFrt.dpuf
Mon, 08 Sep 2014 12:40
Today's topic is illegal versus unlawful. Here's a question from Jed in Washington, D.C.
From my seat on the bus, I could see a big sign listing things that were "unlawful" to do on the bus (such as eat, listen to loud music, etc.) I was curious if this word carried less force than illegal, even though they both seem to mean the same thing according to a few dictionaries that I checked.
Thanks Jed! I have some language-related comments, but I'm bringing in Legal Lad to answer the meat of your question.
What is the Difference Between Illegal and Unlawful?Legal Lad:
Great question, Jed. The short answer is that there is a slight semantic difference between the two words, but no difference with regard to criminal punishment.
Grammar Girl:
The prefixes il- and un- both mean the same thing'--they mean not. So do both of these words mean not lawful?
Legal Lad:
Black's Law Dictionary defines unlawful as not authorized by law, illegal. Illegal is defined as forbidden by law, unlawful. Semantically, there is a slight difference. It seems that something illegal is expressly proscribed by statute, and something unlawful is just not expressly authorized.
Jaywalking is a good example of an unlawful act. Traffic regulations do not typically say that you cannot walk diagonally through an intersection. So, it is not illegal. Rather, traffic regulations typically provide that you can cross within a crosswalk when the little walky-man appears. Crossing in any other way is unlawful because it is not expressly permitted.
Selling cocaine is a good example of an illegal act. A federal law specifically provides that you may not do so.
With regard to Jed's question, it would depend on point of view. On one hand, the Washington Metropolitan Area Transit Authority, aka Metro, issued a rule that prohibits eating or drinking while riding on a public bus. So, the act is expressly proscribed, and thus illegal.
On the other hand, Metro is not a legislative body and does not pass laws in the traditional sense. Rather, it was a body created by an Interstate Compact in 1967. Part of the compact was that Metro could create rules to ensure safe and comfortable transportation for the public, and Metro used that authority to make a rule against eating or drinking. But, the compact, the actual law, does not say anything about food; it only says that the agency could create rules for safe travel. Thus, eating and drinking is simply not permitted, and thus unlawful. Practically, there is no difference for punishment purposes. Both illegal and unlawful acts can get you into trouble.
A Note About PrefixesGrammar Girl:
Interesting! So Jed had better not eat and rock out on the bus.
I found a couple of interesting things while I was reading about prefixes. First, un- (as in unlawful) is an English prefix, and in- (as in injustice) is the corresponding Latin prefix.
And then second, il- (as in illegal, illicit, and illegitimate) is considered to be a form of the prefix in- (as in injustice and indivisible).
It works a little bit like how you choose to use the words a or an depending on whether the next word starts with a consonant or vowel sound. In this case, the prefix in- gets changed to il- when the word starts with the letter l, and it also gets changed to im- when the word starts with a p or b, as in impossible and imbalance.
Web BonusThe prefix in- has two meanings.
First, it can roughly mean the equivalent of the English word in, as in inclusive and inland. This version comes from Old English and Latin.
Second, it can roughly mean not, as in injustice and indivisible. This version comes from Latin.
That's all.
Thursday, July 26, was Grammar Girl's one year anniversary, and it's mind-boggling to think of all the things that have happened in the last year. It has all been because of you'--the listeners'--and your enthusiasm for the show, so thanks for everything. I'll do my best to make the second year as fun and interesting as the first.
While you're here on the Quick and Dirty Tips website, be sure to check out the other great podcasts such as Modern Manners. He answers tough questions like how to deal with uninvited guests.
Thanks for listening.
References
''In- as a Prefix,'' The Maven's Word of the Day, New York: Random House, June 4, 1997 www.randomhouse.com/wotd/index.pperl?date=19970604 (accessed July 25, 2007).Wilson, K.G. ''il-,'' The Columbia Guide to Standard American English. New York: Columbia University Press, 1993, www.bartleby.com/68/6/3106.html (accessed July 25, 2007).in-. Dictionary.com. Dictionary.com Unabridged (v 1.1). New York: Random House, Inc. dictionary.reference.com/browse/in- (accessed: July 26, 2007).in-. The American Heritage® Book of English Usage. Boston: Houghton Mifflin Company, 1996http://www.bartleby.com/64/pages/page247.html (accessed July 25, 2007).Xavier, J. ''How Negative Prefixed Are Determined in English,'' The Linguistic Zone, June 19, 2007, http://urltea.com/1ee9 (accessed July 26, 2007).
3D Judges Gavel image, Chris Potter at Flickr. CC BY 2.0.
Difference Between Legal and Lawful
Wed, 10 Sep 2014 23:53
Legal vs Lawful
Legal, lawful, legitimate are some words that describe things, events, and activities that are permitted by law and do not attract punishment under the law. However, the words legal and lawful are not synonymous as many believe as there are subtle differences between the two. Knowing these differences can be beneficial for some people in order to stay away from the clutches of the law. This article attempts to throw light on some of these differences.
Legal
We remain confused because of the technical jargon used by attorneys and are often misled by the facts pertaining to law. However, the blame lies on us as we allow us to be misled. Legal is a word that pertains to the science of law, its administration, its understanding, and even its practice. This is why everything associated with this profession is termed as legal and even the advice given by attorneys to their clients is termed legal advice. When we hear the word legal, we visualize the world of law, the courts, the lawyers, the judges, and all the paraphernalia that together constitutes the legal system. It is thus clear that anything that pertains to, or is based upon law is referred to as legal.
Lawful
When an event, thing, structure, organization, agreement etc are in accordance with the law, or are permitted and sanctioned by the law of the land, they are said to be lawful. Anything that conforms to or is recognized by law is automatically lawful. Anything lawful is considered to be not forbidden by law. One can consider anything that is valid as lawful.
What is the difference between Legal and Lawful?
' Legal pertains to everything concerned with law.
' While lawful relates with substance of law, legal is more concerned with the form of law.
' If something is lawful, it is not forbidden by law.
' Lawful places thrust on ethical content in law and focus on the spirit of law whereas legal attaches more importance to the form of law.
' If a will has been made without performing legal formalities, it can be illegal, but it would be incorrect to call it unlawful.
' A sin of commission makes you unlawful while a sin of omission makes you illegal.
Related posts:
Difference Between Legal and General CounselingDifference Between Divorce and Legal SeparationDifference Between SS7 Signaling and SS8 Legal InterceptionDifference Between De Jure and De Facto
What is UNLAWFUL? definition of UNLAWFUL (Black's Law Dictionary)
Mon, 08 Sep 2014 14:16
Read in: Spanish
That which is contrary to law. ''Unlawful'' and ''illegal'' are frequently used as synonymous terms, but, in the proper sense of the word, ''unlawful,'' as applied to promises, agreements, considerations, and the like, denotes that they are ineffectual in law because they involve acts which, although not illegal, i. e., positively forbidden, are disapproved of by the law, and are therefore not recognized as the ground of legal rights, either because they are immoral or because they are against public policy. It is on this ground that contracts in restraint of marriage or of trade are generally void. Sweet. And see Hagerman v. Buchanan, 45 N. J. Eq. 292, 17 Atl. 946, 14 Am. St Rep. 732; Tatum v. State, 66 Ala. 467; Johnson v. State, 66 Ohio St. 59. 63 N. E. 607. 61 L. R. A. 277, 90 Am. St. Rep. 564; Pinder v. State, 27 Fla. 370, 8 South. 837, 26 Am. St. Rep. 75; MacDaniel v. U. S
More On This TopicLink to This DefinitionDid you find this definition of UNLAWFUL helpful? You can share it by copying the code below and adding it to your blog or web page.Edited and fact checked by James: Google +
Unlawful Content from Peter O'Rourke
If something is unlawful, it means it is against the law, but not necessarily a criminal act; it can be a civil wrong, such as trademark infringement, for which the wrongdoer may be sued, but will unlikely face criminal prosecution.
Illegal describes an act that is unlawful and also a criminal act, such as drug trafficking.
EDIT: It appears these definitions aren't so cut and dry. This article discusses their usage in greater detail...
Law Dictionary Version:
What is UNLAWFUL?
Read in: Spanish
That which is contrary to law. “Unlawful” and “illegal” are frequently used as synonymous terms, but, in the proper sense of the word, “unlawful,” as applied to promises, agreements, considerations, and the like, denotes that they are ineffectual in law because they involve acts which, although not illegal, i. e., positively forbidden, are disapproved of by the law, and are therefore not recognized as the ground oflegal rights, either because they are immoral or because they are against public policy. It is on this ground that contracts in restraint of marriage or of trade are generally void. Sweet. And see Hagerman v. Buchanan, 45 N. J. Eq. 292, 17 Atl. 946, 14 Am. St Rep. 732; Tatum v. State, 66 Ala. 467; Johnson v. State, 66 Ohio St. 59. 63 N. E. 607. 61 L. R. A. 277, 90 Am. St. Rep. 564; Pinder v. State, 27 Fla. 370, 8 South. 837, 26 Am. St. Rep. 75; MacDaniel v. U. S
Law Dictionary: What is UNLAWFUL? definition of UNLAWFUL (Black's Law Dictionary)
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From reddit to Pornhub, Websites Slow Down for Net Neutrality on September 10 | Electronic Frontier Foundation
Wed, 10 Sep 2014 15:56
You know the net neutrality conversation is breaking new ground when even the porn sites are weighing in. And that's just what we're seeing: Major adult platforms Pornhub and Redtube are joining an online protest on September 10, calling for stronger protections for net neutrality. They're teaming up with dozens of digital rights organizations, including EFF, Demand Progress, and Fight for the Future, as well as other Internet companies like Etsy, reddit and Mozilla, in a digital day of action designed to bring the net neutrality debate to hundreds of thousands of Internet users worldwide.
Net neutrality'-- the idea that Internet service providers (ISPs) should treat all data that travels over their networks equally'--got major attention this Spring when the FCC released proposed regulatory guidelines that left Internet users and companies alike deeply concerned. The proposal included new language giving ISPs leeway to create a ''fast lane'' for certain websites (i.e. websites with deep pockets that were willing to shell out more money for faster access to users).
But you can't have a fast lane without also having a slower lane. And that means everyday websites'--including journalistic websites and start-up companies that could compete with established web services'--could be slow to load, even as our expectations for loading speed leap ahead in the coming years.
That's why the protest on September 10 will showcase a slow-lane Internet, by putting graphics of ''page loading'' warnings on participating sites. (Don't worry'--Pornhub promises it won't actually load pages more slowly.)
For months, the FCC has been collecting comments from the public about its proposed net neutrality guidelines, and hundreds of thousands of people have already spoken out. But we're fast approaching the deadline for public engagement through the rulemaking process: September 15 is the end of the public comment period.
That's why the day of action on September 10 is so important'--it's our last big push to get the general public to speak out about net neutrality before the deadline.
We've already made a huge impact. The Sunlight Foundation recently analyzed over 800,000 comments submitted to the FCC about net neutrality'' and found that more than 99% of them supported stronger protections for neutrality. The September 10 day of action will help rally people from across the web to speak out, and help create such a ruckus that the FCC cannot ignore our call to amend its proposed rules'--and force Congress to take note as well.
How You Can Join
On September 10, we'll have a custom banner on EFF's website.
It'll look like this, and link to our site where you can submit comments to the FCC:
If you run a website, embed the code here to show your support:
var _bftn_options = { animation: 'banner', theme: 'dark' }
Another great way to spread the word is through social media. Please consider tweeting and posting about net neutrality both in the lead up to September 10 and on the day of action.Want to read more about this issue? We've got a ton of blog posts that can help get you up to speed.
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FCC May Expand Net Neutrality to Cell Phones - NationalJournal.com
Wed, 10 Sep 2014 15:55
The Federal Communications Commission is eyeing an expansion of its net-neutrality rules to cover cell-phone service.
In a speech Tuesday, FCC Chairman Tom Wheeler said that Internet access on smartphones is a "key component" of the investment and innovation that net-neutrality regulations are intended to protect.
"Although the comment cycle has not yet closed, we are already closely examining the issues and the record," he said at a wireless industry conference in Las Vegas, according to a copy of his prepared remarks. "One of the constant themes on the record is how consumers increasingly rely on mobile broadband as an important pathway to access the Internet."
In 2010, the FCC enacted net-neutrality regulations that barred home broadband providers like Comcast from blocking or "unreasonably" discriminating against any Internet traffic. But the rules were much weaker for Internet service on smartphones.
Wireless providers like Verizon and AT&T couldn't outright block websites, but they were free to speed up or slow down certain services or exempt others from monthly data caps.
A federal court struck the rules down earlier this year, and the FCC is now trying to come up with new regulations that can survive future court challenges. Wheeler's initial proposal sparked a major backlash because it would allow landline broadband providers to in some cases charge websites for access to special "fast lanes."
In the new proposal, the FCC asked for input on whether to expand the rules to wireless networks, but tentatively concluded that the lighter regulatory scheme should stay in place. Wheeler appears to be revisiting that decision.
He said that there have been "significant changes in the mobile marketplace since 2010," such as faster cellular service and many more people relying on their smartphones to access the Internet.
He pointed to a filing from Microsoft, which urged the commission to use the same regulatory framework for cell-phone and home Internet providers. Consumers now live in "mobile first" world, Microsoft claimed.
Wheeler reiterated his criticism of cell-phone service providers for throttling Internet speeds for customers with unlimited data plans in certain circumstances. He also said the providers may have misled the customers by promising them unlimited data.
"I am hard pressed to understand how either practice, much less the two together, could be a reasonable way to manage a network," Wheeler said.
He argued that just because consumers have more choices for cell-phone service than their home Internet connection doesn't mean that the cellular providers won't restrict online freedom.
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Expanding net-neutrality regulations to cell-phone service would outrage the wireless providers. In a filing to the FCC, wireless lobbying group CTIA warned that applying the rules to wireless networks would risk stifling the industry's growth.
Wireless Internet is different, the group wrote, because of constraints on how much data the networks can handle.
The chairman's possible shift comes as he is under intense pressure from Democrats and liberal advocacy groups to strengthen his rules.
Netflix, Reddit, Digg, Mozilla, and dozens of other sites will display symbolic loading icons on their websites Wednesday as part of a protest over the proposed rules, which they warn would allow broadband providers to distort the Internet in favor of the largest companies.
Michael Weinberg, a vice president for consumer advocacy group Public Knowledge, said it's "critical" that the FCC apply the same rules to wired and wireless Internet access. The FCC can allow for some flexibility in what it considers "reasonable" discrimination for different technologies, Weinberg said, but it shouldn't use a totally different regulatory scheme like it did in 2010.
"It was a bad idea then, and it would be a worse idea now," Weinberg said.
Matt Wood, policy director for Free Press, emphasized that toughening the wireless rules wouldn't be enough to win the support of activists. Wheeler would have to ban any provider from creating "fast lanes" on the Internet, Wood said.
"I'm not so much interested in any of this until Chairman Wheeler strengthens the entire proposal," Wood said. "The parity that would result from adopting a mediocre proposal for both platforms won't help anyone."
This article appears in the September 10, 2014 edition of NJ Daily as FCC May Expand Net Neutrality to Cell Phones.
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The FCC's Section 706 Power Grab is Dangerous, and Ignores Marketplace Realities
Wed, 10 Sep 2014 14:22
On Friday, TechFreedom filedcommentson the FCC's annual inquiry into whether broadband is being deployed in a ''reasonable and timely'' fashion under Section 706(b) of the 1996 Telecommunications Act. The Notice of Inquiry seeks comment on how concerns about privacy and cybersecurity may slow broadband adoption, thus signalling that the FCC may expand its use of Section 706 beyond net neutrality to reach edge providers as well, despite having no specific statutory authority to do so.
''A chill wind blows through Silicon Valley from the East,'' warned Berin Szoka, President of TechFreedom. ''In 2010, after the courts first said the FCC didn't have authority to regulate net neutrality, the FCC announced that, upon re-reading the Act, it had found in Section 706 a blank check for regulating the entire Internet, which the Commission had somehow previously failed to notice. This Notice reminds America's tech sector that net neutrality may only be the beginning, and that the FCC may be coming for them next next.''
The Commission's reinterpretation of Section 706 would authorize regulation not merely over broadband providers but also Google, Twitter, Facebook and the countless startups building new apps and services.
''The Inquiry doesn't just signal that a regulatory winter is coming,'' continued Szoka. ''It will inevitably have a quasi-regulatory effect, especially over small companies, who must now begin worrying that the next shoe could drop at any moment. Under the FCC's preposterous re-interpretation of Section 706, the FCC apparently would not be required to engage in formal rulemakings, but could bring enforcement actions against practices it deems to raise concerns that discourage broadband adoption and thus slow broadband deployment. This will chill entrepreneurs and investors trying to deliver sites, apps and services.''
''The FCC can't put the 706 genie back in the bottle, but itcanask Congress for clear legislative authority over net neutrality and appropriately narrow power to remove barriers to broadband deployment,'' concluded Szoka. ''Those urging the FCC to invoke Title II because of the dangers of Section 706 miss the point: grounding new net neutrality rules in Title II will not stop the FCC from using Section 706 to regulate privacy, cybersecurity, copyright, indecency or anything else the FCC asserts relates to broadband deployment. Reclassification would simply give the FCC a second source of broad power.''
The FCC's Notice of Inquiry also proposes to raise the minimum speed threshold, which would allow the FCC to pooh-pooh progress on broadband deployment and thus make it easier for the FCC to justify using its purported powers under Section 706. ''The FCC's regulatory agenda has blinded it to the enormous progress made in broadband deployment,'' said Tom Struble, Legal Fellow at TechFreedom, citing massive increases in both wireline and wireless broadband since 2010.
''Those urging the FCC to manipulate the data to justify regulation of broadband today may find the FCC using the same outcome-driven methodology against them tomorrow. Rather than inventing arbitrary baselines on how Americansoughtto use broadband, the FCC should focus on assessing actual broadband usage patterns and objective measures of investment and competition,'' concluded Struble.
Szoka and Struble are available for comment atmedia@techfreedom.org.
Find/share this release on Facebook or Twitter, and see our other work on Section 706 and promoting broadband deployment, including:
''The Feds Lost on Net Neutrality, But Won Control of the Internet,'' Berin Szoka and Geoffrey Manne inWired.com
''Don't Blame Big Cable. It's Local Governments That Choke Broadband Competition,'' Berin Szoka and Jon Henke inWired.com
''Net Neutrality Regulation is Bad for Consumers and Probably Illegal,'' asummary of TechFreedom's legal commentsto the FCC on Net Neutrality
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Protecting and Promoting the Open Internet NPRM | FCC.gov
Mon, 08 Sep 2014 22:09
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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of))Protecting and Promoting the Open Internet)GN Docket No. 14-28))))NOTICE OF PROPOSED RULEMAKING
Adopted: May 15, 2014
Released: May 15, 2014
Comment Date: July 15, 2014Reply Comment Date: September 10, 2014
By the Commission: Chairman Wheeler and Commissioner Clyburn issuing separate statements;Commissioner Rosenworcel concurring and issuing a statement. CommissionersPai and O'Rielly dissenting and issuing separate statements.TABLE OF CONTENTS
Para.I. INTRODUCTION.................................................................................................................................. 1II. BACKGROUND.................................................................................................................................. 11III. DISCUSSION ...................................................................................................................................... 25A. The Continuing Need for Open Internet Protections ..................................................................... 251. An Open Internet Promotes Innovation, Competition, Free Expression, andInfrastructure Deployment ...................................................................................................... 252. Broadband Providers Have the Incentive and Ability to Limit Openness............................... 39B. Scope of the Rules ......................................................................................................................... 54C. Transparency Requirements to Protect and Promote Internet Openness ....................................... 631. The 2010 Transparency Rule................................................................................................... 632. Enhancing Transparency to Protect and Promote Internet Openness...................................... 663. Compliance and Enforcement ................................................................................................. 87D. Preventing Blocking of Lawful Content, Applications, Services, and Nonharmful Devices ........ 891. The 2010 No-Blocking Rule ................................................................................................... 912. Proposal to Adopt a No-Blocking Rule................................................................................... 943. Establishing the Minimum Level of Access under the No-Blocking Rule ............................. 974. Application of the No-Blocking Rule to Mobile Broadband ................................................ 1055. Applicability of the No-Blocking Rule to Devices ............................................................... 109Federal Communications Commission
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E. Codifying an Enforceable Rule to Protect the Open Internet That Is Not CommonCarriage Per Se ............................................................................................................................ 1101. The 2010 No Unreasonable Discrimination Rule ................................................................. 1132. Proposed Elements of an Enforceable Legal Rule ................................................................ 1163. Potential Conduct That Is Per Se Commercially Unreasonable............................................ 1374. Potential Safe Harbors........................................................................................................... 139F. Legal Authority............................................................................................................................ 1421. Section 706............................................................................................................................ 1432. Title II.................................................................................................................................... 1483. Other Sources of Authority ................................................................................................... 1564. Constitutional Considerations ............................................................................................... 159G. Other Laws and Considerations................................................................................................... 160H. Enforcement and Dispute Resolution .......................................................................................... 1611. Background ........................................................................................................................... 1612. Designing an Effective Enforcement Process ....................................................................... 1623. Complaint Processes, Enforcement, and Additional Forms of Dispute Resolution.............. 172IV. PROCEDURAL MATTERS.............................................................................................................. 177A. Paperwork Reduction Act Analysis ............................................................................................. 177B. Initial Regulatory Flexibility Analysis......................................................................................... 178C. Comment Filing Procedures ........................................................................................................ 179D. Ex Parte Rules.............................................................................................................................. 181E. Contact Person ............................................................................................................................. 182V. ORDERING CLAUSES..................................................................................................................... 183APPENDIX A'--Proposed RulesAPPENDIX B'--Initial Regulatory Flexibility Analysis2Federal Communications Commission
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I.
INTRODUCTION
1.The Internet is America's most important platform for economic growth, innovation,competition, free expression, and broadband investment and deployment. As a ''general purposetechnology,'' the Internet has been, and remains to date, the preeminent 21st century engine for innovationand the economic and social benefits that follow. These benefits flow, in large part, from the open, end-to-end architecture of the Internet, which is characterized by low barriers to entry for developers of newcontent, applications, services, and devices and a consumer-demand-driven marketplace for theirproducts. As the Commission explained in its 2010 Open Internet Order, the Internet's open architectureallows innovators and consumers at the edges of the network ''to create and determine the success orfailure of content, applications, services and devices,'' without requiring permission from the broadbandprovider to reach end users.1 As an open platform, it fosters diversity and it enables people to buildcommunities.2.We start with a fundamental question: What is the right public policy to ensure that theInternet remains open? This Notice of Proposed Rulemaking (Notice), and the comment process thatfollows, will turn on this fundamental question.3.Today, there are no legally enforceable rules by which the Commission can stopbroadband providers from limiting Internet openness. This Notice begins the process of closing that gap,by proposing to reinstitute the no-blocking rule adopted in 2010 and creating a new rule that would barcommercially unreasonable actions from threatening Internet openness (as well as enhancing thetransparency rule that is currently in effect).4.The goal of this proceeding is to find the best approach to protecting and promotingInternet openness. Per the blueprint offered by the D.C. Circuit in its decision in Verizon v. FCC, theCommission proposes to rely on section 706 of the Telecommunications Act of 1996.2 At the same time,the Commission will seriously consider the use of Title II of the Communications Act as the basis forlegal authority. This Notice seeks comment on the benefits of both section 706 and Title II, including thebenefits of one approach over the other. Under all available sources of legal authority (including alsoTitle III for mobile services), the Commission seeks comment on the best ways to define, prevent andpunish the practices that threaten an open Internet. We emphasize in this Notice that the Commissionrecognizes that both section 706 and Title II are viable solutions and seek comment on their potential use.5.It is important to always remember that the Internet is a collection of networks, not asingle network. And that means that each broadband provider can either add to the benefits that theInternet delivers to Americans'--by maintaining Internet openness and by extending the reach ofbroadband networks'--or it can threaten those benefits'--by restricting its customers from the Internet andpreventing edge providers from reaching consumers over robust, fast and continuously improvingnetworks. This is a real threat, not merely a hypothetical concern.6.In its 2010 Order, the Commission found that providers of broadband Internet accessservice had three types of incentives to limit Internet openness. First, broadband providers may haveeconomic incentives to block or disadvantage a particular edge provider or class of edge1 Preserving the Open Internet, GN Docket No. 09-191, WC Docket No. 07-52, Report and Order, 25 FCC Rcd17905, 17910, para. 13 (2010) (Open Internet Order or Order), aff'd in part, vacated and remanded in part subnom. Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014). Among other examples, the Commission cited Sir TimBerners-Lee, who'--25 years ago'--needed neither permission nor approvals from network operators to invent theWorld Wide Web using existing Internet layer and transport protocols. Id.2 Section 706 of the Telecommunications Act of 1996, Pub. L. No. 104-104, § 706, 110 Stat. 56, 153 (1996) (1996Act), as amended in relevant part by the Broadband Data Improvement Act (BDIA), Pub. L. No. 110-385, 122 Stat.4096 (2008), is now codified in Title 47, Chapter 12 of the United States Code. See 47 U.S.C. § 1301 et seq.3
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providers.3 Second, broadband providers may have incentives to increase revenues by charging edgeproviders for access or prioritized access to the broadband provider's end users.4 In particular, excessivefees could reduce edge provider entry, suppress innovation, and depress consumer demand.5 Third, ifproviders could profitably charge edge providers they would have an incentive ''to degrade or decline toincrease the quality of service they provide to non-prioritized traffic.''67.Those threats are even more important today because Americans and Americanbusinesses have become even more dependent on the Internet. For example, according to the PewResearch Internet Project, as of January 2014, 87 percent of Americans used the Internet, compared to14 percent in 1995.7 And it is a critical route of commerce, supporting an e-commerce marketplace thatnow boasts U.S. revenues of $263.3 billion.88.Of particular concern are threats to American innovation. In ''the end-to-end architecture,different economic actors can independently choose their innovation projects.''9 Innovation is the chiefdriver of American economic growth, which means that all Americans lose if the opportunity to innovateis curbed. For example, an economic study originally released in February 2012 and updated in July 2013reported that the app economy is responsible for roughly 752,000 jobs in the United States, which is anincrease from zero in 2007 when the iPhone was introduced.10 But equally important are the jobs thatcould be'--but might not be'--created if edge innovation and investment were to be chilled by doubt thatthe Internet will remain open or, even worse, if openness were defeated.9.Although the Commission has emphasized for almost a decade the importance of legallyenforceable standards, the United States Court of Appeals for the District of Columbia Circuit has twiceinvalidated the Commission's attempts, most recently in Verizon v. FCC, decided this January.11 It is inthe absence of these protections for the open Internet that the Commission must act to ensure that newlegally enforceable rules are put in place. That is a gap that must be closed as quickly as possible.10.The remainder of the Notice proceeds as follows. First, we generally propose to retainthe definitions and scope of the 2010 rules. Second, we tentatively conclude that the Commission shouldenhance the transparency rule that was upheld by the D.C. Circuit so that the public and the Commissionhave the benefit of sunlight on broadband provider actions and to ensure that consumers and edge3 Open Internet Order, 25 FCC Rcd at 17919, para. 21; see Writers Guild of America East Comments at 2-3. In theOpen Internet Order, the Commission defined ''end user'' as any individual or entity that uses a broadband Internetaccess service and sometimes used ''subscriber'' or ''consumer'' to refer to those end users that subscribe to aparticular broadband Internet access service. ''Edge provider'' was defined as referring to content, application,service, and device providers, because they generally operate at the edge rather than the core of the network. Theseterms were not mutually exclusive. See Open Internet Order, 25 FCC Rcd at 17907, para. 4 n.2.4 Open Internet Order, 25 FCC Rcd at 17919, para. 24; see Writers Guild of America East Comments at 2-3.5 Open Internet Order, 25 FCC Rcd at 17919-20, para. 25.6 Id. at 17922, para. 29.7 Pew Research Internet Project, Internet Use Over Time, http://www.pewinternet.org/data-trend/internet-use/internet-use-over-time/ (last visited Apr. 22, 2014).8 See U.S. Census Bureau, Quarterly Retail E-Commerce Sales, 4th Quarter 2013.http://www.census.gov/retail/mrts/www/data/pdf/ec_current.pdf.9 Barbara Van Schewick, Internet Architecture and Innovation 301 (2010).10 See Michael Mandel, 752,000 App Economy Jobs on the 5th Anniversary of the App Store, Progressive PolicyInstitute Blog (July 8, 2013), http://www.progressivepolicy.org/2013/07/752000-app-economy-jobs-on-the-5th-anniversary-of-the-app-store/; Michael Mandel, Where the Jobs Are: The App Economy 1, TechNet (Feb. 7, 2012),http://www.technet.org/wp-content/uploads/2012/02/TechNet-App-Economy-Jobs-Study.pdf.11 Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014).4
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providers'--indeed, the Internet community at large'--have the information they need to understand theservices they are receiving and to monitor practices that could undermine the open Internet. Third, wetentatively conclude that the Commission should adopt the text of the no-blocking rule from the OpenInternet Order with a revised rationale, in order to ensure that all end users and edge providers can enjoythe use of robust, fast and dynamic Internet access. Fourth, and where conduct would otherwise bepermissible under the no-blocking rule, we propose to create a separate screen that requires broadbandproviders to adhere to an enforceable legal standard of commercially reasonable practices, asking howharm can best be identified and prohibited and whether certain practices, like paid prioritization, shouldbe barred altogether. Fifth, we propose a multi-faceted dispute resolution process to provide effectiveaccess for end users, edge providers, and broadband network providers alike and the creation of anombudsperson to act as a watchdog to represent the interests of consumers, start-ups, and smallbusinesses. Sixth, and finally, we ask how either section 706 or Title II (or other sources of legalauthority such as Title III for mobile services) could be applied to ensure that the Internet remains open.II.
BACKGROUND
11.Today's Notice rests upon over a decade of consistent action by the Commission toprotect and promote the Internet as an open platform for innovation, competition, economic growth, andfree expression. At the core of all of these Commission efforts has been a view endorsed by fourChairmen and a majority of the Commission's members in office during that time: That FCC oversight isessential to protect the openness that is critical to the Internet's success. In recognition of this, theCommission has demonstrated a steadfast commitment to safeguarding that openness.12.In 2004, former Chairman Michael Powell first articulated basic guiding principles forpreserving Internet freedom in an address at Silicon Flatirons. Chairman Powell recognized that''consumers' hunger for an ever-expanding array of high-value content, applications, and devices''12fueled investment in broadband networks as the ''impressive generators of economic growth, innovation,and empowerment.'' He explained that ''ensuring that consumers can obtain and use the content,applications and devices they want . . . is critical to unlocking the vast potential of the broadbandInternet.''1313.A year later, reinforcing Chairman Powell's guidance, the Commission unanimouslyapproved the Internet Policy Statement setting forth four general Internet policy principles intended ''[t]oencourage broadband deployment and preserve and promote the open and interconnected nature of theInternet.''14 Specifically, subject to ''reasonable network management,''15 the principles entitle consumersto (1) ''access the lawful Internet content of their choice;'' (2) ''run applications and use services of theirchoice, subject to the needs of law enforcement;'' (3) ''connect their choice of legal devices that do not12 Michael K. Powell, Chairman, Federal Communications Commission, Preserving Internet Freedom: GuidingPrinciples for the Industry 3, Remarks at the Silicon Flatirons Symposium (Feb. 8, 2004),http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-243556A1.pdf (Preserving Internet Freedom).13 Id. at 3.14 Appropriate Framework for Broadband Access to the Internet over Wireline Facilities; Review of RegulatoryRequirements for Incumbent LEC Broadband Telecommunications Services; Computer III Further RemandProceedings: Bell Operating Company Provision of Enhanced Services; 1998 Biennial Regulatory Review-Reviewof Computer III and ONA Safeguards and Requirements; Inquiry Concerning High-Speed Access to the InternetOver Cable and Other Facilities Internet Over Cable Declaratory Ruling; Appropriate Regulatory Treatment forBroadband Access to the Internet Over Cable Facilities, GN Docket No. 00-185, CC Docket Nos. 02-33, 01-33,98-10, 95-20, CS Docket No. 02-52, Policy Statement, 20 FCC Rcd 14986, 14987-88, para. 4 (2005) (InternetPolicy Statement).15 Id. at 14988 n.15.5
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harm the network;'' and (4) enjoy ''competition among network providers, application and serviceproviders, and content providers.''1614.The Commission incorporated these open Internet principles in a series of mergerproceedings. In 2005, the Commission conditioned approval of the SBC/AT&T and Verizon/MCImergers on the merged entities' compliance with the Internet Policy Statement.17 Although theCommission did not adopt any formal open Internet conditions on the Adelphia/Time Warner/Comcasttransactions, the Commission made clear that its Internet Policy Statement ''contains principles againstwhich the conduct of Comcast [and] Time Warner . . . can be measured.''18 So too, in 2006, theCommission accepted the AT&T and BellSouth commitment to ''maintain a neutral network and neutralrouting in [the merged entity's] wireline broadband Internet access service,'' as a formal condition of themerger.19 Likewise, in the 2011 Comcast-NBCU merger, the Commission adopted the commitments ofthe merged entity to not ''prioritize affiliated Internet content over unaffiliated Internet content . . . [or]treat affiliated network traffic differently from unaffiliated network traffic'' as well as to comply with theCommission's open Internet rules, regardless of the effect of ''any judicial challenge'' affecting thoserules.2015.The Commission likewise incorporated openness principles for mobile services, adoptingan open platform requirement for licensees in the Upper 700 MHz C Block in 2007.21 Specifically, therules require Upper 700 MHz C-Block licensees to allow customers, device manufacturers, third-partyapplication developers, and others to use or develop the devices and applications of their choice for Upper16 Id. at 14988, para. 4.17 SBC Communications, Inc. and AT&T Corp. Applications for Approval of Transfer of Control, WC Docket No.05-65, Memorandum Opinion and Order, 20 FCC Rcd 18290, 18392, para. 211 (2005) (SBC/AT&T Transfer ofControl Order); Verizon Communications Inc. and MCI, Inc. Applications for Approval of Transfer of Control,WC Docket No. 05-75, Memorandum Opinion and Order, 20 FCC Rcd 18433, 18537, para. 221 (2005)(Verizon/MCI Transfer of Control Order). The SBC/AT&T condition remained effective until November 2007, andthe Verizon/MCI condition until January 2008, two years following the respective closing dates of each merger. SeeSBC/AT&T Transfer of Control at Appx. F; Verizon/MCI Transfer of Control Order at Appx. G.18 Applications for Consent to the Assignment and/or Transfer of Control of Licenses, Adelphia CommunicationsCorporation, (and Subsidiaries, Debtors-In-Possession), Assignors, to Time Warner Cable Inc. (Subsidiaries),Assignees, Adelphia Communications Corporation, (and Subsidiaries, Debtors-In-Possession), Assignors andTransferors, to Comcast Corporation (Subsidiaries), Assignees and Transferees, Comcast Corporation, Transferor,to Time Warner Inc., Transferee, Time Warner Inc., Transferor, to Comcast Corporation, Transferee, MB DocketNo. 05-192, Memorandum Opinion and Order, 21 FCC Rcd 8203, 8299, para. 223 (2006).19 See AT&T Inc. and BellSouth Corporation Application for Transfer of Control, WC Docket No. 06-74,Memorandum Opinion and Order, 22 FCC Rcd 5662, 5663, para. 2 (2007) (AT&T/BellSouth Merger Order); seealso SBC/AT&T Transfer of Control Order, 20 FCC Rcd at 18392, para. 211.20 Applications of Comcast Corporation, General Electric Company and NBC Universal, Inc. for Consent to AssignLicenses and Transfer Control of Licenses, MB Docket No. 10-56, Memorandum Opinion and Order, 26 FCC Rcd4239, 4275, para. 94 & n.213 (2011).21 Service Rules for the 698-746, 747-762 and 777-792 MHz Bands; Revision of the Commission's Rules to EnsureCompatibility with Enhanced 911 Emergency Calling Systems; Section 68.4(a) of the Commission's RulesGoverning Hearing Aid-Compatible Telephones; Biennial Regulatory Review-Amendment of Parts 1, 22, 24, 27,and 90 to Streamline and Harmonize Various Rules Affecting Wireless Radio Services; Former NextelCommunications, Inc. Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of the Commission's Rules;Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band; Developmentof Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public SafetyCommunications Requirements Through the Year 2010; Declaratory Ruling on Reporting Requirement underCommission's Part 1 Anti-Collusion Rule, WT Docket Nos. 07-166, 06-169, 06-150, 03-264, 96-86, PS Docket No.06-229, CC Docket No. 94-102, Second Report and Order, 22 FCC Rcd 15289, 15359 (2007) (700 MHz SecondReport and Order); 47 C.F.R. § 27.16.6
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700 MHz C-Block networks, provided those devices and applications meet all applicable regulatoryrequirements and comply with reasonable conditions related to management of the wireless network (i.e.,do not cause harm to the network). Further, the Commission prohibited Upper 700 MHz C-Blocklicensees from disabling features or functionality in handsets where such action is not related toreasonable network management and protection, or compliance with applicable regulatory requirements.2216.Also in 2007, the Commission unanimously adopted the Broadband Industry PracticesNotice of Inquiry, explaining that vigilance and a willingness to act were necessary to keep the Internetopen.23 The Broadband Industry Practices Notice specifically sought comment on whether the InternetPolicy Statement should be amended or expanded.2417.Meanwhile, the Commission applied open Internet principles in the context of particularenforcement proceedings. Just before the Commission adopted the Internet Policy Statement, theEnforcement Bureau had entered into a consent decree with Madison River Communications, a telephonecompany and provider of digital subscriber line (DSL) service, arising from complaints by Vonage thatMadison River was blocking ports that were typically used by Vonage customers to make Voice overInternet Protocol (VoIP) telephone calls.25 The consent decree required Madison River to stop blockingVoIP ports and refrain from otherwise inhibiting customers from using the VoIP applications of theirchoice.2618.In 2007, several parties filed complaints with the Commission alleging that Comcast wasinterfering with its customers' use of peer-to-peer applications in violation of the Internet PolicyStatement.27 Such applications allow users to share large files directly with one another without goingthrough a central server, but also can consume significant amounts of bandwidth. In response, Comcastasserted that its conduct was a reasonable network management practice necessary to ease congestion.28The Commission disagreed and, in a 2008 Order, concluded that the company's practice ''contravene[d]. . . federal policy'' by ''significantly imped[ing] consumers' ability to access the content and use theapplications of their choice.''29 As the Commission explained, Comcast's ''practice unduly squelch[ed]22 See id. at 15365, para. 206; 47 C.F.R. § 27.16.23 See Broadband Industry Practices, WC Docket No. 07-52, Notice of Inquiry, 22 FCC Rcd 7894, 7901 (2007)(Broadband Industry Practices Notice) (Statement of Chairman Kevin J. Martin: ''The Commission is ready,willing, and able to step in if necessary.''); id. at 7909 (Statement of Commissioner Robert M. McDowell: ''[W]emust remain vigilant against possible market failure or anticompetitive conduct that would hamper the fulldevelopment of the Internet and related services being provided to consumers.'').24 Id. at 7898, para. 10. It asked whether and, if so, how the Commission should add non-discrimination andtransparency principles to the four principles adopted in 2005. Id. at 7897-98, paras. 8-9. Concerned about thelimited transparency of broadband Internet access providers' practices, the Commission asked ''whether providersdisclose their [network management and pricing] practices to their customers, to other providers, to applicationdevelopers, and others.'' Id.25 Madison River Communications, File No. EB-05-IH-0110, Order, 20 FCC Rcd 4295 (Enforcement Bur. 2005)(Madison River Order).26 See id. at 4297, para. 5.27 Complaint of Free Press & Public Knowledge Against Comcast Corp., File No. EB-08-IH-1518 (filed Nov. 1,2007); Petition of Free Press et al. for Declaratory Ruling, WC Docket No. 07-52 (filed Nov. 1, 2007).28 Comcast Comments, WC Docket No. 07-52, at 14 (filed Feb. 12, 2008).29 See Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly DegradingPeer-to-Peer Applications; Broadband Industry Practices; Petition of Free Press et al. for Declaratory Ruling thatDegrading an Internet Application Violates the FCC's Internet Policy Statement and Does Not Meet an Exceptionfor ''Reasonable Network Management,'' File No. EB-08-IH-1518, WC Docket No. 07-52, Memorandum Opinionand Order, 23 FCC Rcd 13028, 13054, 13057, paras. 44, 49 (2008) (Comcast Order).7
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the dynamic benefits of an open and accessible Internet,'' harm that was further compounded byComcast's failure to disclose its practice to its customers.30 In the Comcast Order, the Commissionasserted ancillary jurisdiction under Title I of the Communications Act and concluded that it couldresolve the dispute through adjudication rather than rulemaking.3119.Comcast challenged that decision in the D.C. Circuit, arguing (among other things) thatthe Commission lacked authority to prohibit a broadband Internet service provider from engaging indiscriminatory practices that violate the four principles the Commission announced in 2005.32 On April 6,2010, the D.C. Circuit granted Comcast's petition for review and vacated the Commission's enforcementdecision. As to section 706 of the Telecommunications Act of 1996, the court noted that the agency hadpreviously interpreted section 706 as not constituting a grant of authority and held that the Commissionwas bound by that interpretation for purposes of the case.3320.While the Comcast case was pending, the Commission issued a Notice of ProposedRulemaking seeking comment on whether the Commission should codify the four principles stated in theInternet Policy Statement, plus proposed nondiscrimination and transparency rules, all subject toreasonable network management. 3421.In December 2010, the Commission released the Open Internet Order, adopting threebasic rules grounded in the Commission's prior decisions and broadly accepted Internet norms.35 First,the Order imposed a transparency rule, requiring both fixed and mobile providers to ''publically discloseaccurate information regarding the network management practices, performance, and commercial terms''of their broadband Internet access service.36 The rule specified that such disclosures be ''sufficient forconsumers to make informed choices regarding the use of such services and for content, application,service, and device providers to develop, market, and maintain Internet offerings.''37 Second, the Order adopted anti-blocking requirements. The rule barred fixed providers from blocking ''lawful content,applications, services, or non-harmful devices subject to reasonable network management.''38 Itprohibited mobile providers from blocking ''consumers from accessing lawful websites,'' as well as''applications that compete with the provider's voice or video telephony services,'' subject to ''reasonablenetwork management.''39 Third, the Order adopted an anti-discrimination rule for fixed providers, barringthem from ''unreasonably discriminat[ing] in transmitting lawful network traffic,'' subject to ''reasonablenetwork management.''4030 See id. at 13028, para. 1.31 Id. at 13033-50, paras. 12-40.32 See Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010).33 Comcast, 600 F.3d at 658-60.34 See Preserving the Open Internet et al., GN Docket No. 09-191, WC Docket No. 07-52, Notice of ProposedRulemaking, 24 FCC Rcd 13064, 13067-68, 13100-15, paras. 10, 16, 88-141 (2009) (Open Internet NPRM).Although the Open Internet NPRM recast the Internet Policy Statement principles as rules rather than consumerentitlements, protecting and empowering end users remained a central purpose of open Internet protections35 See Open Internet Order, 25 FCC Rcd 17905, para. 1.36 47 C.F.R. § 8.3.37 Id.38 47 C.F.R. § 8.5.39 Id.40 47 C.F.R. § 8.7.8
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22.Verizon challenged the Open Internet Order in the D.C. Circuit on several grounds.41 Itargued that the Commission lacked statutory authority to adopt the rules, that the blocking and non-discrimination rules violated the Communications Act by imposing common carriage regulation on aninformation service, that the Order was arbitrary and capricious, and that the rules violated the First andFifth Amendments to the U.S. Constitution.23.On January 14, 2014, the D.C. Circuit ruled on Verizon's challenge to the Open InternetOrder.42 As discussed further below, the court upheld the Commission's reading that sections 706(a) and(b) of the Telecommunications Act grant the Commission affirmative authority to encourage andaccelerate the deployment of broadband capability to all Americans through, among other things,measures that promote competition in the local telecommunications market or remove barriers toinfrastructure investment.43 The court further held that the Commission could utilize that section 706authority to regulate broadband Internet access service.44 It concluded that the Commission hadadequately justified the adoption of open Internet rules by finding that such rules would preserve andfacilitate the ''virtuous circle'' of innovation, demand for Internet services, and deployment of broadbandinfrastructure and that, absent such rules, broadband providers would have the incentive and ability toinhibit that deployment.45 The court therefore rejected Verizon's challenge to the transparency rule.46However, the court struck down the ''anti-blocking'' and ''anti-discrimination'' rules, explaining that theCommission had chosen an impermissible mechanism by which to implement its legitimate goals.Specifically, the court held that the Commission had imposed per se common carriage requirements onproviders of Internet access services.47 Such treatment was impermissible because the Commission hadclassified fixed broadband Internet access service as an information service, not a telecommunicationsservice, and had classified mobile broadband Internet access service as a private mobile service ratherthan a commercial mobile service.48 The court remanded the case to the Commission for furtherproceedings consistent with its opinion.24.Today, we respond directly to that remand and propose to adopt enforceable rules of theroad, consistent with the court's opinion, to protect and promote the open Internet. As the above historydemonstrates, our action builds on the foundation begun under Chairman Powell, continued underChairmen Martin and Genachowski, and reinforced by a decade of Commission policy.41 Brief of Petitioner-Appellant Verizon, Verizon v. FCC, No. 11-1355 (D.C. Cir. July 2, 2012).42 Verizon v. FCC, 740 F.3d 623 (D.C. Cir.2014).43 Id. at 635-42. In the Open Internet Order, the Commission explained its understanding that section 706(a)''authorizes the Commission . . . to take actions . . . that encourage the deployment of advanced telecommunicationscapability by any of the means listed in the provision.'' Open Internet Order, 25 FCC Rcd at 17969, para. 119; seealso id. at 17969 n.370. The Verizon court agreed with the Commission's interpretation and found that ''theCommission's current understanding of section 706(a) as a grant of regulatory authority represent[s] a reasonableinterpretation of an ambiguous statute.'' Verizon, 740 F.3d at 637.44 Verizon, 740 F.3d at 642.45 Id. at 644-46.46 Id. at 659.47 See id. at 656-59.48 Id. at 651.9
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III.
DISCUSSION
A.
The Continuing Need for Open Internet Protections
1.An Open Internet Promotes Innovation, Competition, Free Expression, andInfrastructure Deployment
25.In the Open Internet Order, the Commission reiterated the conclusion underlying its priorpolicies'--that the Internet's openness promotes innovation, investment, competition, free expression andother national broadband goals.49 The Commission also found that the Internet's openness is critical to itsability to serve as a platform for speech and civic engagement and can help close the digital divide byfacilitating the development of diverse content, applications, and services.50 Further, the Order found thatthe benefits of Internet openness'--increased consumer choice, freedom of expression, and innovation'--applied to end users accessing the Internet using mobile services as well as fixed services.5126.In the Open Internet Order, the Commission specifically found that the Internet'sopenness enabled a ''virtuous circle of innovation in which new uses of the network'--including newcontent, applications, services, and devices'--lead to increased end-user demand for broadband, whichdrives network improvements, which in turn lead to further innovative network uses.''52 For example, theCommission explained that innovative streaming video applications and independent sources of videocontent have spurred end-user demand, which, in turn, has led to network investments and increasedbroadband deployment.53 By contrast, the Commission reasoned, ''[r]estricting edge providers' ability toreach end users, and limiting end users' ability to choose which edge providers to patronize, would reducethe rate of innovation at the edge and, in turn, the likely rate of improvements to networkinfrastructure.''54 As discussed further below, the Commission found that, despite the advantages of thevirtuous circle, broadband providers have short-term incentives to limit openness, generating harms toedge providers and users, among others.55 Thus, the risk of broadband provider practices that may rewardthem in the short term but over the long run erode Internet openness threatens to slow or even break thevirtuous circle'--chilling entry and innovation by edge providers, impeding competition in many sectors,dampening consumer demand, and deterring broadband deployment'--in ways that may be irreversible orvery costly to undo. Also, innovation that does not occur due to lack of Internet openness may be hard todetect.49 Open Internet Order, 25 FCC Rcd at 17909-15, paras. 13-19; see Vonage Comments at 1; Voices for InternetFreedom Comments at 1-2. On February 19, 2014, the Wireline Competition Bureau released a Public Noticeannouncing the establishment of a new docket to consider how the Commission should proceed following theVerizon v. FCC opinion. See New Docket Established to Address Open Internet Remand, GN Docket No. 14-28,Public Notice, 29 FCC Rcd 1746 (Wireline Comp. Bur. 2014). Unless otherwise noted, all citations to comments inthis Notice refer to comments filed in response to the Public Notice released by the Wireline Competition Bureau inGN Docket No. 14-28.50 Open Internet Order, 25 FCC Rcd at 17912-15, paras. 15-18; see Letter from Free Press et al., to ThomasWheeler, Chairman, Federal Communications Commission, GN Docket No. 14-28, at 2 (filed Mar. 20, 2014) (FreePress Ex Parte Letter) (stating that ''[f]ree speech depends upon access to open and nondiscriminatory platforms forthat speech'').51 Open Internet Order, 25 FCC Rcd at 17956, para. 93.52 Id. at 17910-11, para. 14.53 Id. at 17910-11, 17914, paras. 14, 17.54 Id. at 17910-11, para.14.55 See infra Section III.A.2.10
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27.The Open Internet Order acknowledged that there were tradeoffs to consider in adoptingthe 2010 rules.56 The Commission concluded, however, that any small costs of imposing the rules wereoutweighed by the positive effect on network investment from the preservation of the openness that drivesthe virtuous circle, as well as the increased certainty in continued openness under the rules.5728.The D.C. Circuit held that ''the Commission [had] more than adequately supported andexplained its conclusion that edge provider innovation leads to the expansion and improvement ofbroadband infrastructure.''58 The court also found ''reasonable and grounded in substantial evidence'' theCommission's finding that Internet openness fosters the edge provider innovation that drives the virtuouscircle.5929.We believe that these findings, made by the Commission in 2010 and upheld by thecourt, remain valid. If anything, the remarkable increases in investment and innovation seen in recentyears'--while the rules were in place'--appear to have borne out much of the Commission's view.60 Bothwithin the network and at its edges, investment and innovation have flourished while the open Internetrules were in force.30.According to a June 2013 report by the White House Office of Science and TechnologyPolicy, for example, nearly $250 billion in private capital has been invested in U.S. wired and wirelessbroadband networks since 2009.61 USTelecom reports that broadband capital expenditures have risensteadily, from $64 billion in 2009 to $68 billion in 2012.62 Wireline providers alone invested $25 billionin 2012.63 And venture capital financing of ''Internet-specific'' businesses has doubled in the past fouryears, from $3.5 billion in 2009 to $7.1 billion in 2013.64 Annual investment in U.S. wireless networksgrew more than 40 percent between 2009 and 2012, from $21 billion to $30 billion, and exceedsinvestment by the major oil and gas or auto companies.6531.Whole new product markets have blossomed in recent years, and the market forapplications has both diversified and exploded. A total of $8.33 billion has been raised since 2007 onmobile media ventures, a majority of the funds ($4.7 billion) to companies that provide software services,including mobile Web development, carrier-backend software, app development, and cloud-based56 Open Internet Order, 25 FCC Rcd at 17928, para. 39.57 Id. at 17927-31, paras. 38-42.58 Verizon, 740 F.3d at 644.59 Id. 60 But see AT&T Comments at 17 (''[A]ny broadband access provider that prevents innovative new content andapplications from using its platform would inflict considerable harm on itself given that most consumers couldswitch to a different provider that does not engage in such self-defeating behavior.'').61 See White House Office of Science and Technology Policy & The National Economic Council, Four Years ofBroadband Growth 5 (2013) (Four Years of Broadband Growth),http://www.whitehouse.gov/sites/default/files/broadband_report_final.pdf.62 See USTelecom, Historical Broadband Provider Capexhttp://www.ustelecom.org/broadband-industry-stats/investment/historical-broadband-provider-capex (last visited May 8, 2014); Patrick Brogan, Updated CapitalSpending Data Showing Rising Broadband Investment in Nation's Information Infrastructure 1, USTelecom (Nov.4, 2013), http://www.ustelecom.org/sites/default/files/documents/103113-capex-research-brief-v2.pdf (UpdatedCapital Spending Data Report).63 Updated Capital Spending Data Report at 2.64 PricewaterhouseCoopers and National Venture Capital Association, Total U.S. Investments by Year Q1 1995-Q42013 (Jan. 17, 2014), http://www.nvca.org/index.php?option=com_docman&task=doc_download&gid=1033&Itemid=317(select ''Internet-Specific Companies'' tab).65 Four Years of Broadband Growth at 2.11
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services in the United States. In April 2010, Apple released the first version of the iPad, which launchedthe tablet market.66 The number of tablet users in the United States has increased from 9.7 million in2010 to almost 70 million by the end of 2012, and is projected to grow to more than 160 million(approximately 50 percent of the U.S. population) by 2016.67 In 2013, over $1 billion in venture capitalfunding was invested in mobile media startups,68 and overall app use in 2013 posted 115 percent year-over-year growth.69 According to CTIA, in 2012 there were more than 20 independent non-carrier mobileapplication stores, offering over 3.5 million apps for 14 different operating systems.70 The Wall StreetJournal reported in March 2013 that Apple and Google each offered about 700,000 apps, and thatapplication sales were approaching $25 billion.7132.Finally, we have seen tremendous growth in the online voice and video markets. Thenumber of hours Americans spend watching video over the Internet has grown 70 percent since June2010.72 Between 2010 and 2013, revenues from online video services grew 175 percent, from $1.86billion to $5.12 billion.73 Real-time entertainment (that is, programming that is viewed as it is delivered,such as video streamed by Netflix and Hulu) grew from 42.7 percent of the downstream fixed accesstraffic at peak time (generally 8:00 p.m. to 10:00 p.m.) in 2010 to 67 percent of the downstream fixedaccess traffic at peak time by September 2013.74 VoIP usage has similarly continued to increase. Thenumber of global over-the-top mobile VoIP subscribers increased by 550 percent in 2012.7533.We have also, however, witnessed a growing digital divide that threatens to undo thework of the Commission's open Internet policies. As certain cities get connected with fiber or other66 Apple, Apple-history/iPad, http://apple-history.com/ipad (last visited Apr. 8, 2014).67 SNL Kagan, Media Trends Actionable Metrics, Benchmarks & Projections for Major Media Sectors 262 (2013)(SNL Kagan Media Trends).68 Id. at 278.69 Flurry Analytics, Mobile Use Grows 115% in 2013, Propelled by Messaging Apps, Flurry Blog (Jan. 13, 2014),http://blog.flurry.com/bid/103601/Mobile-Use-Grows-115-in-2013-Propelled-by-Messaging-Apps.70 Letter from Scott K. Bergmann, Vice President, Regulatory Affairs, CTIA '' The Wireless Association, to ThomasWheeler, Chairman, Federal Communications Commission, WT Docket No. 13-135, GN Docket No. 09-51, at 2(filed Nov. 13, 2013).71 Jessica Lessin and Spencer Ante, Apps Rocket Toward $25 Billion in Sales, Wall Street Journal Tech (Mar. 4,2013), http://online.wsj.com/news/articles/SB10001424127887323293704578334401534217878.72 See Nielsen, Three Screen Report 4, tbl.4 (June 2010), http://www.nielsen.com/content/dam/corporate/us/en/reports-downloads/2010-Reports/Three-Screen-Report-Q1-2010.pdf (estimating that during the second quarter of2010, about 134.5 million Americans watched 3 hours and 10 minutes of video over the Internet per month, andabout 20 million Americans watched 3 hours and 37 minutes of video on a mobile phone per month); Nielsen, ALook Across Media The Cross Platform Report 10, tbl.3 (Dec. 2013), http://www.nielsen.com/content/dam/corporate/us/en/reports-downloads/2013%20Reports/The-Cross-Platform-Report-A-Look-Across-Media-3Q2013.pdf (estimating that during the third quarter of 2013, about 147.7 million Americans watched 6 hours and40 minutes of video over the Internet per month, and about 53.1 million Americans watched 5 hours and 48 minutesof video on a mobile phone per month). 73 This includes revenues from subscription services as well as sales and rentals of full-length television programsand movies. See SNL Kagan Media Trends at 158.74 Sandvine Intelligent Broadband Networks, Global Internet Phenomena Report 5, fig.1 (2H 2013),https://www.sandvine.com/downloads/general/global-internet-phenomena/2013/2h-2013-global-internet-phenomena-report.pdf; Sandvine Intelligent Broadband Networks, Fall 2010 Global Internet Phenomena Report 11,fig.7 (2010).75 Press Release, Infonetics Research, Infonetics Research Raises VoLTE Forecast; Over-the-top Mobile VoIPSubscribers Nearing 1 Billion Mark (July 8, 2013), http://www.infonetics.com/pr/2013/Mobile-VoIP-Services-and-Subscribers-Market-Highlights.asp.12
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technologies capable of providing broadband speeds of 25 Mbps up to 1 Gigabit, rural America and evensome parts of urban America are falling farther and farther behind. Recent data suggest that a majority ofAmericans living in urban areas (64 percent) have access to at least 25 Mbps/10 Mbps service, while onlya substantial minority of Americans residing in rural areas (only 21 percent) have access to that same 25Mbps/10 Mbps service.76 We are similarly concerned as to whether advanced networks are beingdeployed to all Americans in urban areas, as the construction of new networks, especially competitivenetworks, is an outcome that must be encouraged.34.In light of developments in the Internet ecosystem since 2010, we wish to refresh therecord on the importance of protecting and promoting an open Internet. We seek comment on the currentrole of the Internet's openness in facilitating innovation, economic growth, free expression, civicengagement, competition, and broadband investment and deployment. Particularly, we seek comment onthe role the open Internet rules have had in investment in the broadband marketplace'--networks and edgeproviders alike. We are similarly interested in understanding the role that the open Internet may play inthe promotion of competition or in identifying barriers to infrastructure investment that an open Internetmay eliminate or lessen. We also seek comment on the role that the open Internet has for publicinstitutions, such as public and school libraries, research libraries, and colleges and universities.7735.Additionally, we seek comment on the impact of the openness of the Internet on freeexpression and civic engagement. For example, the percentage of Americans who use the Internetreached 87 percent in 2014'--an increase of 8 percent from 2010, the year in which the Open InternetOrder was adopted'--marking ''explosive adoption'' that has had ''wide-ranging impacts on everythingfrom: the way people get, share and create news . . . the way they learn; the nature of their politicalactivity; their interactions with government; the style and scope of their communications with friends andfamily; and the way they organize in communities.''78 In light of the important role that the Internet nowplays as a vehicle for communication of all sorts'--both for consumers and content providers'--howshould we consider the potential impact on social and personal expression of an Internet whose opennesswas not protected? For example, would there be particular impacts on political speech, on the ability ofconsumers to use the Internet to express themselves, or on the Internet's role as a ''marketplace of ideas''that serves the interests of democracy in general, serving even the interests of those Americans who listeneven if they do not actively speak?79 Are there other ways in which we should understand free-expressioninterests and whether they may be impaired by a lack of openness?8076 We estimate broadband deployment by relying on the broadband deployment data collected by NationalTelecommunications and Information Administration (NTIA) and the states, in coordination with the Commission,as part of the State Broadband Initiative (SBI) and called ''SBI Data.'' Department of Commerce, NTIA, StateBroadband Data and Development Grant Program, Docket No. 0660-ZA29, Notice of Funds Availability, 74 Fed.Reg. 32545 (July 8, 2009), http://www.ntia.doc.gov/files/ntia/publications/fr_broadbandmappingnofa_090708.pdf.77 See, e.g., Letter of Emily Sheketoff, ALA Washington Office, et al. to Thomas Wheeler, Chairman, FederalCommunications Commission (filed Feb. 13, 2014).78 Susannah Fox & Lee Rainie, The Web at 25 in the U.S. 4, Pew Research Internet Project (2014)http://www.pewinternet.org/files/2014/02/PIP_25th-anniversary-of-the-Web_0227141.pdf. The Pew ResearchInternet Project also reports that 73% of Internet users say that it would be somewhat hard or very hard to give upthe Internet and that 56% of users say that ''they have seen an online group come together to held a person or acommunity solve a problem.'' Id. at 7, 22.79 See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes. J., dissenting) (''The ultimate good desired isbetter reached by a free trade in ideas'--that the best test of truth is the power of the thought to get itself adopted inthe competition of the marketplace.'').80 See, e.g., Marvin Ammori, First Amendment Architecture, Wisconsin L. Rev., Vol. 2012, No. 1 (2012).13
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36.At the same time, we are mindful of the possible tradeoffs the Commission recognized atthe time it adopted the Open Internet Order.81 When it adopted the rules in 2010, the Commission'sprimary focus was on the market between broadband providers and their end-user subscribers. The recordcontained no evidence of U.S. broadband providers engaging in pay-for-priority arrangements, in whichthe broadband provider would agree with a third party to directly or indirectly prioritize some traffic overother traffic to reach the provider's subscribers.82 As such, the Commission found that such arrangementswould be a ''significant departure from historical and current practice.''8337.In the years since, this second side of the market'--between broadband providers andedge providers or other third parties'--has gotten increasing attention. In its arguments challenging theOrder, Verizon expressed interest in pursuing commercial agreements with edge providers to govern thecarriage of the edge providers' traffic.84 We also note that such arrangements between broadband andedge providers have begun to emerge. In January 2014, for example, AT&T launched a new sponsoreddata service, in which an edge provider enters an agreement with AT&T to sponsor and pay for datacharges resulting from eligible uses of the sponsor's content by an AT&T mobile subscriber.8538.We seek comment on the potential for, and development of, new business arrangementsin the market between broadband providers and edge providers. What does the multi-sided market looklike, and what are its effects on Internet openness? Do some types of broadband and edge providerarrangements (or aspects of such arrangements) raise greater concerns about Internet openness thanothers?862.Broadband Providers Have the Incentive and Ability to Limit Openness
39.The Open Internet Order found that broadband Internet providers had the incentives andability to limit Internet openness, and that they had done so in the past.87 And the D.C. Circuit found thatthe Commission ''adequately supported and explained'' that absent open Internet rules, ''broadbandproviders represent a threat to Internet openness and could act in ways that would ultimately inhibit thespeed and extent of future broadband deployment.''88 As discussed further below, we seek to update therecord to reflect marketplace, technical, and other changes since the 2010 Open Internet Order wasadopted that may have either exacerbated or mitigated broadband providers' incentives and ability to limitInternet openness. We seek general comment on the Commission's approach to analyzing broadbandproviders' incentives and ability to engage in practices that would limit the open Internet, as well as moretargeted comment as addressed below.81 Open Internet Order, 25 FCC Rcd at 17910-11, 17928-29, paras. 14, 39-40.82 Id. at 17947-48, para. 76; see also Verizon and Verizon Wireless Comments, GN Docket No. 09-191, WC DocketNo. 07-52, at Attach. C (filed Jan. 14, 2010) (Verizon Topper Declaration) (discussing the potential for a two-sidedmarket but stating that ''[u]nder current pricing arrangements, broadband providers charge only the consumer side ofthe market for the delivery of content of applications.'').83 Open Internet Order, 25 FCC Rcd at 17947-48, para. 76; see also Verizon Topper Declaration.84 In its brief, Verizon argued that allowing broadband providers to enter into ''arrangements (such as advertiser-supported services) . . . would help recover the costs of building and maintaining broadband networks.'' See JointReply Brief of Appellants/Petitioners Verizon and MetroPCS at 7-8, Verizon v. FCC, No. 11-1355 (D.C. Cir.Dec. 21, 2012).85 See News Release, AT&T, AT&T Introduces Sponsored Data for Mobile Data Subscribers and Businesses (Jan. 6, 2014), http://www.att.com/gen/press-room?pid=25183&cdvn=news&newsarticleid=37366&mapcode.86 See infra paras. 96, 126, 138.87 Open Internet Order, 25 FCC Rcd at 17915-26, paras. 20-37.88 Verizon, 740 F.3d at 645.14
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40.As noted above, the Commission has pursued policies to safeguard Internet openness forover a decade. Thus, while the number of existing cases has been relatively few, we believe this to beprimarily due to the fact that the Commission has had policies in place during the period in question thatit has been ready to enforce.89 This is different from the experience under the European legal framework,which for the most part has not contained rules or policies prohibiting blocking and discriminatorypractices like the Commission's open Internet regulatory policies.90 In the absence of such rules andpolicies, commenters note more instances of broadband providers engaging in some level of restriction inEurope than the Commission has witnessed in the United States under its open Internet policies.91 Forexample, a survey conducted by the Body of European Regulators for Electronic Communications(BEREC) shows that European Internet service providers reported engaging in specific restrictions suchas traffic degradation as well as blocking and throttling when accessing ''specific applications (such asgaming, streaming, e-mail or instant messaging service) and, to a much lesser extent, when [accessing]specific content and application providers.''92 We seek comment on this analysis and ask whether there issome other explanation to account for this phenomenon.41.We also note that concerns related to the open Internet rules and norms have continued tooccur. For example, in 2012, the Commission reached a $1.25 million settlement with Verizon forrefusing to allow tethering apps on Verizon smartphones, based on openness requirements attached to89 See Letter from Barbara van Schewick to Marlene H. Dortch, Secretary, Federal Communications Commission,GN Docket Nos. 09-191, 14-28, at 2 (filed Mar. 4, 2014) (Barbara van Schewick Ex Parte Letter) (stating that''instances of blocking and discrimination in the US market for wireline broadband Internet access occurred in thepresence of strong regulatory policies supporting network neutrality''); Alissa Cooper Comments at 3, 168 (notingthat in the United Kingdom, notwithstanding competition between ISPs, discrimination still occurs). But see CEAComments at 2-3 (arguing that the competitive marketplace obviates the need for additional open Internet rules).90 Alissa Cooper Comments at 167 (''Where regulatory threat is present and internalized by ISPs, it fundamentallyshapes traffic management, while its absence has an equally strong effect.''); Barbara van Schewick Ex Parte Letterat 2.91 Barbara van Schewick Ex Parte Letter at 2 & Attach. A at 13, fig. 2 (discussing evidence of blocking anddiscrimination as noted by several sources, including the Body of European Regulators for ElectronicCommunications (BEREC), that shows the relative frequency of broadband providers reporting some level ofrestriction). The European Parliament voted to adopt net neutrality rules in April 2014 that will now be consideredby the 28 European Union Member States in order to become binding regulation. To date, among Europeancountries only the Netherlands and Slovenia have net neutrality regulations. See Zack Whittaker, EU Passes NetNeutrality Law, Votes to End Throttling, Site Blocking, Between the Lines Blog, ZD Net (Apr. 3, 2014),http://www.zdnet.com/eu-net-neutrality-passes-vote-7000027998/.92 Body of European Regulators for Electronic Communications, A View of Traffic Management and OtherPractices Resulting in Restrictions to the Open Internet in Europe 8-9 (2012), available athttp://apps.fcc.gov/ecfs/document/view?id=7521087926 (discussing several instances where operators gavepreferential treatment to select over-the-top traffic). Additionally, there is evidence that the second largest FrenchISP was automatically blocking ads in Internet traffic delivered to subscribers in January 2013. While the ISPultimately removed the block following government intervention, press reports indicate that the block was motivatedto pressure Google into compensating the ISP for the traffic generated by YouTube. Barbara van Schewick ExParte Letter s at 3; Cyrus Farivar, France's Second Largest ISP Suspends Ad Blocking For Now (Jan. 7, 2013),ArsTechnica, http://arstechnica.com/business/2013/01/frances-second-largest-isp-suspends-ad-blocking-for-now/.Furthermore, the Voice on the Net (VON) Coalition Europe released a report identifying restrictions on Internetaccess by mobile networks based mainly on the operators' terms and conditions. The report noted that in 2012, aU.K.-based mobile Internet access service provider contractually limited users from using services not affiliatedwith the ISP, including Internet-based streaming services, voice, peer-to-peer file sharing, or Internet-based video.VON Europe, Non-exhaustive Identification of Restrictions on Internet Access by Mobile Operators 17 (2012),http://www.scribd.com/doc/98641591/VON-Europe-Non-exhaustive-Indentification-of-Restrictions-on-Internet-Access-by-Mobile-Operators.15
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Verizon's Upper 700 MHz C-Block license.93 In the same year, consumers also complained when AT&Trefused to permit Apple's FaceTime iPhone and iPad application to use its mobile network, restricting itsuse to times when the end user was connected to Wi-Fi and thus to another broadband provider, althoughthe Commission did not conclude whether such a practice violated our open Internet principles.94 Weseek identification of, and comment on, actions taken by broadband providers'--both domestically andinternationally'--since the adoption of the Open Internet Order that have threatened or could potentiallythreaten the Internet's openness. How should such incidents inform how we craft our rules on remand?a.Economic Incentives and Ability
42.In the Open Internet Order, the Commission found that providers of broadband Internetaccess service had multiple incentives to limit Internet openness. The Order concluded that the threat ofbroadband provider interference with Internet openness would be exacerbated by'--but did not dependon'--such providers possessing market power over potential subscribers in their choice of broadbandprovider. However, the Commission found that most residential customers have only one or two optionsfor wireline broadband Internet access service, increasing the risk of market power, and found the futureof mobile Internet access service as a competing substitute remained unclear.95 Moreover, theCommission emphasized that customers may incur significant costs in switching from one provider toanother, thus creating ''terminating monopolies'' for content providers needing high-speed broadbandservice to reach end users.9643.The D.C. Circuit found that the Commission's assessment of broadband providers'incentives and economic ability to threaten Internet openness was not just supported by the record butalso grounded in ''common sense and economic reality.''97 It affirmed the Commission's conclusions thatvertically integrated broadband providers have incentives to interfere with competitive services and thatbroadband providers generally have incentives to accept fees from edge providers.98 And the court citedwith approval the Commission's conclusion that a broadband provider would be unlikely to fully accountfor the harms resulting from such practices.99 The court also upheld the agency's conclusion that suchincentives could ''produce widespread interference with the Internet's openness in the absence ofCommission action.''100 Finally, the court agreed that the Commission need not engage in a market poweranalysis to justify its rules, explaining that broadband providers' ability to block or disadvantage edgeproviders depended on ''end users not being fully responsive to the imposition of such restrictions,'' not93 News Release, Federal Communications Commission, Verizon Wireless to Pay $1.25 Million to SettleInvestigation into Blocking of Consumers' Access to Certain Mobile Broadband Applications (July 31, 2012),http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-315501A1.pdf.94 See David Kravets, AT&T Holding FaceTime Hostage is No Net-Neutrality Breach, Wired.com (Aug. 22, 2012),http://www.wired.com/threatlevel/2012/08/facetime-net-neutrality-flap/; see also Open Internet AdvisoryCommittee, 2013 Annual Report (Aug. 20, 2013), at 39-46, http://transition.fcc.gov/cgb/oiac/oiac-2013-annual-report.pdf (2013 OIAC Annual Report).95 Open Internet Order, 25 FCC Rcd at 17923-24, paras. 32-33; Data Foundry et al. Comments at 1-2 (arguing thatISPs are able to leverage market power over transmission facilities into the logically separate Internet accessmarket).96 Open Internet Order, 25 FCC Rcd at 17924-25, para. 34.97 Verizon, 740 F.3d at 644 (''The Commission's finding that Internet openness fosters the edge provider innovationthat drives this 'virtuous cycle' was likewise reasonable and grounded in substantial evidence.'').98 Id. at 645-46.99 Id. at 646 (discussing ''negative externalities'' resulting from broadband provider behavior).100 Id. at 649 (internal quotations omitted).16
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on ''the sort of market concentration that would enable them to impose substantial price increases on endusers.''10144.We seek to update the record underlying the Open Internet Order's conclusion thatbroadband providers have incentives and the economic ability to limit Internet openness in ways thatthreaten to weaken or break the virtuous circle. How have changes in the marketplace or technologysince 2010 affected broadband providers incentives and economic ability to engage in such practices? Towhat extent do broadband providers today have economic incentives and mechanisms to block ordisadvantage a particular edge provider or class of edge providers? To what extent do verticallyintegrated providers have particularized incentives to discriminate'--on price, quality, or other bases'--infavor of affiliated products? What are broadband providers' incentives to increase revenues by chargingedge providers for access or prioritized access to the broadband provider's end users? Are there featuresof the Internet ecosystem that facilitate or impede a broadband provider's ability to internalize the harmscaused by practices that limit openness? Are there justifications for charging fees to edge providers thatwere not present in 2010? We seek comment on these and other economic incentives and abilities thatbroadband providers may have to limit openness.10245.We generally seek comment on what economic tools broadband providers utilize tomanage traffic on their networks. Broadband providers may address traffic management throughcommercial terms and conditions on end users, such as pricing for different levels of throughput orthrough the use of ''data caps.'' To what extent and in what ways do broadband providers use such toolsto manage traffic, such as by excluding certain content from such an end user data cap?103 Might thesetools be used to exploit market power or reduce competition?46.In addition, we seek comment on end users' ability to switch providers if a particularbroadband service does not meet their needs. What is the extent of switching costs, and how do switchingcosts affect the incentives and economic ability of providers to limit Internet openness?104 As discussedin the Open Internet Order and affirmed by the D.C. Circuit, both edge providers seeking access to endusers and end users seeking access to edge providers are subject to the gatekeeper effect of a retailbroadband provider.105 Absent multi-homing, an end user has only one option to reach a given edgeprovider's content.106 To reach any given end user, an edge provider must ensure that it or its broadbandprovider can reach the end user's broadband provider. Terms and conditions, price, or lack of otherbroadband providers, among other factors, can raise switching costs to the point where switching isinefficient, infeasible, or even impossible.107 We seek comment on these conclusions. To what extent do101 Verizon, 740 F.3d at 648.102 See, e.g., Public Knowledge and Common Cause Comments 4-7 (stating that data caps limit Internet openness).103 See News Release, AT&T, AT&T Introduces Sponsored Data for Mobile Data Subscribers and Businesses (Jan.6, 2014), http://www.att.com/gen/press-room?pid=25183&cdvn=news&newsarticleid=37366&mapcode; 2013OIAC Annual Report; see also Public Knowledge & Common Cause Comments at 6-9 (arguing that, by creating a''special lane for affiliated content,'' data caps have the potential to negatively impact the open Internet and the longterm growth of the network).104 See Open Internet Order, 25 FCC Rcd at 17921, para. 27; Vonage Comments at 5.105 Open Internet Order, 25 FCC Rcd at 17919, para 24. But see AT&T Comments at 17 (''[A]ny broadband accessprovider that prevents innovative new content and applications from using its platform would inflict considerableharm on itself given that most consumers could switch to a different provider that does not engage in such self-defeating behavior.'').106 In this context, we use ''multi-homing'' to refer to a customer that subscribes to more than one Internet serviceprovider, noting the subscriber may be either an end user or an edge provider. See, e.g., Christiaan Hogendorn,Broadband Internet: Net Neutrality versus Open Access 15, Wesleyan University Economics Department (2007),http://chogendorn.web.wesleyan.edu/oa.pdf.107Open Internet Order, 25 FCC Rcd at 17921, para 27.17
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consumers face significant switching costs in choosing to change broadband access providers? Whichservices, if any, are most vulnerable to a broadband provider's market power because of the inability toeffectively reach subscribers through other means? To the extent that such switching costs exist, to whatextent, if any, are they exacerbated by additional factors, such as the difficulty consumers may have ineffectively monitoring the extent to which edge providers have difficulty reaching them, the number ofeffective substitutes a consumer may have among broadband providers, or the impact of bundled pricingand switching costs attached to the purchase or use of bundled services, such as a combined offering ofbroadband access along with video services and voice telephony? Would all likely alternatives havesimilar incentives to limit openness, possibly for a different set of services? We also seek comment on anend user's ability to switch broadband providers in response to specific broadband provider practice, forexample a broadband provider's decision to charge an edge provider to reach the customer. Areswitching costs relevant to an edge provider's interaction with a broadband provider and, if so, how?Finally, what are the implications when consumers have no ability to switch providers because there isonly one provider offering service to the consumer's location?47.We also seek comment on the state of competition in broadband Internet access service,and its effect on providers' incentives to limit openness. We seek comment on the appropriate view ofwhether broadband services with substantially different technical characteristics are competitivesubstitutes. For example, how should we regard the ability of DSL service with speeds of, for example,3 Mbps downstream and 768 kbps upstream to constrain conduct by a provider of high-speed broadbandwith speeds of, for example, 25 Mbps downstream and 3 Mbps upstream (or higher)? How should weregard the geography of broadband competition? From an end user's point of view, do national practicesor market shares have any impact on edge providers, without regard to the definition of a geographicmarket?48.In the fixed broadband context, we have seen evidence of limited choice betweenbroadband providers in many areas of the country. As the speed threshold increases to 6 Mbpsdownstream and 1.5 Mbps upstream, the number of households that are located in census tracts with atleast three providers that report serving customers at those higher speeds dips down to a mere34 percent.108 In many areas of the country, with respect to fixed Internet access, consumers may haveonly limited options, i.e., one or two fixed providers available.109 We seek comment on the extent towhich commercial practices differ in places where consumers have only one choice of a wirelinebroadband provider, two choices, or more than two choices. We therefore also seek comment as towhether increased spectrum availability and technological developments in the mobile broadbandmarketplace, e.g., growth in 4G/ LTE availability, would affect the market power of fixed broadbandproviders. 11049.We further seek general comment on our approach towards analyzing broadband providerincentives. Under the Commission's reading, which the court upheld, our section 706 authority is not108 Industry Analysis and Technology Division, Federal Communications Commission, Internet Access Services:Status as of December 31, 2012 62, Map 4 (2013), http://transition.fcc.gov/Daily_Releases/Daily_Business/2013/db1224/DOC-324884A1.pdf (Internet Access Services Report). The map shows the number of providers offixed connections by census tract but does not necessarily reflect the number of choices available to a particularhousehold nor does it measure competition.109 NTIA and Federal Communications Commission, National Broadband Map, www.broadbandmap.gov (lastvisited Apr. 8, 2014).110 Within the mobile sector, providers are in the process of deploying 4G/LTE networks. LTE subscribers havegrown from 215,000 at year end 2010 to almost 100 million by 2013. LTE subscribers in the U.S. are expected togrow to almost 200 million by year end 2016. The number of 4G-connected LTE devices in the U.S. marketincreased 158% since 2012. Sixteenth Annual Report and Analysis of Competitive Market Conditions With Respectto Mobile Wireless, Including Commercial Mobile Services, WT Docket No. 11-186, Report, 28 FCC Rcd 3700,3857, para. 248 (2013).18
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predicated on a finding of market power, specifically, that broadband providers need not be found to be''benefiting from the sort of market concentration that would enable them to impose substantial priceincreases on end users.''111 Nor do we believe that the open Internet concerns described above solelyarise in markets where broadband providers possess market power over subscriber prices. We recognize,however, that the presence or absence of market power'--over broadband subscriptions, over end usersonce they have chosen a broadband provider, and over content providers who wish to reach those endusers'--may inform an understanding of a broadband provider's behavior in the Internet marketplace andits incentives to engage in practices that limit Internet openness. Thus, we seek comment on whether theCommission should engage in a market power analysis with respect to broadband providers and, if so,how we should go about that analysis.50.We further seek comment on whether there are other economic theories that theCommission should consider to better understand and assess broadband providers' incentives to engage inpractices that affect the Internet's openness. For example, do broadband providers have an incentive toextract rents from upstream services whose price significantly exceeds the marginal cost of deliveringthose services to an additional customer? Are there positive network effects from widespread adoption ofbroadband services by consumers that we should recognize?112 Do edge providers that incur significantsunk costs in the delivery of their output face ''lock-in'' problems if they become dependent on aparticular pathway to their current or potential users? In the absence of open Internet protections, wouldthose edge providers face uncertainty that would hamper their ability to attract capital? Does the trendtowards the caching of content closer to end users either increase such lock-in problems or, separately,limit the number of pathways by which an edge provider's output can effectively reach current orpotential end users? We seek comment on whether and how other theories and new evidence maysupplement or supplant the original Open Internet Order analysis.b.Technical Ability
51.The Open Internet Order likewise found that broadband providers have the technicalability to limit Internet openness. As the Order explained, increasingly sophisticated networkmanagement tools enable providers to identify and differentiate the treatment of traffic on their ownbroadband Internet access service networks.113 The D.C. Circuit agreed, finding ''little dispute thatbroadband providers have the technological ability to distinguish between and discriminate against certaintypes of Internet traffic.''114 We seek comment on this general conclusion and on how this ability toimpose restrictions on edge providers and end users has increased or decreased with further developmentsin technology or business practices since the Open Internet Order. We also seek comment on providerabilities that were not identified in the Open Internet Order or elsewhere in this Notice, including111 Verizon, 740 F.3d at 648.112 One such model is ''Metcalfe's law'' a rough empirical description of the value of a communications network,where n is the number of users in a network, the total value of the network is equivalent to n(n-1) or roughly n2 whenn is large. Carl Shapiro, Information Rules: A Strategic Guide to the Network Economy 184 (1999). The preciseequation has been called into question, see Bob Briscoe et al., Metcalfe's Law is Wrong, IEEE Spectrum 26-31(2006) (proposing a valuation equation of n log(n)), and we do not rely on the precise mathematical formulation ofthe effects that it predicts.113 Open Internet Order, 25 FCC Rcd at 17923, para. 31. We recognize that broadband providers also have theability to impact traffic and congestion in ways that go beyond the management of traffic within their networks. Inparticular, we understand that broadband providers also manage traffic in the context of their relationships withother autonomous networks. For example, traffic and congestion may be affected by interconnection arrangementsfor the exchange of Internet traffic between two networks as well as CDN-type arrangements in which third partiesplace equipment in or adjacent to the providers' network. As discussed in section III.B, the rules we propose todayreflect the scope of the 2010 Open Internet Order, which applied to broadband provider conduct within its ownnetwork.114 Verizon, 740 F.3d at 646.19
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identifying the particular ability and its relevance to this proceeding. For example, one commenter hasexpressed concern about broadband providers offering prioritized service in a manner that may harm ruralor minority end users.115 Is it technically feasible for a broadband provider to block or degrade based onthe location or neighborhood of the end user? Is it likely that it would do so? If so, how should our rulesaddress this concern?52.We seek comment on broadband providers' ability to limit Internet openness throughmanagement of traffic on their own networks and limitations imposed on their end users. Providersgenerally have the ability to manage traffic and congestion on their own networks and have developed anumber of techniques to do so. 116 For example, a provider can use technical methods like packetclassification, admission control and resource reservation, rate control and traffic shaping, as well aspacket dropping and packet scheduling to identify and manage traffic on its network.117 Such techniquesmay provide additional ability to discriminate in a way that is largely opaque to edge providers and endusers.118 We seek comment on the technical tools broadband providers can and do use to manage trafficon their networks.53.The Open Internet Order found that providers had in fact used their ability to limitopenness, citing several instances where broadband providers had been subject to Commissionenforcement proceedings for violating open Internet norms.119 In the Order, the Commission cited theMadison River case, the Comcast-BitTorrent case, as well as various mobile wireless Internet providers'refusal to allow customers to use competitive payment applications, competitive voice applications, andremote video applications.120 The Commission also noted other allegations of blocking or degradingpeer-to-peer traffic, but did not determine whether those specific practices violated open Internetprinciples.121 The D.C. Circuit noted these examples along with the Commission's as persuasivejustification for adopting open Internet rules.122115 See Letter from Harold Feld, Senior Vice President, Public Knowledge, to Marlene H. Dortch, Secretary, FederalCommunications Commission, GN Docket No. 14-28, at 4-5 (filed May 2, 2014).116 Broadband Internet Technical Advisory Group Technical Working Group, Real time Network Management ofInternet Congestion (2013), http://www.bitag.org/documents/BITAG_-_Congestion_Management_Report.pdf(BITAG Network Management Report). In addition to technical tools described here, as described above,broadband providers can also employ economic tools to discriminate with respect to traffic on their networks. Seesupra Section III.A.2.117 See BITAG Network Management Report at 20-28. In mobile broadband networks, service providers usingVoice over LTE (VoLTE) technology may use the quality of service (QoS) feature of the IP multimedia subsystem(IMS) to deliver VoLTE traffic with higher priority than other types of traffic sharing the same LTE channel.Indeed, one essential requirement for high quality VoLTE deployment is ensuring the delivery of low latency voicetraffic within the provider's LTE network, which would require traffic discrimination using the QoS feature of theIMS. See Lennart Norell, Eric Parsons, & Per Synnergren, Telephony Services Over LTE End-to-End 36, EricssonReview (2010), http://www.ericsson.com/res/thecompany/docs/publications/ericsson_review/2010/lte_e2e.pdf;Spirent White Paper, VoLTE Deployment and the Radio Access Network The LTE User Equipment Perspective 3-5(Aug. 2012), http://www.spirent.com/~/media/White%20Papers/Mobile/VoLTE_Deployment_and_the_Radio_Access_Network.pdf.118 We note that other forms of discrimination in the Internet ecosystem may exist, but such conduct is beyond thescope of this proceeding. See AAF Comments at 2 (suggesting that edge providers may have the incentive andability to engage in discriminatory conduct).119 Open Internet Order, 25 FCC Rcd at 17925-27, paras. 35-37.120 Id. at 17925, para 35 & n.107.121 Id. at 17926, para. 36.122 Verizon, 740 F.3d at 648-49 (''[T]hese incidents . . . buttressed the agency's conclusion that broadband providers'incentives and ability to restrict Internet traffic could produce '[w]idespread interference with the Internet's(continued'...)20
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B.
Scope of the Rules
54.The rules adopted in the Open Internet Order applied to ''broadband Internet accessservice,'' which was defined as:A mass-market retail service by wire or radio that provides the capability to transmit datato and receive data from all or substantially all Internet endpoints, including anycapabilities that are incidental to and enable the operation of the communications service,but excluding dial-up Internet access service. This term also encompasses any servicethat the Commission finds to be providing a functional equivalent of the servicedescribed in the previous sentence, or that is used to evade the protections set forth in thisPart.123The Order defined ''mass market'' to mean a service marketed and sold on a standardized basis toresidential customers, small businesses, and other end-user customers such as schools and libraries,including services purchased with support of the E-rate program.12455.The Verizon decision upheld the Commission's regulation of broadband Internet accessservice pursuant to section 706 and did not disturb this aspect of the Open Internet Order. Thus, thedefinition of ''broadband Internet access service'' remains a part of the Commission's regulations. Wetentatively conclude that we should retain this definition without modification. We seek comment on thatconclusion. The court in Verizon also stated that, apart from the service provided to end users,''broadband providers furnish a service to edge providers, thus undoubtedly functioning as edgeproviders' 'carriers.'''125 We seek comment on whether this should be identified as a separate service and,if so, how we should define that service and what the regulatory consequences are, if any, of thatdefinition.56.We also seek comment on the following issues that arise in connection with the scope ofthe application of the rules we propose today.57.Specifically Identified Services. The Open Internet Order excluded certain categories ofservices from the definition of broadband Internet access service, such as dial-up Internet access service126and multichannel video programming, the latter of which the Commission understood not to meet thedefinition of ''provid[ing] the capability to transmit data to and receive data from all or substantially allInternet endpoints.''127 We tentatively conclude that we would maintain this approach, but seek commenton whether we should change this conclusion.58.Enterprise Services. The Open Internet Order excluded enterprise service offerings,which are typically offered to larger organizations through customized or individually negotiatedarrangements.128 Similarly, the Open Internet Order excluded virtual private network services, hosting,or data storage services. The Commission explained that such services ''typically are not mass marketservices and/or do not provide the capability to transmit data to and receive data from all or substantially(Continued from previous page)openness' in the absence of Commission action. Such a 'problem' is doubtless 'industry-wide.''') (internal citationsomitted).123 47 C.F.R. § 8.11(a); Open Internet Order, 25 FCC Rcd at 17932, para. 44; id. at 17935, para. 51 (finding that themarket and regulatory landscape for dial-up Internet access service differed from broadband Internet access service).124 Open Internet Order, 25 FCC Rcd at 17932, para. 45.125 Verizon, 740 F.3d at 653.126 47 C.F.R. § 8.11(a); Open Internet Order, 25 FCC Rcd at 17932, para. 44.127 Open Internet Order, 25 FCC Rcd at 17933, para. 47.128 Id. at 17932, para. 45.21Federal Communications Commission
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all Internet endpoints.''129 The Open Internet Order also established that the rules did not apply to:(1) edge provider activities, such as the provision of content on the Internet;130 and (2) premise operators,entities like coffee shops or bookstores, which offer Internet access services to their patrons.131 Wetentatively conclude that we would maintain this approach, but seek comment on whether we shouldchange this conclusion.59.Internet Traffic Exchange. The Open Internet Order explained that its rules did not applybeyond ''the limits of a broadband provider's control over the transmission of data to or from itsbroadband customers.''132 In other words, the Order applied to a broadband provider's use of its ownnetwork but did not apply the no-blocking or unreasonable discrimination rules to the exchange of trafficbetween networks, whether peering, paid peering, content delivery network (CDN) connection, or anyother form of inter-network transmission of data, as well as provider-owned facilities that are dedicatedsolely to such interconnection. Thus, the Order noted that the rules were not intended ''to affect existingarrangements for network interconnection, including existing paid peering arrangements.''133 Wetentatively conclude that we should maintain this approach, but seek comment on whether we shouldchange our conclusion. Some commenters have suggested that we should expand the scope of the openInternet rules to cover issues related to traffic exchange.134 We seek comment on these suggestions. Forexample, how can we ensure that a broadband provider would not be able to evade our open Internet rulesby engaging in traffic exchange practices that would be outside the scope of the rules as proposed?60.Specialized Services. In the Open Internet Order, the Commission recognized thatbroadband providers may offer ''specialized services'' over the same last-mile connections used to providebroadband service. The Commission stated that these services can benefit end users and spur investment,but also noted the potential for specialized services to jeopardize the open Internet.135 Due to theseconcerns, the Commission stated that it would monitor these services, but that its rules would ''notprevent broadband providers from offering specialized services such as facilities-based VoIP.''136 Wetentatively conclude that we should maintain this approach and continue to closely monitor thedevelopment of specialized services to ensure that broadband providers are not using them to bypass theopen Internet rules or otherwise undermine a free and open Internet. We seek comment on this tentativeconclusion. How can we ensure that the specialized services exception is not used to circumvent our openInternet rules? In addition, should specialized services be addressed within the scope of the''commercially reasonable'' rule either as a safe harbor or among the factors for consideration?137 Shouldthe Commission define ''specialized services''?138129 We also note that our rules apply only as far as the limits of a broadband provider's control over the transmissionof data to or from its broadband customers.130 Open Internet Order, 25 FCC Rcd at 17934-35, para. 50.131 Id. at 17935-36, para. 52.132 Id. at 17933, para. 47 n.150.133 Id. at 17944, para. 67 n.209.134 See, e.g., Level 3 Comments at 11-13; Cogent Comments at 31-33.135 Open Internet Order, 25 FCC Rcd at 17909, 17965-66, paras. 7, 112-14.136 Id. at 17922-23, 17965-66, paras. 39, 112-14.137 See infra para. 139.138 The Open Internet Order did not formally define ''specialized services,'' but described them as ''services thatshare capacity with broadband Internet access service over providers' last-mile facilities.'' Open Internet Order,25 FCC Rcd at 17965, para. 112; cf. 2013 OIAC Annual Report at 66-81 (identifying difficulties with defining''specialized services''). By contrast, the net neutrality rules that the European Parliament voted to adopt in April2014 included a specific definition for ''specialized services'' as ''an electronic communications service optimised(continued'...)22
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61.Reasonable Network Management. Although the Open Internet Order's definition ofbroadband Internet access service did not itself address reasonable network management, the concept wasincorporated into each of the 2010 rules. Specifically, the transparency rule ''does not require publicdisclosure of competitively sensitive information or information that would compromise network securityor undermine the efficacy of reasonable network management practices.''139 The 2010 no-blocking rulewas made expressly subject to ''reasonable network management.''140 And the unreasonablediscrimination rule expressly provided for reasonable network management, which was defined asfollows: ''A network management practice is reasonable if it is appropriate and tailored to achieving alegitimate network management purpose, taking into account the particular network architecture andtechnology of the broadband Internet access service.''141 The Commission further concluded that it would''develop the scope of reasonable network management on a case-by-case basis.''142 We tentativelyconclude that we should continue the same approach. We seek comment on this conclusion as applied toan enhanced transparency rule, our re-adoption of the no-blocking rule, and the proposal to adopt a''commercially reasonable'' standard. How can we ensure that the ability of providers to engage inreasonable network management is not used to circumvent the open Internet protections implemented byour proposed rules?62.Mobile Services. The Open Internet Order also adopted definitions for ''fixed'' and''mobile'' Internet access service. It defined ''fixed broadband Internet access service'' to expresslyinclude ''broadband Internet access service that serves end users primarily at fixed endpoints usingstationary equipment, . . . fixed wireless services (including fixed unlicensed wireless services), and fixedsatellite services.''143 It defined ''mobile broadband Internet access service'' as ''a broadband Internetaccess service that serves end users primarily using mobile stations.''144 The impact of this distinctionvaried by rule. The transparency rule applies equally to both fixed and mobile broadband Internet accessservice. The no-blocking rule applied a different standard to mobile broadband Internet accessservices,145 and mobile Internet access service was excluded from the unreasonable discrimination rule.We tentatively conclude that we should maintain the same approach in today's Notice. We seek commenton this approach, which is discussed in more detail in the context of each of the proposed rules below.We recognize that there have been significant changes since 2010 in the mobile marketplace, includinghow mobile providers manage their networks, the increased use of Wi-Fi, and the increased use of mobiledevices and applications. We seek comment on whether and, if so, how these changes should lead us torevisit our treatment of mobile broadband service. Specifically, we seek comment below on whether the(Continued from previous page)for specific content, applications or services, or a combination thereof, provided over logically distinct capacity,relying on strict admission control, offering functionality requiring enhanced quality from end to end, and that is notmarketed or usable as a substitute for internet access service.'' Proposal for a Regulation of the European SingleMarket for Electronic Communications, at 242, COM (2013) 627 final (Mar. 26, 2014),http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+AMD+A7-2014-0190+237-244+DOC+PDF+V0//EN; David Meyer, European Parliament Passes Strong Net Neutrality Law, Along with MajorRoaming Reforms, Gigaom.com (Apr. 3, 2014), https://gigaom.com/2014/04/03/european-parliament-passes-strong-net-neutrality-law-along-with-major-roaming-reforms/.139 Open Internet Order, 25 FCC Rcd at 17937-38, para. 55.140 47 C.F.R. § 8.5.141 Open Internet Order, 25 FCC Rcd at 17952, para. 82; 47 C.F.R. § 8.11(d).142 Open Internet Order, 25 FCC Rcd at 17952, para. 83.143 47 C.F.R. § 8.11(b).144 47 C.F.R. § 8.11 (c).145 Open Internet Order, 25 FCC Rcd at 17959-61, paras. 99-103.23Federal Communications Commission
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no-blocking rule should continue to distinguish between fixed and mobile broadband146 and whether,under the commercially reasonable rule, mobile networks should be subject to the same totality-of-the-circumstances test as fixed broadband.147 In addition, how should the definitions of ''fixed'' and ''mobile''services be applied to a fixed broadband provider's commercially deployed Wi-Fi service that is madeavailable to the provider's fixed broadband customers? How should such changes affect our treatment ofreasonable network management for mobile providers? Similarly, how should we treat mobile servicesthat are deployed and/or marketed as express substitutes for traditional telecommunications or broadbandservices? Finally, have there been changes in technology or the marketplace for the provision of satellitebroadband Internet access service that should lead the Commission to reassess how its rules should applyto such services?C.
Transparency Requirements to Protect and Promote Internet Openness
1.The 2010 Transparency Rule
63.In the Open Internet Order, the Commission concluded that effective disclosure ofbroadband providers' network management practices, performance, and commercial terms of servicepromotes competition, innovation, investment, end-user choice, and broadband adoption.148 To that end,the Commission adopted the following transparency rule:A person engaged in the provision of broadband Internet access service shall publiclydisclose accurate information regarding the network management practices, performance,and commercial terms of its broadband Internet access services sufficient for consumersto make informed choices regarding the use of such services and for content, application,service, and device providers to develop, market, and maintain Internet offerings.14964.The Commission determined that the best approach to implementing the transparencyrule was to allow broadband providers flexibility, while providing guidance concerning effectivedisclosure.150 The Commission stated that ''effective disclosures will likely include'' informationconcerning ''some or all'' of the following topics: (1) network practices, including congestionmanagement, application-specific behavior, device attachment rules, and security measures;(2) performance characteristics, including a general description of system performance (such as speed andlatency) and the effects of specialized services on available capacity; and (3) commercial terms, includingpricing, privacy policies, and redress options.151 In 2011, the Commission's Enforcement Bureau andOffice of General Counsel issued advisory guidance to further clarify compliance with the transparencyrequirements regarding point-of-sale disclosures, service descriptions, security measures, and the extent146 See infra Section III.D.4.147 See infra Section III.E.4.148 Open Internet Order, 25 FCC Rcd at 17936, para. 53.149 Id. at 17937, para. 54.150 Id. at 17938-40, paras. 55-57. In so doing, the Commission stated that broadband providers must, at a minimum,prominently display or provide links to disclosures on a publicly available, easily accessible website that is availableto current and prospective end users and edge providers as well as the Commission, and must disclose relevantinformation at the point of sale. Id. In addition, the Commission clarified that the transparency rule did not requirepublic disclosure of competitively sensitive information or information that would compromise network security orundermine the efficacy of reasonable network management practices. Id.151 Id. at 17938-39, para. 56 (noting that this list is not necessarily exhaustive).24
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of required disclosures, while noting that ''these particular methods of compliance are not required orexclusive; broadband providers may comply with the transparency rule in other ways.''15265.The D.C. Circuit's decision in Verizon v. FCC upheld the transparency rule, whichremains in full force, applicable to both fixed and mobile providers.153 In today's Notice, we inquire as toways that the transparency rule can be improved, taking into account changes in the nature of theprovision of broadband services since 2010. We believe we have ample authority not only for ourexisting transparency rule, but also for the enhanced transparency rule we propose today, whether theCommission ultimately relies on section 706, Title II, or another source of legal authority. We seekcomment on whether and how'--if at all'--the source of the Commission's legal authority relied upon toadopt other open Internet rules would affect the authority or authorities that provide the strongest basis forany improvements to the transparency rule or otherwise would inform how we define the goal oftransparency in general.1542.Enhancing Transparency to Protect and Promote Internet Openness
66.''Sunlight,'' as Justice Brandeis has explained, ''is . . . the best of disinfectants.''155 Ifdesigned correctly, disclosure policies are among the most effective and least intrusive regulatorymeasures at the Commission's disposal.156 Applied here, the Commission continues to believe that accessto accurate information about broadband provider practices encourages the competition, innovation, andhigh-quality services that drive consumer demand and broadband investment and deployment.157 Thetransparency rule thereby reflects the ''virtuous circle'' that, in the long term, unites the interests of end152 See FCC Enforcement Bureau and Office of General Counsel Issue Advisory Guidance for Compliance withOpen Internet Transparency Rule, GN Docket No. 09-191, WC Docket No. 07-52, Public Notice, 26 FCC 9411(2011) (Transparency Compliance PN).153 Verizon, 740 F.3d at 659 (affirming the transparency rule).154 See infra Section III.F.155 L. Brandeis, Other People's Money, Chapter 5 (National Home Library Foundation ed. 1933), available athttp://www.law.louisville.edu/library/collections/brandeis/node/196.156 See, e.g., Howard Beales, Richard Craswell & Steven C. Salop, The Efficient Regulation of ConsumerInformation, 24 J. L. & Econ. 491 at 513 (1981); Howard Beales, Richard Craswell & Steven C. Salop, InformationRemedies for Consumer Protection, 71 Am. Econ. Rev. 410 at 411 (Papers & Proceedings, May 1981); AlissaCooper, How Regulation and Competition Influence Discrimination in Broadband Traffic Management: AComparative Study of Net Neutrality in the United States and United Kingdom 47 (Sept. 2013),http://www.alissacooper.com/phd-thesis/ (''A policy of requiring ISPs to publicly disclose the details of their trafficmanagement practices, whether combined with additional regulation or not, has enjoyed widespread support.'')(Cooper Thesis); see also Letter from Kathleen Grillo, Senior Vice President, Federal Regulatory Affairs, Verizon,to Marlene H. Dortch, Secretary, Federal Communications Commission, GN Docket Nos. 12-269, 14-28, at 1 (filedMar. 24, 2014) (arguing that ''the Commission should rely primarily on consumer choice, competition, andtransparency to guide Commission policy'') (emphasis added).157 See, e.g., Organization for Economic Co-operation and Development, Enhancing Competition inTelecommunications: Protecting and Empowering Consumers 4, Directorate for Science, Technology and Industry,Committee for Information, Computer and Communications Policy (2008),http://www.oecd.org/dataoecd/25/2/40679279.pdf (stating that informed consumers ''are necessary to stimulatefirms to innovate, improve quality and compete in terms of price. In making well-informed choices betweensuppliers, consumers not only benefit from competition, but they initiate and sustain it.''); see also Open MICComments at 4 (asserting that ''the marketplace will function properly only if there is honest and full disclosure ofall corporate policies and practices regarding network management practices''); CompTIA Comments at 3 (statingthat ''the transparency rule is vitally important today, and will play an even more significant role in a world in whichISPs and edge providers have flexibility to bargain with one another''); Consumer Federation of America Commentsat 3 (suggesting that the Commission ''maximize the power of transparency under Section 706 to promotecompetition and provide consumer protection'').25
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users, edge providers, and the broader Internet community. As the Commission explained in the OpenInternet Order, disclosures under the rule: (1) help end users make informed choices regarding thepurchase and use of broadband services and increase end users' confidence in broadband providers'practices; (2) ensure that edge providers have access to broadband providers' network informationnecessary to develop innovative new applications and services; and (3) inform the Internet communityand the Commission about broadband providers' practices and conduct that could impact Internetopenness.158 In today's Notice, we seek comment on the effectiveness of the existing transparency ruleand on whether and, if so, how the rule should be enhanced to meet its goals with respect to end users,edge providers, the Internet community, and the Commission.67.Today, we seek general comment on how well the Commission's existing transparencyrule is working. We are especially interested in comments that describe the current operation, benefits,and shortcomings of the existing rule, how broadband providers are complying with it, and how weshould measure such compliance.159 We are also mindful that the additional rules we propose today toprotect Internet openness consistent with the D.C. Circuit's decision may place even greater importanceon the extent to which information about broadband providers' practices is disclosed to end users, edgeproviders, and the Commission. Taking all of that into account, we tentatively conclude that we shouldenhance the transparency rule to improve its effectiveness for end users, edge providers, the Internetcommunity, and the Commission. We seek comment on this tentative conclusion and on what burdens orcompliance issues may be associated with this approach, including for smaller providers.68.Tailored disclosures. In the Open Internet Order, the Commission stated that broadbandproviders may be able to satisfy the transparency rule through use of a single disclosure, and therefore didnot require different types of disclosures to different parties such as individual end users, edge providers,the broader Internet community, and the Commission.160 We have concerns that a single disclosure maynot provide the required disclosures in a manner that adequately satisfies the informational needs of allaffected parties. For example, some recent research suggests that consumers have difficultyunderstanding commonly used terms associated with the provision of broadband services.161 Edgeproviders, however, may benefit from descriptions that are more technically detailed.162 We thereforetentatively conclude that it would be more effective to require broadband providers to more specificallytailor disclosures to the needs of these affected parties. We seek comment on this tentative conclusion, onthe nature of the disclosures that should be tailored, and on what burdens or compliance issues, if any,may be associated with more targeted disclosures.a.Transparency to End Users
69.Since the Commission adopted the transparency rule, we have received hundreds ofcomplaints from consumers suggesting that, under the rule, broadband providers may not be providingend user consumers the accurate information they need and have a right to receive.163 Of particular158 Open Internet Order, 25 FCC Rcd at 17936-37, para. 53.159 We note that an informal review of broadband provider disclosures conducted by Commission staff found thatthe majority are providing some form of disclosure statements, but that many do not appear to provide all theinformation the rule was designed to disclose.160 Open Internet Order, 25 FCC Rcd at 17940, para. 58.161 Cooper Thesis at 186-88 (citing a study which found that consumers do not understand basic terminology such as''traffic management''); see also 2013 OIAC Annual Report at 82-88 (noting studies that indicate consumers areconfused when choosing service providers).162 See, e.g., Cogent Comments at 17 (asserting that ''the information provided to date by many broadband providershas been of limited or no utility to end users or edge providers'').163 Our analysis of consumer complaints received since the transparency rule took effect shows a significant numberof consumer complaints about provider speeds, charges, and other commercial practices that the rule was designed(continued'...)26
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concern to many consumers is that the speed of their service falls short of the advertised speed.164 Manyconsumers complain that they have been charged amounts greater than advertised rates, including feesand charges beyond basic rates.165 We have also received a number of consumer complaints raisingquestions about the source of slow or congested services.166 Consumers have also reported surprise atbroadband providers' statements about slowed or terminated service based on consumers' ''excessiveuse.'' Other consumers report confusion about how data consumption is calculated for purposes of datacaps.16770.We seek comment on the extent to which the existing transparency rule is effectivelyinforming end users. We are interested both in what information broadband providers are disclosing toend users and how that information is being disclosed. In addition, we seek comment on the incentivesand ability of broadband providers to provide service at lower quality or higher prices than theirsubscribers expected when they enrolled, and on the incentives and ability of subscribers to choose otheroptions if their broadband providers fail to live up to these expectations. If a subscriber is locked in to aparticular provider, how can transparency rules bring the performance of that provider up to thesubscriber's expectations?71.In light of the consumer complaints discussed above, we also consider enhancements tothe existing rule with respect to the content, form, and method of broadband providers' disclosures to endusers.72.Content and Form of Disclosure. We seek comment on whether there are ways to makethe content and format of disclosures more accessible and understandable to end users. With respect tocontent, should the Commission require the disclosure of specific broadband provider network practices,performance characteristics (e.g., effective download speeds, upload speeds, latency, and packet loss),and/or terms and conditions of service to end users (e.g., data caps)? We are particularly interested inwhether there are network practices, performance characteristics, or commercial terms relating tobroadband service that are particularly essential but not easily discoverable by end users absent effectivedisclosure. With respect to format, both academic research and the Commission's experience withconsumer issues have demonstrated that the manner in which providers display information to consumerscan have as much impact on consumer decisions as the information itself.168 We therefore seek comment(Continued from previous page)to disclose. Excerpts from some of those complaints are included below. In some cases, however, it is difficult todiscern whether the consumer's frustration is with slow speeds or high prices generally, or instead with how theservice as actually provided differs from what the provider has advertised.164 For example, one consumer stated that he ''was promised 50Mbps of Internet speed. At no time during [his]service [had he] ever had this speed of service and the deceptive claim remains on [the provider's] website and inmarketing materials.''165 One consumer complained that actual bill is ''almost 20%'' higher than advertised price due to fees.166 For example, one consumer stated that ''I was sold Internet access, but I believe bandwidth through to Netflix isbeing artificially restricted. I have checked access to other providers and it is greater than 10X that of Netflix.I have contacted Netflix to verify their function. Their equipment is functioning properly.''167 One consumer complained that the vendor stated the file size as 2.1 megabytes (MB), but the provider counteddownload as 144 MB.168 See generally James M. Lacko & Janis K. Pappalardo, Improving Consumer Mortgage Disclosures: AnEmpirical Assessment of Current and Prototype Disclosure Forms, FTC Bureau of Economics Report (June 2007),http://www.ftc.gov/os/2007/06/P025505MortgageDisclosureReport.pdf (stating that quantitative consumer testingshows that the form of mortgage cost disclosure affects consumer understanding of mortgage costs); Sumit Agarwal,John C. Driscoll, Xavier Gabaix & David Laibson, Learning in the Credit Card Market (Feb. 8, 2008)http://scholar.harvard.edu/files/laibson/files/learning_credit_042413.pdf (stating that consumer knowledge aboutcredit card fee plans, including how to avoid late fees, depreciates rapidly over time); see also Eugenio J. Miravete,(continued'...)27Federal Communications Commission
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on best practices for displaying and formatting relevant disclosures for end users, including any potentialcosts and burdens to broadband providers.169 For example, the Open Internet Advisory Committee(OIAC) has proposed the use of a standardized label for Internet service that includes basic informationsuch as performance speed (i.e., upload and download speed), price (i.e., monthly fee averaged over threeyears), and usage restrictions (i.e., any points at which the applicable terms of service change, includingdata usage caps and any charges, speed reductions, or other penalties for exceeding a cap) that consumerscan use to comparison shop for service.170 Are there lessons we can learn regarding effective disclosurepractices from independent consumer research or disclosure in other approaches to standardized labels?171Should the information be made available in a machine-readable format, such as XML, that might allowthe Commission, industry associations, or other organizations to easily access and synthesize informationfor consumers?73.Network Practices. With respect to data caps, should we require disclosures that permitend users to identify application-specific usage or to distinguish which user or device contributed towhich part of the total data usage? Should we require disclosure of any type of traffic exempted from anydata caps, and how end users can find their current consumption levels? Should we require thatdisclosures explain any restrictions on tethering for mobile devices? Should the Commission expand itstransparency efforts to include measurement of other aspects of service such as packet loss, packetcorruption, latency, and jitter in addition to upstream and downstream speed? Should the Commissionrequire the reporting of actual achieved results for each category? If providers offer different tiers ofservice to their end users, should providers be required to make disclosures by tier? What should be therequired timing of any such disclosures? Is it important that network practices be disclosed in advance oftheir implementation?74.Method of Disclosure. The Transparency Compliance PN advised broadband providersthat they can comply with the point-of-sale disclosure requirement by, for instance, ''directing prospectivecustomers at the point of sale, orally and/or prominently in writing, to a web address at which the requireddisclosures are clearly posted and updated.''172 We seek comment on whether that approach is adequateor whether the Commission should consider alternative approaches.(Continued from previous page)Choosing the Wrong Calling Plan? Ignorance and Learning, 93 Am. Econ. Rev. 297 (2003) (stating that consumersselect rationally among telephone calling plans).169 In 2011, the United Kingdom's largest Internet service providers agreed to a voluntary Code of Practice whichrequires each one to produce a comparable table of traffic management information called a Key Facts Indicator(KFI). See, e.g., Ofcom, Improving Traffic Management Transparency,http://consumers.ofcom.org.uk/2011/11/improving-traffic-management-transparency/ (last visited May 12, 2014).170 See 2013 OIAC Annual Report at 82-88 (containing information about the OIAC Label Study); see also NewAmerica Foundation, Broadband Truth-in-Labeling, Open Technology Initiative (2009),http://newamerica.net/sites/newamerica.net/files/policydocs/NAF_OTI_Broadband_Truth_in_Labeling-09-2009.pdf.171 For example, the Federal Trade Commission's Energy Guide labeling program requires standard labels on certainappliances that disclose estimated yearly operating cost and energy use. See 16 C.F.R. Part 305. The Federal Food,Drug, and Cosmetic Act (FD&C Act) and the Fair Packaging and Labeling Act are the federal laws governing foodproducts under the Food and Drug Administration's jurisdiction. See 21 U.S.C. §§ 301-399; 15 U.S.C. §§ 1451-1461. The FD&C Act was amended by the Nutrition Labeling and Education Act of 1990, which requires mostfoods to bear nutrition labeling and requires food labels that bear nutrient content claims and certain health messagesto comply with specific requirements. See 21 U.S.C. § 343-1.172 See Transparency Compliance PN, 26 FCC Rcd at 9413-14 (clarifying that the rule does not compel thedistribution of disclosure materials in hard copy or extensive training of sales employees to provide disclosuresthemselves).28Federal Communications Commission
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b.Transparency to Edge Providers
75.As noted above, the Commission also adopted the transparency rule to ensure thatbroadband providers would disclose sufficient information to permit ''content, application, service, anddevice providers to develop, market, and maintain Internet offerings.''173 Some commenters havesuggested that current disclosures provide insufficient information for edge providers.174 We seekcomment on how the existing transparency rule is working and how we can enhance its effectiveness withrespect to edge providers. Should we view some categories of edge providers, such as start-upcompanies, as having distinct needs and, if so, what would be the implications for an enhancedtransparency rule?76.We also seek comment on the extent to which the transparency rule does, or should,disclose useful information to providers who seek to exchange traffic with broadband provider networks.In other words, should we view transit, CDN, or other providers engaged in Internet traffic exchange as aclass of persons whose interests are similar to those of edge providers who wish ''to develop, market, andmaintain Internet offerings,'' perhaps because they may have such edge providers as their customers? Forinstance, many edge providers utilize the services of an intermediary CDN, such as Akamai, EdgeCast,Limelight, or Level 3, or cloud service providers such as Amazon, Microsoft, or RackSpace, whichprovide the servers upon which the applications run and also interconnect directly with broadbandproviders. Other edge providers bypass these networks and interconnect directly with broadbandproviders through peering arrangements. Some edge providers, such as Google or Amazon, may act bothas content providers for their own services and as CDNs or cloud service providers for other services. Weseek comment on whether these subgroups have distinguishable needs for information that could beprovided through disclosure and, if so, what kind of information would be most useful.c.Transparency to the Internet Community and the Commission
77.The Common Interests of End Users, Edge Providers, and the Broader InternetCommunity. We seek comment on the extent to which the existing transparency rule fully reflects the''virtuous circle'' that, in the long term, unites the interests of end users, edge providers, the broaderInternet community, and the Commission. Are there ways to enhance the transparency rule to furtherfacilitate the virtuous circle? What other disclosures might encourage and improve the deployment ofbroadband in the United States?78.We also seek comment'--relevant to all stakeholders'--on whether and, if so, how theCommission should enhance the existing transparency rule to ensure the effectiveness of, and compliancewith, the other rules we propose in today's Notice. For example, to ensure the effectiveness of the no-blocking rule proposed below, should the Commission mandate that broadband providers disclose'--in amore rigorous and consistent way'--the expected performance end users can expect from their broadbandservice?175 To improve information about broadband provider practices for end users, edge providers,and the broader Internet community, we tentatively conclude that broadband providers must disclose in atimely manner to consumers, edge providers, and the public (and, of course, the Commission) when theymake changes to their network practices as well as any instances of blocking, throttling, and pay-for-priority arrangements, or the parameters of default or ''best effort'' service as distinct from any priorityservice.79.Measuring Broadband Performance. The Open Internet Order requires broadbandproviders to disclose accurate information regarding network performance for each broadband servicethey provide.176 The accuracy and availability of such network performance information is a common173 47 C.F.R. § 8.3.174 See, e.g., Cogent Comments at 10-23; Open MIC Comments at 4.175 See infra Section III.D.3.176 Open Internet Order, 25 FCC Rcd at 17937-39, paras. 54, 56.29
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linchpin for end users, edge providers, and all stakeholders in the Internet community. As noted in theOrder, the Commission launched a broadband performance measurement project called ''MeasuringBroadband America'' (MBA) to accurately measure key performance metrics, including baselineconnection speed and latency.177 To satisfy their obligations under the transparency rule, all of the12 largest fixed broadband providers chose to participate in the measurement program.178 Last year theCommission expanded its MBA program to include mobile broadband by releasing a Mobile BroadbandSpeed Test App, an open-source, crowdsourcing program to assess mobile broadband networkperformance nationwide.179 The app measures mobile broadband and Wi-Fi network performance anddelivers to consumers an in-depth view of key metrics related to their mobile broadband experience. Weseek comment on the effectiveness of this approach for providing consumers with useful informationregarding the performance of both fixed and mobile broadband networks. We seek comment on whetherparticipation in MBA should continue to satisfy the requirement that actual speeds be disclosed.180 Arethere areas of this program that can be improved to provide more useful information to consumers?18180.More generally, are there more efficient or more comprehensive ways to measurenetwork performance metrics, including for broadband providers not participating in MBA? Forexample, could the ability to measure and report network performance be included in the end user's ownnetwork modem or residential gateway? Do such functionalities currently exist, or are they indevelopment?182 Are there academic or other external research organizations that could assist theCommission in collecting and analyzing information about traffic, congestion, and other features of theInternet?183 Should the Commission mandate the use of monitoring devices, like those used in MBA?How can performance metrics most accurately measure the actual download and upload speeds aconsumer can expect to experience, rather than ''up to'' speeds or ''last-mile'' performance? Should theCommission look to an external advisory group to aid in the development and feasibility of performancemetrics and measurement?81.Congestion. The Open Internet Order highlighted the value of providing end users withinformation about the sources of congestion that might impair the performance of edge-providerservices.184 As the Open Internet Order explained, ''it is often difficult for end users to determine thecauses of slow or poor performance of content, applications, services or devices.''185 At the same time,the Commission recognized that ''congestion management may be a legitimate network management177 Id. at 17940, para. 58 n.188.178 See, e.g., Transparency Compliance PN, 26 FCC Rcd at 9414.179 See News Release, Federal Communications Commission, FCC Unveils Mobile Broadband Speed Test App toEmpower Consumers (Nov. 14, 2013), http://www.fcc.gov/document/fcc-unveils-mobile-broadband-speed-test-app-empower-consumers.180 See Office of Engineering and Technology & Consumer and Governmental Affairs Bureau, FederalCommunications Commission, Measuring Broadband America, http://www.fcc.gov/measuring-broadband-america(last visited May 12, 2014).181 See, e.g., Cogent Comments at 10-17 (suggesting a number ways to improve the MBA program including morelocalized data, more frequent release of ''unaudited'' data, and tests that would allow for comparison of traffic thatoriginates outside a provider's network to that which originates within the network).182 For example, the Internet Engineering Task Force (IETF) has started a related standards effort. See InternetEngineering Task Force, Large-Scale Measurement of Broadband Performance,https://datatracker.ietf.org/wg/lmap/charter/ (last visited May 12, 2014).183 See, e.g., The Cooperative Association for Internet Data Analysis, Home, http://www.caida.org/home/ (lastvisited May 12, 2014).184 See Open Internet Order, 25 FCC Rcd at 17938-39, 17944, paras. 56, 70.185 Id. at 17944, para. 70.30
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purpose.''186 But the Commission also emphasized the importance of the disclosure to end users of''descriptions of congestion management practices'' including ''indicators of congestion'' and ''the typicalfrequency of congestion.''18782.Since the 2010 Open Internet Order, some have suggested that sources of congestion thatimpact end users may originate beyond the broadband provider's network or in the exchange of trafficbetween that network and others. An end user's inability to ascertain the source of congestion could leadto confusion, for example, to the filing of an unjustified complaint against a broadband provider (if thesource of the congestion were elsewhere) or a mistaken decision by the end user to purchase additionalbandwidth to improve performance (again, if the source of congestion were elsewhere). Edge providersand other stakeholders also have expressed a need for greater information about network congestion.18883.In light of these concerns, we tentatively conclude that we should require that broadbandproviders disclose meaningful information regarding the source, location, timing, speed, packet loss, andduration of network congestion. We seek comment on this tentative conclusion, including on how toimplement it in a practical manner that provides meaningful information to end users, edge providers, andother stakeholders without causing undue burden on broadband providers. For example, should theinformation to be disclosed be based upon a sampling taken at given points in time, and if so, what wouldbe an appropriate interval for such sampling? We note that Cogent has made suggestions aboutenhancements to the transparency rule along these lines and proposing specific means of implementation,upon which we seek comment.189 In making the foregoing tentative conclusion and seeking comment onhow to implement it, we emphasize that we are positing that the public would be served by additionalinformation concerning the existence and duration of congestion, regardless of its cause, so that there isgreater understanding of the impact of that congestion on the performance of a broadband provider'snetwork, if any. We do not, however, propose to expand the scope of the open Internet rules in anyfashion to regulate traffic exchange, though, as noted above, we ask for public input on this tentativeconclusion.190d.Transparency for Mobile Broadband
84.The Commission currently applies the same transparency requirement to both fixed andmobile providers, reasoning that end users need a clear understanding of ''network management practices,performance, and commercial terms, regardless of the broadband platform they use to access theInternet.''191 We seek comment on how we should assess the effectiveness of the existing rule in themobile broadband context. For example, most mobile broadband plan offerings have generally had lowerdata usage limits than those offered for fixed broadband services. Accordingly, do mobile broadband186 Id. at 17955, para. 91.187 Id. at 17938, para. 56.188 See, e.g., Cogent Comments at 10-17; Level 3 Comments at 3.188 See Cogent Comments at 10-23.188 See supra Section III.C.2.a.189 See Cogent Comments at 10-23.190 See supra Section III.B.191 See Open Internet Order, 25 FCC Rcd at 17958-59, para. 97. The Order also provided certain clarificationsregarding how this requirement applied to mobile broadband providers, specifying that such providers were required''to disclose their third-party device and application certification procedures, if any; to clearly explain their criteriafor any restrictions on use of their network; and to expeditiously inform device and application providers of anydecisions to deny access to the network or of a failure to approve their particular devices or applications.'' Id. at17959, para. 98.31
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subscribers have an enhanced need to understand, monitor, and more flexibly adjust their mobile datausage needs than the fixed broadband users?85.We seek comment on whether and, if so, how enhancements to the transparency ruleshould apply to mobile broadband network providers. Would the enhanced transparency requirementsdescribed herein, or others, help meet the information needs of mobile broadband device and applicationdevelopers as well as the needs of end users? How can we make sure that the disclosure requirementsdiscussed above are appropriate and effective for mobile broadband in view of the many operationalfactors that may influence performance of mobile broadband networks, including the mobile accesstechnology, the weather, the distance to the serving cell site, the number of users in a cell site, and devicecapability?192 Should the nature of disclosure to customers of wireless networks be different if thewireless service is provided by a network as an explicit substitute for copper-based, traditional service,including voice and DSL?e.Burdens of Enhanced Transparency on Broadband Providers
86.We seek comment on the extent to which adopting enhanced transparency requirementswould create particular burdens in either the fixed or the mobile broadband environment and whether andhow such burdens would affect the pace of innovation, investment, and growth. How can we achieve thepublic benefits of enhanced disclosure requirements without imposing unreasonable burdens on thebroadband providers? Are there ways to minimize the costs and burdens associated with any enhanceddisclosure requirements? Are there ways the Commission or industry associations could reduce any suchburdens, for example through the use of a voluntary industry standardized glossary, or through thecreation of a dashboard that permits easy comparison of the policies, procedures, and prices of variousbroadband providers throughout the country?3.Compliance and Enforcement
87.In the Open Internet Order, the Commission noted that a key objective of thetransparency rule is to enable the Commission to collect information necessary to assess, report, andenforce the open Internet rules.193 As discussed further below, we seek comment on how the Commissioncan best design a process for enforcing the transparency rule that provides certainty, flexibility, andaccess for all affected parties.194 Should the Commission permit individuals to report possiblenoncompliance with our open Internet rules anonymously or take other steps to protect the identity ofindividuals who may be concerned about retaliation for raising concerns? We propose that theconsequences of a failure to comply with our transparency rule should be significant and includemonetary penalties. We seek comment on the most effective methods to ensure ongoing compliance withthe transparency rule. How can we ensure that these disclosure requirements are as effective andeffectively enforced as disclosure requirements in other areas of the law, such as disclosures to theSecurities and Exchange Commission? Should the Commission require broadband providers to certifythat they are in compliance with the required disclosures, particularly if the current flexible approach isamended to require more specific disclosures?195 Should we also require broadband providers to submit192 See Transparency Compliance PN, 26 FCC Rcd at 9415 (recognizing that ''measuring performance can be morechallenging for mobile broadband than for fixed'').193 See Open Internet Order, 25 FCC Rcd at 17937, para. 53.194 See infra Section III.H.195 Cf., e.g., 47 C.F.R. § 64.2009(e) (requiring telecommunications carriers to file an annual certification confirmingthat it has established operating procedures adequate to ensure compliance with the customer proprietary networkinformation (CPNI) rules).32
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reports containing descriptions of current disclosure practices?196 If so, should we modify our existingprocess for protecting the confidentiality of competitively sensitive information?19788.We also seek comment on whether the Commission can better promote transparencythrough its own outreach and reporting mechanisms.198 Should the Commission establish and makepublic a list of those broadband providers that block or otherwise limit certain types of traffic? Should theCommission collect and publish information on pay-for-priority arrangements? In what timeframe shouldthe Commission require providers to report such changes in their traffic management policies to theCommission? We invite comment on the merits of these options, and any other suggestions commentersmay deem relevant, to ensure full compliance with the transparency rule, including identification of anyregulatory burdens this might entail for broadband providers.D.
Preventing Blocking of Lawful Content, Applications, Services, and NonharmfulDevices
89.We believe that, as the Commission found in the Open Internet Order, ''the freedom tosend and receive lawful content and to use and provide applications and services without fear of blockingis essential to the Internet's openness and to competition in adjacent markets such as voicecommunications and video and audio programming.''199 The D.C. Circuit acknowledged the validity ofthis policy rationale for the no-blocking rule adopted in the Open Internet Order, but vacated the rulebecause it found that the Commission had failed to provide a legal rationale under which the prohibitionwould not impermissibly subject broadband providers to common carriage regulation.200 To address theongoing concerns with the harmful effects that blocking of Internet traffic would have on Internetopenness, we propose to adopt the text of the no-blocking rule that the Commission adopted in 2010, witha clarification that it does not preclude broadband providers from negotiating individualized,differentiated arrangements with similarly situated edge providers (subject to the separate commercialreasonableness rule or its equivalent). So long as broadband providers do not degrade lawful content orservice to below a minimum level of access, they would not run afoul of the proposed rule. We also seekcomment below on how to define that minimum level of service. Alternatively, we seek comment onwhether we should adopt a no-blocking rule that does not allow for priority agreements with edgeproviders and how we would do so consistent with sources of legal authority other than section 706,including Title II.20190.It is important to understand the relationship between the proposed no-blocking andcommercial reasonableness rules. Although the proposed no-blocking rule only establishes a minimumlevel of service, and thus allows room for individualized negotiations, the proposed commercialreasonableness rule separately applies to any and all conduct, including by asking whether paidprioritization can be barred outright and by asking whether to bar practices that harm competition,consumers, and the free exercise of speech.196 See, e.g., Open Internet NPRM, 24 FCC Rcd at 13111, para. 128.197 47 C.F.R. § 0.459.198 See, e.g., Open MIC Comments at 4 (suggesting that the Commission require ISPs to make available all theirfilings regarding network management practices including those in legal proceedings and with other federalregulatory agencies).199 Open Internet Order, 25 FCC Rcd at 17941-42, para. 62.200 Verizon, 740 F.3d at 658.201 See infra Section III.F. For example, to the extent the Commission relies on Title II, would sections 201(b) and202(a) of the Act compel a different result than provision of a minimum level of service? See 47 U.S.C. § 201(b)(prohibiting unjust or unreasonable ''charges, practices, [or] classifications''); 47 U.S.C. § 202(a) (prohibiting''unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services'').33
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1.The 2010 No-Blocking Rule
91.2010 Open Internet Order. In the Open Internet Order, the Commission adopted a no-blocking rule to preserve the openness that was and remains a core expectation of end users.202 The OpenInternet Order noted that a no-blocking principle had been broadly accepted since its inclusion in theCommission's 2005 Internet Policy Statement,203 and the Internet Policy Statement itself reflectedexpectations and practices of how the Internet should and did work.204 A more limited variation of therule applied to mobile broadband providers, due to the operational constraints that affect mobilebroadband services, the rapidly evolving nature of the mobile broadband technologies, and the generallygreater amount of consumer choice for mobile broadband services than for fixed.20592.D.C. Circuit Opinion in Verizon v. FCC. The D.C. Circuit struck down the no-blockingrule after finding that the Commission had failed to provide a legal justification that would take the ruleout of the realm of impermissible common carriage.206 The court stated that it was ''somewhat less clear''whether the no-blocking rule constituted per se common carriage regulation than whether theantidiscrimination rule did.207 Nonetheless, the court concluded that the no-blocking rule, at least asdescribed in the Open Internet Order, required broadband providers to serve edge providersindiscriminately.208 The no-blocking rule thereby imposed per se common carriage rules and thusviolated the Communications Act's prohibition on the imposition of common carrier obligations onproviders of information services.20993.The court intimated that the no-blocking rule could pass scrutiny, however, if broadbandproviders could engage in individualized bargaining while subject to the rule. The court reasoned that ''ifthe relevant service that broadband providers furnish is access to their subscribers generally, as opposedto access to their subscribers at the specific minimum speed necessary to satisfy the anti-blocking rules,then these rules, while perhaps establishing a lower limit on the forms that broadband providers'arrangements with edge providers could take, might nonetheless leave sufficient 'room for individualizedbargaining and discrimination in terms' so as not to run afoul of the statutory prohibitions of commoncarrier treatment.''210 Such a practice would allow for individualized bargaining where providers wouldnot be required ''to hold themselves out to serve all comers indiscriminately on the same or standardizedterms.''211 If the Commission's no-blocking rule allowed individualized bargaining above the minimumlevel of service necessary, then the rule might not create per se common carriage obligations.212 Thecourt noted that although the Commission had asserted this interpretation of the rule at oral argument, the202 See Open Internet Order, 25 FCC Rcd at 17941-42, para. 62.203 Id.See generally Internet Policy Statement, 20 FCC Rcd 14986.204 See Press Release, Chairman Kevin J. Martin, Comments on Commission Policy Statement (Aug. 5, 2005) (''Theevidence today is that their Internet access consumers have the ability to reach any Internet content. Indeed, cableand telephone companies' practices already track well the Internet principles we endorse today.''),http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-260435A2.pdf.205 Open Internet Order, 25 FCC Rcd at 17956-57, 17959-60, paras. 94-95, 99.206 Verizon, 740 F.3d at 658.207 Id. at 657.208 Id. at 651.209 See id. at 655-58.210 See id. at 658.211 Id.212 See id.; see also id. at 667-68 (Silberman, J., dissenting in part) (''By exceeding the minimum level of service, themajority suggests, the broadband providers would have wide latitude to engage in individualized bargaining.'').34
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court could not consider it as a possible basis for upholding the rule because the Commission had notadvanced this position in the Open Internet Order.2132.Proposal to Adopt a No-Blocking Rule
94.We continue to believe that safeguarding consumers' ability to access and effectively usethe lawful content, applications, services, and devices of their choice on the Internet is an essentialcomponent of protecting and promoting the open Internet. Therefore, we tentatively conclude that weshould adopt the text of the rule that the Commission adopted in the Open Internet Order, whichprovided:A person engaged in the provision of fixed broadband Internet access service, insofar assuch person is so engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management.214A person engaged in the provision of mobile broadband Internet access service, insofar assuch person is so engaged, shall not block consumers from accessing lawful websites,subject to reasonable network management; nor shall such person block applications thatcompete with the provider's voice or video telephony services, subject to reasonablenetwork management.21595.We believe this to be the public policy that will best serve Internet openness. Whilemaintaining this rule text, we propose to make clear that the no-blocking rule would allow individualizedbargaining above a minimum level of access to a broadband provider's subscribers'--the revised rationalethe court suggested would be permissible rather than per se common carriage'--but, also consistent withthe court's analysis, separately subject such practices to scrutiny under the commercially reasonablepractices rule (or its equivalent). We believe that by preserving end users' ability to access the Internetcontent of their choice, reinstating a no-blocking rule would increase demand for broadband services andthus increase investment in broadband network infrastructure and technologies.216 We seek comment onthe proposed no-blocking rule and its potential effect on broadband investment and deployment, includingwhether and under what circumstances broadband providers have incentives to block content. We alsoseek comment on possible approaches other than adopting the text of the 2010 rule. Should we modifythe text of the rule to explicitly address the minimum level of access required, as discussed below?96.Alternatively, we seek comment on whether we should adopt a no-blocking rule thateither itself prohibits broadband providers from entering into priority agreements with edge providers oracts in combination with a separate rule prohibiting such conduct.217 As discussed below, the record inthis proceeding reflects numerous public concerns about the potential for priority agreements to harm anopen Internet.218 How could we address such concerns in the context of the no-blocking rule? If the213 Id. at 658-59 (quoting the Commission counsel's statement at oral argument that ''it's not common carriage tosimply have a basic level of required service, if you can negotiate different levels with different people'').214 Open Internet Order, 25 FCC Rcd at 17942, para. 63. Consistent with the 2010 rule, the phrase ''content,applications, services'' in the proposed rule for fixed broadband service ''refers to all traffic transmitted to or fromend users of a broadband Internet access service, including traffic that may not fit cleanly into any of thesecategories.'' Id. at 17942, para. 64 & n.200.215 Id. at 17959, para. 99.216 See, e.g., CompTIA Comments at 3 (explaining that following the striking down of the no-blocking rule, ''anumber of CompTIA's member companies, all of which were small edge providers, voiced concern that ISPs wouldnow charge them for access to their customers and block them if they refused to pay'').217 See infra paras. 126, 138.218 See infra n.250.35
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Commission were to proceed down this alternative path, how should the Commission define ''priority''?Are ''priority'' agreements broader than ''pay-for-priority,'' possibly including the exchange ofconsideration other than money? Are there other arrangements between broadband providers and edgeproviders that have the potential to harm Internet openness and should be addressed within the no-blocking rule? Commenters should address the legal bases and theories, including Title II, that theCommission could rely on for such a no-blocking rule, and how different sources of authority might leadto different formulations of the no-blocking rule.3.Establishing the Minimum Level of Access under the No-Blocking Rule
97.As noted above, the D.C. Circuit suggested that the Commission's 2010 no-blocking rulecould be interpreted as requiring broadband providers to ''furnish . . . access to their subscribersgenerally'' while ''establishing a lower limit on the forms that broadband providers' arrangements withedge providers could take'''--and that under that interpretation the rule might not impose common carrierstatus on broadband providers.219 Consistent with the court's ruling, we tentatively conclude that therevived no-blocking rule should be interpreted as requiring broadband providers to furnish edge providerswith a minimum level of access to their end-user subscribers.220 We tentatively conclude that ourproposed no-blocking rule would allow broadband providers sufficient flexibility to negotiate terms ofservice individually with edge providers, consistent with the court's view that we must permit providersto ''adapt . . . to individualized circumstances without having to hold themselves out to serve all comersindiscriminately on the same or standardized terms.''221 We reiterate that, as discussed further below,under the proposed rules contained herein such individualized arrangements for priority treatment wouldbe subject to scrutiny under the proposed commercial reasonableness rule and prohibited under that rule ifthey harm Internet openness. We seek comment on these tentative conclusions.98.Requiring this minimum level of access under the no-blocking rule will ensure that allusers have access to an Internet experience that is sufficiently robust, fast, and effectively usable.222 Thisincludes both end-user consumers and edge providers of all types and sizes, including those contentproviders who do not enter into specific arrangements with broadband providers. In short, our approachwill enable consumers to access the content, services, and applications they demand and ensure thatinnovators and edge providers have the ability to offer new products and services. We seek comment onthis analysis.99.Under the approach described by the D.C. Circuit, ''broadband providers [would] have noobligation to actually provide an edge provider with the minimum service necessary to satisfy the rules,''because they could instead ''deliver all edge providers' traffic'' in a manner that exceeds that minimum,and they would then be free to ''negotiate separate agreements with each individual edge provider'' andalso to ''charge similarly-situated edge providers completely different prices for the same service.''223 Arethere alternative approaches that, consistent with the Verizon decision, would avoid per se common219 Verizon, 740 F.3d at 658.220 Such actions, permissible under the no-blocking rule, would, of course, be separately subject to the proposedcommercially reasonable practices standard set out below. See infra Section III.E.221 Verizon, 740 F.3d at 652 (quoting Cellco P'ship v. FCC, 700 F.3d 534, 548 (D.C. Cir. 2012)). In this regard, weview the operation of the no-blocking rule separate from any other impact on broadband providers that might arisefrom application of the legal standard, factors, and dispute resolution framework discussed below. See infra Sections III.E, III.F, III.H.222 See infra Appx. A (proposing a definition of ''block'' for purposes of the no-blocking rule).223 Verizon, 740 F.3d at 658. We note that a broadband provider's discretion in setting rates could be constrained tosome degree by the commercially reasonable standard and dispute resolution framework discussed below, if adoptedby the Commission. See infra Sections III.E, III.H. As we explain below, that proposed standard would notconstitute per se common carriage.36
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carriage? Are there forms of price discrimination that, even if appropriate under the no-blocking rule,should be separately subject to the commercial reasonableness rule or its equivalent?100.We also seek comment on how, consistent with this interpretation, we should define orclarify the minimum level of access required by the rule, or otherwise define what provider conductwould constitute ''blocking'' under the rule. In our view, a defined minimum level of access providesassurances both to end users, by helping them understand the potential uses of their service, and to edgeproviders. Such assurances should enhance consumer demand, which drives investment both in thenetwork and at the edge.101.We also seek comment on how ''minimum level of access'' should be defined to providethe robust, fast, and effectively usable access discussed above. Should we define the minimum level ofaccess from the perspective of end users, edge providers, or both? Should the minimum level of access bedynamic, evolving over time, and if so, how can that flexibility be incorporated into the rule? In thefollowing paragraphs, we describe in alphabetical order several possible options by which we may definea minimum level of access under the no-blocking rule. We seek comment on these options and on anyapproaches by which the Commission should define the minimum level of access. For each of thesepotential options, we seek comment on its advantages and disadvantages, on its legal sustainability underVerizon, and on how effective it would be at protecting the open Internet, including the ease or difficultywith which violations can be identified and remedied. We seek comment on how the Commission shouldimplement, monitor compliance with, and enforce the rule, under each of the options described. For eachoption, we also seek comment on whether the minimum level of access should be reflected in providers'disclosures under an enhanced transparency rule. Under any of these options, we seek comment on howthe minimum level of access should be measured. Should the Commission measure technical parameters,based on a sample, focusing on speed, packet loss, latency, or other factors? Where in the network shouldsuch measurement take place to ensure an accurate measure of the broadband provider's performance?Finally, we recognize that from time to time a provider may be unable to provide such a minimum levelof access temporarily for a variety of reasons.224 We seek comment on how the Commission shoulddistinguish such temporary inadvertent failures from intentional or prolonged blocking, including whetherthe Commission should consider exempting incidents of blocking that last for less than a specifiedamount of time.102.Best Effort. One way to define a minimum level of access is as a requirement thatbroadband providers apply no less than a ''best effort'' standard to deliver traffic to end users.225 For anyparticular type of Internet traffic, best-effort delivery would represent the ''typical'' level of service forthat type of traffic'--in effect, routing traffic according to the ''traditional'' architecture of the Internet.226Broadband providers would be free to negotiate ''better than typical'' delivery with edge providers, andwould be prohibited (subject to reasonable network management) from delivering ''worse than typical''service in the form of degradation or outright blocking. We seek comment on this potential approach.224 Aside from complete outages (which are not the subject of this Notice), we note that in some cases inadvertentaction or circumstances outside a provider's control may cause a subset of traffic to be blocked. For example, if aconnection with one of several peering partners is severed, some Internet traffic may seem unacceptably slow whileother traffic appears normal. Alternatively, a provider engaged in reasonable network management (such asblocking the source of a distributed denial of service attack) may inadvertently block other traffic due to atranscription error. If steps are taken in a timely manner to correct such problems, we would not anticipateconsidering such action to violate a no-blocking rule.225 See, e.g., S. Floyd & M. Allman, Comments on the Usefulness of Simple Best-Effort Traffic 9-14, InternetEngineering Task Force (July 2008), https://tools.ietf.org/html/rfc5290.226 Open Internet NPRM, 24 FCC Rcd at 13086, para. 56 (''The Internet has traditionally relied on an end-to-end,open architecture, in which network operators use their 'best effort' to deliver packets to their intended destinationswithout quality-of-service guarantees.'').37
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Would ''best effort'' be measured against the technical capacity of a particular broadband provider'snetwork capacity and characteristics?103.Minimum Quantitative Performance. Another way to define a minimum level of accessis through specific technical parameters, such as a minimum speed. To the extent that commentersbelieve that the Commission should promulgate a rule that establishes specific technical parameters forthe required minimum level of access, what should those parameters be? Should they identify specificspeeds of service, or would it be preferable to identify specific problems that a minimum level of servicewould avoid (such as preventing latency and jitter for services that tolerate them poorly)?227 Would theCommission need to differentiate between different broadband access technologies? While this approachwould provide greater certainty than other approaches, a specific technical definition of minimum accesscould become outdated as available broadband network technologies change and available broadbandspeeds improve. How frequently would we need to revisit a specific technical definition of minimumaccess to ensure that it keeps up with advances in broadband service?104.An Objective, Evolving ''Reasonable Person'' Standard. Another approach to defining aminimum level of access to broadband providers' end users is to think of it as the level that satisfies thereasonable expectations of a typical end user. We might think of this as a ''reasonable person'' standard ofaccess. For example, a typical end user may reasonably expect the ability to access streaming video fromany provider, place and receive telephone calls using the VoIP service of the end user's choosing, andaccess any lawful web content. Under this approach, a broadband provider that satisfies these and otherreasonable expectations would be in compliance with the no-blocking rule. One possible advantage ofthis approach to defining minimum access is flexibility: the absence of a specific technical definitionmeans that the standard for compliance can evolve as the expectations in the marketplace change withoutfurther Commission action. On the other hand, this approach may create less certainty than otherapproaches might and could be more difficult to enforce. We seek comment generally on a ''reasonableperson'' standard for defining minimum access, and in particular, how this standard could be crafted to besufficiently objective and predictable to provide certainty to broadband providers and edge providers.4.Application of the No-Blocking Rule to Mobile Broadband
105.As noted above, the 2010 no-blocking rule applied differently to mobile broadbandproviders than to fixed, and today's Notice would maintain that approach. The previous rule prohibitedmobile broadband providers from blocking consumers from accessing lawful websites or blockingapplications that compete with the provider's voice or video telephony services. We propose to adopt thesame approach as in the 2010 obligation, which would prohibit mobile broadband providers fromblocking lawful web content as well as applications that compete with the mobile broadband providers'own voice or video telephony services, subject to reasonable network management. We seek comment onthis proposal.106.In addition, we seek comment on whether it would serve the public interest to expand therule's scope to include reasonable access to all applications that compete with the mobile broadbandInternet access provider's other services, not just those that compete with voice or video telephonyservices, subject to reasonable network management practices. Should the application of the no-blockingrule to mobile broadband providers turn on whether mobile service was marketed to consumers as asubstitute for a fixed telecommunications service previously offered by the provider or its affiliate? Howwould treating mobile broadband differently from fixed broadband affect consumers in differentdemographic groups, including those who rely solely on mobile broadband for Internet access?228 How227 See Vonage Comments at 8 (urging the Commission to ''define a baseline throughput level'' that ''reflect[s]changing consumer expectations while recognizing legitimate technical constraints'').228 For example, according to the Pew Research Internet Project, in 2011, Blacks and Latinos were more than twiceas likely as whites to rely on their smartphones as their exclusive source of Internet access (38% of Black/Latinosmartphone users versus 17% of white non-Hispanic smartphone users), and those with incomes of less than(continued'...)38
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should the Commission consider applying a no-blocking rule to facilities-based mobile providers versusresellers?107.We also seek comment on whether and how we should define a minimum level of accessin the context of the proposed no-blocking rule for mobile broadband, or otherwise clarify whatconstitutes ''blocking,'' and whether that definition should be different for mobile broadband than forfixed. For each of the approaches discussed above to define a ''minimum level of access,'' we seekcomment on any particular benefits or difficulties that such approach would present.108.We recognize that there have been substantial mobile marketplace changes anddevelopments since 2010, including the increased use of Wi-Fi technology, and seek comment on whetherand how such changes should impact our no-blocking rule for mobile broadband. We seek comment onthe extent to which we should take into account the increasing provision of Wi-Fi by broadbandproviders,229 and the growing use of Wi-Fi by end users for the off-load of wireless broadband, as weconsider the application of the no-blocking rule to mobile broadband services.2305.Applicability of the No-Blocking Rule to Devices
109.The 2010 no-blocking rule prohibited fixed broadband providers from blocking non-harmful end-user devices, and the rule we propose today would do the same. We seek comment on howthis treatment of non-harmful devices fits into the Verizon court's interpretation of the rule. Should theability to attach non-harmful devices to broadband service be included among the reasonable end-userexpectations listed above, or should we analyze non-harmful devices differently?E.
Codifying an Enforceable Rule to Protect the Open Internet That Is Not CommonCarriage Per Se
110.Separate and distinct from the no-blocking rule, we believe that establishing anenforceable legal standard for broadband provider practices is necessary to preserve Internet openness,protect consumers, and promote competition. While the D.C. Circuit vacated the Commission's ruleprohibiting ''unreasonable discrimination'' by fixed broadband providers on the theory that it ''so limitedbroadband providers' control over edge providers' transmissions that [it] constitute[d] common carriageper se,'' the court underscored the validity of the ''commercially reasonable'' legal standard theCommission used in the data roaming context and the court upheld in Cellco.231111.Today, we tentatively conclude that the Commission should adopt a revised rule that,consistent with the court's decision, may permit broadband providers to engage in individualized(Continued from previous page)$30,000 were more than twice as likely as those with incomes of $50,000 or more to do so (40% versus 17%).Aaron Smith, Smartphones as an Internet Appliance, Pew Research Internet Project (July 2011),http://www.pewinternet.org/2011/07/11/smartphones-as-an-internet-appliance/.229 Kevin Fitchard, Comcast is Turning Homes Into Public Wi-Fi Hotspots, Bloomberg Businessweek (June 11,2013), http://www.businessweek.com/articles/2013-06-11/comcast-is-turning-homes-into-public-wi-fi-hotspots(describing Comcast's wireless gateway that transmits two signals with each functioning as a separate networkwhere the household that owns or rents the router can access the first network, and any Comcast broadbandcustomer can access the second network).230 See New America Foundation & Open Technology Institute Comments at 10-11 (contending that theCommission should apply the same openness provisions to both fixed and mobile broadband networks and thatconsumers should have the same right to use the Internet whether their device is '''connected over WiFi to a wiredLAN, or moments later, connected over a wireless carrier's network''); see also NCTA Comments at 8-10 (arguingthat applying different rules to fixed and mobile creates marketplace distortions that may hamper cross-platformbroadband competition).231 Verizon, 740 F.3d at 655; see also Cellco, 700 F.3d 534.39Federal Communications Commission
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practices, while prohibiting those broadband provider practices that threaten to harm Internet openness.Our proposed approach contains three essential elements: (1) an enforceable legal standard of conductbarring broadband provider practices that threaten to undermine Internet openness, providing certainty tonetwork providers, end users, and edge providers alike, (2) clearly established factors that give additionalguidance on the kind of conduct that is likely to violate the enforceable legal standard, and(3) encouragement of individualized negotiation and, if necessary, a mechanism to allow the Commissionto evaluate challenged practices on a case-by-case basis, thereby providing flexibility in assessingwhether a particular practice comports with the legal standard. We seek comment below on the designand justification of this rule.112.Alternatively, we also seek comment on whether the Commission should adopt analternative legal standard to govern broadband providers' practices. How can we ensure that ourproposed rule sufficiently protects against harms to the open Internet? How would the rule we proposetoday change if the Commission were to rely on Title II (or other sources of legal authority) to adopt rulesto protect and promote Internet openness?232 We seek comment on how the goal of the proposed rule'--toprevent those broadband provider practices that limit Internet openness'--could best be achieved.1.The 2010 No Unreasonable Discrimination Rule
113.2010 Open Internet Order. The Commission adopted a no unreasonable discriminationrule to prevent fixed broadband providers from engaging in harmful conduct when transmitting lawfulnetwork traffic over a consumer's broadband Internet access service.233 The antidiscrimination ruleprohibited fixed broadband providers from unreasonably discriminating against network traffic subject toreasonable network management.234 Unlike the transparency and no-blocking rules the Commissionadopted in 2010, the no unreasonable discrimination rule did not apply to mobile broadband Internetaccess service providers.235114.D.C. Circuit Opinion in Verizon v. FCC. The D.C. Circuit vacated the antidiscriminationrule because it found that the rule improperly relegated fixed broadband providers to common carrierstatus.236 This violated the statutory ban on common carrier treatment of information service providersbecause the Commission had classified broadband providers ''not as providers of 'telecommunicationsservices' but instead as providers of 'information services.''' 237 The court disagreed with the232 See infra Section III.F.233 Open Internet Order, 25 FCC Rcd at 17944, para. 68. The rule stated, ''A person engaged in the provision offixed broadband Internet access service, insofar as such person is so engaged, shall not unreasonably discriminate intransmitting lawful network traffic over a consumer's broadband Internet access service. Reasonable networkmanagement shall not constitute unreasonable discrimination.'' Id. 234 Id. The broad purpose of the ''no unreasonable discrimination'' rule was ''to encourage competition and removeimpediments to infrastructure investment while protecting consumer choice, free expression, end-user control, andthe ability to innovate without permission.'' Id. at 17949, para. 78; see also id. at 17909-25, 17927-31, 17951-57,paras. 13-34, 38-42, 80-92.235 Id. at 17958, para. 96.236 Verizon, 740 F.3d at 655-56; see also id. at 656-57 (differentiating the antidiscrimination provision at issue in theOpen Internet Order from other Commission rules that survived common carrier challenges because unlike the ruleat issue in Southwestern Cable, which was ''limited to remedying a specific perceived evil,'' the rule here ''is not solimited, as the compelled carriage obligation applies in all circumstances and with respect to all edge providers'').237 Id. at 651; see also id. at 631 (''[T]he Commission classified other types of broadband providers, such as DSLand wireless, which includes those offering broadband Internet service for cellular telephones, as informationservice providers exempt from Title II's common carrier requirements.'') (citing Appropriate Framework forBroadband Access to the Internet Over Wireline Facilities, 20 FCC Rcd 14853, 14862, para. 12 (2005); AppropriateRegulatory Treatment for Broadband Access to the Internet Over Wireless Networks, 22 FCC Rcd 5901, 5901-02,para.1 (2007); United Power Line Council's Petition for Declaratory Ruling Regarding the Classification of(continued'...)40
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Commission's interpretation to the contrary,238 finding that by compelling fixed broadband providers toserve all edge providers who provided content, services, and applications over the Internet withoutunreasonable discrimination, the rule compelled those providers to hold themselves out ''to serve thepublic indiscriminately'''--thus treating them as common carriers.239115.In making its determination, the court relied on its previous decision in Cellco, where itupheld the Commission's data roaming requirements against a common carrier challenge.240 The courtsuggested that had the Commission shown that the ''no unreasonable discrimination'' standard adopted inthe Open Internet Order differed from the ''nondiscrimination'' standard applicable to common carriers,the rule might have withstood judicial review similar to the data roaming rule at issue in Cellco.241 This isbecause the rule in Cellco ''expressly permit[ted] providers to adapt roaming agreements to'individualized circumstances without having to hold themselves out to serve all comers indiscriminatelyon the same or standardized terms.'''242 The court went on to suggest that, unlike the data roaming rulesat issue in Cellco, which listed specific factors to consider in a case-by-case determination of whether adata roaming provider's conduct and offerings were commercially reasonable based on the totality of thecircumstances,243 the Open Internet Order did not attempt to ''ensure that [the] reasonableness standard(Continued from previous page)Broadband over Power Line Internet Access Service as an Information Service, 21 FCC Rcd 13281, 13281, para. 1(2006)).238 Verizon, 740 F.3d at 652-56 (rejecting the Commission's premise that broadband providers did not serve as''carriers'' for edge providers).239 Id. at 655-56.240 Cellco, 700 F.3d 534. The Cellco court turned aside a facial challenge to the data roaming rules, while remindingthe Commission that it could consider ''as applied'' challenges if the Commission were to apply its rules in a mannerthat, in fact, relegated network providers to common carrier status. Id. at 548-49. We remain cognizant of theCourt's admonition in that circumstance, and in this one.241 Verizon, 740 F.3d at 656. The court held that the Commission had forfeited the argument, made in footnote 251of the Open Internet Order, that the antidiscrimination rule did not constitute per se common carriage because theOpen Internet rules permitted broadband providers to engage in ''reasonable network management,'' because theCommission had failed to raise the argument in its appellate brief. Id. However, the court went on to explain thatthe argument would have failed, in any event, because there was no basis on which to distinguish it from the ''justand reasonable'' legal standard that applies to common carriers. Id.242 Id. at 652 (citing Cellco, 700 F.3d at 548) (some internal quotations removed). The data roaming rulespecifically states that ''providers may negotiate the terms of their roaming arrangements on an individualizedbasis.'' In other words, providers may offer data roaming arrangements on commercially reasonable terms andconditions tailored to individualized circumstances without having to hold themselves out to serve all comersindiscriminately on the same or standardized terms. Reexamination of Roaming Obligations of Commercial MobileRadio Service Providers and Other Providers of Mobile Data Services, WT Docket No. 05-265, Second Report andOrder, 26 FCC Rcd 5411, 5433, para. 45 (2011) (Data Roaming Order).243 Data Roaming Order, 26 FCC Rcd at 5452-53, para. 86. In determining whether negotiations were commerciallyreasonable, the Commission stated it would consider the following factors: ''whether the host provider hasresponded to the request for negotiation; whether it has engaged in a persistent pattern of stonewalling behavior, andthe length of time since the initial request; whether the terms and conditions offered by the host provider are sounreasonable as to be tantamount to a refusal to offer a data roaming arrangement; whether the parties have anyroaming arrangements with each other, including roaming for interconnected services such as voice, and the termsof such arrangements; whether the providers involved have had previous data roaming arrangements with similarterms; the level of competitive harm in a given market and the benefits to consumers; the extent and nature ofproviders' build-out; significant economic factors, such as whether building another network in the geographic areamay be economically infeasible or unrealistic, and the impact of any 'head-start' advantages; whether the requestingprovider is seeking data roaming for an area where it is already providing facilities-based service; the impact of theterms and conditions on the incentives for either provider to invest in facilities and coverage, services, and servicequality; whether there are other options for securing a data roaming arrangement in the areas subject to negotiations(continued'...)41Federal Communications Commission
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remains flexible.''244 The D.C. Circuit suggested that a rule preventing certain types of conduct bybroadband providers might be acceptable, given the manner in which the Commission has classifiedbroadband providers, if the Commission articulated a discrete, flexible standard that prohibited practicesthat could reasonably be understood to harm Internet openness, while allowing individualized broadbandprovider practices, akin to the ''commercially reasonable'' standard adopted by the Commission in thedata roaming context.2452.Proposed Elements of an Enforceable Legal Rule
a.Prohibiting Only Commercially Unreasonable Practices
116.Sound public policy requires that Internet openness be the touchstone of a new legalstandard. Accordingly, we tentatively conclude that the Commission should adopt a rule requiringbroadband providers to use ''commercially reasonable'' practices in the provision of broadband Internetaccess service. Our proposed approach is both more focused and more flexible than the vacated 2010non-discrimination rule. It would prohibit as commercially unreasonable those broadband providers'practices that, based on the totality of the circumstances, threaten to harm Internet openness and all that itprotects. At the same time, it could permit broadband providers to serve customers and carry traffic on anindividually negotiated basis, ''without having to hold themselves out to serve all comers indiscriminatelyon the same or standardized terms,'' so long as such conduct is commercially reasonable.246 The D.C.Circuit explained that such an approach distinguished the data roaming rules at issue in Cellco fromcommon carrier obligations.247 We seek general comment on this approach, and more targeted commentbelow.117.With respect to this approach in general, we tentatively conclude that it should operateseparately from the no-blocking rule that we also propose to adopt. In other words, the presence orabsence of the no-blocking rule would have no impact on the presence or absence of the ''commerciallyreasonable'' standard, and vice versa. This would mean that conduct acceptable under the no-blockingrule would still be subject to independent examination under the ''commercially reasonable'' standard.We seek comment on this approach.118.The core purpose of the legal standard that we wish to adopt, whether the ''commerciallyreasonable'' standard or another legal formulation, is to effectively employ the authority that the Verizon court held was within the Commission's power under section 706. In essence, the court upheld theCommission's judgment that (1) section 706 grants substantive power to the Commission to take actions,including removing barriers to infrastructure investment and promoting competition in(Continued from previous page)and whether alternative data roaming partners are available; events or circumstances beyond either provider'scontrol that impact either the provision of data roaming or the need for data roaming in the proposed area(s) ofcoverage; the propagation characteristics of the spectrum licensed to the providers; whether a host provider'sdecision not to offer a data roaming arrangement is reasonably based on the fact that the providers are nottechnologically compatible; whether a host provider's decision not to enter into a roaming arrangement is reasonablybased on the fact that roaming is not technically feasible for the service for which it is requested; whether a hostprovider's decision not to enter into a roaming arrangement is reasonably based on the fact that changes to the hostnetwork necessary to accommodate the request are not economically reasonable; whether a host provider's decisionnot to make a roaming arrangement effective was reasonably based on the fact that the requesting provider'sprovision of mobile data service to its own subscribers has not been done with a generation of wireless technologycomparable to the technology on which the requesting provider seeks to roam; other special or extenuatingcircumstances.'' Id.244 Verizon, 740 F.3d at 657.245 Id. 246 Id. at 652 (quoting Cellco, 700 F.3d at 548) (internal quotations removed).247 Id. at 652.42Federal Communications Commission
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telecommunications markets, that will promote the deployment of broadband networks; (2) theCommission was within its authority to conclude that the ''virtuous circle'' can be adversely impacted bybroadband network practices that, over the long term, depress end user demand, which then threatensbroadband deployment; and (3) threats to the open Internet, such as limitations on users to access thecontent of their choice or speak their views freely, are therefore within the authority of the Commission tocurb. In selecting a legal standard, the Commission not only wishes to avoid subjecting broadbandnetworks to common carriage per se, it also wishes to choose a legal standard whose valid adoptionrenders unnecessary the adjudication of any question other than whether the adopted legal standard hasbeen violated. This is the distinction between the authority to adopt a standard and its subsequentapplication.248119.Are there alternative legal standards, whether in analogous contexts or otherwiseidentified by commenters, that the Commission should consider? Is there an existing standard that wouldserve a similar purpose to what we propose here and that would prevent the harms to Internetopenness?249 If so, how, and if not, what would any differences be? Could the Commission modify itsapproach to ''reasonable network management'' in ways that would establish a more flexible legalstandard that would not constitute common carriage per se? Commenters advocating alternative legalstandards should explain why they are preferable, both in terms of the substantive requirements of thealternative standard (such as how they would address providers' conduct, offerings, and practices) and itsimplementation (such as whether and how it may permit individualized decision-making), and how theywould protect an open Internet. And, as to the ''commercially reasonable'' standard or any other, we seekcomment on whether there are sources of law or practice the Commission should rely upon in explainingthe meaning and application of that standard.120.We also seek comment on how a rule requiring broadband providers to engage incommercially reasonable practices with respect to delivery of traffic to and from end users should applyin circumstances in which no individualized negotiation occurs between the edge provider and thebroadband provider. To cite just a few of many possible examples, consider a start-up VoIP service, apolitically oriented website with an audience of fewer than 100 unique visitors per day, a socialnetworking application narrowly focused on a particular demographic, or peer-to-peer communicationsamong individuals. Not all of those actors may seek to enter into a contract with a broadband provider;they may simply wish to reach its subscribers. We seek comment on the impact of this difference on theselection and/or application of the general legal standard.248 It is axiomatic that an as-applied challenge to a rule would invalidate an application of the rule, but the rule itselfmay otherwise remain broadly applicable. See Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985). Thus,assuming the rule is facially sustained by a reviewing court, the Commission would not be required to re-litigate itsunderlying determination that adoption of the rule will promote deployment. 47 U.S.C. § 1302(b). Because thecommercially reasonable practices rule requires a determination that an entity did not act in a commerciallyreasonable manner, the inquiry is, then, not whether the Commission has authority to adopt the regulation, butwhether the Commission may enforce the regulation in a particular set of circumstances. See Colo. Right to LifeComm., Inc. v. Coffman, 498 F.3d 1137, 1146 (10th Cir. 2007) (holding that an as-applied challenge is limited totesting ''the application of [a regulation] to the facts of a plaintiff's concrete case''). For example, the D.C. Circuitdetermined that the Commission's data roaming rule'--the legal standard adopted'--was facially valid and within theCommission's authority, but that the application of that standard could still be subject to subsequent challenge. SeeCellco, 700 F.3d at 548.249 For example, Section 628(b) of the Communications Act prohibits cable operators and certain programmingvendors from engaging in ''unfair methods of competition or unfair or deceptive acts or practices, the purpose oreffect of which is to hinder significantly or to prevent any multichannel video programming distributor fromproviding satellite cable programming or satellite broadcast programming to subscribers or consumers.'' 47 U.S.C.§ 548(b). The Commission has established processes for making case-by-case determinations of whether certainpractices are ''unfair'' under section 628(b) of the Act. See 47 C.F.R. § 76.1003.43
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121.As an alternative to our proposed approach, we seek comment on whether theCommission should adopt a different rule to govern broadband providers' practices to protect andpromote Internet openness. As mentioned above, a number of parties have expressed concerns about theeffect of pay-for-priority agreements on Internet openness.250 How can the Commission ensure that therule it adopts sufficiently protects against harms to the open Internet, including broadband providers'incentives to disadvantage edge providers or classes of edge providers in ways that would harm Internetopenness? Should the Commission adopt a rule that prohibits unreasonable discrimination and, if so,what legal authority and theories should we rely upon to do so? If the Commission ultimately adopts aTitle II approach, how should the Commission define the rule in light of the requirements under sections201 and 202 of the Act?251b.Factors to Guide Application of the General Legal Standard
122.Similar to the Commission's approach in the data roaming context, we propose toidentify factors the Commission can use to administer the proposed commercially reasonable practicesstandard.252 These pre-defined factors would provide guidance to encourage commercially reasonableindividualized practices and, if disputes arise, provide the basis for the Commission to evaluate whether,taking into account the totality of the circumstances on a case-by-case basis as discussed below, aparticular practice satisfies the enforceable legal standard.123.We seek comment on this approach and what factors the Commission should adopt toensure commercially reasonable practices that will protect and promote Internet openness. We discussbelow several categories of factors, noting that there is considerable overlap between these categories, andthat they are not mutually exclusive. As with the data roaming rule, we tentatively conclude that a reviewof the totality of the circumstances should be preserved through the creation of a ''catch all'' factor250 See, e.g., Letter from Emily Sheketoff, ALA, Prudence Adler, ARL, and Diana Obligner, EDUCAUSE, toMarlene H. Dortch, Secretary, Federal Communications Commission, GN Docket No. 14-28, at 2 (filed Feb. 13,2014) (''Prioritized delivery to end users, if allowed, will favor those content, application and service providers whocan pay for it. Paid prioritization and other forms of preferential access will significantly disadvantage libraries,education, and other non-profit institutions.'' (emphasis omitted)); Future of Music Coalition Comments at 2-3(expressing concern about ''a future where the Internet becomes a pay-to-play environment where only those withthe deepest pockets can guarantee delivery of their content''); Letter from Barbara van Schewick, Professor of Law,Stanford Law School to Tom Wheeler, Chairman, Federal Communications Commission, GN Docket No. 14-28,Attach. A at 5-6 (filed Apr. 25, 2014) (noting the potential for access fees to ''significantly increase the costs ofoffering applications, content and services, which would fundamentally change the environment for innovation andfree speech on the Internet'' as well as create ''two classes of speakers'--those who can pay to receive bettertreatment (e.g., large, established companies or wealthy individuals) and those who cannot afford to do so'--oftenindividuals and groups with unpopular or new viewpoints, like activists and artists''); Free Press Comments at 6 (''Aworld in which broadband providers charge for priority access to their customers, and discriminate freely againstany content, service or application they see fit to disfavor, is not a world the Commission should entertaincreating.''); Letter from Sarah Morris, Senior Policy Council, New America Foundation, to Marlene H. Dortch,Secretary, Federal Communications Commission, GN Docket No. 14-28, at 1 (filed May 2, 2014) (expressing ''deepconcern'' that ''the draft rules would be insufficient to protect consumers from discrimination'').251 See 47 U.S.C. § 201(b) (prohibiting unjust or unreasonable ''charges, practices, [or] classifications); id. at§ 202(a) (prohibiting ''unjust or unreasonable discrimination in charges, practices, classifications, regulations,facilities or services'').252 Data Roaming Order, 26 FCC Rcd at 5452-53, para. 86. As discussed above, in invalidating the 2010 nounreasonable discrimination rule as common carriage per se, the D.C. Circuit distinguished it from the commerciallyreasonable, factor-based approach adopted by the Commission in its Data Roaming Order and upheld by the courtin Cellco. We recognize that there are significant differences between the open Internet and the data roamingcontexts, including a broader range of open Internet practices at issue and a greater diversity of parties affected bysuch practices. Thus, while we look to our data roaming approach for guidance, we propose to develop factorsspecific to the open Internet context.44
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designed to ensure that rules can be applied evenly and fairly in response to changing circumstances andthat all users have an Internet experience that affords them access to a minimum level of service sufficientto protect and promote an open Internet. Further, we seek comment on providers' experiences with the''commercially reasonable'' practices standard in the data roaming context, and on how such experiencesmight inform our thinking as we develop the ''commercially reasonable'' practices standard for the openInternet.124.Impact on Present and Future Competition. The Commission has previously observedthat unfair competitive advantages can jeopardize innovation on the edge and impair otherwise lawfuldelivery of products and services.253 For that reason, we seek comment on how we should constructfactors in applying the commercially reasonable legal standard to assess the impact of broadband providerpractices on present and future competition. We understand this competition inquiry to extend beyond anapplication of antitrust principles to include, for example, the predicted impact of practices on futurecompetition.125.To what extent should such competition-oriented factors focus on market structure andthe extent of competition in a given market? For example, should we consider factors that theCommission has used in case-by-case adjudications under section 628(b) of the Act, which proscribescertain ''unfair methods of competition'' by cable operators and certain programming vendors?254 Are253 Open Internet Order, 25 FCC Rcd at 17909-25, 17927-31, paras. 13-34, 38-42.254 Under section 628(b) of the Act, the Commission has held that determining whether challenged conduct is''unfair'' requires ''balancing the anticompetitive harms of the challenged conduct against the procompetitivebenefits.'' 47 U.S.C. § 548(b). To find a violation under section 628(b) of the Act, the Commission must make twoindependent judgments. First, the Commission must determine that the defendant has engaged in unfair methods ofcompetition or unfair or deceptive acts or practices. If the Commission finds unfair acts or practices, then theCommission must determine that the unfair acts or practices had the purpose or effect of hindering significantly orpreventing a multichannel video programming distributor (MVPD) from providing satellite cable programming tosubscribers or consumers. See, e.g., Dakota Telecom Inc. v. CBS Broadcasting, File No. 5381-P, MemorandumOpinion and Order, 14 FCC Rcd 10500 (Cable Services Bur. 1999). The Commission has determined that specificpractices are likely to be prohibited under section 628(b). For example, the Commission established a rebuttablepresumption that an MVPD's withholding of a terrestrially delivered Regional Sports Network (RSN) from anotherMVPD creates the harm targeted by section 628(b), based in part on the finding that such programming is ''verylikely to be both non-replicable and highly valued by consumers.'' Review of the Commission's Program AccessRules and Examination of Programming Tying Arrangements, MB Docket No. 07-198, First Report and Order, 25FCC Rcd 746, 782, para. 52 (2010), aff'd in part, Cablevision Sys. Corp. v. FCC, 649 F.3d 695, 703 (D.C. Cir.2011). Under this presumption, the Commission found that MSG/Cablevision's withholding of HD versions of theMadison Square Garden RSN from Verizon was ''unfair'' and created the harm targeted by section 628(b). SeeVerizon Tel. Companies & Verizon Servs. Corp. v. Madison Square Garden, L.P. and Cablevision Systems Corp.,File No. CSR-8185-P, Order, 26 FCC Rcd 13145, 13160-77, paras. 18-41 (Media Bur. 2011), aff'd, Verizon Tel.Companies & Verizon Servs. Corp. v. Madison Square Garden, L.P. and Cablevision Systems Corp, File No. CSR-8185-P, Memorandum Opinion and Order, 26 FCC Rcd 15849, 15852-53, para. 8 (2011) (''Determining whetherchallenged conduct is 'unfair' requires balancing the anticompetitive harms of the challenged conduct against theprocompetitive benefits.''); see also AT&T Servs., Inc. & S. New England Tel. Co. d/b/a AT&T Connecticut v.Madison Square Garden, L.P. and Cablevision Systems Corp, File No. CSR-8185-P, Order, 26 FCC Rcd 13206,13222-40, paras.19-42 (Media Bur. 2011) (finding that withholding of the HD versions of the MSG and MSG+RSNs from AT&T was an ''unfair act''), aff'd, AT&T Servs., Inc. & S. New England Tel. Co. d/b/a AT&TConnecticut v. Madison Square Garden, L.P. and Cablevision Systems Corp., File No. CSR-8185-P, MemorandumOpinion and Order, 26 FCC Rcd 15849 (2011). The Commission has also prohibited exclusive arrangements fordelivering cable television service to multiple dwelling unit (MDU) properties, given that ''[e]xclusivity clauses thatrun in favor of cable operators typically are a complete bar to entry into MDUs by fiber-deploying LECs such asVerizon, AT&T, and Qwest, as well as [private cable operators].'' Exclusive Service Contracts for Provision ofVideo Services in Multiple Dwelling Units and Other Real Estate Developments, MB Docket No. 07-51, Report andOrder and Further Notice of Proposed Rulemaking, 22 FCC Rcd 20235, 20240 para. 9 (2007), aff'd, Nat'l Cable &(continued'...)45
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there other competition-oriented standards in other contexts (including those outside oftelecommunications) that we should look to for guidance?126.We propose that the competitive factors should also examine the extent of an entity'svertical integration and/or its relationships with affiliated entities. For example, broadband providerssometimes offer an affiliated streaming video service over their broadband network in competition withmany other third-party broadband and edge providers' services.255 How can we ensure that competition isnot harmed in such situations? We note that the no-blocking rule as applied to mobile Internet accessservice specifically prohibits broadband providers from blocking ''applications that compete with theprovider's voice or video telephony services.''256 And the Commission looked to a similar restriction toaddress harms raised by the Comcast-NBCU transaction.257 In light of such concerns, we propose toadopt a rebuttable presumption that a broadband provider's exclusive (or effectively exclusive)arrangement prioritizing service to an affiliate would be commercially unreasonable. We seek commenton this proposal.127.More generally, we seek comment on the use of rebuttable presumptions as a tool tofocus attention on the likely impacts of particular practices. What source or law, either within theCommunications Act or in other statutes, would help us craft the creation and use of rebuttablepresumptions?258 Are there particular rebuttable presumptions that should be used, for example, dealingwith some or all forms of exclusive contracts, or particularized degradation of services?128.How can the Commission ensure that parties are acting in a commercially reasonablemanner without foreclosing the creation of pro-competitive opportunities through certain forms of pricediscrimination or exclusivity agreements? Should we develop factors modeled in part after those that theCommission uses in determining whether an exclusive contract between a vertically integrated cableoperator and cable-programming vendor would serve the public interest?259 Should the Commissionadopt a rebuttable presumption that broadband provider conduct that forecloses rivals (of the provider orits affiliates) from the competing marketplace is commercially unreasonable?(Continued from previous page)Telecomms. Ass'n v. FCC, 567 F.3d 659 (D.C. Cir. 2009); see also 15 U.S.C. § 18 (''[T]he effect of such acquisitionmay be to substantially lessen competition . . . .'').255 For example, Comcast is a co-owner of the online video website Hulu.com. See About, Hulu.com,http://www.hulu.com/about (last visited Apr. 10, 2014); see also Applications of Comcast Corporation, GeneralElectric Company and NBC Universal, Inc. For Consent to Assign Licenses and Transfer Control of Licensees, MBDocket No. 10-56, Memorandum Opinion and Order, 26 FCC Rcd 4238, 4268, para. 78 (2011) (''We conclude thatComcast-NBCU will have the incentive and ability to discriminate against, thwart the development of, or otherwisetake anticompetitive actions against [online video distributors (OVDs)].''). 256 See supra Section III.D.4.257 See Applications of Comcast Corporation, General Electric Company and NBC Universal, Inc. For Consent toAssign Licenses and Transfer Control of Licensees, MB Docket No. 10-56, Memorandum Opinion and Order,26 FCC Rcd 4238, 4275, para. 94 (2011) (''[N]either Comcast nor Comcast-NBCU shall prioritize affiliated Internetcontent over unaffiliated Internet content.'').258 U.S. Dept. of Justice and Federal Trade Commission, Horizontal Merger Guidelines § 5.3 (2010),http://www.justice.gov/atr/public/guidelines/hmg-2010.html#5c.259 See 47 C.F.R. § 76.1002(c)(4). In determining whether a cable operator may enter into an exclusive contract withcertain types of affiliated programming vendors, the Commission considers the following factors regarding theeffect of the exclusive contract on the distribution of video programming in areas served by the cable operator:(i) the effect on the development of competition in local and national multichannel video programming distributionmarkets; (ii) the effect on competition from multichannel video programming distribution technologies other thancable; (iii) the effect on the attraction of capital investment in the production and distribution of new satellite-delivered cable programming; (iv) the effect on diversity of programming in the multichannel video programmingdistribution market; and (v) the duration of the exclusive contract. Id.46Federal Communications Commission
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129.Impact on Consumers. In addition to the competitive factors, the Commission proposesto adopt factors to examine the extent to which broadband providers' practices could harm consumers. Inthe Open Internet Order, the Commission looked to, among other things, the extent of transparency andend-user control in assessing whether a practice is unreasonably discriminatory.260 We believe thesefactors would likewise be relevant to assessing whether a practice is commercially reasonable. Whatcontinued role does the existing or enhanced transparency rule have in ensuring that consumers arereceiving correct information from broadband providers and not being misled?130.We believe that consumers of broadband access service should have the ability toexercise meaningful choices. How can we factor consumer choice into our analysis of what iscommercially reasonable? Should the Commission look for guidance to section 628 of the Act, whichmakes it unlawful for cable operators and their affiliated satellite cable programming vendors to engage in''unfair or deceptive acts or practices'' with certain purposes and effects?261131.Impact on Speech and Civic Engagement. The open Internet serves as a critical platformfor speech and civic engagement. As noted above, the ability of citizens and content providers to use thisopen platform to communicate with one another and express their views to a wide audience at very lowcosts drives further Internet use, consumer demand, and broadband investment and deployment.262 Wetherefore propose to adopt a factor or factors in applying the commercially reasonable standard that assessthe impact of broadband provider practices on free exercise of speech and civic engagement.132.Technical Characteristics. We also propose to examine the relevant technicalcharacteristics associated with broadband providers' practices. In the Data Roaming Order, for example,the Commission looked to the technical characteristics of the service at issue, including the technicalfeasibility of a requested service as well as the technical compatibility of providers' networks.263 We seekcomment on how the Commission should consider such technical characteristics in assessing whether abroadband provider's practice is commercially reasonable. The application of the legal standard tosatellite Internet access service presents one example. How should the Commission account for thetechnical differences between satellite and terrestrial broadband services when examining commerciallyreasonable behavior for satellite broadband providers?133.''Good Faith'' Negotiation. The Commission has imposed good faith negotiationrequirements in a variety of contexts. For example, the Commission explicitly requires televisionbroadcasters and multichannel video programming distributors (MVPDs) to negotiate retransmissionconsent agreements in good faith.264 The Commission also mandated good faith negotiations for dealingsbetween certain spectrum licensees.265 Would adopting a similar framework for evaluating negotiations260 Open Internet Order, 25 FCC Rcd at 17944, para. 70 (explaining that ''[d]ifferential treatment of traffic is morelikely to be reasonable the more transparent to the end user that treatment is'').261 47 U.S.C. § 548(b).262 See supra Section III.A.1; Open Internet Order, 25 FCC Rcd at 17912-15, paras. 15-18.263 Data Roaming Order, 26 FCC Rcd at 5452-53, para. 86.264 See, e.g., Implementation of Section 207 of the Satellite Home Viewer Extension and Reauthorization Act of 2004Reciprocal Bargaining Obligation, MB Docket No. 05-89, Report and Order, 20 FCC Rcd 10339, 10340-41, 10345-46, paras. 3-4, 6, 15 (2005); Implementation of Section 207 of the Satellite Home Viewer Extension andReauthorization Act of 2004 Reciprocal Bargaining Obligation, MB Docket No. 05-89, Notice of ProposedRulemaking, 20 FCC Rcd 5448, paras. 3-4 (2005); Implementation of the Satellite Home Viewer Improvement Act of1999; Retransmission Consent Issues: Good Faith Negotiation and Exclusivity, CS Docket No. 99-363, First Reportand Order, 15 FCC Rcd 5445 (2000); Amendment of the Commission's Rules Related to Retransmission Consent,MB Docket No. 10-71, Report and Order and Further Notice of Proposed Rulemaking, 29 FCC Rcd 3351 (2014)(2014 Retransmission Order).265 See, e.g., Gemini International, Inc. and Sprint Nextel, WT Docket No. 02-55, Memorandum Opinion and Order,22 FCC Rcd 6651, 6655-56, paras. 15-16 (2007); Petition for Declaratory Ruling Concerning the Requirement of(continued'...)47
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between parties in the open Internet context serve the public interest, convenience, and necessity? Howshould such a ''good faith'' test be applied where parties do not seek to enter into contractual relationshipswith each other?134.Industry Practices. How, if at all, should the fact that conduct is an industry practiceimpact the application of the ''commercially reasonable'' rule? What should be treated as an ''industrypractice''? For example, should that term be limited to express standards adopted by standards-settingorganizations or similar entities? If so, should the make-up or processes used by such a standards-settingorganization be considered? If not, how should the existence of an ''industry practice'' be effectivelyestablished for purposes of the application of the ''commercially reasonable'' rule, and how should theCommission best evaluate potential harms to competition arising from coordinated conduct in a marketwith a limited number of participants?266135.Other Factors. We seek comment on any additional factors the Commission shouldconsider in assessing whether a particular practice or set of practices by a broadband provider iscommercially reasonable, given the importance of preventing harms to an open Internet. Are there otherfactors that the Commission adopted in the Data Roaming Order that we should incorporate here?267How can the Commission best include a factor to capture special or extenuating circumstances to ensurethat it can take into account the totality of the circumstances, particularly given the rapid evolution of theInternet marketplace and technology?c.Case-by-Case Evaluations for Commercial Reasonableness
136.As discussed,268 we tentatively conclude that we will adopt a case-by-case approach,considering the totality of the circumstances, when analyzing whether conduct satisfies the proposedcommercially reasonable legal standard, or another legal standard ultimately adopted. We believe that, inconjunction with the factors listed above, this approach will provide the advantage of certainty andguidance to broadband providers and edge providers'--particularly smaller entities that might lackexperience dealing with broadband providers'--while also allowing parties flexibility in theirindividualized dealings. We seek comment on whether there is another avenue or mechanism we shoulduse when evaluating commercial reasonableness.3.Potential Conduct That Is Per Se
Commercially Unreasonable
137.In Southwestern Cable, the Supreme Court concluded that a Commission requirementthat cable systems carry local broadcast signals did not constitute common carriage even though theCommission's rule applied to all cable systems in defined circumstances. As the Supreme Court laternoted, that holding ''was limited to remedying a specific perceived evil [that] did not amount to a duty tohold out facilities indifferently for public use.''269 In Verizon, the D.C. Circuit likewise explained that theSouthwestern Cable regulation ''imposed no obligation on cable operators to hold their facilities open tothe public generally, but only to certain broadcasters if and when cable operators acted in ways that mightharm those broadcasters.''270 Thus, consistent with Supreme Court precedent and the Verizon decision,the Commission may be able to identify specific practices that do not satisfy the commercially reasonable(Continued from previous page)Good Faith Negotiations Among Economic Area Licensees and Incumbent Licensees in the Upper 200 Channels ofthe 800 MHz Band, PR Docket No. 93-144, Memorandum Opinion and Order, 16 FCC Rcd 4882, 4884, para. 4(2001).266 See infra para. 176; Open Internet Order, 25 FCC Rcd at 17946, para. 74.267 See supra n.243.268 See supra para. 61; see also infra Section III.H.269 FCC v. Midwest Video Corp., 440 U.S. 689, 706 n.16 (1979).270 Verizon, 740 F.3d at 656.48Federal Communications Commission
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legal standard. For example, we note that the data roaming rule upheld by the D.C. Circuit's Cellcodecision states that ''[c]onduct that unreasonably restrains trade . . . is not commercially reasonable.''271Similarly, the Commission recently concluded that certain joint activities between certain televisionstations, which are not regulated as common carriers, in the negotiation of retransmission consent fees area per se violation of the requirement of ''good faith'' negotiation.272 Are there any practices that,consistent with the Verizon court's reasoning, could be viewed as per se commercially unreasonable?138.Some have suggested that the Commission go even beyond the requirements of the OpenInternet Order to impose flat bans on pay-for-priority service.273 We seek comment on these suggestions,including whether all pay-for-priority practices, or some of them, could be treated as per se violations ofthe commercially reasonable standard or under any other standard based on any source of legalauthority.274 We emphasize that section 706 could not be used to reach some conduct under this judiciallyrecognized approach to circumvent the principle that the proposed rules will not, in any circumstances,constitute common carriage per se. If the Commission were to ultimately rely on a source of authorityother than section 706 to adopt a legal standard for broadband provider practices, such as Title II, we seekcomment on whether and, if so, how we should prohibit all, or some, pay-for-priority arrangements,consistent with our authority, to protect and promote Internet openness.4.Potential Safe Harbors
139.Similar to the approach of identifying practices ex ante that would not satisfy thecommercially reasonable legal standard, the Commission may be able to identify specific services thatwould be treated separately from the application of the commercially reasonable legal standard. We seekcomment on this approach and how the services below should be considered under such an approach.140.Application to Mobile Broadband. The Commission chose not to apply its nounreasonable discrimination rule to mobile broadband providers in 2010 based on considerationsincluding the rapidly evolving nature of mobile technologies, the increased amount of consumer choice inmobile broadband services, and operational constraints that put greater pressure on the concept ofreasonable network management for mobile broadband services.275 We have tentatively concluded thatwe will continue that approach in the proposed rules.276 Alternatively, should the Commission accountfor different characteristics of mobile service as a factor in its application of the commercially reasonablestandard, subject to mobile providers' reasonable network management? How would maintaining ourprevious approach for mobile broadband affect end users across different demographic groups, includingend users who rely solely on mobile broadband for Internet access?277141.Non-exclusive, non-affiliated agreements. AT&T has suggested that the Commissionexclude from its review of particular practices any agreement between a broadband provider and an edgeprovider if the agreement is not exclusive and if the edge provider is not an affiliate of the broadbandprovider. AT&T explains that subjecting broadband providers to case-by-case scrutiny in such cases''would unnecessarily impede efficient and pro-consumer arms-length commercial dealings.''278 We seek271 Data Roaming Order, 26 FCC Rcd at 5433, para. 45.272 See generally 2014 Retransmission Order, 29 FCC Rcd 3351.273 See Adam Clark Estes, WSJ: The FCC's New Net Neutrality Rules Will OK Pay-to-Play, Gizmodo.com (Apr. 23,2014), http://gizmodo.com/wsj-the-fccs-new-net-neutrality-rules-will-ok-pay-to-p-1566738354.274 See supra Section III.E.3.275 See Open Internet Order, 25 FCC Rcd at 17956-59, paras. 93-98.276 See supra para. 62.277 See supra n.228.278 AT&T Comments at 3. AT&T further explains that this is because, in these situations, the ''ISP is neitherfavoring its own content, applications, or services nor providing a service on an exclusive basis.'' Id. at 12.49
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comment on whether this approach should be adopted to limit the scope of the commercially reasonablestandard and whether it could be made consistent with the protections afforded by the rule.F.
Legal Authority
142.In this Notice, we propose to adopt rules to protect and promote the open Internet. Forthe reasons set forth below, we believe we have ample authority to do so.279 We propose that theCommission exercise its authority under section 706, consistent with the D.C. Circuit's opinion inVerizon v. FCC, to adopt our proposed rules. We also seek comment on the nature and the extent of theCommission's authority to adopt open Internet rules relying on Title II, and other possible sources ofauthority, including Title III. Additionally, we seek comment on the Commission's authority under any ofthe legal theories discussed below to address any transition or implementation issues associated with anyopen Internet rules adopted in this proceeding, such as the effect on existing agreements.2801.Section 706
143.We seek comment on our authority under section 706.281 We interpret sections 706(a)and (b) as independent and overlapping grants of authority that give the Commission the flexibility toencourage deployment of broadband Internet access service through a variety of regulatory methods,including removal of barriers to infrastructure investment and promoting competition in thetelecommunications market, and, in the case of section 706(b), giving the Commission the authority to actswiftly when it makes a negative finding of adequate deployment.282 The rules we propose today wouldbe authorized by sections 706(a) and (b) because they would ''encourage the deployment'' of advancedtelecommunications capability by promoting competition in the telecommunications market and removingbarriers to infrastructure investment.283 We also seek comment on the relevant differences between279 For an in-depth description of the factual basis for the adoption of rules, see supra Sections III.A-E.280 When implementing requirements in other contexts the Commission has, for example, addressed the impact onpreexisting agreements. See, e.g., Promotion of Competitive Networks in Local Telecommunications Markets,WT Docket No. 99-217, Report and Order, 23 FCC Rcd 5385, 5387-91, paras. 8-13 (2008) (prohibiting carriersfrom entering into contracts that would make them the exclusive provider of telecommunications services inresidential multiple tenant environments and that carriers may not enforce existing exclusivity contracts); ExclusiveService Contracts for Provision of Video Services in Multiple Dwelling Units and Other Real Estate Developments,MB Docket No. 07-51, Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 20235 (2007)(prohibiting the enforcement of existing exclusivity clauses and the execution of new ones by cable operators andothers subject section 628 in the context of multiple dwelling units (MDUs) and other real estate developments); seealso, e.g., Amendment of the Commission's Rules Related to Retransmission Consent, MB Docket No. 10-71, Reportand Order and Further Notice of Proposed Rulemaking, 29 FCC Rcd 3351, 3391, para. 66 (2014) (seeking commenton ''how elimination of the exclusivity rules would affect existing exclusivity contracts and broadcasters' ability toenforce those contracts'').281 Section 706 of the Telecommunications Act of 1996, Pub. L. No. 104-104, § 706, 110 Stat. 56, 153 (1996) (1996Act), as amended in relevant part by the Broadband Data Improvement Act (BDIA), Pub. L. No. 110-385, 122 Stat.4096 (2008), is now codified in Title 47, Chapter 12 of the United States Code. See 47 U.S.C. § 1301 et seq.282 Verizon, 740 F.3d at 637 (''The question, then, is this: Does the Commission's current understanding of section706(a) as a grant of regulatory authority represent a reasonable interpretation of an ambiguous statute? We believe itdoes.''); id. at 641 (''Contrary to Verizon's arguments, we believe the Commission has reasonably interpreted section706(b) to empower it to take steps to accelerate broadband deployment if and when it determines that suchdeployment is not reasonable and timely.''); Open Internet Order, 25 FCC Rcd at 17968-72, paras. 117-23(articulating a theory of authority under section 706(a)-(b)); Public Knowledge and Common Cause Comments at27-28.283 See supra Sections III.C.2; III.D.2; III.E.2.50
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sections 706(a) and (b) and how, if at all, those differences should impact our exercise of authorityhere.284144.To the extent that we rely on our authority under section 706(b), we seek comment onhow we should treat the existence of and the findings in the Commission's Broadband Progress Reportsfor the purposes of this proceeding. Could and should the Commission incorporate findings that satisfysection 706(b) in this proceeding? Finally, we seek comment on the extent to which the disparity betweenmetropolitan areas and rural deployment of broadband or within metropolitan areas should impact ourconclusions as to whether advanced telecommunications capability is being reasonably and timelydeployed.145.We also seek comment on how to construe the specific terms and definitions in section706. For example, ''advanced telecommunications capability'' is defined ''without regard to anytransmission media or technology, as high-speed, switched, broadband telecommunications capability thatenables users to originate and receive high-quality voice, data, graphics, and video telecommunicationsusing any technology.''285 It is clear that broadband Internet access service is such ''advancedtelecommunications capability,'' but we also seek comment on what other broadband-enabled servicesmay fall within the definition of ''advanced telecommunications capability.''286 Should the Commissioninterpret the term ''advanced telecommunications capability'' to require that certain practices accompany abroadband provider's deployment to ensure that end users receive ''high-speed, switched, broadbandtelecommunications capability that enables users to originate and receive high-quality voice, data,graphics, and video telecommunications?'' In addition, we note that Congress did not define''deployment.'' We believe Congress intended this term to be construed broadly, and thus, consistent withprecedent, we have interpreted it to include the extension of networks as well as the extension of thecapabilities and capacities of those networks.287284 There are significant differences between the authorities granted in each provision. For example, while bothsection 706(a) and (b) permit the Commission to enact measures that promote competition in thetelecommunications market, section 706(b) permits the Commission to act by promoting competition in the''telecommunications market'' while section 706(a) limits the Commission to promoting competition in the ''localtelecommunications market.'' Also, while section 706(a) gives the Commission general authority to encourage thedeployment of broadband regardless of findings under section 706(b), section 706(b) gives the Commissionauthority to take ''immediate action.'' Compare 47 U.S.C. § 1302(a) (''The Commission . . . shall encourage thedeployment on a reasonable and timely basis of advanced telecommunications capability to all Americans . . . byutilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatoryforbearance, measures that promote competition in the local telecommunications market, or other regulatingmethods that remove barriers to infrastructure investment.''), with 47 U.S.C. § 1302(b) (''If the Commission[]determin[es] [that advanced telecommunications capability is not being deployed to all Americans in a reasonableand timely fashion], it shall take immediate action to accelerate deployment of such capability by removing barriersto infrastructure investment and by promoting competition in the telecommunications market.'').285 47 U.S.C. § 1302(d)(1).286 See Open Internet Order, 25 FCC Rcd at 17968, para. 117 ('''[A]dvanced telecommunications capability,' asdefined in the statute, includes broadband Internet access.''); National Broadband Plan for our Future, GN DocketNo. 09-51, Notice of Inquiry, 24 FCC Rcd 4342, 4390, Appx. para. 14 (2009) (stating that ''advancedtelecommunications capability'' includes broadband Internet access); Inquiry Concerning the Deployment ofAdvanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, CC Docket No.98-146, Report, 14 FCC Rcd 2398, 2400, paras. 1, 20 (1999) (stating that section 706 addresses ''the deployment ofbroadband capability''). Even when broadband Internet access is provided as an ''information service'' rather than a''telecommunications service,'' see Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 977-78 (2005), it involves ''telecommunications.'' 47 U.S.C. § 153(24).287 See Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in aReasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of theTelecommunications Act of 1996, as Amended by the Broadband Data Improvement Act, GN Docket No. 11-121,(continued'...)51
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146.In section 230(b) of the Communications Act, Congress also set forth statutory''polic[ies] of the United States'': to ''promote the continued development of the Internet,'' to promote''technologies which maximize user control over what information is received'' over the Internet, and to''preserve the vibrant and competitive free market that presently exists for the Internet, unfettered byFederal or State regulation.''288 We continue to believe the Commission's interpretation of section 706 isbolstered by these congressional policies.289 We seek comment on how the Commission should readsection 230(b) in exercising its section 706 authority.147.We also seek comment generally on how the court's decision in Verizon v. FCC shouldinform our exercise of legal authority.290 The D.C. Circuit upheld the Commission's interpretation of itsauthority under section 706,291 concluding that the factual predicate that the Commission had laidjustifying its regulations was reasonable and that such a factual predicate was reasonably linked to theCommission's exercise of authority.292 However, because the court determined that the Commission'sno-blocking and anti-discrimination rules impermissibly regulated broadband providers as commoncarriers, the court vacated those rules, and remanded for further proceedings consistent with theopinion.293 We seek comment generally on how the court's Verizon decision should impact our exerciseof authority here.294 Are there principles raised in Judge Silberman's separate opinion concurring in partand dissenting in part that are relevant to our exercise of authority as to the new rules proposed, or uponwhich we otherwise seek comment, here?2.Title II
148.We seek comment on whether the Commission should rely on its authority under Title IIof the Communications Act, 295 including both (1) whether we should revisit the Commission'sclassification of broadband Internet access service as an information service and (2) whether we should(Continued from previous page)Report, 27 FCC Rcd 10342, 10363, para. 27 (2012) (2012 Eighth Broadband Progress Report) (''Congress intendedthe annual section 706(b) inquiries to be broader than a narrow examination of physical network deployment . . .Accordingly, our inquiry includes an assessment of a variety of factors indicative of broadband availability, such asbroadband cost, quality, and adoption by consumers.''). But see CEA Comments at 4.288 47 U.S.C. §§ 230(b)(1), (3) (emphasis added).289 See Open Internet Order, 25 FCC Rcd at 17967, para. 116.290 See Public Knowledge and Common Cause Comments at 27-28 (discussing the Commission's broad authorityunder section 706 pursuant to Verizon v. FCC). But see generally Full Service Network Comments (arguing that theD.C. Circuit's decision was fatally flawed for a number of reasons).291 Verizon, 740 F.3d at 635 (''[S]ection 706 of the 1996 Telecommunications Act . . . furnishes the Commissionwith the requisite affirmative authority to adopt [open Internet] regulations.'').292 Id. at 644 (''[T]he Commission's prediction that the Open Internet Order regulations will encourage broadbanddeployment is, in our view, both rational and supported by substantial evidence. . . . [T]he Commission has morethan adequately supported and explained its conclusion that edge-provider innovation leads to the expansion andimprovement of broadband infrastructure.''). But see id. at 665 (Silberman J., concurring in part and dissenting inpart) (''[T]he Commission's failure to conduct a market power analysis is fatal to its attempt to regulate, because itmeans that there is inadequate evidence to support the lynchpin of the Commission's economic theory.'').293 Id. at 659 (''[A]lthough we reject Verizon's challenge to the Open Internet Order's disclosure rules, we vacateboth the anti-discrimination and the anti-blocking rules.'').294 See generally id.295 See, e.g., Cogent Comments at 2 (the Commission should use Title II authority); Voices for Internet FreedomComments at 1 (same); Vonage Comments at 2 (Title II authority and authority under section 706 arecomplementary); Public Knowledge and Common Cause Comments at 15-18 (section 706 is insufficient to adoptstrong open Internet rules, but Title II gives the Commission requisite authority). But see, e.g., American ActionForum Comments at 9 (the Commission should take Title II reclassification off the table).52Federal Communications Commission
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separately identify and classify as a telecommunications service a service that ''broadband providers . . .furnish to edge providers.''296 For either of these possibilities, we seek comment on whether and how theCommission should exercise its authority under section 10 (or section 332(c)(1) for mobile services) toforbear from specific obligations under the Act and Commission rules that would flow from theclassification of a service as telecommunications service.149.Title II'--Revisiting the Classification of Broadband Internet Access Service. In a seriesof decisions beginning in 2002, the Commission has classified broadband Internet access service offeredover cable modem,297 DSL and other wireline facilities,298 wireless facilities,299 and power lines300 as aninformation service, which is not subject to Title II and cannot be regulated as common carrier service.301In 2010, following the D.C. Circuit's Comcast decision, the Commission issued a Notice of Inquiry (2010NOI) that, among other things, asked whether the Commission should revisit these decisions and classifya telecommunications component service of wired broadband Internet access service as a''telecommunications service.''302 The Commission also asked whether it should similarly alter itsapproach to wireless broadband Internet access service, noting that section 332 requires that wirelessservices that meet the definition of ''commercial mobile service''303 be regulated as common carriers296 Verizon, 740 F.3d at 656.297 See Inquiry Concerning High-Speed Access to the Internet Over Cable & Other Facilities; Internet Over CableDeclaratory Ruling; Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities,GN Docket No. 00-185, CS Docket No. 02-52, Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCCRcd 4798, 4824, para. 41 (2002) (Cable Modem Declaratory Ruling), aff'd sub nom. Nat'l Cable & Telecomms.Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005).298 Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities et al., CC Docket Nos.02-33, 01-337, 95-20, 98-10, WC Docket Nos. 04-242, 05-271, Report and Order and Notice of ProposedRulemaking, 20 FCC Rcd 14853, 14863-65, 14909-12, paras. 14-17, 103-06 (2005).299 Appropriate Regulatory Treatment for Broadband Access to the Internet Over Wireless Networks, WT DocketNo. 07-53, Declaratory Ruling, 22 FCC Rcd 5901, 5909-10, 5912-14, paras. 19-26, 29-33 (2007).300 United Power Line Council's Petition for Declaratory Ruling Regarding the Classification of Broadband overPower Line Internet Access Service as an Information Service, WC Docket No. 06-10, Memorandum Opinion andOrder, 21 FCC Rcd 13281 (2006).301 47 U.S.C. § 153(24) (''The term 'information service' means the offering of a capability for generating,acquiring, storing, transforming, processing, retrieving, utilizing, or making available information viatelecommunications, and includes electronic publishing, but does not include any use of any such capability for themanagement, control, or operation of a telecommunications system or the management of a telecommunicationsservice.''); 47 U.S.C. § 153(50) (''The term 'telecommunications' means the transmission, between or among pointsspecified by the user, of information of the user's choosing, without change in the form or content of the informationas sent and received.''); 47 U.S.C. § 153(53) (''The term 'telecommunications service' means the offering oftelecommunications for a fee directly to the public, or to such classes of users as to be effectively available directlyto the public, regardless of the facilities used.''); 47 U.S.C. § 153(51) (''A telecommunications carrier shall be treatedas a common carrier under this chapter only to the extent that it is engaged in providing telecommunications services. . . .'').302 Framework for Broadband Internet Service, GN Docket No. 10-127, Notice of Inquiry, 25 FCC Rcd 7866 (2010)(2010 NOI). Specifically, the Commission sought comment on whether to classify as a telecommunications service''Internet connectivity,'' which it defined as ''the functions that 'enable [end users] to transmit data communicationsto and from the rest of the Internet.''' Id. at 7894, para. 64. The docket opened by the 2010 NOI remains open. Toensure that it remains current, we hereby direct the Wireline Competition Bureau to issue a public notice to refreshthe record in that proceeding including the inquiries contained herein.303 Commercial mobile service is defined ''as any mobile service (as defined in section 153 of this title) that isprovided for profit and makes interconnected service available (A) to the public or (B) to such classes of eligibleusers as to be effectively available to a substantial portion of the public, as specified by regulation by theCommission.'' 47 U.S.C. § 332(d)(1). The Commission has defined ''commercial mobile radio service'' or ''CMRS''(continued'...)53
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under Title II.304 In response, the Commission received substantial comments on these issues. We nowseek further and updated comment on whether the Commission should revisit its prior classificationdecisions and apply Title II to broadband Internet access service (or components thereof). How wouldsuch a reclassification approach serve our goal to protect and promote Internet openness? What would bethe legal bases and theories for particular open Internet rules adopted pursuant to such an approach?Would reclassification and applying Title II for the purpose of protecting and promoting Internetopenness impact the Commission's overall policy goals and, if so, how?150.What factors should the Commission keep in mind as it considers whether to revisit itsprior decisions? Have there been changes to the broadband marketplace that should lead us to reconsiderour prior classification decisions? To what extent is any telecommunications component of that serviceintegrated with applications and other offerings, such that they are ''inextricably intertwined'' with theunderlying connectivity service?305 Is broadband Internet access service (or any telecommunicationscomponent thereof) held out ''for a fee directly to the public, or to such classes of users as to beeffectively available directly to the public?''306 If not, should the Commission compel the offering of suchfunctionality on a common carrier basis even if not offered as such? For mobile broadband Internetaccess service, does that service fit within the definition of ''commercial mobile service''?307 We also notethat on May 14, 2014, Representative Henry Waxman, Ranking Member of the Committee on Energy andCommerce of the U.S. House of Representatives, sent a letter to Chairman Wheeler proposing anapproach to protecting the open Internet whereby the Commission would proceed under section 706 butuse Title II as a ''backstop authority.''308 We seek comment on the viability of that approach.151.Title II'--Classification of the Broadband Providers' Service to Edge Providers. Separatefrom the reclassification of ''broadband Internet access service,'' we seek comment on how theCommission should consider broadband providers' service to edge providers and whether that service (orsome portion of it) is subject to Title II regulation. As mentioned above, in Verizon, the D.C. Circuitstated that ''broadband providers furnish a service to edge providers, thus undoubtedly functioning as(Continued from previous page)as a list of ''mobile services that shall be treated as common carriage services and regulated as commercial mobileradio services . . . pursuant to Section 332 of the Communications Act.'' 47 C.F.R. § 20.9(a).304 2010 NOI, 25 FCC Rcd at 7907-09, paras. 101-05.305 Brand X, 545 U.S. at 978.306 47 U.S.C. § 153(46). A key feature of whether a provider is engaged in common carriage is if it ''make[s]capacity available to the public indifferently''; it can also be compelled to offer service on a common carrier basis if''the public interest requires common carrier operation of the proposed facility.'' Cable & Wireless PLC, File No.SCL-96-005, Memorandum Opinion and Order, 12 FCC Rcd 8516, 8522, paras. 14-15 (1997); see also U.S.Telecom Ass'n v. FCC, 295 F.3d 1326, 1329 (D.C. Cir. 2002) (''[C]ommon carrier status turns on: (1) whether thecarrier 'holds himself out to serve indifferently all potential users'; and (2) whether the carrier allows 'customers totransmit intelligence of their own design and choosing.''' (citation omitted)); Virgin Islands Tel. Co. v. FCC, 198F.3d 921 (D.C. Cir. 1999); Nat'l Ass'n of Regulatory Utility Comm'rs v. FCC, 533 F.2d 601, 608-09 (D.C. Cir.1976); Nat'l Ass'n of Regulatory Utility Comm'rs v. FCC, 525 F.2d 630, 642 (D.C. Cir. 1976). Whether a providerhas made a common carriage offering ''must be determined on a case-by-case basis.'' Bright House Networks, LLC,et al. v. Verizon California, Inc., et al., File No. EB-08-MD-002, Memorandum Opinion and Order, 23 FCC Rcd10704, 10717-19, paras. 37-40 (2008) (finding that carriers offered common carriage service despite lacking a tariff,website posting, or any other advertisement, because providers self-certified themselves as common carriers, enteredinto publicly available interconnection agreements, and obtained state certificates of public convenience andnecessity), aff'd sub nom. Verizon Cal., Inc. v. FCC, 555 F.3d 270, 275-76 (D.C. Cir. 2009).307 See 47 U.S.C. § 332; 47 C.F.R. § 20.3.308 Letter from Rep. Henry Waxman, Ranking Member, Committee on Energy and Commerce, to Thomas Wheeler,Chairman, Federal Communications Commission at 2 (May 14, 2014), http://democrats.energycommerce.house.gov/sites/default/files/documents/Wheeler-Title-II-Backup-Option-2014-5-14.pdf.54Federal Communications Commission
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edge providers' 'carriers.'''309 We understand such service to include the flow of Internet traffic on thebroadband providers' own network, and not how it gets to the broadband providers' networks. TheCommission in the Open Internet Order understood the 2010 rules to regulate ''broadband Internet accessservice,'' which the Commission classified as an information service. That service, however, is bydefinition a ''mass-market retail service'' providing the capability to send and receive data from ''allInternet end points.''310 Does the ''service'' contemplated by the court between broadband providers andedge providers fit that definition? We seek comment on whether and, if so how, the Commission shouldseparately identify and classify a broadband service that is furnished by broadband providers' to edgeproviders in order to protect and promote Internet openness.152.Some have made proposals suggesting that the Commission could apply Title II to suchservices to achieve our open Internet objectives. For example, on May 5, 2014, Mozilla filed a petitionrequesting that the Commission (1) recognize remote delivery services in terminating access networks;(2) classify these services as ''telecommunications services'' under Title II of the Act; and (3) forbear fromany ''inapplicable or undesirable provisions of Title II'' for such services.311 Mozilla states that, unlike theend-user facing broadband services the Commission has classified as information services, theCommission has not classified the service that broadband Internet providers to remote endpoints,particularly to entities not in privity with the broadband provider.312 These services, Mozilla argues, canand should be classified as telecommunications services, subject to whatever Title II regulations theCommission deems appropriate.313 Similarly, academics from Columbia University have submitted analternate proposal to classify Internet-facing services that a broadband provider offers.314 This theorywould split broadband Internet access service into two components: first, the subscriber's ''request [for]data from a third-party provider; and second, the content provider's response to the subscriber.''315 Theproposal would classify the latter ''sender-side'' traffic, sent in response to a broadband provider'scustomer's request as a telecommunications service, subject to Title II.316 According to the proposal, thisis a stand-alone offer of telecommunications'--transmission between points specified by the end-user.317We seek comment on these proposals and other suggestions for how the Commission could identify andclassify such services and apply Title II to achieve our goals of protecting and promoting Internetopenness.153.Title II'--Forbearance. If the Commission were to reclassify broadband Internet accessservice as described above or classify a separate broadband service provided to edge providers as a''telecommunications service,'' such a service would then be subject to all of the requirements of the Actand Commission rules that would flow from the classification of a service as a telecommunicationsservice or common carrier service. Should the Commission take such an approach, we seek comment onthe extent to which forbearance from certain provisions of the Act or our rules would be justified in order309 Verizon, 740 F.3d at 653.310 See 47 C.F.R. § 8.11(a).311 Mozilla, Petition to Recognize Remote Delivery Services in Terminating Access Networks and Classify SuchServices as Telecommunications Services Under Title II of the Communications Act, GN Docket Nos. 09-91, 14-28,WC Docket No. 07-52, at ii, 10-13 (filed May 5, 2014) (Mozilla Petition).312 Id. at 6-9.313 Id. at 10-13.314 Letter from Tim Wu and Tejas Narechania, Columbia University to Marlene H. Dortch, Secretary, FederalCommunications Commission, GN Docket No. 14-28 (filed Apr. 14, 2014) (Wu & Narechania Ex Parte Letter).315 Id., Attach. at 13.316 Id., Attach. at 13-14.317 Id. Attach. at 15; 47 U.S.C. § 153(50).55
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to strike the right balance between minimizing the regulatory burden on providers and ensuring that thepublic interest is served.318 For mobile broadband services, we seek comment on whether and how theCommission should apply section 332(c)(1) in addition to section 10 forbearance.319154.In the 2010 NOI, the Commission contemplated that, if it were to classify the Internetconnectivity component of broadband Internet access service, it would forbear from applying all but ahandful of core statutory provisions'--sections 201, 202, 208, and 254'--to the service.320 In addition, theCommission identified sections 222 and 255 as provisions that could be excluded from forbearance,noting that they have ''attracted longstanding and broad support in the broadband context.''321 Wereceived considerable comment in that proceeding and seek further and updated comment.322Commenters should list and explain which provisions should be exempt from forbearance and whichshould receive it in order to protect and promote Internet openness. Commenters should also detail whichservices should receive forbearance, list the provisions from which they believe the Commission shouldforbear, and provide justification for the forbearance. Commenters should also define the relevantgeographic and product markets in which the services or providers should receive forbearance.155.For mobile broadband services, we also seek comment on the extent to which forbearanceshould apply, if the Commission were to classify mobile broadband Internet access service as a CMRSservice subject to Title II. The 2010 NOI also asked whether the Commission could and should applysection 332(c)(1) as well as section 10 in its forbearance analysis for mobile services.323 We receivedconsiderable comment in that proceeding and seek further and updated comment here.3.Other Sources of Authority
156.Title III. We further seek comment on the Commission's authority to adopt open Internetrules for mobile broadband services under Title III of the Communications Act. The Supreme Court hasfound that Title III endows the Commission with ''expansive powers'' and a ''comprehensive mandate to318 Section 10 of the Communications Act provides that the Commission shall forbear from applying a provision ofthe Act or the Commission's rules to a telecommunications carrier or telecommunications service (or a class thereof)if: (1) enforcement of that provision is not necessary to ensure just, reasonable, and non-discriminatory practices;(2) enforcement is not necessary to protect consumers; and (3) forbearance is consistent with the public interest.47 U.S.C. § 160(a). ''In making the determination under subsection (a)(3) [that forbearance is in the public interest,]the Commission shall consider whether forbearance from enforcing the provision or regulation will promotecompetitive market conditions, including the extent to which such forbearance will enhance competition amongproviders of telecommunications services. If the Commission determines that such forbearance will promotecompetition among providers of telecommunications services, that determination may be the basis for a Commissionfinding that forbearance is in the public interest.'' 47 U.S.C. § 160(b).319 47 U.S.C. § 332(c)(1). Under that provision, the Commission may render provisions other than section 201, 202,or 208 inapplicable ''only if the Commission determines that'--(i) enforcement of such provision is not necessary inorder to ensure that the charges, practices, classifications, or regulations for or in connection with that service arejust and reasonable and are not unjustly or unreasonably discriminatory; (ii) enforcement of such provision is notnecessary for the protection of consumers; and (iii) specifying such provision is consistent with the public interest.''Id.320 2010 NOI, 25 FCC Rcd at 7895, para. 68.321 Id.322 See Letter from Robert Quinn, AT&T to Marlene H. Dortch, Secretary, Federal Communications Commission,GN Docket No. 14-28 at 1 (filed May 14, 2014) (stating that ''forbearance would not address the many seriousimplications of reclassification'') (emphasis in original).323 2010 NOI, 25 FCC Rcd at 7909, para. 104.56
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'encourage the larger and more effective use of radio in the public interest.'''324 Section 303 of the Act, inparticular, authorizes the Commission to exercise its authority as ''the public interest, convenience, andnecessity requires'' to ''[p]rescribe the nature of the service to be rendered by each class of licensedstations and each station within any class,'' and to establish obligations, not inconsistent with law, as maybe necessary to carry out the provisions of the Act .325 It further directs the Commission to ''generallyencourage the larger and more effective use of radio in the public interest.''326 Likewise, section 316 ofthe Act authorizes the Commission to adopt ''new conditions on existing licensees'' when taking suchaction will ''promote the public interest, convenience, and necessity.''327 The Commission may exercisethis authority on a license-by-license basis or through a rulemaking,328 even if the affected licenses wereawarded at auction.329157.We find that these provisions provide authority for the Commission to adopt openInternet rules for mobile broadband service providers. Particularly, we find that it is within our authorityto ''prescribe the nature of the service to be rendered by each class of licensed stations and each stationwithin any class,'' consistent with what the ''public interest, convenience, and necessity requires'' to applyopen Internet rules to mobile broadband service providers.330 We seek comment on this interpretation ofour Title III authority.158.Other Sources of Authority. We seek comment on other sources of authority that theCommission may utilize to underpin the adoption of these rules. For example, the Open Internet Orderdelineated a number of arguments for authority under a variety of statutory provisions.331 We also seekcomment on the theory that the Commission may underpin open Internet rules by using its discretion todefine the scope of common carriage.332 In addition, we seek comment on the Commission's authority toadopt rules under the World Trade Organization's Basic Agreement on Trade in Telecommunications.333We seek comment on the efficacy of those, and other justifications for the rules we propose adoptinghere.4.Constitutional Considerations
159.Finally we seek comment on other legal limitations and barriers to adoption of the ruleswe propose today, including First Amendment and Due Process considerations. In the Open InternetOrder, the Commission concluded that ''broadband providers typically are best described not as'speakers,' but rather as conduits for speech,'' and that the open Internet rules therefore did not implicate324 CNBC v. United States, 319 U.S. 190 (1943) (quoting 47 U.S.C. § 303(g)); see also Cellco, 700 F.3d at 542(upholding the Commission's authority to require licensees to offer data roaming arrangements on commerciallyreasonable terms and conditions).325 47 U.S.C. § 303(b), (r).326 47 U.S.C. § 303(g).327 47 U.S.C. § 316.328 See WBEN Inc. v. United States, 396 F.2d 601, 618 (2d Cir. 1968).329 See 47 U.S.C. § 309(j)(6); Celtronix Telemetry v. FCC, 272 F.3d 585 (D.C. Cir. 2001).330 47 U.S.C. § 303(b).331 The Commission alternatively relied on a variety of provisions under Titles I, II, III, and VI as authority foradopting the rules. See Open Internet Order, 25 FCC Rcd at 17972-81, paras. 124-137.332 See Public Knowledge and Common Cause Comments 22-27.333 See generally Jennifer A. Manner and Alejandro Hernandez, An Overlooked Basis of Jurisdiction for NetNeutrality: The World Trade Organization Agreement on Basic Telecommunications Services, 22 CommLawConspectus 60 (2014).57
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broadband providers' First Amendment rights.334 The Commission also found that even if the rules ''didimplicate expressive activity, they would not violate the First Amendment''335 because they wouldadvance an important government interest'--''ensur[ing] the public's access to a multiplicity ofinformation sources and maximiz[ing] the Internet's potential to further the public interest'''--withoutburdening '''substantially more speech than is necessary.'''336 We seek comment on these findings. Wedo not anticipate constitutional, statutory, or other legal barriers to adopting the rules we propose today,but we nonetheless seek comment on these matters. Are there modifications we could make to theproposals we make today that would avoid constitutional questions?G.
Other Laws and Considerations
160.The Open Internet Order provided that the open Internet rules did not alter broadbandproviders' rights or obligations with respect to other laws or safety and security considerations.337 TheCommission further established that the rules did not prohibit broadband providers from makingreasonable efforts to address transfers of unlawful content and unlawful transfers of content.338 Wetentatively conclude that this continues to be the correct approach in light of the rules proposed in today'sNotice. We therefore propose to retain these regulations without modification. We seek comment on thistentative conclusion.H.
Enforcement and Dispute Resolution
1.Background
161.The Open Internet Order allowed parties to file informal complaints pursuant to section1.41 of the Commission's rules and promulgated a set of formal complaint rules.339 The formal complaintrules give the Commission flexibility to shift the burden of proof or production where appropriate and tostructure and streamline the process to the extent possible.340 Due to the technical nature of potentialdisputes, however, the Open Internet Order stressed the importance of direct negotiations andconsultation with independent technical bodies in hope that parties would be able to resolve disputesbefore availing themselves of the complaint processes.341 Thus, the policy of the Commission has been toencourage the filing of informal, rather than formal, complaints, and thus it was not surprising that theCommission did not receive any formal complaints following the adoption of the Open Internet Order.As noted above, the Commission has received many informal complaints from consumers allegingviolations of the Open Internet Order. In addition, the Commission takes notice of public commentaryand events, which may lead the Enforcement Bureau to initiate its own investigation. We seek commenton the efficiency and functionality of the complaint processes adopted in, and used pursuant to, the OpenInternet Order.2.Designing an Effective Enforcement Process
162.The Verizon decision and our earlier data roaming rules provide a blueprint for thecreation of a dispute resolution process to govern the rules we propose today to protect and promote theopen Internet. Of course, there are significant potential differences between the data roaming and open334 Open Internet Order, 25 FCC Rcd at 17982, para. 141.335 Id. at 17983, para. 145.336 Id. at 17984, para. 146.337 47 C.F.R. § 8.9; Open Internet Order, 25 FCC Rcd at 17963-64, paras. 108-10.338 47 C.F.R. § 8.9; Open Internet Order, 25 FCC Rcd at 17964-65, para. 111.339 Open Internet Order, 25 FCC Rcd at 17986-89, paras. 153-59; 47 C.F.R. §§ 8.12-17.340 Open Internet Order, 25 FCC Rcd at 17988, para. 157.341 See id. at 17986, 17988, paras. 151, 159.58
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Internet environments. For example, in Cellco, the D.C. Circuit considered a circumstance in which anidentified party, a wireless carrier, would desire to enter into a business arrangement with anotheridentified party, another wireless carrier. The rule at issue was designed to create circumstances that bothincented individualized bargaining and, in specific circumstances, curbed the limits of such negotiationwhere necessary to serve the public interest. A similar circumstance could arise in the open Internetcontext, if for example, an app developer wished to enter into a contractual arrangement with a broadbandprovider. But it is just as possible that the entity that feels aggrieved by an alleged violation of an openInternet rule does not seek a direct contractual relationship with a broadband provider. That could arise,for example, if a website is blocked or if an edge provider feels that it is being harmed by differentialtreatment afforded by a broadband provider to its own affiliate. For this reason, the dispute resolutionmechanism adopted by the Commission to enforce our proposed open Internet rules should be designed tooperate between parties that do not necessarily desire to enter into a binding agreement.163.We tentatively conclude that an effective institutional design for the rules proposed intoday's Notice must include at least three elements. First, there must be a mechanism to provide legalcertainty, so that broadband providers, end users and edge providers alike can better plan their activities inlight of clear Commission guidance. Second, there must be flexibility to consider the totality of the factsin an environment of dynamic innovation. Third, there must be effective access to dispute resolutions byend users and edge providers alike. We seek comment on these elements. Are there others that should beconsidered? Should any be eliminated? What forms of dispute resolution would be the best strategy toimplement ''data-driven decision-making''?342164.We believe we have ample legal authority to design an effective enforcement and disputeresolution process, whether the Commission ultimately relies on section 706, Title II, or another source oflegal authority. We seek comment on whether and how, if at all, the source of the Commission's legalauthority would affect our dispute resolution and enforcement proposals.343a.Legal Certainty
165.The Commission has a responsibility to provide certainty, guidance, and predictability tothe marketplace as we protect and promote the open Internet. The most important form of guidance is, ofcourse, the adoption by the Commission of a particular legal standard in the forthcoming rulemaking. Aswith the ''commercially reasonable'' standard employed in our data roaming rule, the purpose of such alegal standard is allow broadband providers, end users, and edge providers to measure broadband-provider conduct against a known rule of law, both prospectively and retroactively. Under the existingrules, formal complaints would also result in Commission orders that would both decide a specificcomplaint and provide useful guidance on the application of our proposed open Internet rules'--particularly in those cases where the adjudicated set of facts is representative of a larger industry practice.What other forms of guidance would be helpful? For example, is there value in establishing a business-review-letter approach similar to that of the Antitrust Division of the Department of Justice, wherebyentities concerned about certain practices under the new rules may ask the Commission for a statement ofits current enforcement intentions with respect to that conduct and by which the Commission wouldpublish both the request for review and its response?344 If adopted, would it make sense to have such aprospective review process be administered jointly by the Enforcement Bureau and the Office of GeneralCounsel, or should such prospective reviews be considered by the full Commission? Should suchguidance be binding or non-binding? How might petitions for declaratory ruling be helpful?342 Phil Weiser, Institutional Design, FCC Reform and the Hidden Side of the Administrative States, Working Paper09-01 38 (2009), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1336820.343 See supra Section III.F.344 See 28 C.F.R. § 50.6; Dep't. of Justice, Pilot Program Announced to Expedite Business Review Process (1992),http://www.justice.gov/atr/public/busreview/201659a.pdf.59
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166.Non-Binding Staff Opinions. Are there other mechanisms by which the Commission canprovide guidance before broadband providers initiate practices that are within the scope of the openInternet rules? For example, the Commission could designate certain staff to offer parties non-bindingviews on the likelihood that a particular practice by a broadband provider is commercially reasonable orcommercially unreasonable (assuming that were the applicable legal standard ultimately adopted). TheCommission has some experience with this non-binding, advisory approach to interpretation of itsrules.345 While this type of informal guidance from staff is not binding, it may provide parties withhelpful information as they consider whether and how to resolve a dispute privately and outside of thecomplaint process. Should we establish a similar process for helping parties anticipate issues or resolvedisputes that might arise under our proposed open Internet rules? If so, should the non-binding guidancebe made public in any way, or should it provide a confidential basis for early consultation? Weemphasize that these sorts of non-binding processes would always be in addition to, and not in lieu of, theright of parties to seek binding determinations from the Commission through the formal or informalcomplaint process, declaratory rulings, or other mechanisms we adopt to resolve disputes and allegationsof violations of our open Internet rules.167.Enforcement Advisories. Another type of guidance can come in the form of enforcementadvisories. For example, the Enforcement Bureau and the Office of General Counsel issued anenforcement advisory in 2011, providing additional insight into the application of the transparency rule.346Is it helpful to have these bureaus issue such advisories periodically where issues of potential generalapplication come to, or are brought to, their attention? Should such enforcement advisories be consideredbinding policy of the Commission, or merely a recitation of staff views?b.Flexibility
168.Our process for promoting and protecting Internet openness through the rules we proposetoday must be flexible enough to account for the totality of circumstances, including Internet evolutionand innovation from all sources over time. In the Open Internet Order, the Commission stated that itwould make certain determinations on a case-by-case basis.347 The Commission also stated in the DataRoaming Order that it would determine whether the terms and conditions of a proffered data roamingarrangement were commercially reasonable on a case-by-case basis, taking into consideration the totalityof the circumstances.348 Based on the Commission's precedent in using this decision-making process, wetentatively conclude that we will adopt a similar case-by-case analysis and consider the totality of thecircumstances to consider alleged violations of our proposed open Internet rules. Such an approachwould, for example, allow the Commission to consider any sources of innovation when analyzingwhether conduct meets the legal standard ultimately adopted by the Commission. Moreover, thisapproach helps to ensure that, as new circumstances exist, the Commission and interested parties will beadvantaged by a culture of learning that, drawing on the strengths of common-law reasoning, reflects theexperiences of the present, as well as the logic of the past.349 We seek comment on whether the345 See Federal Communications Commission, Market Disputes Resolution Division,http://www.fcc.gov/encyclopedia/market-disputes-resolution-division (last visited Apr. 24, 2014).346 FCC Enforcement Bureau and Office of General Counsel Issue Advisory Guidance for Compliance with OpenInternet Transparency Rule, GN Docket No. 09-191, WC Docket No. 07-52, Public Notice, 26 FCC Rcd 9411(Enforcement Bur./Office Gen. Counsel 2011).347 See supra para. 61.348 Data Roaming Order, 26 FCC Rcd at 5432, para. 42.349 See, e.g., Oliver Wendell Holmes, Jr., The Common Law at 1 (1881): ''The life of the law has not been logic: ithas been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of publicpolicy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good dealmore to do than the syllogism in determining the rules by which men should be governed. The law embodies thestory of a nation's development through many centuries, and it cannot be dealt with as if it contained only the(continued'...)60
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combination of a certain legal standard and a case-by-case approach provides the best means of bothproviding guidance and cabining administrative discretion, while ensuring that a system of disputeresolution is both focused on facts and founded on the strengths of common-law reasoning.169.Fact Finding Processes. In implementing either an informal or formal complaintprocess, how should the Commission structure its fact-finding processes? What level of evidence shouldbe required in order to bring a claim? Are there other circumstances where initial pleading standards orburdens of production should be either higher or lower? In general, what is the showing required for theburden of production shift from the party bringing the claim to the other party in a dispute? Shouldinterim relief be available? Should the process permit parties to seek expedited treatment of claims and, ifso, under what circumstances?c.Effective Access to Dispute Resolution
170.To be effective in protecting and promoting Internet openness, the process for enforcingthe rules we propose today must be accessible to a diverse array of affected parties. As noted above, theOpen Internet Order contemplated informal and formal complaints but did not include any alternativemechanisms for either providing guidance beforehand or resolution in the wake of a challenge to anexisting practice. But, as also noted above, the rules proposed in today's Notice will operate in anenvironment in which a complaining party may not have sought, or may not even want, to enter into acontractual arrangement with a broadband provider. Moreover, the ability of edge providers to effectivelyaccess a dispute resolution is important to the administrative effectiveness of any legal regime that theCommission might adopt. To what extent should the structure of edge provider market segments impactthe kind of regime that the Commission adopts? For example, although 17 broadband access providersaccounted for about 93 percent of U.S. retail subscribers in 2013,350 near the end of that year there werealmost 900 app developers that each served more than one million active users globally.351 And appdevelopers as a group may be quite a bit smaller than broadband providers; one estimate in 2013calculated that 65 percent of app developers garner less than $35,000 per year.352 Moreover, individualsare themselves quite capable of serving as edge providers, for example aspiring musicians who uploadvideos to sites such as YouTube.353171.How can a dispute resolution system be best structured to account for individuals andsmall businesses that may not have the same legal resources and effective access to the Commission asbroadband providers? We propose to create an ombudsperson whose duty will be to act as a watchdog toprotect and promote the interests of edge providers, especially smaller entities. Should initial pleading orprocedural requirements be adopted that make access to Commission processes by individuals or smallbusinesses less cumbersome?(Continued from previous page)axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, andwhat it tends to become. We must alternately consult history and existing theories of legislation. But the mostdifficult labor will be to understand the combination of the two into new products at every stage.''350 Jeff Baumgartner, Top U.S. MSO's & Telcos Added 2.6M Broadband Subs in 2013, Multichannel News (Mar.17, 2014), http://www.multichannel.com/news/technology/top-us-msos-telcos-added-26m-broadband-subs-2013/325549.351 Tony Danova, There Are Almost 900 Different App Developers That Have Over 1 Million Active Users, BusinessInsider (Nov. 11, 2013), http://www.businessinsider.com/there-are-almost-900-different-app-developers-that-have-over-1-million-active-users-2013-11.352 Scott Austin, The Surprising Numbers Behind Apps, Wall Street Journal Digits Blog (Mar. 11, 2013),http://blogs.wsj.com/digits/2013/03/11/the-surprising-numbers-behind-apps/.353 Leigh Goessl, How Musicians Can Use the Internet to Increase Exposure, Entertainment: Scene 360 (Jan. 1,2014), http://www.entertainmentscene360.com/index.php/how-musicians-can-use-the-internet-to-increase-exposure-31667/.61Federal Communications Commission
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3.Complaint Processes, Enforcement, and Additional Forms of DisputeResolution
172.Complaint Processes. We tentatively conclude that the same three means by which theCommission focused on potential open Internet violations after the adoption of the Open Internet Order,namely self-initiated investigation, informal complaints, and formal complaints, should be used as well toenforce any new open Internet rules. We seek comment on this tentative conclusion. Are there ways wecan improve our informal complaint process to make it easier to access and more effective, especially forconsumers and small businesses with limited resources? For example, should theCommission create a separate Open Internet complaint category for consumers filing informal complaintsunder the open Internet rules? Should the Commission permit individuals to report possiblenoncompliance with our Open Internet rules anonymously or take other steps to protect the identity ofindividuals who may be concerned about retaliation for raising concerns?173.Enforcement. We tentatively conclude that enforcement of the transparency rule and anyenhanced transparency rule that is adopted in this proceeding should proceed under the same disputemechanisms that will apply to the proposed no-blocking rule and the legal standard for provider practicesultimately adopted by the Commission. We also tentatively conclude that violations of the rules would besubject to forfeiture penalties, as appropriate, under the Act. We seek comment on these tentativeconclusions.174.Additional Forms of Dispute Resolution'--Alternative Dispute Resolution. In addition tothe Commission processes noted above to provide guidance, flexibility, and access, we seek comment onwhether additional dispute resolutions should be adopted. Should we adopt measures to require orencourage disputes over the legality of broadband provider practices to be resolved through alternativedispute resolution processes, such as arbitration? Would such an approach be sufficiently accessible tosmaller edge providers, or would a different dispute resolution process be more appropriate? Are thereany legal considerations, limitations, or concerns that the Commission should consider with adopting analternative dispute resolution procedure, including arbitration or mediation by a third party?354 We notethat under our informal dispute resolution procedures, Commission staff can mediate disputes if partiesvoluntarily request such a process. During such mediations, for instance, the staff may ask parties tosubmit their best offers to facilitate negotiations. We also can adopt specific rules to determineappropriate remedies and rapid resolution of formal complaints, including a requirement that partiesprovide their best and final offers to help Commission staff determine an appropriate remedy if a violationof the rule is found.355 We seek comment on the benefits and costs of such an approach in this context.175.Additional Forms of Dispute Resolution'--Multistakeholder Processes. We also seekcomment on whether a multistakeholder approach to the enforcement of our proposed open Internet ruleswould work in this context, in whole or in part. For example, should the Commission provide an initialforum for discussion and thereafter encourage stakeholders, should they so choose, to independentlydevelop standards that they consider to meet the governing legal standards? Such standards might then beshared with the Commission for consideration, or the stakeholders might publicize their proposedstandards and encourage industry to use them as best practices. If the Commission employed a modelsimilar to that of NTIA's multistakeholder privacy process, are there lessons we can learn from that354 For example, under the Alternative Dispute Resolution Act, an agency ''may not require any person to consent toarbitration as a condition of entering into a contract or obtaining a benefit.'' 5 U.S.C. § 575(a)(3). We note,however, that this restriction does not prevent the Commission from requiring parties to submit to third-partyarbitration so long as the arbitration is subject to de novo review by the Commission. See, e.g., Comcast Corp.,Petition for Declaratory Ruling that The America Channel is not a Regional Sports Network, File No. CSR-7108,Order, 22 FCC Rcd 17938, 17948, para. 4, n.13 (2007).355 In the Data Roaming Order, the Commission reserved the right to require both parties to provide their best andfinal offers to help Commission staff determine an appropriate remedy if a violation of the rule was found. DataRoaming Order, 26 FCC Rcd 5411, 5450-51, paras. 79, 83.62
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experience?356 How can a multistakeholder process best further the goals of providing guidance,flexibility, and access?176.Additional Forms of Dispute Resolution'--Technical Advisory Groups. We also seekcomment on whether and how the Commission should incorporate the expertise of technical advisorygroups into a new open Internet framework in a manner that could serve the goals of providing guidance,flexibility and access. For example, should we invite the Open Internet Advisory Committee (OIAC), theBroadband Internet Technical Advisory Group (BITAG), the Internet Engineering Task Force (IETF), orthe North American Network Operators Group (NANOG) to recommend to the Commission or publicmore generally industry best practices or other codes of conduct that would either serve as presumptivesafe harbors and/or help determine whether a broadband provider is in compliance with our open Internetrules?357 Or, rather than asking industry groups and other interested parties to play a role ex ante, shouldthe Commission instead ask them generally, or specific groups in particular, to weigh in on specificdisputes once they are brought to the Commission's attention?358 We seek comment generally on how theinclusion of advisory groups might strengthen the open Internet framework and reduce the burdens ofcompliance. Similarly, we seek comment on the potential value of allowing providers to opt intovoluntary codes of conduct or other suggested best practices that may serve as presumptive safe harbors.IV.
PROCEDURAL MATTERS
A.
Paperwork Reduction Act Analysis
177.This document contains proposed new information collection requirements. TheCommission, as part of its continuing effort to reduce paperwork burdens, invites the general public andthe Office of Management and Budget (OMB) to comment on the information collection requirementscontained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13.In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see44 U.S.C. 3506(c)(4), we seek specific comment on how we might further reduce the informationcollection burden for small business concerns with fewer than 25 employees.B.
Initial Regulatory Flexibility Analysis
178.As required by the Regulatory Flexibility Act of 1980 (RFA),359 the Commission hasprepared an Initial Regulatory Flexibility Analysis (IRFA) for this Notice of Proposed Rulemaking, of thepossible significant economic impact on small entities of the policies and rules addressed in thisdocument. The IRFA is set forth in Appendix B. Written public comments are requested on this IRFA.Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments356 For example, the Department of Commerce directed the NTIA to convene multistakeholder processes to developlegally enforceable codes of conduct specifying how consumer data privacy rules should apply in specific businesscontexts. NTIA's role in the privacy multistakeholder process is to ''help the parties reach clarity on what theirpositions are and whether there are options for compromise toward consensus, rather than substituting [the NTIA's]own judgment.'' The White House, Consumer Data Privacy in a Networked World: A Framework for ProtectingPrivacy and Promoting Innovation in the Global Digital Economy 23-26, 27 (Feb. 2012),http://www.whitehouse.gov/sites/default/files/privacy-final.pdf.357 Open Internet Order, 25 FCC Rcd at 17989, para. 162. The Open Internet Advisory Committee is an inclusiveand transparent body comprised of a balanced group including consumer advocates; Internet engineering experts;content, application, and service providers; network equipment and end-user-device manufacturers and suppliers;investors; broadband service providers; and other parties the Commission may deem appropriate. The Committeeaids the Commission in tracking developments with respect to the freedom and openness of the Internet, includingtechnical standards and issues relating to mobile broadband and specialized services. The Committee reports to theCommission and make recommendations it deems appropriate concerning the open Internet framework. Id. 358 2013 OIAC Annual Report at 39-46 (AT&T Face Time Case Study).359 See 5 U.S.C. § 603.63
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on the Notice indicated on the first page of this document. The Commission's Consumer andGovernmental Affairs Bureau, Reference Information Center, will send a copy of this Notice of ProposedRulemaking, including the IRFA, to the Chief Counsel for Advocacy of the Small BusinessAdministration (SBA).360C.
Comment Filing Procedures
179.Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 C.F.R. §§ 1.415,1.419, interested parties may file comments and reply comments on or before the dates indicated on thefirst page of this document. Comments may be filed using the Commission's Electronic Comment FilingSystem (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).§Electronic Filers: Comments may be filed electronically using the Internet by accessing theECFS: http://fjallfoss.fcc.gov/ecfs2/.§Paper Filers: Parties who choose to file by paper must file an original and one copy of eachfiling. If more than one docket or rulemaking number appears in the caption of this proceeding,filers must submit two additional copies for each additional docket or rulemaking number.Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission'sSecretary, Office of the Secretary, Federal Communications Commission.§All hand-delivered or messenger-delivered paper filings for the Commission's Secretarymust be delivered to FCC Headquarters at 445 12th St., SW, Room TW-A325,Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveriesmust be held together with rubber bands or fasteners. Any envelopes and boxes must bedisposed of before entering the building.§Commercial overnight mail (other than U.S. Postal Service Express Mail and PriorityMail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.§U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12thStreet, SW, Washington DC 20554.180.People with Disabilities: To request materials in accessible formats for people withdisabilities (braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or callthe Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).D.
Ex Parte Rules
181.This proceeding shall be treated as a ''permit-but-disclose'' proceeding in accordance withthe Commission's ex parte rules.361 Persons making ex parte presentations must file a copy of anywritten presentation or a memorandum summarizing any oral presentation within two business days afterthe presentation (unless a different deadline applicable to the Sunshine period applies). Persons makingoral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list allpersons attending or otherwise participating in the meeting at which the ex parte presentation was made,and (2) summarize all data presented and arguments made during the presentation. If the presentationconsisted in whole or in part of the presentation of data or arguments already reflected in the presenter'swritten comments, memoranda or other filings in the proceeding, the presenter may provide citations to360 See 5 U.S.C. § 603(a).361 47 C.F.R. §§ 1.1200 et seq.64
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such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevantpage and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing themin the memorandum. Documents shown or given to Commission staff during ex parte meetings aredeemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). Inproceedings governed by rule 1.49(f) or for which the Commission has made available a method ofelectronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations,and all attachments thereto, must be filed through the electronic comment filing system available for thatproceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants inthis proceeding should familiarize themselves with the Commission's ex parte rules.E.
Contact Person
182.For further information about this rulemaking proceeding, please contact KristineFargotstein, Competition Policy Division, Wireline Competition Bureau, at (202) 418-2774.V.
ORDERING CLAUSES
183.Accordingly, IT IS ORDERED, pursuant to sections 1, 2, 4(i)-(j), 303 and 316 of theCommunications Act of 1934, as amended, and section 706 of the Telecommunications Act of 1996, asamended, 47 U.S.C. §§ 151, 152, 154(i)-(j), 303, 316, 1302, that this Notice of Proposed Rulemaking ISADOPTED.184.IT IS FURTHER ORDERED that the Commission's Consumer and GovernmentalAffairs Bureau, Reference Information Center, SHALL SEND a copy of this Notice of ProposedRulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy ofthe Small Business Administration.FEDERAL COMMUNICATIONS COMMISSIONMarlene H. DortchSecretary65Federal Communications Commission
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APPENDIX A
Proposed Rules
Part 8 of Title 47 of the Code of Federal Regulations is amended as follows:PART 8 '' PROTECTING AND PROMOTING THE OPEN INTERNET
Sec.8.1Purpose.8.3Transparency.8.5No Blocking.8.7No Commercially Unreasonable Practices.8.9Other Laws and Considerations.8.11 Definitions.AUTHORITY: 47 U.S.C. §§ 151, 152, 154(i)-(j), 303, 316, 1302§ 8.1Purpose.
The purpose of this Part is to protect and promote the Internet as an open platform enabling consumerchoice, freedom of expression, end-user control, competition, and the freedom to innovate withoutpermission, and thereby to encourage the deployment of advanced telecommunications capability andremove barriers to infrastructure investment.§ 8.3Transparency.
(a) A person engaged in the provision of broadband Internet access service shall publicly discloseaccurate information regarding the network management practices, performance, and commercial termsof its broadband Internet access services, in a manner tailored (i) for end users to make informed choicesregarding use of such services, (ii) for edge providers to develop, market, and maintain Internet offerings,and (iii) for the Commission and members of the public to understand how such person complies with therequirements described in sections 8.5 and 8.7 of this chapter.(b) In making the disclosures required by this section, a person engaged in the provision of broadbandInternet access service shall include meaningful information regarding the source, timing, speed, packetloss, and duration of congestion.(c) In making the disclosures required by this section, a person engaged in the provision of broadbandInternet access service shall publicly disclose in a timely manner to end users, edge providers, and theCommission when they make changes to their network practices as well as any instances of blocking,throttling, and pay-for-priority arrangements, or the parameters of default or ''best effort'' service asdistinct from any priority service.§ 8.5No Blocking.
A person engaged in the provision of fixed broadband Internet access service, insofar as such person is soengaged, shall not block lawful content, applications, services, or non-harmful devices, subject toreasonable network management.A person engaged in the provision of mobile broadband Internet access service, insofar as such person isso engaged, shall not block consumers from accessing lawful websites, subject to reasonable network66Federal Communications Commission
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management; nor shall such person block applications that compete with the provider's voice or videotelephony services, subject to reasonable network management.§ 8.7No Commercially Unreasonable Practices.
A person engaged in the provision of fixed broadband Internet access service, insofar as such person is soengaged, shall not engage in commercially unreasonable practices. Reasonable network managementshall not constitute a commercially unreasonable practice.§ 8.9Other Laws and Considerations.
Nothing in this part supersedes any obligation or authorization a provider of broadband Internet accessservice may have to address the needs of emergency communications or law enforcement, public safety,or national security authorities, consistent with or as permitted by applicable law, or limits the provider'sability to do so.Nothing in this part prohibits reasonable efforts by a provider of broadband Internet access service toaddress copyright infringement or other unlawful activity.§ 8.11 Definitions.(a) Block. The failure of a broadband Internet access service to provide an edge provider with aminimum level of access that is sufficiently robust, fast, and dynamic for effective use by end users andedge providers.(b) Broadband Internet access service. A mass-market retail service by wire or radio that provides thecapability to transmit data to and receive data from all or substantially all Internet endpoints, includingany capabilities that are incidental to and enable the operation of the communications service, butexcluding dial-up Internet access service. This term also encompasses any service that the Commissionfinds to be providing a functional equivalent of the service described in the previous sentence, or that isused to evade the protections set forth in this Part.(c) Edge Provider. Any individual or entity that provides any content, application, or service over theInternet, and any individual or entity that provides a device used for accessing any content, application, orservice over the Internet.(d) End User. Any individual or entity that uses a broadband Internet access service.(e) Fixed broadband Internet access service. A broadband Internet access service that serves end usersprimarily at fixed endpoints using stationary equipment. Fixed broadband Internet access service includesfixed wireless services (including fixed unlicensed wireless services), and fixed satellite services.(f) Mobile broadband Internet access service. A broadband Internet access service that serves end usersprimarily using mobile stations.(g) Reasonable network management. A network management practice is reasonable if it is appropriateand tailored to achieving a legitimate network management purpose, taking into account the particularnetwork architecture and technology of the broadband Internet access service.67Federal Communications Commission
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APPENDIX B
Initial Regulatory Flexibility Analysis
1.As required by the Regulatory Flexibility Act of 1980, as amended (RFA),1 theCommission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significanteconomic impact on a substantial number of small entities from the policies and rules proposed in thisNotice of Proposed Rulemaking (Notice). The Commission requests written public comment on thisIRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines forcomments on the Notice provided on the first page of the Notice. The Commission will send a copy ofthe Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration(SBA).2 In addition, the Notice and IRFA (or summaries thereof) will be published in the FederalRegister.3A.
Need for, and Objectives of, the Proposed Rules
2.With this Notice, the Commission is directly responding to the remand by the U.S. Courtof Appeals for the D.C. Circuit in Verizon v. FCC of portions of the Commission's 2010 Open InternetOrder and proposing enforceable rules to protect and promote the open Internet.4 The Notice seekscomment on a variety of issues relating to the Commission's stated objective of protecting and promotingan open Internet. The Internet's openness promotes innovation, investment, competition, free expressionand other national broadband goals. It is also critical to the Internet's ability to serve as a platform forspeech and civic engagement and can help close the digital divide by facilitating the development ofdiverse content, applications, and services. The Commission has specifically found that the Internet'sopenness enables a ''virtuous circle of innovation in which new uses of the network'--including newcontent, applications, services, and devices'--lead to increased end-user demand for broadband, whichdrives network improvements, which in turn lead to further innovative network uses.''5 However, as theCommission has previously found, broadband providers have both the incentive and ability to limitInternet openness. As discussed in the Notice, the Commission is seeking comment on proposed openInternet rules that will protect against the harms identified in the 2010 Open Internet Order, whilefostering all sources of innovation on the collection of networks known as the Internet.6 The Notice asksfor comment in a variety of specific areas and sets forth proposals in the following six key areas: scope ofthe proposed rules, enhancement of the existing transparency rule, a no-blocking rule, an enforceable ruledesigned to protect the open Internet that is not per se common carriage, the best source of legal authorityfor protection of Internet openness and an enforcement and dispute resolution process.3.First, the Notice proposes to retain the same definitions and scope as the 2010 rules. TheNotice seeks comment, however, on whether the Commission should change the scope of the proposedrules as applied to the following: specifically identified services, enterprise services, Internet trafficexchange, specialized services, and mobile services. The Notice also proposes to interpret ''reasonablenetwork management'' under the same framework adopted in the 2010 Open Internet Order and seekscomment on developing the scope of ''reasonable network management'' on a case-by-case basis underthe proposed rules.1 See 5 U.S.C. § 603. The RFA, see 5 U.S.C. §§ 601-12, has been amended by the Small Business RegulatoryEnforcement Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).2 See 5 U.S.C. § 603(a).3 Id.4 See Notice Section III; Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014).5 Open Internet Order, 25 FCC Rcd at 17910-11, para. 14.6 See Notice Section III. A.68
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4.Second, the Notice proposes enhancements to the Commission's existing transparencyrule, which was upheld by the D.C. Circuit. The Notice seeks comment on whether disclosures ofbroadband providers' network management practices, performance, and terms and conditions that arespecifically tailored to the needs of affected parties would better ensure that consumers, edge providers,and the Internet community at large have the information they need to understand the services they arereceiving and to monitor practices that could undermine the open Internet than the existing rule TheNotice seeks comment on the burdens of enhanced transparency on broadband providers and specificallyasks if there are ways to minimize these potential costs and burdens.5.Third, the Notice proposes adopting the text of the no-blocking rule from the 2010 OpenInternet Order, with a revised rationale, in order to ensure that all end users and edge providers can enjoythe use of robust, fast and dynamic Internet access. To address the ongoing concerns with the harmfuleffects that blocking of Internet traffic would have on Internet openness and to competition in adjacentmarkets, the Notice seeks comment on a draft no-blocking rule that would allow individualizedbargaining above a minimum level of access to a broadband provider's subscribers, which the D.C.Circuit suggested would be permissible and take the rule out of the realm of common carriage regulation.The Notice proposes a variety of ways to establish a minimum level of access under the proposed no-blocking rule and seeks comment on those interpretations. Alternatively, the Notice seeks comment onwhether the Commission should adopt a no-blocking rule that either itself prohibits broadband providersfrom entering into priority agreements with edge providers or acts in combination with a separate ruleprohibiting such conduct. Additionally, consistent with the 2010 Open Internet Order, the Noticeproposes to apply the proposed no-blocking rule differently to mobile broadband providers than to fixedbroadband providers and seeks comment on that approach.6.Fourth, where conduct would otherwise be permissible under the no-blocking rule, theNotice proposes a separate rule that requires broadband providers to adhere to an enforceable legalstandard of commercially reasonable practices. The Notice tentatively concludes that the Commissionshould adopt a revised rule that, consistent with the court's decision, may permit broadband providers toengage in individualized practices, while prohibiting those broadband provider practices that threaten toharm Internet openness. The Commission's proposed approach contains three essential elements: (1) anenforceable legal standard of conduct barring broadband provider practices that threaten to undermineInternet openness, providing certainty to network providers, end users, and edge providers alike, (2)clearly established factors that give additional guidance on the kind of conduct that is likely to violate theenforceable legal standard, and (3) encouragement of individualized negotiation and, if necessary, amechanism to allow the Commission to evaluate challenged practices on a case-by-case basis, therebyproviding flexibility in assessing whether a particular practice comports with the legal standard. TheNotice proposes that the concept of reasonable network management would be treated separately from theapplication of the commercially reasonable practices legal standard and seeks comment on this approach.The Notice asks how harm can best be identified and prohibited and whether certain practices, like paidprioritization, should be barred altogether. The Notice also seeks comment on whether the Commissionshould consider current technical characteristics, industry practices, and the impact on consumers, amongother factors, when evaluating commercially reasonable practices.7.Fifth, the Notice proposes to rely on section 706 of the Telecommunications Act of 1996as the source of authority for the proposed rules. It seeks comment, however, on the best source ofauthority for protecting Internet openness, whether section 706, Title II of the Communications Act of1934, as amended, and/or other sources of legal authority such as Title III of the Communications Act forwireless services. With respect to the prospect of proceeding under Title II, the Notice seeks comment onwhether and how the Commission should exercise its authority under section 10 of the Act'--or section332(c)(1) for mobile services'--to forbear from specific Title II obligations that would flow from theclassification of a service as telecommunications service.8.Sixth, the Notice proposes a multi-faceted dispute resolution process to provide effectiveaccess for end users, edge providers, and broadband network providers alike and the creation of anombudsperson to act as a watchdog to represent the interests of consumers, start-ups and small69Federal Communications Commission
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businesses. The Notice seeks comment on the level of flexibility needed for such approaches and,specifically, how the Commission can ensure that the process is accessible by end users and edgeproviders, including small entities. The Notice also proposes that should the Commission ultimatelyadopt one of the proposed dispute mechanisms, then enforcement of the existing transparency rule andany enhancements to that rule would proceed under the same manner as enforcement of theCommission's other proposed open Internet rules if adopted.B.
Legal Basis
9.The legal basis for any action that may be taken pursuant to the Notice is contained insections 1, 2, 4(i)-(j), 303, and 316, of the Communications Act of 1934, as amended, and section 706 ofthe Telecommunications Act of 1996, as amended, 47 U.S.C. §§ 151, 152, 154(i)-(j), 303, 316, 1302,C.
Description and Estimate of the Number of Small Entities to Which the RulesWould Apply
10.The RFA directs agencies to provide a description of, and where feasible, an estimate ofthe number of small entities that may be affected by the proposed rules, if adopted.7 The RFA generallydefines the term ''small entity'' as having the same meaning as the terms ''small business,'' ''smallorganization,'' and ''small governmental jurisdiction.''8 In addition, the term ''small business'' has thesame meaning as the term ''small-business concern'' under the Small Business Act.9 A small-businessconcern'' is one which: (1) is independently owned and operated; (2) is not dominant in its field ofoperation; and (3) satisfies any additional criteria established by the SBA.101.Total Small Entities
11.Our proposed action, if implemented, may, over time, affect small entities that are noteasily categorized at present. We therefore describe here, at the outset, three comprehensive, statutorysmall entity size standards.11 First, nationwide, there are a total of approximately 28.2 million smallbusinesses, according to the SBA.12 In addition, a ''small organization'' is generally ''any not-for-profitenterprise which is independently owned and operated and is not dominant in its field.''13 Nationwide, asof 2007, there were approximately 1,621,315 small organizations.14 Finally, the term ''smallgovernmental jurisdiction'' is defined generally as ''governments of cities, towns, townships, villages,school districts, or special districts, with a population of less than fifty thousand.''15 Census Bureau datafor 2007 indicate that there were 89,476 local governmental jurisdictions in the United States.16 We7 See 5 U.S.C. § 603(b)(3).8 See 5 U.S.C. § 601(6).9 See 5 U.S.C. § 601(3) (incorporating by reference the definition of ''small-business concern'' in the Small BusinessAct, 15 U.S.C. § 632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small business applies ''unless anagency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunityfor public comment, establishes one or more definitions of such term which are appropriate to the activities of theagency and publishes such definition(s) in the Federal Register.''10 See 15 U.S.C. § 632.11 See 5 U.S.C. §§ 601(3)-(6).12 See SBA, Office of Advocacy, ''Frequently Asked Questions,''http://www.sba.gov/sites/default/files/FAQ_March_2014_0.pdf (last accessed Apr. 28, 2014).13 5 U.S.C. § 601(4).14 Indep. Sector, The New Nonprofit Almanac and Desk Reference (2010).15 5 U.S.C. § 601(5).16 U.S. Census Bureau, Statistical Abstract of the United States: 2012, Section 8, page 267, tbl. 429,https://www.census.gov/compendia/statab/2012/tables/12s0429.pdf/ (data cited therein are from 2007).70
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estimate that, of this total, as many as 88,761 entities may qualify as ''small governmental jurisdictions.''17Thus, we estimate that most governmental jurisdictions are small.2.Internet Access Service Providers
12.The actions proposed in the Notice would apply to broadband Internet access serviceproviders. The 2011 Economic Census places these firms, whose services might include Voice overInternet Protocol (VoIP), in either of two categories, depending on whether the service is provided overthe provider's own telecommunications facilities (e.g., cable and DSL ISPs), or over client-suppliedtelecommunications connections (e.g., dial-up ISPs). The former are within the category of WiredTelecommunications Carriers,18 which has an SBA small business size standard of 1,500 or feweremployees.19 These are also labeled ''broadband.'' The latter are within the category of All OtherTelecommunications,20 which has a size standard of annual receipts of $25 million or less.21 These arelabeled non-broadband. The most current Economic Census data for Wired Telecommunications Carriersare 2011 data, and the most current Economic Census data for All Other Telecommunications are 2007data, which are detailed specifically for ISPs within the categories above. For the first category, the datashow that 3,372 firms operated for the entire year, of which 2,037 had nine or fewer employees.22 For thesecond category, the data show that 1,274 firms operated for the entire year. 23 Of those, 1,252 had annualreceipts below $25 million per year. Consequently, we estimate that the majority of ISP firms are smallentities.13.The ISP industry has changed since these definitions were introduced in 2007. The datacited above may therefore include entities that no longer provide Internet access service and may excludeentities that now provide such service. To ensure that this IRFA describes the universe of small entitiesthat our action might affect, we discuss in turn several different types of entities that might be providingInternet access service. We note that, although we have no specific information on the number of smallentities that provide broadband Internet access service over unlicensed spectrum, we include these entitiesin our Initial Regulatory Flexibility Analysis.17 The 2007 U.S. Census data for small governmental organizations are not presented based on the size of thepopulation in each such organization. There were 89,476 local governmental organizations in 2007. If we assumethat county, municipal, township, and school district organizations are more likely than larger governmentalorganizations to have populations of 50,000 or less, the total of these organizations is 52,095. As a basis ofestimating how many of these 89,476 local government organizations were small, in 2011, we note that there were atotal of 715 cities and towns (incorporated places and minor civil divisions) with populations over 50,000. City andTown Totals Vintage: 2011 '' U.S. Census Bureau, http://www.census.gov/popest/data/cities/totals/2011/index.html.If we subtract the 715 cities and towns that meet or exceed the 50,000 population threshold, we conclude thatapproximately 88,761 are small. U.S. Census Bureau, Statistical Abstract of the United States: 2012, Section 8,page 267, tbl. 429, https://www.census.gov/compendia/statab/2012/tables/12s0429.pdf/ (data cited therein are from2007).18 U.S. Census Bureau, 2012 NAICS Definitions, ''517110 Wired Telecommunications Carriers,''http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517110&search=2012%20NAICS%20Search19 13 C.F.R. § 121.201, NAICS code 517110.20 U.S. Census Bureau, 2012 NAICS Definitions, ''517919 All Other Telecommunications,'',http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517919&search=2012%20NAICS%20Search.21 13 C.F.R. § 121.201, NAICS code 517919.22 U.S. Census Bureau, 2011 Economic Census, Subject Series: Information, ''Establishment and Firm Size,''NAICS code 5171103 (released Dec. 2013), http://www2.census.gov/econ/susb/data/2011/us_6digitnaics_2011.xls.23 U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, ''Establishment and Firm Size,''NAICS code 5179191 (released Nov. 19, 2010) (receipts size).71
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3.Wireline Providers
14.Incumbent Local Exchange Carriers (Incumbent LECs). Neither the Commission nor theSBA has developed a small business size standard specifically for incumbent local exchange services.The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers.Under that size standard, such a business is small if it has 1,500 or fewer employees.24 According toCommission data,25 1,307 carriers reported that they were incumbent local exchange service providers.26Of these 1,307 carriers, an estimated 1,006 have 1,500 or fewer employees and 301 have more than 1,500employees.27 Consequently, the Commission estimates that most providers of incumbent local exchangeservice are small businesses that may be affected by our proposed action.15.Competitive Local Exchange Carriers (Competitive LECs), Competitive Access Providers(CAPs), Shared-Tenant Service Providers, and Other Local Service Providers. Neither the Commissionnor the SBA has developed a small business size standard specifically for these service providers. Theappropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Underthat size standard, such a business is small if it has 1,500 or fewer employees.28 According toCommission data, 1,442 carriers reported that they were engaged in the provision of either competitivelocal exchange services or competitive access provider services.29 Of these 1,442 carriers, an estimated1,256 have 1,500 or fewer employees and 186 have more than 1,500 employees.30 In addition, 17 carriershave reported that they are Shared-Tenant Service Providers, and all 17 are estimated to have 1,500 orfewer employees.31 In addition, 72 carriers have reported that they are Other Local Service Providers.32Of the 72, seventy have 1,500 or fewer employees and two have more than 1,500 employees.33Consequently, the Commission estimates that most providers of competitive local exchange service,competitive access providers, Shared-Tenant Service Providers, and other local service providers aresmall entities that may be affected by our proposed action.16.We have included small incumbent LECs in this present RFA analysis. As noted above,a ''small business'' under the RFA is one that, inter alia, meets the pertinent small business size standard(e.g., a telephone communications business having 1,500 or fewer employees), and ''is not dominant in itsfield of operation.''34 The SBA's Office of Advocacy contends that, for RFA purposes, small incumbentLECs are not dominant in their field of operation because any such dominance is not ''national'' inscope.35 We have therefore included small incumbent LECs in this RFA analysis, although we emphasize24 13 C.F.R. § 121.201, NAICS code 517110.25 Federal Communications Commission, Wireline Competition Bureau, Industry Analysis and TechnologyDivision, Trends in Telephone Service, tbl. 5.3 (Sept. 2010) (Trends in Telephone Service).26 See Trends in Telephone Service at tbl. 5.3.27 See id.28 13 C.F.R. § 121.201, NAICS code 517110.29 See Trends in Telephone Service at tbl.5.3.30 See id.31 See id.32 See id.33 See id.34 5 U.S.C. § 601(3).35 Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, to William E. Kennard, Chairman, FederalCommunications Commission (filed May 27, 1999). The Small Business Act contains a definition of ''smallbusiness concern,'' which the RFA incorporates into its own definition of ''small business.'' 15 U.S.C. § 632(a); 5(continued'...)72
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that this RFA action has no effect on Commission analyses and determinations in other, non-RFAcontexts.17.Interexchange Carriers. Neither the Commission nor the SBA has developed a smallbusiness size standard specifically for providers of interexchange services. The appropriate size standardunder SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such abusiness is small if it has 1,500 or fewer employees.36 According to Commission data,37 359 carriers havereported that they are engaged in the provision of interexchange service. Of these, an estimated 317 have1,500 or fewer employees and 42 have more than 1,500 employees. Consequently, the Commissionestimates that the majority of IXCs are small entities that may be affected by our proposed action.18.Operator Service Providers (OSPs). Neither the Commission nor the SBA has developeda small business size standard specifically for operator service providers. The appropriate size standardunder SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such abusiness is small if it has 1,500 or fewer employees.38 According to Commission data, 33 carriers havereported that they are engaged in the provision of operator services. Of these, an estimated 31 have 1,500or fewer employees and two have more than 1,500 employees.39 Consequently, the Commissionestimates that the majority of OSPs are small entities that may be affected by our proposed action.4.Wireless Providers '' Fixed and Mobile
19.The broadband Internet access service provider category covered by this Notice maycover multiple wireless firms and categories of regulated wireless services. Thus, to the extent thewireless services listed below are used by wireless firms for broadband Internet access services, theproposed actions may have an impact on those small businesses as set forth above and further below. Inaddition, for those services subject to auctions, we note that, as a general matter, the number of winningbidders that claim to qualify as small businesses at the close of an auction does not necessarily representthe number of small businesses currently in service. Also, the Commission does not generally tracksubsequent business size unless, in the context of assignments and transfers or reportable eligibilityevents, unjust enrichment issues are implicated.20.Wireless Telecommunications Carriers (except Satellite). Since 2007, the Census Bureauhas placed wireless firms within this new, broad, economic census category.40 Prior to 2007, such firmswere within the now-superseded categories of ''Paging'' and ''Cellular and Other WirelessTelecommunications.''41 Under the present and prior categories, the SBA has deemed a wireless businessto be small if it has 1,500 or fewer employees.42 For the category of Wireless Telecommunications(Continued from previous page)U.S.C. § 601(3). SBA regulations interpret ''small business concern'' to include the concept of dominance on anational basis. 13 C.F.R. § 121.102(b).36 13 C.F.R. § 121.201, NAICS code 517110.37 Trends in Telephone Service, tbl. 5.3.38 13 C.F.R. § 121.201, NAICS code 517110.39 Trends in Telephone Service, tbl. 5.3.40 U.S. Census Bureau, 2012 NAICS Definitions, ''517210 Wireless Telecommunications Categories (ExceptSatellite)''; http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517210&search=2012%20NAICS%20Search.41 U.S. Census Bureau, 2002 NAICS Definitions, ''517211 Paging'';http://www.census.gov/epcd/naics02/def/NDEF517.HTM.; U.S. Census Bureau, 2002 NAICS Definitions, ''517212Cellular and Other Wireless Telecommunications''; http://www.census.gov/epcd/naics02/def/NDEF517.HTM.42 13 C.F.R. § 121.201, NAICS code 517210 (2012 NAICS). The now-superseded, pre-2007 C.F.R. citations were13 C.F.R. § 121.201, NAICS codes 517211 and 517212 (referring to the 2002 NAICS).73Federal Communications Commission
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Carriers (except Satellite), data for 2011 show that there were 784 firms operating that year.43 Of these784 firms, an estimated 749 have 500 or fewer employees and 35 have more than 500 employees. Sinceall firms with fewer than 1,500 employees are considered small, given the total employment in the sector,we estimate that the vast majority of wireless firms are small.21.Wireless Communications Services. This service can be used for fixed, mobile,radiolocation, and digital audio broadcasting satellite uses. The Commission defined ''small business'' forthe wireless communications services (WCS) auction as an entity with average gross revenues of $40million for each of the three preceding years, and a ''very small business'' as an entity with average grossrevenues of $15 million for each of the three preceding years.44 The SBA has approved thesedefinitions.45 The Commission auctioned geographic area licenses in the WCS service in 1997. In theauction, seven bidders won 31 licenses that qualified as very small business entities, and one bidder wonone license that qualified as a small business entity.22.1670''1675 MHz Services. This service can be used for fixed and mobile uses, exceptaeronautical mobile.46 An auction for one license in the 1670''1675 MHz band was conducted in 2003.One license was awarded. The winning bidder was not a small entity.23.Wireless Telephony. Wireless telephony includes cellular, personal communicationsservices, and specialized mobile radio telephony carriers. As noted, the SBA has developed a smallbusiness size standard for Wireless Telecommunications Carriers (except Satellite).47 Under the SBAsmall business size standard, a business is small if it has 1,500 or fewer employees.48 According toCommission data, 413 carriers reported that they were engaged in wireless telephony.49 Of these, anestimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees.50 Therefore, alittle less than one third of these entities can be considered small.24.Broadband Personal Communications Service. The broadband personal communicationsservices (PCS) spectrum is divided into six frequency blocks designated A through F, and theCommission has held auctions for each block. The Commission initially defined a ''small business'' forC- and F-Block licenses as an entity that has average gross revenues of $40 million or less in the threeprevious calendar years.51 For F-Block licenses, an additional small business size standard for ''verysmall business'' was added and is defined as an entity that, together with its affiliates, has average gross43 U.S. Census Bureau, 2011 Economic Census, Subject Series: Information, ''Establishment and Firm Size,''NAICS code 517210 (released Dec. 2013) (employment size).http://www2.census.gov/econ/susb/data/2011/us_6digitnaics_2011.xls44 Amendment of the Commission's Rules to Establish Part 27, the Wireless Communications Service (WCS), GNDocket No. 96-228, Report and Order, 12 FCC Rcd 10785, 10879, para. 194 (1997).45 See Letter from Aida Alvarez, Administrator, SBA, to Amy Zoslov, Chief, Auctions and Industry AnalysisDivision, Wireless Telecommunications Bureau, Federal Communications Commission (filed Dec. 2, 1998)(Alvarez Letter 1998).46 47 C.F.R. § 2.106; see generally 47 C.F.R. §§ 27.1-27.70.47 13 C.F.R. § 121.201, NAICS code 517210.48 Id.49 Trends in Telephone Service, tbl. 5.3.50 Id.51 See Amendment of Parts 20 and 24 of the Commission's Rules '' Broadband PCS Competitive Bidding and theCommercial Mobile Radio Service Spectrum Cap; Amendment of the Commission's Cellular/PCS Cross-OwnershipRule; WT Docket No. 96-59, GN Docket No. 90-314, Report and Order, 11 FCC Rcd 7824, 7850-52, paras. 57-60(1996) (PCS Report and Order); see also 47 C.F.R. § 24.720(b).74
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revenues of not more than $15 million for the preceding three calendar years.52 These small business sizestandards, in the context of broadband PCS auctions, have been approved by the SBA.53 No smallbusinesses within the SBA-approved small business size standards bid successfully for licenses in BlocksA and B. There were 90 winning bidders that claimed small business status in the first two C-Blockauctions. A total of 93 bidders that claimed small business status won approximately 40 percent of the1,479 licenses in the first auction for the D, E, and F Blocks.54 On April 15, 1999, the Commissioncompleted the reauction of 347 C-, D-, E-, and F-Block licenses in Auction No. 22.55 Of the 57 winningbidders in that auction, 48 claimed small business status and won 277 licenses.25.On January 26, 2001, the Commission completed the auction of 422 C and F BlockBroadband PCS licenses in Auction No. 35. Of the 35 winning bidders in that auction, 29 claimed smallbusiness status.56 Subsequent events concerning Auction 35, including judicial and agencydeterminations, resulted in a total of 163 C and F Block licenses being available for grant. On February15, 2005, the Commission completed an auction of 242 C-, D-, E-, and F-Block licenses in Auction No.58. Of the 24 winning bidders in that auction, 16 claimed small business status and won 156 licenses.57On May 21, 2007, the Commission completed an auction of 33 licenses in the A, C, and F Blocks inAuction No. 71.58 Of the 12 winning bidders in that auction, five claimed small business status and won18 licenses.59 On August 20, 2008, the Commission completed the auction of 20 C-, D-, E-, and F-BlockBroadband PCS licenses in Auction No. 78.60 Of the eight winning bidders for Broadband PCS licensesin that auction, six claimed small business status and won 14 licenses.6126.Specialized Mobile Radio Licenses. The Commission awards ''small entity'' biddingcredits in auctions for Specialized Mobile Radio (SMR) geographic area licenses in the 800 MHz and 900MHz bands to firms that had revenues of no more than $15 million in each of the three previous calendaryears.62 The Commission awards ''very small entity'' bidding credits to firms that had revenues of nomore than $3 million in each of the three previous calendar years.63 The SBA has approved these small52 See PCS Report and Order, 11 FCC Rcd at 7852, para. 60.53 See Alvarez Letter 1998.54 See Broadband PCS, D, E and F Block Auction Closes, Public Notice, Doc. No. 89838 (rel. Jan. 14, 1997).55 See C, D, E, and F Block Broadband PCS Auction Closes, Public Notice, 14 FCC Rcd 6688 (WTB 1999). BeforeAuction No. 22, the Commission established a very small standard for the C Block to match the standard used for FBlock. Amendment of the Commission's Rules Regarding Installment Payment Financing for PersonalCommunications Services (PCS) Licensees, WT Docket No. 97-82, Fourth Report and Order, 13 FCC Rcd 15743,15768, para. 46 (1998).56 See C and F Block Broadband PCS Auction Closes; Winning Bidders Announced, Public Notice, 16 FCC Rcd2339 (2001).57 See Broadband PCS Spectrum Auction Closes; Winning Bidders Announced for Auction No. 58, Public Notice, 20FCC Rcd 3703 (2005).58 See Auction of Broadband PCS Spectrum Licenses Closes; Winning Bidders Announced for Auction No. 71,Public Notice, 22 FCC Rcd 9247 (2007).59 Id.60 See Auction of AWS-1 and Broadband PCS Licenses Closes; Winning Bidders Announced for Auction 78, PublicNotice, 23 FCC Rcd 12749 (WTB 2008).61 Id.62 47 C.F.R. § 90.814(b)(1).63 Id.75
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business size standards for the 900 MHz Service.64 The Commission has held auctions for geographicarea licenses in the 800 MHz and 900 MHz bands. The 900 MHz SMR auction began on December 5,1995, and closed on April 15, 1996. Sixty bidders claiming that they qualified as small businesses underthe $15 million size standard won 263 geographic area licenses in the 900 MHz SMR band. The 800MHz SMR auction for the upper 200 channels began on October 28, 1997, and was completed onDecember 8, 1997. Ten bidders claiming that they qualified as small businesses under the $15 millionsize standard won 38 geographic area licenses for the upper 200 channels in the 800 MHz SMR band.65 Asecond auction for the 800 MHz band was held on January 10, 2002 and closed on January 17, 2002 andincluded 23 BEA licenses. One bidder claiming small business status won five licenses.6627.The auction of the 1,053 800 MHz SMR geographic area licenses for the GeneralCategory channels began on August 16, 2000, and was completed on September 1, 2000. Eleven bidderswon 108 geographic area licenses for the General Category channels in the 800 MHz SMR band andqualified as small businesses under the $15 million size standard.67 In an auction completed on December5, 2000, a total of 2,800 Economic Area licenses in the lower 80 channels of the 800 MHz SMR servicewere awarded.68 Of the 22 winning bidders, 19 claimed small business status and won 129 licenses.Thus, combining all four auctions, 41 winning bidders for geographic licenses in the 800 MHz SMR bandclaimed status as small businesses.28.In addition, there are numerous incumbent site-by-site SMR licenses and licensees withextended implementation authorizations in the 800 and 900 MHz bands. We do not know how manyfirms provide 800 MHz or 900 MHz geographic area SMR service pursuant to extended implementationauthorizations, nor how many of these providers have annual revenues of no more than $15 million. Onefirm has over $15 million in revenues. In addition, we do not know how many of these firms have 1,500or fewer employees, which is the SBA-determined size standard.69 We assume, for purposes of thisanalysis, that all of the remaining extended implementation authorizations are held by small entities, asdefined by the SBA.29.Lower 700 MHz Band Licenses. The Commission previously adopted criteria fordefining three groups of small businesses for purposes of determining their eligibility for specialprovisions such as bidding credits.70 The Commission defined a ''small business'' as an entity that,together with its affiliates and controlling principals, has average gross revenues not exceeding $40million for the preceding three years.71 A ''very small business'' is defined as an entity that, together withits affiliates and controlling principals, has average gross revenues that are not more than $15 million forthe preceding three years.72 Additionally, the lower 700 MHz Service had a third category of small64 See Letter from Aida Alvarez, Administrator, SBA, to Thomas Sugrue, Chief, Wireless TelecommunicationsBureau, Federal Communications Commission (filed Aug. 10, 1999) (Alvarez Letter 1999).65 See Correction to Public Notice DA 96-586 ''FCC Announces Winning Bidders in the Auction of 1020 Licenses toProvide 900 MHz SMR in Major Trading Areas,'' Public Notice, 18 FCC Rcd 18367 (WTB 1996).66 See Multi-Radio Service Auction Closes, Public Notice, 17 FCC Rcd 1446 (WTB 2002).67 See 800 MHz Specialized Mobile Radio (SMR) Service General Category (851''854 MHz) and Upper Band (861''865 MHz) Auction Closes; Winning Bidders Announced, Public Notice, 15 FCC Rcd 17162 (2000).68 See 800 MHz SMR Service Lower 80 Channels Auction Closes; Winning Bidders Announced, Public Notice,16 FCC Rcd 1736 (2000).69 See generally 13 C.F.R. § 121.201, NAICS code 517210.70 See Reallocation and Service Rules for the 698''746 MHz Spectrum Band (Television Channels 52''59), GNDocket No. 01-74, Report and Order, 17 FCC Rcd 1022 (2002) (Channels 52''59 Report and Order).71 See id. at 1087-88, para. 172.72 See id.76
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business status for Metropolitan/Rural Service Area (MSA/RSA) licenses'--''entrepreneur'''--which isdefined as an entity that, together with its affiliates and controlling principals, has average gross revenuesthat are not more than $3 million for the preceding three years.73 The SBA approved these small sizestandards.74 An auction of 740 licenses (one license in each of the 734 MSAs/RSAs and one license ineach of the six Economic Area Groupings (EAGs)) commenced on August 27, 2002, and closed onSeptember 18, 2002. Of the 740 licenses available for auction, 484 licenses were won by 102 winningbidders. Seventy-two of the winning bidders claimed small business, very small business or entrepreneurstatus and won a total of 329 licenses.75 A second auction commenced on May 28, 2003, closed on June13, 2003, and included 256 licenses: 5 EAG licenses and 476 Cellular Market Area licenses.76 Seventeenwinning bidders claimed small or very small business status and won 60 licenses, and nine winningbidders claimed entrepreneur status and won 154 licenses.77 On July 26, 2005, the Commissioncompleted an auction of 5 licenses in the Lower 700 MHz band (Auction No. 60). There were threewinning bidders for five licenses. All three winning bidders claimed small business status.30.In 2007, the Commission reexamined its rules governing the 700 MHz band in the 700MHz Second Report and Order.78 An auction of 700 MHz licenses commenced January 24, 2008 andclosed on March 18, 2008, which included, 176 Economic Area licenses in the A Block, 734 CellularMarket Area licenses in the B Block, and 176 EA licenses in the E Block.79 Twenty winning bidders,claiming small business status (those with attributable average annual gross revenues that exceed $15million and do not exceed $40 million for the preceding three years) won 49 licenses. Thirty threewinning bidders claiming very small business status (those with attributable average annual grossrevenues that do not exceed $15 million for the preceding three years) won 325 licenses.31.Upper 700 MHz Band Licenses. In the 700 MHz Second Report and Order, theCommission revised its rules regarding Upper 700 MHz licenses.80 On January 24, 2008, theCommission commenced Auction 73 in which several licenses in the Upper 700 MHz band wereavailable for licensing: 12 Regional Economic Area Grouping licenses in the C Block, and onenationwide license in the D Block.81 The auction concluded on March 18, 2008, with 3 winning biddersclaiming very small business status (those with attributable average annual gross revenues that do notexceed $15 million for the preceding three years) and winning five licenses.73 See id., at 1088, para. 173.74 See Alvarez Letter 1999.75 See Lower 700 MHz Band Auction Closes, Public Notice, 17 FCC Rcd 17272 (WTB 2002).76 See id. 77 See id.78 Service Rules for the 698''746, 747''762 and 777''792 MHz Band; Revision of the Commission's Rules to EnsureCompatibility with Enhanced 911 Emergency Calling Systems; Section 68.4(a) of the Commission's RulesGoverning Hearing Aid-Compatible Telephones; Biennial Regulatory Review'--Amendment of Parts 1, 22, 24, 27,and 90 to Streamline and Harmonize Various Rules Affecting Wireless Radio Services; Former NextelCommunications, Inc. Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of the Commission's Rules;Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band; Developmentof Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public SafetyCommunications Requirements Through the Year 2010; Declaratory Ruling on Reporting Requirement underCommission's Part 1 Anti-Collusion Rule, WT Docket Nos. 07-166, 06-169, 06-150, 03-264, 96-86, PS Docket No.06-229, CC Docket No. 94-102, Second Report and Order, 22 FCC Rcd 15289, 15359 n. 434 (2007) (700 MHzSecond Report and Order).79 See Auction of 700 MHz Band Licenses Closes, Public Notice, 23 FCC Rcd 4572 (WTB 2008).80 700 MHz Second Report and Order, 22 FCC Rcd 15289.81 See Auction of 700 MHz Band Licenses Closes, Public Notice, 23 FCC Rcd 4572 (WTB 2008).77
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32.700 MHz Guard Band Licensees. In 2000, in the 700 MHz Guard Band Order, theCommission adopted size standards for ''small businesses'' and ''very small businesses'' for purposes ofdetermining their eligibility for special provisions such as bidding credits and installment payments.82 Asmall business in this service is an entity that, together with its affiliates and controlling principals, hasaverage gross revenues not exceeding $40 million for the preceding three years.83 Additionally, a verysmall business is an entity that, together with its affiliates and controlling principals, has average grossrevenues that are not more than $15 million for the preceding three years.84 SBA approval of thesedefinitions is not required.85 An auction of 52 Major Economic Area licenses commenced on September6, 2000, and closed on September 21, 2000.86 Of the 104 licenses auctioned, 96 licenses were sold to ninebidders. Five of these bidders were small businesses that won a total of 26 licenses. A second auction of700 MHz Guard Band licenses commenced on February 13, 2001, and closed on February 21, 2001. Alleight of the licenses auctioned were sold to three bidders. One of these bidders was a small business thatwon a total of two licenses.8733.Air-Ground Radiotelephone Service. The Commission has previously used the SBA'ssmall business size standard applicable to Wireless Telecommunications Carriers (except Satellite), i.e.,an entity employing no more than 1,500 persons.88 There are approximately 100 licensees in the Air-Ground Radiotelephone Service, and under that definition, we estimate that almost all of them qualify assmall entities under the SBA definition. For purposes of assigning Air-Ground Radiotelephone Servicelicenses through competitive bidding, the Commission has defined ''small business'' as an entity that,together with controlling interests and affiliates, has average annual gross revenues for the precedingthree years not exceeding $40 million.89 A ''very small business'' is defined as an entity that, togetherwith controlling interests and affiliates, has average annual gross revenues for the preceding three yearsnot exceeding $15 million.90 These definitions were approved by the SBA.91 In May 2006, theCommission completed an auction of nationwide commercial Air-Ground Radiotelephone Servicelicenses in the 800 MHz band (Auction No. 65). On June 2, 2006, the auction closed with two winning82 See Service Rules for the 746''764 MHz Bands, and Revisions to Part 27 of the Commission's Rules, WT DocketNo. 99-168, Second Report and Order, 15 FCC Rcd 5299 (2000) (746''764 MHz Band Second Report and Order).83 See id. at 5343, para. 108.84 See id.85 See id. at 5343, para. 108 n.246 (for the 746''764 MHz and 776''794 MHz bands, the Commission is exempt from15 U.S.C. § 632, which requires Federal agencies to obtain SBA approval before adopting small business sizestandards).86 See 700 MHz Guard Bands Auction Closes: Winning Bidders Announced, Public Notice, 15 FCC Rcd 18026(WTB 2000).87 See 700 MHz Guard Bands Auction Closes: Winning Bidders Announced, Public Notice, 16 FCC Rcd 4590 (WTB2001).88 13 C.F.R. § 121.201, NAICS codes 517210.89 Amendment of Part 22 of the Commission's Rules to Benefit the Consumers of Air-Ground TelecommunicationsServices, Biennial Regulatory Review'--Amendment of Parts 1, 22, and 90 of the Commission's Rules, Amendment ofParts 1 and 22 of the Commission's Rules to Adopt Competitive Bidding Rules for Commercial and GeneralAviation Air-Ground Radiotelephone Service, WT Docket Nos. 03-103, 05-42, Order on Reconsideration and Reportand Order, 20 FCC Rcd 19663, paras. 28-42 (2005).90 Id.91 See Letter from Hector V. Barreto, Administrator, SBA, to Gary D. Michaels, Deputy Chief, Auctions andSpectrum Access Division, Wireless Telecommunications Bureau, Federal Communications Commission (filedSept. 19, 2005).78
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bidders winning two Air-Ground Radiotelephone Services licenses. Neither of the winning biddersclaimed small business status.34.AWS Services (1710''1755 MHz and 2110''2155 MHz bands (AWS-1); 1915''1920 MHz,1995''2000 MHz, 2020''2025 MHz and 2175''2180 MHz bands (AWS-2); 2155''2175 MHz band (AWS-3)). For the AWS-1 bands,92 the Commission has defined a ''small business'' as an entity with averageannual gross revenues for the preceding three years not exceeding $40 million, and a ''very smallbusiness'' as an entity with average annual gross revenues for the preceding three years not exceeding $15million. For AWS-2 and AWS-3, although we do not know for certain which entities are likely to applyfor these frequencies, we note that the AWS-1 bands are comparable to those used for cellular service andpersonal communications service. The Commission has not yet adopted size standards for the AWS-2 orAWS-3 bands but proposes to treat both AWS-2 and AWS-3 similarly to broadband PCS service andAWS-1 service due to the comparable capital requirements and other factors, such as issues involved inrelocating incumbents and developing markets, technologies, and services.9335.3651''3700 MHz band. In March 2005, the Commission released a Report and Orderand Memorandum Opinion and Order that provides for nationwide, non-exclusive licensing of terrestrialoperations, utilizing contention-based technologies, in the 3651 MHz band (i.e., 3651''3700 MHz). As ofApril 2010, more than 1270 licenses have been granted and more than 7433 sites have been registered.The Commission has not developed a definition of small entities applicable to 3651''3700 MHz bandnationwide, non-exclusive licensees. However, we estimate that the majority of these licensees areInternet Access Service Providers (ISPs) and that most of those licensees are small businesses.36.Fixed Microwave Services. Microwave services include common carrier,94 private-operational fixed,95 and broadcast auxiliary radio services.96 They also include the Local MultipointDistribution Service (LMDS),97 the Digital Electronic Message Service (DEMS),98 and the 24 GHzService,99 where licensees can choose between common carrier and non-common carrier status.100 Atpresent, there are approximately 36,708 common carrier fixed licensees and 59,291 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services. There areapproximately 135 LMDS licensees, three DEMS licensees, and three 24 GHz licensees. The92 The service is defined in section 90.1301 et seq. of the Commission's Rules, 47 C.F.R. § 90.1301 et seq.93 See Service Rules for Advanced Wireless Services in the 1.7 GHz and 2.1 GHz Bands, WT Docket No. 02-353,Report and Order, 18 FCC Rcd 25162, Appx. B (2003), modified by Service Rules for Advanced Wireless Servicesin the 1.7 GHz and 2.1 GHz Bands, WT Docket No. 02-353, Order on Reconsideration, 20 FCC Rcd 14058, Appx.C (2005); Service Rules for Advanced Wireless Services in the 1915''1920 MHz, 1995''2000 MHz, 2020''2025 MHzand 2175''2180 MHz Bands; Service Rules for Advanced Wireless Services in the 1.7 GHz and 2.1 GHz Bands, WTDocket Nos. 04-356, 02-353, Notice of Proposed Rulemaking, 19 FCC Rcd 19263, Appx. B (2005); Service Rulesfor Advanced Wireless Services in the 2155''2175 MHz Band, WT Docket No. 07-195, Notice of ProposedRulemaking, 22 FCC Rcd 17035, Appx. (2007).94 See 47 C.F.R. Part 101, Subparts C and I.95 See 47 C.F.R. Part 101, Subparts C and H.96 Auxiliary Microwave Service is governed by Part 74 of Title 47 of the Commission's Rules. See 47 C.F.R. Part74. Available to licensees of broadcast stations and to broadcast and cable network entities, broadcast auxiliarymicrowave stations are used for relaying broadcast television signals from the studio to the transmitter, or betweentwo points such as a main studio and an auxiliary studio. The service also includes mobile TV pickups, which relaysignals from a remote location back to the studio.97 See 47 C.F.R. Part 101, Subpart L.98 See 47 C.F.R. Part 101, Subpart G.99 See id.100 See 47 C.F.R. §§ 101.533, 101.1017.79
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Commission has not yet defined a small business with respect to microwave services. For purposes of theIRFA, we will use the SBA's definition applicable to Wireless Telecommunications Carriers (exceptsatellite)'--i.e., an entity with no more than 1,500 persons.101 Under the present and prior categories, theSBA has deemed a wireless business to be small if it has 1,500 or fewer employees.102 For the category ofWireless Telecommunications Carriers (except Satellite), data for 2011 show that there were 784 firmsoperating that year.103 While the Census Bureau has not released data on the establishments broken downby number of employees, we note that the Census Bureau lists total employment for all firms in thatsector at 245,875.104 Since all firms with fewer than 1,500 employees are considered small, given thetotal employment in the sector, we estimate that the vast majority of firms using microwave services aresmall. We note that the number of firms does not necessarily track the number of licensees. We estimatethat virtually all of the Fixed Microwave licensees (excluding broadcast auxiliary licensees) wouldqualify as small entities under the SBA definition.37.Broadband Radio Service and Educational Broadband Service. Broadband RadioService systems, previously referred to as Multipoint Distribution Service (MDS) and MultichannelMultipoint Distribution Service (MMDS) systems, and ''wireless cable,'' transmit video programming tosubscribers and provide two-way high speed data operations using the microwave frequencies of theBroadband Radio Service (BRS) and Educational Broadband Service (EBS) (previously referred to as theInstructional Television Fixed Service (ITFS)).105 In connection with the 1996 BRS auction, theCommission established a small business size standard as an entity that had annual average grossrevenues of no more than $40 million in the previous three calendar years.106 The BRS auctions resultedin 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67auction winners, 61 met the definition of a small business. BRS also includes licensees of stationsauthorized prior to the auction. At this time, we estimate that of the 61 small business BRS auctionwinners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTAauthorizations, there are approximately 392 incumbent BRS licensees that are considered small entities.107After adding the number of small business auction licensees to the number of incumbent licensees notalready counted, we find that there are currently approximately 440 BRS licensees that are defined assmall businesses under either the SBA or the Commission's rules.38.In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRSareas.108 The Commission offered three levels of bidding credits: (i) a bidder with attributed average101 13 C.F.R. § 121.201, NAICS code 517210.102 13 C.F.R. § 121.201, NAICS code 517210 (2007 NAICS). The now-superseded, pre-2007 C.F.R. citations were13 C.F.R. § 121.201, NAICS codes 517211 and 517212 (referring to the 2002 NAICS).103 U.S. Census Bureau, 2011 Economic Census, Subject Series: Information, ''Establishment and Firm Size,''NAICS code 517210 (released Dec. 2013) (employment size).http://www2.census.gov/econ/susb/data/2011/us_6digitnaics_2011.xls104 Id.105 Amendment of Parts 21 and 74 of the Commission's Rules with Regard to Filing Procedures in the MultipointDistribution Service and in the Instructional Television Fixed Service and Implementation of Section 309(j) of theCommunications Act'--Competitive Bidding, MM Docket No. 94-131, PP Docket No. 93-253, Report and Order, 10FCC Rcd 9589, 9593, para. 7 (1995).106 47 C.F.R. § 21.961(b)(1).107 47 U.S.C. § 309(j). Hundreds of stations were licensed to incumbent MDS licensees prior to implementation ofSection 309(j) of the Communications Act of 1934, 47 U.S.C. § 309(j). For these pre-auction licenses, theapplicable standard is SBA's small business size standard of 1500 or fewer employees.108 Auction of Broadband Radio Service (BRS) Licenses, Scheduled for October 27, 2009, Notice and FilingRequirements, Minimum Opening Bids, Upfront Payments, and Other Procedures for Auction 86, AU Docket No.09-56, Public Notice, 24 FCC Rcd 8277 (2009).80
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annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding threeyears (small business) received a 15 percent discount on its winning bid; (ii) a bidder with attributedaverage annual gross revenues that exceed $3 million and do not exceed $15 million for the precedingthree years (very small business) received a 25 percent discount on its winning bid; and (iii) a bidder withattributed average annual gross revenues that do not exceed $3 million for the preceding three years(entrepreneur) received a 35 percent discount on its winning bid.109 Auction 86 concluded in 2009 withthe sale of 61 licenses.110 Of the ten winning bidders, two bidders that claimed small business status won4 licenses; one bidder that claimed very small business status won three licenses; and two bidders thatclaimed entrepreneur status won six licenses.39.In addition, the SBA's Cable Television Distribution Services small business sizestandard is applicable to EBS. There are presently 2,436 EBS licensees. All but 100 of these licenses areheld by educational institutions. Educational institutions are included in this analysis as small entities.111Thus, we estimate that at least 2,336 licensees are small businesses. Since 2007, Cable TelevisionDistribution Services have been defined within the broad economic census category of WiredTelecommunications Carriers; that category is defined as follows: ''This industry comprisesestablishments primarily engaged in operating and/or providing access to transmission facilities andinfrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video usingwired telecommunications networks. Transmission facilities may be based on a single technology or acombination of technologies.''112 The SBA has developed a small business size standard for this category,which is: all such firms having 1,500 or fewer employees. To gauge small business prevalence for thesecable services we must, however, use the most current census data that are based on the previous categoryof Cable and Other Program Distribution and its associated size standard; that size standard was: all suchfirms having $13.5 million or less in annual receipts.113 According to Census Bureau data for 2007, therewere a total of 996 firms in this category that operated for the entire year.114 Of this total, 948 firms hadannual receipts of under $10 million, and 48 firms had receipts of $10 million or more but less than $25million.115 Thus, the majority of these firms can be considered small.5.Satellite Service Providers
40.Satellite Telecommunications Providers. Two economic census categories address thesatellite industry. The first category has a small business size standard of $30 million or less in averageannual receipts, under SBA rules.116 The second has a size standard of $30 million or less in annualreceipts.117109 Id. at 8296 para. 73.110 Auction of Broadband Radio Service Licenses Closes, Winning Bidders Announced for Auction 86, DownPayments Due November 23, 2009, Final Payments Due December 8, 2009, Ten-Day Petition to Deny Period,Public Notice, 24 FCC Rcd 13572 (2009).111 The term ''small entity'' within SBREFA applies to small organizations (nonprofits) and to small governmentaljurisdictions (cities, counties, towns, townships, villages, school districts, and special districts with populations ofless than 50,000). 5 U.S.C. §§ 601(4)-(6). We do not collect annual revenue data on EBS licensees.112 U.S. Census Bureau, 2012 NAICS Definitions, ''517110 Wired Telecommunications Carriers,'' (partialdefinition), http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517110&search=2012.113 13 C.F.R. § 121.201, NAICS code 517110.114 U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, Receipts by Enterprise EmploymentSize for the United States: 2007, NAICS code 517510 (released Nov. 19, 2010).115 Id.116 13 C.F.R. § 121.201, NAICS Code 517410.117 13 C.F.R. § 121.201, NAICS Code 517919.81
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41.The category of Satellite Telecommunications ''comprises establishments primarilyengaged in providing telecommunications services to other establishments in the telecommunications andbroadcasting industries by forwarding and receiving communications signals via a system of satellites orreselling satellite telecommunications.''118 For this category, Census Bureau data for 2007 show that therewere a total of 570 firms that operated for the entire year.119 Of this total, 530 firms had annual receipts ofunder $30 million, and 40 firms had receipts of over $30 million.120 Consequently, we estimate that themajority of Satellite Telecommunications firms are small entities that might be affected by our action.42.The second category of Other Telecommunications comprises, inter alia, ''establishmentsprimarily engaged in providing specialized telecommunications services, such as satellite tracking,communications telemetry, and radar station operation. This industry also includes establishmentsprimarily engaged in providing satellite terminal stations and associated facilities connected with one ormore terrestrial systems and capable of transmitting telecommunications to, and receivingtelecommunications from, satellite systems.''121 For this category, Census Bureau data for 2007 show thatthere were a total of 1,274 firms that operated for the entire year.122 Of this total, 1,252 had annualreceipts below $25 million per year.123 Consequently, we estimate that the majority of All OtherTelecommunications firms are small entities that might be affected by our action.6.Cable Service Providers
43.Because section 706 requires us to monitor the deployment of broadband using anytechnology, we anticipate that some broadband service providers may not provide telephone service.Accordingly, we describe below other types of firms that may provide broadband services, includingcable companies, MDS providers, and utilities, among others.44.Cable and Other Program Distributors. Since 2007, these services have been definedwithin the broad economic census category of Wired Telecommunications Carriers; that category isdefined as follows: ''This industry comprises establishments primarily engaged in operating and/orproviding access to transmission facilities and infrastructure that they own and/or lease for thetransmission of voice, data, text, sound, and video using wired telecommunications networks.Transmission facilities may be based on a single technology or a combination of technologies.''124 TheSBA has developed a small business size standard for this category, which is: all such firms having 1,500or fewer employees. To gauge small business prevalence for these cable services we must, however, usecurrent census data that are based on the previous category of Cable and Other Program Distribution andits associated size standard; that size standard was: all such firms having $13.5 million or less in annualreceipts.125 According to Census Bureau data for 2007, there were a total of 2,048 firms in this category118 U.S. Census Bureau, 2012 NAICS Definitions, ''517410 Satellite Telecommunications,''http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517410&search=2012.119 U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, ''Establishment and Firm Size,''NAICS code 517410 (released Nov. 19, 2010).120 Id.121 U.S. Census Bureau, 2012 NAICS Definitions, ''517919 All Other Telecommunications,''http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517919&search=2012.122 U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, ''Establishment and Firm Size,''NAICS code 517410 (released Nov. 19, 2010).123 Id.124 U.S. Census Bureau, 2012 NAICS Definitions, ''517110 Wired Telecommunications Carriers,'' (partialdefinition), http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517110&search=2012.125 13 C.F.R. § 121.201, NAICS code 517110.82
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that operated for the entire year.126 Of this total, 1,393 firms had annual receipts of under $10 million, and655 firms had receipts of $10 million or more.127 Thus, the majority of these firms can be consideredsmall.45.Cable Companies and Systems. The Commission has also developed its own smallbusiness size standards, for the purpose of cable rate regulation. Under the Commission's rules, a ''smallcable company'' is one serving 400,000 or fewer subscribers, nationwide.128 Industry data shows thatthere were 1,141 cable companies at the end of June 2012.129 Of this total, all but ten cable operatorsnationwide are small under this size standard.130 In addition, under the Commission's rules, a ''smallsystem'' is a cable system serving 15,000 or fewer subscribers.131 Current Commission records show4,945 cable systems nationwide.132 Of this total, 4,380 cable systems have less than 20,000 subscribers,and 565 systems have 20,000 or more subscribers, based on the same records. Thus, under this standard,we estimate that most cable systems are small entities.46.Cable System Operators. The Communications Act of 1934, as amended, also contains asize standard for small cable system operators, which is ''a cable operator that, directly or through anaffiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is notaffiliated with any entity or entities whose gross annual revenues in the aggregate exceed$250,000,000.''133 The Commission has determined that an operator serving fewer than 677,000subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annualrevenues of all its affiliates, do not exceed $250 million in the aggregate.134 Based on available data, wefind that all but ten incumbent cable operators are small entities under this size standard.135 We note that126 U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, ''Establishment and Firm Size,''NAICS code 517110 (released Nov. 19, 2010).127 Id.128 47 C.F.R. § 76.901(e). The Commission determined that this size standard equates approximately to a sizestandard of $100 million or less in annual revenues. Implementation of Sections of the 1992 Cable Act: RateRegulation, Sixth Report and Order and Eleventh Order on Reconsideration, 10 FCC Rcd 7393, 7408 (1995).129 NCTA, Industry Data, Number of Cable Operating Companies (June 2012), http://www.ncta.com/Statistics.aspx(visited Sept. 28, 2012). Depending upon the number of homes and the size of the geographic area served, cableoperators use one or more cable systems to provide video service. See Annual Assessment of the Status ofCompetition in the Market for Delivery of Video Programming, MB Docket No. 12-203, Fifteenth Report, 28 FCCRcd 10496, 10505-06, para. 24 (2013) (15th Annual Competition Report).130 See SNL Kagan, ''Top Cable MSOs '' 12/12 Q'',http://www.snl.com/InteractiveX/TopCableMSOs.aspx?period=2012Q4&sortcol=subscribersbasic&sortorder=desc. We note that, when applied to an MVPD operator, under this size standard (i.e., 400,000 or fewer subscribers) allbut 14 MVPD operators would be considered small. See NCTA, Industry Data, Top 25 Multichannel Video ServiceCustomers (2012), http://www.ncta.com/industry-data. The Commission applied this size standard to MVPDoperators in its implementation of the CALM Act. See Implementation of the Commercial Advertisement LoudnessMitigation (CALM) Act, MB Docket No. 11-93, Report and Order, 26 FCC Rcd 17222, 17245-46, para. 37 (2011)(CALM Act Report and Order) (defining a smaller MVPD operator as one serving 400,000 or fewer subscribersnationwide, as of December 31, 2011).131 47 C.F.R. § 76.901(c).132 The number of active, registered cable systems comes from the Commission's Cable Operations and LicensingSystem (COALS) database on Aug. 28, 2013. A cable system is a physical system integrated to a principal headend.133 47 U.S.C. § 543(m)(2); see 47 C.F.R. § 76.901(f) & nn.1-3.134 47 C.F.R. § 76.901(f); see FCC Announces New Subscriber Count for the Definition of Small Cable Operator,Public Notice, 16 FCC Rcd 2225 (Cable Services Bureau 2001).135 See NCTA, Industry Data, Top 25 Multichannel Video Service Customers (2012), http://www.ncta.com/industry-data.83
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the Commission neither requests nor collects information on whether cable system operators are affiliatedwith entities whose gross annual revenues exceed $250 million,136 and therefore we are unable to estimatemore accurately the number of cable system operators that would qualify as small under this sizestandard.7.Electric Power Generators, Transmitters, and Distributors
47.Electric Power Generators, Transmitters, and Distributors. The Census Bureau definesan industry group comprised of ''establishments, primarily engaged in generating, transmitting, and/ordistributing electric power. Establishments in this industry group may perform one or more of thefollowing activities: (1) operate generation facilities that produce electric energy; (2) operatetransmission systems that convey the electricity from the generation facility to the distribution system;and (3) operate distribution systems that convey electric power received from the generation facility orthe transmission system to the final consumer.''137 The SBA has developed a small business size standardfor firms in this category: ''A firm is small if, including its affiliates, it is primarily engaged in thegeneration, transmission, and/or distribution of electric energy for sale and its total electric output for thepreceding fiscal year did not exceed 4 million megawatt hours.''138 According to Census Bureau data for2011, there were 2,419 firms in this category that operated for the entire year.139 Census data do not trackelectric output and we have not determined how many of these firms fit the SBA size standard for small,with no more than 4 million megawatt hours of electric output. Consequently, we estimate that 2,419 orfewer firms may be considered small under the SBA small business size standard.D.
Description of Projected Reporting, Recordkeeping, and Other ComplianceRequirements for Small Entities
48.As indicated above, the Notice seeks comment on possible enhancements to theCommission's existing transparency rule that may impose additional reporting, recordkeeping, or othercompliance requirements on some small entities.140 While the Notice tentatively concludes that theCommission should enhance the transparency rule to improve its effectiveness for end users, edgeproviders, the Internet community, and the Commission, the Notice does not propose specific revisions tothe existing transparency rule. As described above, the Notice also seeks comment on a disputeresolution process that would, if adopted, potentially require small entities to respond to complaints orotherwise participate in dispute resolution procedures.141 One feature of the enforcement mechanism asdiscussed in the Notice, includes a proposal to establish the role of an ombudsperson who would act as awatchdog to represent the interests of start-ups and other small entities in addition to consumers.E.
Steps Taken to Minimize the Significant Economic Impact on Small Entities,and Significant Alternatives Considered
49.The RFA requires an agency to describe any significant alternatives that it has consideredin reaching its proposed approach, which may include (among others) the following four alternatives:136 The Commission does receive such information on a case-by-case basis if a cable operator appeals a localfranchise authority's finding that the operator does not qualify as a small cable operator pursuant to § 76.901(f) ofthe Commission's rules. See 47 C.F.R. § 76.909(b).137 U.S. Census Bureau, 2002 NAICS Definitions, ''2211 Electric Power Generation, Transmission andDistribution,'' http://www.census.gov/epcd/naics02/def/NDEF221.HTM (last visited Oct. 21, 2009).138 13 C.F.R. § 121.201, NAICS codes 221111, 221112, 221113, 221119, 221121, 221122, n. 1.139 U.S. Census Bureau, 2011 Economic Census, Subject Series: Information, ''Establishment and Firm Size,''NAICS codes 221111, 221112, 221113, 221119, 221121, 221122 (released Dec. 2013) (employment size).http://www2.census.gov/econ/susb/data/2011/us_6digitnaics_2011.xls.140 See Notice, Section III.141 See supra para. 7.84
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(1) the establishment of differing compliance or reporting requirements or timetables that take intoaccount the resources available to small entities; (2) the clarification, consolidation, or simplification ofcompliance or reporting requirements under the rule for small entities; (3) the use of performance, ratherthan design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for smallentities.142 We expect to consider all of these factors when we have received substantive comment fromthe public and potentially affected entities.50.The Commission expects to consider the economic impact on small entities, as identifiedin comments filed in response to the Notice and this IRFA, in reaching its final conclusions and takingaction in this proceeding.51.We note, though, that the potential enhancements to the transparency rule, the proposedmechanism for individualized decision-making under the proposed enforceable legal standard ofcommercially reasonable practices, and various aspects of the proposed dispute resolution process allcontemplate a certain amount of flexibility that may be helpful to small entities. For example, theCommission seeks comment on whether there are ways the Commission or industry associations couldreduce burdens on broadband providers in complying with the proposed enhanced transparency rulethrough the use of a voluntary industry standardized glossary, or through the creation of a dashboard thatpermits easy comparison of the policies, procedures, and prices of various broadband providersthroughout the country. We seek comment here on the effect the various proposals described in theNotice, and summarized above, will have on small entities, and on what effect alternative rules wouldhave on those entities. How can the Commission achieve its goal of protecting and promoting an openInternet while also imposing minimal burdens on small entities? What specific steps could theCommission take in this regard?F.
Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules
52.None.142 5 U.S.C. § 603(c).85
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STATEMENT OF
CHAIRMAN TOM WHEELER
Re:Protecting and Promoting the Open Internet, GN Docket No. 14-28.I strongly support an open, fast and robust Internet. This agency supports an Open Internet.There is ONE Internet. Not a fast internet, not a slow internet; ONE Internet.The attention being paid to this topic is proof of why the open and free exchange of informationmust be protected. Thank you to the thousands who have emailed me personally. Thank you to thosewho felt so strongly about the issue that they camped outside. The Founding Fathers must be lookingdown and smiling at how the republic they created is practicing the ideals they established.By releasing this Item today those who have been expressing themselves will now be able to seewhat we are actually proposing. They have been heard, we look forward to further input, and we saythank you.Today we take another step in what has been a decade-long effort to preserve and protect theOpen Internet. Unfortunately, those previous efforts were blocked twice by court challenges by thosewho sell Internet connections to consumers. Today this agency moves to surmount that opposition and tostand up for consumers and the Open Internet.This Notice of Proposed Rulemaking starts an important process. Where it ends depends on whatwe learn during this process. That is why I am grateful for all the attention this topic has received.We start with the simple, obvious premise: Protecting the Open Internet is important both toconsumers and to economic growth. We are dedicated to protecting and preserving an Open Internet.What we are dealing with today is a proposal, not a final rule. With this Notice we arespecifically asking for input on different approaches to accomplish the same goal: an Open Internet.The potential for there to be some kind of ''fast lane'' available to only a few has many peopleconcerned. Personally, I don't like the idea that the Internet could become divided into ''haves'' and''have nots.'' I will work to see that does not happen. In this Item we specifically ask whether and how toprevent the kind of paid prioritization that could result in ''fast lanes.''Two weeks ago I told the convention of America's cable broadband providers something that isworth repeating here, ''If someone acts to divide the Internet between 'haves' and 'have nots,''' I told thecable industry, ''we will use every power at our disposal to stop it.'' I will take a backseat to no one thatprivileging some network users in a manner that squeezes out smaller voices is unacceptable. Today, wehave proposed how to stop that from happening, including consideration of the applicability of Title II.There is only ONE Internet. It must be fast, robust and open. The speed and quality of theconnection the consumer purchases must be unaffected by what content he or she is using.And there has to be a level playing field of opportunity for new ideas. Small companies andstartups must be able to effectively reach consumers with innovative products and services and they mustbe protected against harmful conduct by broadband providers. The prospect of a gatekeeper choosingwinners and losers on the Internet is unacceptable.Let's look at how the Internet works at the retail level. The consumer accesses the Internet usingconnectivity provided by an Internet Service Provider (ISP). That connectivity should be open and86Federal Communications Commission
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inviolate; it is the simple purchase of a pathway. I believe it would be commercially unreasonable '' andtherefore not permitted'' for the ISP not to deliver the contracted-for open pathway.Let's consider specifically what that means. I want to get to rules that work like this:· If the network operator slowed the speed below that which the consumer bought (for reasonsother than reasonable network management), it would be a commercially unreasonablepractice and therefore prohibited,· If the network operator blocked access to lawful content, it would violate our no blockingrule and be commercially unreasonable and therefore doubly prohibited,· When content provided by a firm such as Netflix reaches the consumer's network provider itwould be commercially unreasonable to charge the content provider to use the bandwidth forwhich the consumer had already paid and therefore prohibited,· When a consumer buys specified capacity from a network provider he or she is buying opencapacity, not capacity the network can prioritize for its own profit purposes. Prioritizationthat deprives the consumer of what the consumer has paid for would be commerciallyunreasonable and therefore prohibited.Simply put, when a consumer buys a specified bandwidth, it is commercially unreasonable '' andthus a violation of this proposal '' to deny them the full connectivity and the full benefits that connectionenables.Also included in this proposal are two new powers for those who use the Internet and for theCommission:·Expanded transparency will require networks to inform on themselves:
The proposalexpands the existing transparency rules to require that networks disclose any practices thatcould change a consumer's or a content provider's relationship with the network. I thusanticipate that, if a network ever planned to take an action that would affect a contentprovider's access there would be time for the FCC to consider petitions to review such anaction.·Voice for the Average American:
Recognizing that Internet entrepreneurs and consumersshouldn't have to hire a lawyer to call the Commission's attention to a grievance, anOmbudsperson would be created within the FCC to receive their complaints and, wherewarranted, investigate and represent their case.Separate and apart from this connectivity is the question of interconnection (''peering'') betweenthe consumer's network provider and the various networks that deliver to that ISP. That is a differentmatter that is better addressed separately. Today's proposal is all about what happens on the broadbandprovider's network and how the consumer's connection to the Internet may not be interfered with orotherwise compromised.The situation in which this Commission finds itself is inherited from the actions of previousCommissions over the last decade. The D.C. Circuit's ruling in January of this year upheld ourdetermination that we need rules to protect Internet openness, and upheld our authority under Section 706to adopt such rules, even while it found that portions of the 2010 Open Internet Order were beyond thescope of our authority. In response, I promptly stated that we would reinstate rules that achieve the goalsof the 2010 Order using the Section 706-based roadmap laid out by the court. That is what we areproposing today.Section 706 is one of the two principal methods proposed to accomplish the goals of an OpenInternet. Today we are seeking input on both Section 706 and Title II of the Communications Act.We
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are specifically asking for input as to the benefits of each and why one might be preferable toanother. We have established a lengthy comment and reply period sufficient to allow everyone anopportunity to participate.As a former entrepreneur and venture capitalist, I know the importance of openness first hand.As an entrepreneur, I have had products and services shut out of closed cable networks. As a VC, Iinvested in companies that wouldn't have been able to innovate if the Internet weren't open. I havehands-on experience with the importance of network openness.I will not allow the national asset of an Open Internet to be compromised
. I understand thisissue in my bones. I can show you the scars from when my companies were denied open access in thepre-Internet days.The consideration we are beginning today is not about whether the Internet must be open, butabout how and when we will have rules in place to assure an Open Internet. My preference has been tofollow the roadmap laid out by the D.C. Circuit in the belief that it was the fastest and best way to getprotections in place. I have also indicated repeatedly that I am open to using Title II.This rulemaking begins the process by putting forth a proposal, asking important and specificquestions, and opening the discussion to all Americans. We look forward to hearing feedback on all theseapproaches.88Federal Communications Commission
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STATEMENT OF
COMMISSIONER MIGNON L. CLYBURN
Re:Protecting and Promoting the Open Internet, GN Docket No. 14-28.When my mother calls, with public policy concerns, I know there is a problem.In my 16 years as a public servant, Emily Clyburn has never called me about a substantive issueunder consideration. Not during my time serving on the South Carolina Public Service Commission. Notduring my tenure here as a Commissioner nor as Acting Chairwoman. Never. But all of that changed onMonday, April 28th.Please indulge me for a moment. My mother is a very organized, intuitive and intelligent woman.She was a medical librarian and earned a master's degree while she raised three girls. She is smart,thoughtful and engaged. She is a natural researcher. So when she picked up the phone to call me aboutthis issue, I knew for sure something was just not right.She gave voice to three basic questions which, and as of today's date, her message remains on mytelephone and in personal memory banks: (1) ''what is this net neutrality issue?'' (2) ''can providers dowhat they want to do?'' and (3) ''did it already pass?''So, like any good daughter with an independent streak, I will directly answer my mother'squestions in my own time and in my own way. But her inquiry truly echoes the calls, emails and letters Ihave received from thousands of consumers, investors, startups, healthcare providers, educators andothers across the country who are equally concerned and confused. All of this demonstrates, (no punintended) how fundamental the Internet has become for all of us.So, why are we here, and exactly what is net neutrality or Open Internet?
First, let me startfrom a place where I believe most of us can agree that a free and open exchange of ideas is critical to ademocratic society. Consumers with the ability to visit whatever website and access any lawful contentof their choice, interact with their government, apply for a job, even monitor their household devices.Educators have the capacity to leverage the best digital learning tools for their students. Healthcareproviders treating their patients with the latest technologies '' all of this occurring without those servicesor content being discriminated against or blocked.All content, all ''bits,'' being treated equally. Small startups on a shoestring budget with novelideas have the ability to reach millions of people and compete on equal footing with those establishedplayers and their considerable budgets. Innovation abounds with new applications, technologies andservices.At its core, an open Internet means that consumers, not a company, not the government,determine winners and losers. It is the free market at its best. All of this, however, does not nor will itever, occur organically. Without rules governing a free and open Internet it is possible that companies ''fixed and wireless broadband providers '' could independently determine whether they want todiscriminate or block content, pick favorites, charge higher fees or distort the market.I have been listening to concerns not just from my mother, but from thousands of consumers andinterested parties. Startups that fear, they ''won't even get a chance to succeed,'' if access to consumers iscontrolled by corporations, rather than a competitive level playing field. Investors who say they will bereticent to commit money to new companies because they are concerned that their new service will not beable to reach consumers in the marketplace because of high costs or differential treatment.89Federal Communications Commission
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Educators, even where there is a high capacity connection at the school, feel that their studentsmay not be able to take advantage of the best in digital learning if the quality of the content is poor.Healthcare professionals worrying that the images they need to view will load too slowly and that patientswill be unable to benefit from the latest technologies and specialized care made possible through remotemonitoring. And, I am hearing from everyday people, who say that we need to maintain the openness ofthe Internet and that this openness enables today's discourse to be viewed by thousands, and offers themthe ability to interact directly with policy makers and engage in robust exchanges like we are experiencingtoday.In fact, let me say how impressed I was when I spoke with some of you on Maine Street earlierthis week. You came to Washington from North Carolina, New York, Pennsylvania, and Virginia at yourown expense to affirm just how important this issue is to you. You made it clear that the Internet is agreat equalizer in our society and that average consumers should have the same access to the Internet asthose with deep pockets.There are dozens of examples across the globe where we have seen firsthand the dangers tosociety when people are not allowed to choose. Governments blocking access to content and stifling freespeech and public discourse.Countries, including some in Europe, where providers have congested or degraded content, andapps are being blocked from certain mobile devices. Hints of problems have occurred even here at home,particularly with regard to apps on mobile devices, even though providers in the United State, have beensubject to net neutrality principles and rules with the threat of enforcement for over a decade.So, to Mom and to all of you, this is an issue about promoting our democratic values of freespeech, competition, economic growth, and civic engagement.The second she posed was, can providers just do what they want?
The short answer, is yes.As of January we have no rules to prevent discrimination or blocking.This is actually a significant change because the FCC has had policies in place dating back to2004, when the Commission under former Chairman, and my friend Michael Powell, unanimouslyadopted four principles of an open Internet in the Internet Policy Statement. These principles became therules of the road with the potential for enforcement. Then, in 2010, the Commission formally adoptedrules to promote an open Internet by preventing blocking, and unreasonable discrimination.When the Commission approved these rules, I explained why I would have done some thingsdifferently. For instance, I would have applied the same rules to both fixed and mobile broadband;prohibited paid priority agreements; limited any exceptions to the rule; and I am on record as preferring adifferent legal structure. The 2010 rules reflect a compromise'... yes, Mom, I do compromise at times.But in January 2014, the D.C. Circuit disagreed with our legal framework '... so here we are, again.And I say again, that the court decision means that today we have no unreasonable discriminationor no blocking rules on the books. Nothing prevents providers from acting in small ways that largely maygo undetected. And, nothing prevents them from acting in larger ways to discriminate against or evenblock certain content. To be fair, providers have stated that they intend, for the time being, not to do soand have publicly committed to retain their current policies of openness. But, for me, the issue comesdown to whether broadband providers should have the ability to determine, on their own, whether theInternet is free and open OR whether we should have basic and clear rules of the road in place to ensurethat this occurs as we have had for the last decade.90
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And, this may be surprising to some but I have chosen to view the court decision in a positivelight for it has given us a unique opportunity to take a fresh look and evaluate our policy in light of thedevelopments that have occurred in the market over the last four years, including the increased use ofWiFi, deployment of LTE, faster speeds and connections to homes, schools, libraries, and the increaseduse of broadband on mobile devices, to name a few. The remand enables us to issue this clarion call tothe public where they can once again help us answer that most important question of how to protect andmaintain a free and open Internet. That ability officially begins for everyone today.The third question, and, judging by the headlines and subsequent reactions, my Mother is
in good company here, was ''has, it, passed?'' No, it has not, but let me explain. Some press accountshave reported that the Chairman's initial proposal is what we are voting on, and have conflated proposedrules with, final rules. Neither is accurate.For those who practice in this space, I ask that you bear with me for a moment. When theChairman circulates an item, it is indeed a reflection of his vision. My office then evaluates the proposal,listens to any concerns voiced by interested parties, including consumers, then considers whether we haveconcerns and, if so, what changes we want to request so that we could move to a position of support.This item was no different. It is true. I too had significant concerns about the initial proposal butafter interactions among the staff, my office, and the Chairman's office, this item has changedconsiderably over the last few weeks and I greatly appreciate the Chairman incorporating my manyrequests to do so. Though I still may have preferred to make portions of the draft more neutral, what weare voting on today asks about a number of alternatives, which will allow for a well-rounded record todevelop, on how best to protect the public interest.Second, today, we are voting only on proposed rules '' not final rules. Again, this item is anofficial call inviting interested parties to comment, to discuss the pros and cons of various approaches,and to have a robust dialogue about the best path forward. When the Chairman hits the gavel after votesare cast on this item this morning, it will signal the start of 120 unique days of opportunity each of youhas in shaping and influencing the direction of one of the world's most incredible platforms. Thefeedback up until now has been nothing short of astounding but the real call to action begins after thisvote is taken. Comments are due on July 15th, and there is ample time to evaluate any of the proposals andprovide meaningful feedback.You have spoken and I am listening. Your power will never be underestimated, and I sincerelyhope that your passion continues. As I said to those I met with outside of FCC headquarters, this is youropportunity to formally make your point on the record. You have the ear of the entire FCC. The eyes ofthe world are on all of us. Use your voice and this platform to continue to be heard.I will do all that I can independently, and with the Chairman, to identify ways to encourage amore interactive dialogue with all stakeholders whether through town halls, workshops, webinars, orsocial media because I know with a robust record this Commission will be able move quickly and get tothe finish line with the adoption of permanent rules that provide certainty, and which are clear andenforceable.So, mom, I hope that answers most of your questions and I sincerely hope that you won't feelcompelled to ask me any more significant policy questions for another 16 years.In all seriousness, I want to thank the dedicated staff from the Office of General Counsel,including Jonathan Sallet and Stephanie Weiner, as well as the Wireline Competition and WirelessTelecommunications Bureaus, for their work on this significant item. And I want to especially thank myWireline Legal Advisor, Rebekah Goodheart, for her expert work on this item.91Federal Communications Commission
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CONCURRING STATEMENT OF
COMMISSIONER JESSICA ROSENWORCEL
Re:Protecting and Promoting the Open Internet, GN Docket No. 14-28.I support an open Internet. But I would have done this differently. Before proceeding, I wouldhave taken time to understand the future. Because the future of the Internet is the future of everything.There is nothing in our commercial and civic lives that will be untouched by its influence or unmoved byits power. I would have taken time for more input. Because I think as public servants we have a duty toacknowledge and respond to the great tide of public commentary that followed in the wake of theChairman's proposal. Even now, the phone calls continue, the e-mails pour in, and the web itself isablaze with commentary on how this Commission should proceed.It's no wonder. Our Internet economy is the envy of the world. We invented it. The broadbandbelow us and the airwaves all around us deliver its collective might to our homes and businesses incommunities across the country. The applications economy began here'--on our shores. What producedthis dynamic engine of entrepreneurship and experimentation is a foundation of openness. Sustainingwhat has made us innovative, fierce, and creative should not be a choice'--it should be an obligation.As we proceed, we are also obligated to protect what has made the Internet the most dynamicplatform for free speech ever invented. It is our modern town square. It is our printing press. It is ourshared platform for opportunity. Online we are sovereign'--we can choose, create, and consume contentunimpeded by the preferences of our broadband providers. Sustaining this freedom is essential.As we proceed, we also must keep front of mind the principles of fairness and protection fromdiscrimination that have informed every proceeding involving the Internet that has been before thisagency. These are the essential values in our communications laws. They are the ones we have honoredin the past; they must guide us in the future. So going forward we must honor transparency, banblocking, and prevent unreasonable discrimination. We cannot have a two-tiered Internet, with fast lanesthat speed the traffic of the privileged and leave the rest of us lagging behind.So I support network neutrality. But I believe the process that got us to this rulemaking today isflawed. I would have preferred a delay. I think we moved too fast to be fair. So I concur. But I want toacknowledge that the Chairman has made significant adjustments to the text of the rulemaking we adopttoday. He has expanded its scope and put all options on the table. Our effort now covers law and policy,Section 706 and Title II.If past is prologue, the future of this proceeding, the future of network neutrality, and the future ofthe Internet is still being written. I am hopeful that we can write it together'--and I am mindful that wemust get it right.92Federal Communications Commission
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DISSENTING STATEMENT OF
COMMISSIONER AJIT PAI
Re:Protecting and Promoting the Open Internet, GN Docket No. 14-28.A few years ago, Google's then-CEO, Eric Schmidt, was quoted as saying: ''The Internet is thefirst thing that humanity has built that humanity doesn't understand.''1 If that is so, every American whocares about the future of the Internet should be wary about five unelected officials deciding its fate.After the U.S. Court of Appeals here in Washington struck down the agency's latest attempt toregulate broadband providers' network management practices,2 I recommended that the Commission seekguidance from Congress instead of plowing ahead yet again on its own. In my view, recent events haveonly confirmed the wisdom of that approach.Let's start by acknowledging the obvious: The Chairman's proposal has sparked a vigorouspublic debate. But we should not let that debate obscure some important common ground: namely, abipartisan consensus in favor of a free and open Internet. Indeed, this consensus reaches back at least adecade. In 2004, then-FCC Chairman Michael Powell outlined four principles of Internet freedom: Thefreedom to access lawful content, the freedom to use applications, the freedom to attach personal devicesto the network, and the freedom to obtain service plan information.3 One year later, the FCCunanimously endorsed these principles when it adopted the Internet Policy Statement.4Respect for these four Internet freedoms has aided the Internet's tremendous growth over the lastdecade. It has shielded online competitors from anticompetitive practices. It has fostered long-terminvestments in broadband infrastructure. It has made the Internet an unprecedented platform for civicengagement, commerce, entertainment, and more. And it has made the United States the epicenter ofonline innovation. I support the four Internet freedoms, and I am committed to protecting them goingforward.It's not news that people of good faith disagree when it comes to the best way to maintain a freeand open Internet'--or as I think of it, how best to preserve the four Internet freedoms for consumers.Some would like to regulate broadband providers as utilities under Title II of the Communications Act.This turn to common-carrier regulation would scrap the Clinton-era decision to let the Internet grow andthrive free from price regulation and other obligations applicable to telephone carriers.5There are others'--and I am one of them'--who believe President Clinton and Congress got it rightin the Telecommunications Act of 1996 when they declared the policy of the United States to be''preserv[ing] the vibrant and competitive free market that presently exists for the Internet . . . unfettered1 See Jerome Taylor, Google chief: My fears for Generation Facebook, The Independent (Aug. 18, 2010), availableathttp://www.independent.co.uk/life-style/gadgets-and-tech/news/google-chief-my-fears-for-generation-facebook-2055390.html.2 Verizon Communications Inc. v. FCC, 740 F. 3d 623 (D.C. Cir. 2014).3 Michael K. Powell, Chairman, FCC, Preserving Internet Freedom: Guiding Principles for the Industry (Feb. 8,2004), available athttp://go.usa.gov/8CZe.4 Appropriate Framework for Broadband Access to the Internet over Wireline Facilities; Review of RegulatoryRequirements for Incumbent LEC Broadband Telecommunications Services; Computer III Further RemandProceedings: Bell Operating Company Provision of Enhanced Services; 1998 Biennial Regulatory Review-Reviewof Computer III and ONA Safeguards and Requirements; Inquiry Concerning High-Speed Access to the InternetOver Cable and Other Facilities Internet Over Cable Declaratory Ruling; Appropriate Regulatory Treatment forBroadband Access to the Internet Over Cable Facilities, GN Docket No. 00-185, CC Docket Nos. 02-33, 01-33, 98-10, 95-20, CS Docket No. 02-52, Policy Statement, 20 FCC Rcd 14986 (2005).5 See Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Report to Congress, 13 FCC Rcd11501 (1998).93Federal Communications Commission
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by Federal or State regulation.''6 They think that we should recognize the benefits made possible by theregulatory regime that has been in place for most of the last decade. After all, nobody thinks of plain oldtelephone service or utilities as cutting-edge. But everyone recognizes that the Internet has boundlesspotential. And that's because government didn't set the bounds early on.Today's item strikes yet a third approach. It's a lawyerly one that proposes a minimal-level-of-access rule and a not-too-much-discrimination rule. It also allows for paid prioritization underunspecified circumstances. To date, no one outside the building has asked me to support this proposal. Itbrings to mind a Texas politician's observation that there is nothing in the middle of the road but yellowstripes and dead armadillos.Nothing less than the future of the Internet depends on how we resolve this disagreement. Whatwe do will imperil or preserve Internet freedom. It will promote or deter broadband deployment to ruralconsumers and infrastructure investment throughout our nation. It will brighten or hamper the future ofinnovation both within networks and at their edge. It will determine whether control of the Internet willreside with the U.S. government or the private sector. It will impact whether consumers are connected bysmart networks or dumb pipes. And it will advance or undermine American advocacy on theinternational stage for an Internet free from government control.A dispute this fundamental is not for us, five unelected individuals, to decide. Instead, it shouldbe resolved by the people's elected representatives, those who choose the direction of government'--andthose whom the American people can hold accountable for that choice.I am therefore disappointed that today, rather than turning to Congress, we have chosen to takematters into our own hands. It is all the more disappointing because we have been down this road before.Our prior two attempts to go it alone ended in court defeats. Even with the newfangled tools the FCC willtry to pull out of its legal grab-bag, I am skeptical that the third time will be the charm.For one, I see no legal path for the FCC to prohibit paid prioritization or the development of atwo-sided market'--which appears to be the sine qua non objection by many to the Chairman's proposal.As the NPRM frankly acknowledges, section 706 of the Telecommunications Act ''could not be used'' forsuch a ban.7 And while the NPRM resists saying it outright, neither could Title II. After all, Title II onlyauthorizes the FCC to prohibit ''unjust or unreasonable discrimination''8 and both the Commission and thecourts have consistently interpreted that provision to allow carriers to charge different prices for differentservices.9 Indeed, I have been unable to find even a single case in which the Commission found itunlawfully discriminatory to offer a different (faster) service to customers at a different (higher) price.6 47 U.S.C. § 230(b)(2) (emphasis added).7 Notice of Proposed Rulemaking at para. 138.8 47 U.S.C. § 202(a).9 See, e.g., Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State andLocal Public Safety Agency Communication Requirements Through the Year 2010; Establishment of Rules andRequirements for Priority Access Service, WT Docket No. 96-86, Second Report and Order, 15 FCC Rcd 16720(2000) (finding Priority Access Service, a wireless priority service for both governmental and non-governmentpublic safety personnel, ''prima facie lawful'' under section 202); Access Charge Reform; Price Cap PerformanceReview for Local Exchange Carriers; Interexchange Carrier Purchases Of Switched Access Services Offered ByCompetitive Local Exchange Carriers; Petition of US West Communications, Inc. for Forbearance from Regulationas a Dominant Carrier in the Phoenix, Arizona MSA, CC Docket Nos. 96-262, 94-1, 98-157, CCB/CPD File No. 98-63, 14 FCC Rcd 14221 (1999) (granting dominant carriers pricing flexibility or special access services, allowingboth higher charges for faster connections as well as individualized pricing and customers discounts); GTETelephone Operating Companies Tariff F.C.C. No. 1 et al., Transmittal Nos. 900, 102, 519, 621, 9 FCC Rcd 5758(Common Carrier Bur. 1994) (approving tariffs for Government Emergency Telephone Service(GETS), a prioritizedtelephone service, and additional charges therefor); see also, e.g., Interstate Commerce Commission v. Baltimore &O.R. Co., 145 U.S. 263, 283''84 (1892) (noting that common carriers are ''only bound to give the same terms to all(continued'...)94
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For another, the legal consequences of moving forward with net-neutrality regulation are sure towreak havoc on the Internet economy, no matter which legal path we take. If we are to take the D.C.Circuit at its word, section 706 grants the FCC virtually unfettered authority to encourage broadbandadoption and deployment.10 So if three members of the FCC think that more Americans would go onlineif they knew their information would be secure, could we impose cybersecurity and encryption standardson website operators? If three members of the FCC think that more Americans would purchasebroadband if edge providers were prohibited from targeted advertising, could we impose Do Not Trackregulations? Or if three members of the FCC think that more Americans would use the Internet if therewere greater privacy protections, could we follow the European Union and impose right-to-be-forgottenmandates? And because section 706 gives state commissions authority equal to the FCC,11 everybroadband provider, every online innovator, every Internet-enabled entrepreneur may now have tocomply with differing regulations in each of the 50 states. Tesla, Uber, Airbnb, and countless others canattest to the welcome that parochial regulators give to disruptive start-ups.The Internet would fare no better under Title II, and the consequences are likely to be even worse.Reclassification opens the door to actual access charges'--tariffed charges that Internet service providerscould impose on edge providers, content delivery networks, and transit operators without their consent.Indeed, one Title II option on the table would guarantee new Internet tolls by giving broadband ISPs nooption other than access charges to recover their regulated costs.12 Not only that, but reclassificationmeans a broadband price hike for every consumer in America'--not exactly a move that will encouragebroadband adoption.13 And alongside tariffed access charges and higher consumer prices, other Title IIprovisions'--ranging from the disclosure of customer information14 to mandatory billing disclosures15'--would apply to broadband providers, edge providers, or really anyone in the Internet economy. And likesection 706, Title II puts state regulators on par with the FCC, meaning there may be 50 sets of accesscharges to be paid, 50 different broadband fees to be assessed, 50 different privacy regimes to becomplied with, and 50 different types of mandatory disclosures to be made. As this suggests, a Title IIregime hardly lowers the barriers to competitive entry'--starting a company doesn't get you free legalservices. And it would hardly ''provide certainty to all market participants and keep the costs ofregulation low,'' as 150 Internet companies asked us to do last week.16Finally, pursuing net-neutrality regulations under section 706 or Title II places in jeopardy everyother goal of this Commission in the communications marketplace. Most obviously, this pursuit injectstremendous regulatory uncertainty into the market, chilling further broadband deployment,17 threatening(Continued from previous page)persons alike under the same conditions and circumstances,'' and ''any fact which produces an inequality ofcondition and a change of circumstances justifies an inequality of charge'').10 Verizon v. FCC, 740 F.3d 623, 639''40 (D.C. Cir. 2014).11 47 U.S.C. § 1302(a) (''The Commission and each State commission with regulatory jurisdiction overtelecommunications services shall encourage the deployment on a reasonable and timely basis of advancedtelecommunications capability to all Americans . . . .'' (emphasis added)).12 See Notice of Proposed Rulemaking at paras. 151''52.13 See 47 U.S.C. § 254(d) (imposing universal service fees on all telecommunications carriers).14 See 47 U.S.C. § 222.15 See 47 C.F.R. § 64.2401 (implementing 47 U.S.C. §§ 201(b), 258).16 Letter from Amazon et al., to Chairman Wheeler and Commissioners Clyburn, Rosenworcel, Pai, and O'Rielly,GN Docket No. 14-28 (May 7, 2014).17 See, e.g., Letter from Robert W. Quinn, Jr., Senior Vice President, AT&T, to Marlene H. Dortch, Secretary, FCC,GN Docket No. 14-28, at 2''3 (May 9, 2014); Letter from Kathryn A. Zachem, Senior Vice President, ComcastCorporation, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1''2 (May 12, 2014); Letter from Rick(continued'...)95Federal Communications Commission
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the $60 billion a year that private companies invest in their broadband networks, and potentiallyjeopardizing some of the millions of jobs that depend on such investment.18 This brave new world willdeter new entrants and reduce competition in the broadband market.This is no academic concern. Even with the cushion of market capitalization equivalent toComcast, Verizon, and T-Mobile combined, Google has already attested that our legacy regulations led itnot to offer phone service as part of Google Fiber.19 On the other end of the size spectrum, there arethousands of smaller Internet service providers'--wireless ISPs (WISPs), small-town cable operators,electric cooperatives, and others'--that don't have the means or the margins to withstand a regulatoryonslaught. If they go dark, consumers they serve (including my parents, who are WISP subscribers inrural Kansas) will be thrown offline.On top of all this, undertaking such a ''politically corrosive'' rulemaking on dubious legal andpolicy grounds will swamp what should be an independent, expert agency with years of litigation andpartisan division.20 That is not good for broadband deployment, that is not good for consumers, and thatis not good for future of the Internet.For all of these reasons, I respectfully dissent.* * *Nevertheless, if we are going to act like our own mini-legislature and plunge the Commission intothis morass, we need to use a better process going forward. I agree with my colleague, CommissionerRosenworcel, that we have rushed headlong into this rulemaking by holding this vote today21'--and whenthere is any bipartisan agreement on net neutrality, that's something to pay attention to. We have seenover the past month what happens when the American people feel excluded from the Commission'sdeliberations. Indeed, on several recent issues, many say that the Commission has spent too much timespeaking at the American people and not enough time listening to them.Going forward, we need to give the American people a full and fair opportunity to participate inthis process. And we must ensure that our decisions are based on a robust record.So what is the way forward? Here's one suggestion. Just as we commissioned a series ofeconomic studies in past media-ownership proceedings,22 we should ask ten distinguished economistsfrom across the country to study the impact of our proposed regulations and alternative approaches on theInternet ecosystem. To ensure that we obtain a wide range of perspectives, let each Commissioner picktwo authors. To ensure accuracy, each study should be peer reviewed. And to ensure public oversight,(Continued from previous page)Chessen, Senior Vice President, National Cable & Telecommunications Association, to Marlene H. Dortch,Secretary, FCC, GN Docket No. 14-28, at 3 (May 14, 2014).18 Letter from Thomas R. Stanton, Chairman & CEO, ADTRAN, et al., to Marlene H. Dortch, Secretary, FCC, GNDocket No. 14-28 (May 13, 2014).19 Alyson Raletz, Google Considers But Drops Plans to Include Phone Service, Too, Kansas City Business Journal(Dec. 4, 2012), available athttp://www.bizjournals.com/kansascity/blog/2012/12/google-considers-drops-phone-service.html.20 See Letter from Mitch McConnell, Senate Republican Leader, et al., to the Honorable Thomas Wheeler,Chairman, FCC (May 13, 2014); Letter from John A. Boehner, Speak of the House, to the Honorable Thomas E.Wheeler, Chairman, FCC (May 14, 2014); Letter from Fred Upton, Chairman, U.S. House of RepresentativesCommittee on Energy and Commerce, et al. to the Honorable Thomas E. Wheeler, Chairman, FCC (May 13, 2014).21 See Remarks of Commissioner Jessica Rosenworcel at the Chief Officers of State Library Agencies Meeting (May7, 2014), available athttp://go.usa.gov/84SG; see also Letter from Senators Kelly Ayotte, Deb Fischer, and DanCoats, to the Honorable Tom Wheeler, Chairman, FCC (May 14, 2014), available athttp://go.usa.gov/84Sz.22 FCC, 10 Research Studies on Media Ownership, http://go.usa.gov/8YSA.96Federal Communications Commission
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we should host a series of hearings where Commissioners could question the authors of the studies andthe authors of those studies could discuss their differences. Surely the future of the Internet is no lessimportant than media ownership.But we should not limit ourselves to economic studies. We should also engage computerscientists, technologists, and other technical experts to tell us how they see the Internet's infrastructureand consumers' online experience evolving. Their studies too should be subject to peer review and publichearings.Ultimately, any decisions we make on Internet regulation must be based on sound engineeringand an accurate understanding of how networks actually function. They should be informed by thejudicious and successful regulatory approach embraced by both Democrats and Republicans in recentyears. And they should avoid embroiling everyone, from the FCC to industry to the average Americanconsumer, in yet another years-long legal waiting game.In short, getting the future of the Internet right is more important than getting this done right now.After all, the Internet was free and open before the FCC's net-neutrality rules took effect in November2011. And it is still free and open today even though those rules are no longer in force. Going forward, Ihope that we will not rush headlong into enacting bad rules. We are not confronted with an immediatecrisis that requires immediate action. And if we are going to usurp Congress's role and makefundamental policy choices for the American people, we must do better than the process that led totoday's vote.97Federal Communications Commission
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DISSENTING STATEMENT OF
COMMISSIONER MICHAEL O'RIELLY
Re:Protecting and Promoting the Open Internet, GN Docket No. 14-28.It should come as no surprise that I cannot support today's Notice. As I've said before, thepremise for imposing net neutrality rules is fundamentally flawed and rests on a faulty foundation ofmake-believe statutory authority. I have serious concerns that this ill-advised item will create damaginguncertainty and head the Commission down a slippery slope of regulation.As anticipated, the Notice proposes to ground the net neutrality rules in section 706 of theTelecommunications Act of 1996. I have already expressed my views that Congress never intendedsection 706 to be an affirmative grant of authority to the Commission to regulate the Internet. At most, itcould be used to trigger deregulation.But the Notice doesn't stop there. It seeks comment on ways to construe additional language insection 706 and even suggests using section 230(b) to broaden the scope of the Commission's usurpedauthority. This is absurd. I was worried enough that the Commission's current reading of section 706could be used to justify any number of regulatory interventions and could ultimately impact not justbroadband providers, but also edge providers. Now that the Commission is trying to cast an even widernet of authority, I fear that other services and providers could become ensnared in the future.And just in case section 706 proves to be inadequate for this regulatory boondoggle, the Noticeexplores upending years of precedent and investment by reclassifying broadband Internet access as a TitleII service. That is, the Commission examines applying monopoly era telephone rules to modernbroadband services solely to impose unnecessary and defective net neutrality regulations. I cannotsupport such a backward-looking, ends-driven approach'--not in a Notice and certainly not in final rules.While courts can recognize that an agency may legally reverse course as long as it adequatelyexplains the reasons for changing its position, I am concerned about the real world impact that such adecision could have on the communications industry and the economy as a whole. The currentframework has provided a climate of certainty and stability for broadband investment and Internetinnovation. Upending that framework could disrupt the tremendous progress that has been made over thelast decade. I also worry about the credibility of an agency that consistently fails to meet statutorydeadlines to review and eliminate old rules, but is supposedly open to reapplying obsolete provisions.The Notice suggests that reclassification could be accompanied by substantial forbearance fromthe Title II requirements. But the need to forbear from a significant number of provisions in Title IIproves the point that Title II is an inappropriate framework for today's dynamic technologies. Indeed,Title II includes a host of arcane provisions on topics like interlocking directorates, valuation of carrierproperty, uniform system of accounts and depreciation charges, telephone operator services,telemessaging service, Bell Operating Company entry into interLATA services, manufacturing oftelecommunications equipment and customer premises equipment, and electronic publishing. Even if theCommission granted forbearance from all of the provisions that it has eliminated for incumbent telephonecompanies'--and then some'--advocates are ignoring that broadband providers and services would still besubject to a host of unnecessary rules. The idea that the Commission can magically impose or sprinklejust the right amount of Title II on broadband providers is giving the Commission more credit than it everdeserves.Additionally, before taking any action on any issue, the Commission should have specific andverifiable evidence that there is a market failure. The Notice does not examine the broadband marketmuch less identify any failures. A true and accurate review of the U.S. broadband market'--which must98Federal Communications Commission
FCC 14-61
include wireless broadband'--would show how dynamic it is. The Notice does acknowledge thatinnovation and investment have flourished, although it implausibly ascribes those successes to the vacatednet neutrality rules.Moreover, the Notice fails to make the case that there's an actual problem resulting in real harmto consumers. The Notice identifies, at most, two additional examples of alleged harm. And in oneinstance, the Commission concedes it did not find a violation. The Notice tries to explain away theabsence of net neutrality complaints, but the unpersuasive excuses cannot mask a lack of evidence. In alast ditch attempt to find problems, the Notice points to supposed bad conduct occurring outside of theUnited States without explaining how that is relevant to a very different U.S. broadband market andregulatory structure.Having come up empty handed, the Notice proceeds to explore hypothetical concerns. At the topof the list is prioritization. But even ardent supporters of net neutrality recognize that some amount oftraffic differentiation or ''prioritization'' must be allowed or even encouraged. Voice must be prioritizedover email; video over plain data. Prioritization is not a bad word. It is a necessary component ofreasonable network management.The Notice is particularly skeptical of paid prioritization and contemplates banning some or allsuch arrangements outright. Yet companies that do business over the Internet, including some of thestrongest supporters of net neutrality, routinely pay for a variety of services to ensure the best possibleexperience for their consumers. They've been doing it for years. And certain arrangements have evenbeen viewed as ''good for the Internet.'' In short, fears that paid prioritization will automatically degradeservice for other users, relegating them to a so-called ''slow lane,'' have been disproven by years ofexperience.Because there's no evidence of actual harm that could help inform the proposed rules, they arenot narrowly tailored but hopelessly vague and unclear. We are left to puzzle over what it means toprovide a ''minimum level of access'' or what constitutes a ''commercially unreasonable'' practice,especially in the absence of contractual relationships. The Notice suggests that providers could seek non-binding staff guidance or prospective reviews of their practices. But it is very troubling when legitimatecompanies are put in the position of having to ask the government for its blessing every time they need tomake a business decision in order to avoid costly enforcement or litigation. It is even more telling that theCommission is suggesting new layers of enforcement options for which it has no experience. Forinstance, where are ombudsmen mentioned in the statute and what are they to do exactly?Finally, to say the cost-benefit ''analysis'' is woefully inadequate is an understatement. TheNotice devotes several pages to a wish list of disclosures, reporting requirements, and certifications thatwill impose new burdens and carry real costs, but may not even be meaningful to end users. For example,what will the average consumer do with information on packet corruption and jitter? However, there isno attempt to quantify and compare the costs of the proposed new requirements against the supposedbenefits'--just a single paragraph seeking comment on ways to reduce the burdens. Proposed rules shouldbe accompanied by a fulsome cost-benefit analysis that includes a detailed and extensive review ofcurrent law, especially as it applies to other federal agencies that we seek to imitate. The Commission'sshort-shrift approach to cost-benefit analysis cannot continue, and I intend to spend time improving thisimportant function.In sum, the proposed net neutrality rules and legal theories will stifle innovation and investmentby the private sector, provide no help to consumers, and thrust the Commission into a place it shouldn'tbe. I respectfully dissent.99Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.
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Nancy Pelosi Urged the FCC to Classify the Internet as a Utility | Motherboard
Mon, 08 Sep 2014 21:51
Congresswoman Nancy Pelosi, the powerful Democrat House leader who represents San Francisco, is urging the Federal Communications Commission to reclassify broadband service under a strict regulatory regime favored by many Open Internet advocates.
Pelosi's endorsement of so-called Title II reclassification, which is vehemently opposed by cable and telecom giants and their allies on Capitol Hill, represents a major political boost for supporters of net neutrality, the principle that broadband providers should treat all data equally.
FCC Chairman Tom Wheeler and his colleagues are weighing whether to reclassify broadband service under so-called common carrier regulations in the wake of a legal defeat earlier this year that gutted the agency's net neutrality rules. Wheeler has proposed a new policy that stops short of reclassification, and opens to the door to so-called paid prioritization, which many Open Internet advocates argue would effectively spell the end of net neutrality.
In a letter to Wheeler released Monday, Pelosi wrote that she is ''concerned'' that the FCC ''may act in a way that would permit broadband providers to discriminate against the content consumers and innovators create and enjoy.'' She warned the agency that Wheeler's proposed rules might force innovators ''into commercial arrangements that require payment of tolls in cash or equity to get their ideas on the internet.''
there's now almost no political support for Chairman Wheeler's proposal within his own party.''I oppose special internet fast lanes, only open to those firms large enough to pay big money or fraught enough to give up big stakes in their company,'' Pelosi wrote. She noted that the DC Circuit Court of Appeals, which ruled against the FCC's net neutrality rules in January, give the agency ''a clear path forward to prohibit discrimination and paid prioritization.''
''I believe the FCC should follow the court's guidance and reclassify broadband as a Telecommunications Service under Title II of the Communications Act,'' Pelosi said.
Open Internet advocates hailed Pelosi's clear support for reclassification as further evidence that Wheeler has the political support for what would surely be a bruising battle over reclassification on Capitol Hill. They say that reclassification would give the FCC greater authority to ensure that broadband providers don't block or discriminate against online services'--two principles that are at the heart of net neutrality.
"This is a huge political statement,'' said Marvin Ammori, a First Amendment lawyer and tech policy expert who strongly supports net neutrality. ''The FCC always suggested that its hands were tied'--that real net neutrality, under Title II, was a pipe dream without political support.''
''But the FCC completely misunderstood the politics,'' Ammori told Motherboard. ''In fact, there's now almost no political support for Chairman Wheeler's proposal within his own party. His entire base of support now is the cable and phone companies, their vendors, and closest allies.''
FCC spokesperson Kim Hart declined to comment on Pelosi's letter.
Although Wheeler has asserted that he won't "hesitate to use Title II," many observers believe that he wants to avoid the inevitable political firestorm that would result from reclassification.
Wheeler clearly knows that Title II reclassification would prompt a furious response from the cable and telecom giants. Comcast, Verizon and AT&T vehemently oppose Title II reclassification, which they say would allow "unprecedented government micromanagement of all aspects of the internet economy." They say that such a move would deter them from making capital investments needed to improve and expand their service.
Several conservative lawmakers, who are allied with the cable and telecom giants and who view the FCC with suspicion under any circumstances, have warned Wheeler not to pursue that path. Many oppose net neutrality rules altogether.
For example, Rep. Marsha Blackburn, the Tennessee Republican who serves as Vice Chair of the House Energy and Commerce Committee, which has jurisdiction over the FCC, has called net neutrality rules "socialistic," a view that is shared by many members of her caucus.
In May, Blackburn and several of her colleagues sent Wheeler a strongly worded letter in which they expressed ''grave concern'' about reclassification.
''Such unwarranted and overreaching government intrusion into the broadband marketplace will harm consumers, halt job creation, curtail investment, stifle innovation, and set America down a dangerous path of micromanaging the internet,'' the lawmakers wrote.
Over the last decade, AT&T and Verizon have been Blackburn's second and third largest donors, funneling $66,750 and $59,651 into her election campaigns, respectively, according to the Center for Responsive Politics. She's also received $56,000 from the National Cable and Telecommunications Association, an industry trade group, and $36,000 from Comcast, the nation's largest cable company.
Without strong net neutrality rules, disruptive startups like Skype, YouTube and Netflix might have been snuffed out by broadband providers in favor of their own, rival services, according to Open Internet advocates.
For her part, Pelosi pointed out that some of the more far-reaching consequences of Title II reclassification could be ameliorated through what's called forbearance, which gives the FCC certain flexibility in applying the statute. ''The law's forbearance mechanism is an appropriate tool to refine modern rules and will prevent the FCC from overburdening broadband providers,'' Pelosi wrote.
Craig Aaron, president and CEO of the Free Press Action Fund, a DC-based advocacy group, said that Pelosi's letter ''shows the serious momentum'' for tough new net neutrality regulations.
"Chairman Wheeler can no longer claim that there's no political support for reclassifying broadband as a common carrier,'' Aaron told Motherboard. ''Clearly the more politically perilous path is digging in and defending his unworkable proposal."
"As the Democratic leader rightfully points out, the courts have given the FCC a clear path forward to prevent slow lanes and discrimination: It's called Title II," he continued. "And as millions and millions of Americans have been telling the FCC, that's the only way to protect the internet and ensure it continues to thrive."
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Shut Up Slave!
PASSPORT REVOCATION ACT-Text - H.R.5408 - 113th Congress (2013-2014): Terrorist Denaturalization and Passport Revocation Act | Congress.gov | Library of Congress
Wed, 10 Sep 2014 22:44
There is one version of the bill.
Shown Here:Introduced in House (09/08/2014)Formatting necessary for an accurate reading of this legislative text may be shown by tags (e.g., or ) or may be missing from this TXT display. For complete and accurate display of this text, see the PDF or HTML/XML.
[Congressional Bills 113th Congress][From the U.S. Government Printing Office][H.R. 5408 Introduced in House (IH)]113th CONGRESS 2d Session H. R. 5408 To amend section 349(a) of the Immigration and Nationality Act to add certain acts of allegiance to a foreign terrorist organization to the list of acts for which nationals of the United States lose nationality, and for other purposes._______________________________________________________________________ IN THE HOUSE OF REPRESENTATIVES September 8, 2014Mrs. Bachmann introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Foreign Affairs, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned_______________________________________________________________________ A BILL To amend section 349(a) of the Immigration and Nationality Act to add certain acts of allegiance to a foreign terrorist organization to the list of acts for which nationals of the United States lose nationality, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,SECTION 1. SHORT TITLE. This Act may be cited as the ``Terrorist Denaturalization and Passport Revocation Act''.SEC. 2. LOSS OF NATIONALITY. Section 349(a) of the Immigration and Nationality Act (8 U.S.C. 1481(a)) is amended-- (1) in paragraph (1), by striking ``or'' at the end; (2) in paragraph (2)-- (A) by inserting after ``thereof,'' the following: ``or an organization designated as a foreign terrorist organization pursuant to section 219,''; and (B) by striking ``or'' at the end; (3) in paragraph (3)-- (A) by striking ``States, or'' and inserting ``States;''; and (B) by adding at the end the following: ``(C) such foreign state harbors an organization designated as a foreign terrorist organization pursuant to section 219;''; (4) in paragraph (4)(A)-- (A) by inserting after ``thereof,'' the following: ``or for an organization designated as a foreign terrorist organization pursuant to section 219,''; (B) by striking ``he has'' and inserting ``the person has''; and (C) by striking ``or'' at the end; (5) in paragraph (4)(B), by inserting after ``thereof,'' the following: ``or for an organization designated as a foreign terrorist organization pursuant to section 219,''; (6) in paragraph (4), by adding at the end the following: ``(C) accepting, serving in, or performing the duties of any office, post, or employment for an organization designated as a foreign terrorist organization pursuant to section 219, after attaining the age of eighteen years, if the office, post, or employment requires knowing engagement in hostilities against United States military or civilian personnel;''; and (7) in paragraph (5), by striking ``or'' at the end.SEC. 3. REVOCATION OR DENIAL OF PASSPORTS AND PASSPORT CARDS TO INDIVIDUALS WHO ARE MEMBERS OF FOREIGN TERRORIST ORGANIZATIONS. The Act entitled ``An Act to regulate the issue and validity of passports, and for other purposes'', approved July 3, 1926 (22 U.S.C. 211a et seq.), commonly known as the ``Passport Act of 1926'', is amended by adding at the end the following:``SEC. 4. AUTHORITY TO DENY OR REVOKE PASSPORT AND PASSPORT CARD. ``(a) Ineligibility.-- ``(1) Issuance.--Except as provided under subsection (b), the Secretary of State may not issue a passport or passport card to any individual whom the Secretary has determined is a member of an organization the Secretary has designated as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act (8 U.S.C. 1189) that is engaging in hostilities against the United States or its allies. ``(2) Revocation.--The Secretary of State shall revoke a passport or passport card previously issued to any individual described in paragraph (1). ``(b) Exceptions.-- ``(1) Emergency and humanitarian situations.-- Notwithstanding subsection (a), the Secretary of State may issue a passport or passport card, in emergency circumstances or for humanitarian reasons, to an individual described in paragraph (1) of such subsection. ``(2) Limitation for return to united states.-- Notwithstanding subsection (a)(2), the Secretary of State, before revocation, may-- ``(A) limit a previously issued passport or passport card only for return travel to the United States; or ``(B) issue a limited passport or passport card that only permits return travel to the United States.''.
amendment to the Constitution of the United States-Cosponsors - S.J.Res.19 - 113th Congress (2013-2014): A joint resolution proposing an amendment to the Constitution of the United States relating to contributions and expenditures intended to affect elect
Wed, 10 Sep 2014 22:56
Sen. Bennet, Michael F. [D-CO]*06/18/2013Sen. Harkin, Tom [D-IA]*06/18/2013Sen. Schumer, Charles E. [D-NY]*06/18/2013Sen. Shaheen, Jeanne [D-NH]*06/18/2013Sen. Whitehouse, Sheldon [D-RI]*06/18/2013Sen. Tester, Jon [D-MT]*06/18/2013Sen. Boxer, Barbara [D-CA]*06/18/2013Sen. Coons, Christopher A. [D-DE]*06/18/2013Sen. King, Angus S. Jr. [I-ME]*06/18/2013Sen. Murphy, Christopher S. [D-CT]*06/18/2013Sen. Wyden, Ron [D-OR]*06/18/2013Sen. Franken, Al [D-MN]*06/18/2013Sen. Klobuchar, Amy [D-MN]*06/18/2013Sen. Udall, Mark [D-CO]*06/18/2013Sen. Johnson, Tim [D-SD]06/19/2013Sen. Menendez, Robert [D-NJ]06/19/2013Sen. Reed, Jack [D-RI]06/19/2013Sen. Blumenthal, Richard [D-CT]06/20/2013Sen. Heinrich, Martin [D-NM]06/24/2013Sen. Merkley, Jeff [D-OR]06/27/2013Sen. Feinstein, Dianne [D-CA]07/17/2013Sen. Begich, Mark [D-AK]07/17/2013Sen. Cardin, Benjamin L. [D-MD]07/23/2013Sen. Gillibrand, Kirsten E. [D-NY]09/09/2013Sen. Hagan, Kay [D-NC]10/08/2013Sen. Mikulski, Barbara A. [D-MD]10/28/2013Sen. Baldwin, Tammy [D-WI]10/28/2013Sen. Markey, Edward J. [D-MA]10/28/2013Sen. Warren, Elizabeth [D-MA]11/20/2013Sen. Brown, Sherrod [D-OH]04/02/2014Sen. Walsh, John E. [D-MT]04/02/2014Sen. Durbin, Richard [D-IL]04/02/2014Sen. Reid, Harry [D-NV]04/28/2014Sen. Hirono, Mazie K. [D-HI]04/28/2014Sen. Carper, Thomas R. [D-DE]04/29/2014Sen. Murray, Patty [D-WA]04/30/2014Sen. Schatz, Brian [D-HI]05/01/2014Sen. Sanders, Bernard [I-VT]05/06/2014Sen. Rockefeller, John D., IV [D-WV]05/08/2014Sen. Stabenow, Debbie [D-MI]05/12/2014Sen. Booker, Cory A. [D-NJ]05/20/2014Sen. Heitkamp, Heidi [D-ND]06/02/2014Sen. Manchin, Joe, III [D-WV]06/05/2014Sen. McCaskill, Claire [D-MO]07/07/2014Sen. Cantwell, Maria [D-WA]07/08/2014Sen. Nelson, Bill [D-FL]07/15/2014Sen. Casey, Robert P., Jr. [D-PA]07/30/2014Sen. Levin, Carl [D-MI]07/30/2014
Theodore Olson: Harry Reid Rewrites the First Amendment - WSJ
Wed, 10 Sep 2014 22:53
Sept. 7, 2014 5:08 p.m. ET
Liberals often deplore efforts to amend the Constitution, particularly the Bill of Rights and especially when the outcome would narrow individual liberties. Well, now we know they don't really mean it.
Forty-six Senate Democrats have concluded that the First Amendment is an impediment to re-election that a little tinkering can cure. They are proposing a constitutional amendment that would give Congress and state legislatures the authority to regulate the degree to which citizens can devote their resources to advocating...
Scotland
Half of Scots say oil finds are kept 'secret' - The Scotsman
Wed, 10 Sep 2014 16:34
ALMOST half of Scots believe the UK government is hiding North Sea oil discovered during the independence campaign, new research has found.
It follows recent reports that new fields off the west of Shetland had produced more encouraging results than first thought.
A total of 42 per cent believe it is ''probably true'' that new reserves of oil have been found in Scotland that the UK Government is ''keeping secret'' '' while the same proportion believe this claim is false.
The poll, commissioned by website BuzzFeed and carried out by YouGov, follows a recent trip by David Cameron to Shetland and claims that exploration in fields to the west of the islands gleaned promising results.
' Get the latest referendum news, opinion and analysis from across Scotland and beyond on our new Scottish Independence website
Nationalists believe that Scotland is on the verge of a second oil boom, saying the Clair Ridge field off the west coast of Shetland contains an estimated 8 billion barrels of oil, with an estimated 120,000 barrels per day production at peak levels.
The total investment of £4.5 billion is the equivalent of nine Glasgow 2014 Commonwealth Games, according to Business for Scotland, while the value of the field is almost £300 billion.
In the 1970s, when it was identified, it was outwith the reach of drilling companies, but with advances in technology deeper drilling is now possible, which would boost tax revenues. Other fields to the west of Shetland and the Atlantic are predicted to overtake North Sea production in future decades.
Scotland's future oil and gas reserves have been at the centre of the independence debate. North Sea magnate Sir Ian Wood claimed that the Scottish Government has overestimated the amount of oil and gas remaining in the North Sea by 40 to 60 per cent.
But the Scottish Government insist that up to 24 billion barrels of oil and gas could yet be recovered from the North Sea, meaning the industry could still be viable well beyond 2050.
SEE ALSO
' Brian Monteith: What No campaign needs to do now
' Lesley Riddoch: Better Together losing stardust
' Leaders: Parties must keep cool heads over polls
BP Backs 'No' Vote In Scottish Independence Referendum - Finance News - London South East
Wed, 10 Sep 2014 16:34
LONDON (Alliance News) - BP PLC's chief executive on Wednesday said the oil group backs a 'No' vote in the upcoming independence referendum in Scotland and gave its backing to the statements made by Ian Wood that the forecasts from the 'Yes' camp on future revenues from the North Sea have been inflated.
Bob Dudley, the Chief Executive of the FTSE 100-listed oil company, said BP "believes that the future prospects for the North Sea are best served by maintaining the existing capacity and integrity of the United Kingdom".
Dudley also said the group backs the assertion made earlier today by Ian Wood, the former chairman of FTSE 250-listed oil and gas services company John Wood Group PLC, who claimed Scottish voters have been mis-led and influenced by inaccurate forecasts from a Yes campaign sponsored report which promised a new oil boom for an independent Scotland.
"BP has been in the UK North Sea for 50 years and we hope to operate here for many years to come. However, the province is now mature and I believe Sir Ian Wood correctly assesses its future potential," said Dudley. "Our business invests for decades into the future. It is important our plans are based on a realistic view of the North Sea?s future potential and the challenges the industry faces in continuing to operate here."
"The opportunities today are smaller and more challenging to develop than in the past. We also face the challenges of extending the productive life of existing assets and managing the future costs of decommissioning. Much of this activity requires fiscal support to be economic, and future long-term investments require fiscal stability and certainty," he said.
BP owns interests in a number of projects in the North Sea, including the Clair Ridge field, the Kinnoul field and the Quad 204 project in the Schiehallion field.
BP shares were up 1.1% to 472.15 pence on Wednesday, putting it among the top five risers on the FTSE 100.
By Sam Unsted; samunsted@alliancenews.com; @SamUAtAlliance
Copyright 2014 Alliance News Limited. All Rights Reserved.
F-Russia
GeenStijl : NOS faalt en liegt met anti-Rusland propaganda
Wed, 10 Sep 2014 16:02
Kameraden! Wat u nu gaat zien, is een sterk staaltje anti-Russische propaganda van de Nederlandse Staatsomroep. De video hierboven is een montage van twee fragmenten. Allereerst een stuk uit het NPO NOS NPO Journaal van gisterenavond, 8 september. We zien het logo van de Russische agitpropzender Russia Today, en we horen de voice-over van de NOS vertellen dat Poetin een vraag van een Britse journalist over Russische betrokkenheid bij de situatie in de Oekra¯ne 'zo goed als negeert'. We horen John Sweeney van de BBC zijn vraag stellen, maar in de NOS-montage zien we Poetin weglopen, ogenschijnlijk zonder de vraag te beantwoorden. Dan het tweede fragment, van RT zelf. Dat stamt al van een week geleden, op 1 september, en daarin zien we hetzelfde tafereel: Sweeney die zijn vraag aan Poetin stelt. Alleen: in werkelijkheid blijkt dat Poetin maar liefst twee volle minuten de tijd nam om antwoord te geven. De NOS wst dat, want ze gebruiken zelf de beelden van RT, zoals het logo linksonder bewijst. Dat we in Nederland goeie redenen hebben om Poetin niet zo'n leuke vent te vinden, daar kunnen we het allemaal wel redelijk over eens zijn. Maar mogen we dan godverdomme wel de waarheid als basis om een eigen mening op te formuleren, en geen gore leugens? Misschien wil Esther van Waard van de afdeling Productie van 'de grootste onafhankelijke nieuwsgaarder van Nederland' (lol) even uitleggen hoe de NOS deze kwaadaardige hoax om haar kijkers mee te belazeren praktisch voor elkaar gekregen heeft. Van Rossem | 09-09-14 | 11:55 | Link |
Europe's Russian Sanctions In Jeopardy As "One Country" Holds Out
Mon, 08 Sep 2014 16:26
Damage Control begins:
As 'rumors' of European sanctions against Russia's major oil energy firms are leaked strawman-like to the market and expected to be enacted as soon as tomorrow, it appears there is a 'glitch' in the union. The FT's Peter Spiegel reports that one country is holding out on EU sanctions and that is the reason for an emergency unscheduled meeting of EU diplomats this evening.
*EU DIPLOMATS SAID TO MEET LATER TODAY ON RUSSIA SANCTIONS PLAN*EU DIPLOMATS SAID TO MEET 6PM CET ON RUSSIA SANCTIONS ENACTMENT*EU DIPLOMATIC MEETING ON RUSSIA SANCTIONS WAS UNSCHEDULED* * *
While it is unclear which country it is, something tells us its name begins with an 'A' and ends in 'ustria'...
Three words... South Stream Pipeline...
Or starts with 'S' and ends in 'lovakia'... As despite their bravado that ".. they will survive" the concerns over Russia suspending shipments through the nation as well as Ukraine is perhaps too risky for the fragile nation:
Probability that Russia's Gazprom will suspend gas transport to Europe through Ukrainian pipelines early next yr "quite high," early Slovak PM Robert Fico says in TV debate on TA3 news channel.
"I'm not worried. The suspension can't last long enough that we wouldn't survive. We have gas in storage for many months, and there are reverse flows from West."
UPDATE:
Average:Your rating: NoneAverage: 4.3(6 votes)
Ebola / Afrika
Its about killing the economies. Squeezing the chine$ out perhaps?
Obama: U.S. military to provide equipment, resources to battle Ebola epidemic in Africa - The Washington Post
Mon, 08 Sep 2014 12:27
President Obama said Sunday that the U.S. military will begin aiding what has been a chaotic and ineffective response to the Ebola epidemic in West Africa, arguing that it represents a serious national security concern.
The move significantly ramps up the U.S. response and comes as the already strained military is likely to be called upon further to address militant threats in the Middle East. The decision to involve the military in providing equipment and other assistance for international health workers in Africa comes after mounting calls from some unlikely groups '-- most prominently the international medical organization Doctors Without Borders '-- demonstrating to the White House the urgency of the issue.
The epidemic, which has killed at least 2,100 people in five African countries, is unlikely to spread to the United States in the short term, Obama said Sunday on NBC's ''Meet the Press.'' But if the United States and other countries do not send needed equipment, public health workers and other supplies to the region, that situation could change and the virus could mutate to become more transmissible, he said.
''And then it could be a serious danger to the United States,'' Obama said.
''We're going to have to get U.S. military assets just to set up, for example, isolation units and equipment there,'' he said, ''to provide security for public health workers surging from around the world.''
Even so, he warned that it would still take months to control the epidemic.
Last week, leading international health officials said the window for getting the epidemic under control is closing. Doctors Without Borders, one of the groups most active since the outbreak began months ago, faulted world leaders with failing to recognize the severity of the crisis sooner and said charities and West African governments alone do not have the capacity to stem the epidemic. The U.S. military, with its enormous logistical capacity and extensive air operations, could address gaps in the response quickly.
The medical group has long opposed military involvement by governments, but its international president, Joanne Liu, said the situation had become so desperate that it was now appealing for military assets to provide critical logistical and operational support. Priorities include the mass expansion of isolation centers, air bridges to move personnel and equipment to and within the most affected countries, mobile laboratories for testing and diagnosis, and building a regional network of field hospitals to treat suspected or infected medical personnel.
Only the military, Liu said in an interview Friday, has the rapid- deployment capability and chain-of-command structure necessary now. ''Because the response has been so slow, we now have to switch to a mass-casualty response,'' she said.
Ghana, for example, has agreed to make the international airport in Accra an air bridge for Ebola responses. Experts say the U.S. Air Force would be well suited to supply transport flights and personnel, as well as warehousing and logistics support at the airport.
The United Nations said last week that $600 million will be needed to fight the epidemic and deal with the broader economic and social devastation suffered by the hardest-hit countries '-- Liberia, Sierra Leone and Guinea.
The U.S. government has spent more than $100 million in the region, according to Ned Price, a spokesman at the National Security Council. Last week, the U.S. Agency for International Development announced plans to make an additional $75 million available. More than 100 experts, most of them from the U.S. Centers for Disease Control and Prevention, are deployed to the region in an effort to prevent, detect and halt the virus's spread.
The Obama administration has also asked Congress for an additional $88 million to send more CDC personnel and lab supplies and equipment, Price said. The United States is providing logistical and operational support, including hundreds of thousands of units of personal protective equipment, mobile labs, water-treatment units, disinfectant, basic supplies and food assistance, he said. If Congress approves the additional funding, it will bring the U.S. total commitment to more than $250 million.
U.S. officials have been in talks with international organizations and aid groups. They declined to provide details of the military involvement outlined by the president. The Defense Department has already provided lab equipment, supplies and staff in Liberia. Military planners are also on the ground in the region to assess ''how their unique capabilities can be used to improve logistics, provide lift capacity and increase treatment options,'' said a senior administration official who spoke on the condition of anonymity because planning is still underway.
A senior Defense Department official who was not authorized to comment publicly said the Pentagon has been supporting U.S. aid efforts and international organizations since the outbreak began. The department is ''now working to fulfill a request to provide rapidly deployable medical treatment facilities that will help increase the capacity of the aid workers in West Africa,'' he said.
Such facilities are akin to field hospitals that can treat several dozen people. At the moment, the defense official said, there are no requests to provide guns.
Outside experts have also been calling for an increased military effort and welcomed Obama's announcement. ''For several weeks there has been cross-talk, off the record, in Washington, and health advocates have urged the military to commit its resources to the Ebola crisis,'' Laurie Garrett, senior fellow for global health at the Council on Foreign Relations, said in a statement Sunday. She is the author of ''The Coming Plague,'' which described the original Ebola outbreak in 1976 in Zaire, now known as Congo.
''The logistics and medical capacities of the U.S. Armed Forces are the best any military in the world has to offer '-- battle-tested, highly professional, extremely skilled,'' she said. Detailed decisions have not yet been made, Garrett said.
But she said Obama's comment signals ''that '-- at last '-- we're moving from 'should we' to 'how much, where, and doing what' '-- and this could be a game-changer.''
In its most recent update, on Friday, the World Health Organization said the death toll from the outbreak had soared past 2,000, with nearly 4,000 reported infected in West Africa. Those numbers are widely believed to represent only a portion of total cases. The fatality rate has varied widely '-- from 39 percent in Sierra Leone to 64 percent in Guinea '-- but averages more than 50 percent overall.
Whatever help arrives will not come too soon. Infections have mounted rapidly in recent days, and the situation in many places in West Africa has grown more uncertain, chaotic and desperate. Authorities in Sierra Leone said over the weekend that they would require people there to stay home for several days later this month to slow the disease's spread. Health workers have raised concerns about that approach, saying it could prevent them from identifying and treating victims.
There was some confusion Sunday about Obama's comments regarding the use of military assets to ''provide security for public health workers surging from around the world.''
In an interview Sunday, Brice de le Vingne, director of operations for Doctors Without Borders, said he welcomed the increased U.S. response but was concerned about the security reference. Doctors Without Borders is not asking for military personnel to help with security, only logistics support, he said. It has 2,000 staffers working in the three countries. ''We don't have any security problems or constraints,'' he said.
But the need for beds in isolation units is dire. In Monrovia, Liberia, where the disease is escalating exponentially daily, the group needs 800 to 1,000 isolation beds, de le Vingne said. The group's current capacity there is between 150 and 180 beds.
''In the city, it is a catastrophe today,'' he said. ''We have people dying at our doorsteps at our treatment centers.''
Brady Dennis contributed to this report.
Lena H. Sun is a national reporter for The Washington Post, focusing on health.
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British military sent to fight Ebola
Mon, 08 Sep 2014 16:30
8 September 2014Last updated at 16:03 By James GallagherHealth editor, BBC News websiteBritish military engineers and medics are being sent to Sierra Leone to help fight the world's largest-ever outbreak of Ebola.
They will set up and run a treatment centre near the capital Freetown.
The World Health Organization says more than 2,000 people have now died in the outbreak in West Africa.
Last week, the charity Medecins Sans Frontieres called for a global military intervention in the region.
It said the global response to the outbreak had been "lethally inadequate" with countries turning their back on West Africa and merely reducing the risk of Ebola arriving on their shores.
The UK has announced it will build a centre with 50 beds for people in Sierra Leone and 12 beds for healthcare workers who become ill.
The proposed site will be surveyed this week, with the healthcare worker section of the facility scheduled to be running within eight weeks.
Yesterday, President Obama said the US military would set up isolation units and provide security for public health workers.
Continue reading the main story1,089 Liberia
517 Guinea
491 Sierra Leone
8 Nigeria
Getty
International Development Secretary Justine Greening said: "The scale of the problem requires the entire international community to do more to assist the affected countries which is why the UK is working with the government of Sierra Leone to build a new medical treatment facility near their capital Freetown.
"When it is up and running it will enable the UK to provide medical care for local and international health workers, as well as treatment for the wider population."
The UK government has committed £25m to tackling the outbreak, including running trials for an Ebola vaccine.
The charity Save the Children will eventually take over management of the treatment centre.
Its chief executive, Justin Forsyth, said: "Ebola threatens thousands of people's lives across West Africa and could set back development many decades.
"The key to combating this epidemic is backing front line health workers and underpinning a fractured health system in Sierra Leone.
"Without urgent action to assist medics, many more children and their families will suffer and die from this most appalling and tragic disease."
Ebola virus disease (EVD) Symptoms include high fever, bleeding and central nervous system damage Spread by body fluids, such as blood and saliva Fatality rate can reach 90% - but current outbreak has mortality rate of about 55% Incubation period is two to 21 days There is no proven vaccine or cure Supportive care such as rehydrating patients who have diarrhoea and vomiting can help recovery Fruit bats, a delicacy for some West Africans, are considered to be virus's natural host
Science!
Stephen Hawking: 'God particle' could destroy the universe | Fox News
Wed, 10 Sep 2014 16:32
Published September 08, 2014Theoretical physicist Stephen Hawking speaks at his official welcoming ceremony at Perimeter Institute For Theoretical Physics in Kitchener in June.REUTERS/Sheryl Nadler
Stephen Hawking, who once cautioned that both artificial intelligence and invading aliens could wipe out the human race, now has another dire prediction '' the Higgs boson, or ''God particle,'' might destroy the universe. In a preface to a new book, Hawking describes his concern that if the particle became unstable, the ''universe could undergo catastrophic vacuum decay,'' according to the U.K.'s Sunday Times.
Hawking's gloomy theory appears in the forward to Starmus: 50 Years of Man in Space, a collection of lectures by noteworthy astronomers and researchers. In the piece, Hawking writes that the particle ''has the worrisome feature that it might become metastable at energies above 100bn giga-electron-volts (GEV),'' reports CNET.
According to Hawking, the vacuum decay ''could expand at the speed of light'' and that this could ''happen at any time and we couldn't see it coming.'' While that statement might be cause for alarm, Hawking acknowledges in the essay that this threat is highly theoretical. A particle accelerator that could even reach 100bn GEV would need to be larger than the Earth itself, and would ''unlikely to be funded in the present economic climate.''
While this cataclysmic scenario is unlikely to happen any time in the near future, Hawking writes that looking into the Higgs boson's potential instability sheds light on insights into the universe.
Hawking writes that the possible destruction of the Higgs boson ''places important constraints on the evolution of the universe,'' reports the IB Times.
Fellow scientists have long looked at some of Hawking's darker predictions with skepticism. Beyond the fears over alien invaders and warnings about the uprising of smart machines, he also stated in 2012 that human life has only about 1,000 years left on Earth before being wiped out by man-made viruses, according to Mic.com.
Words Matter
Journal of Language and Social Psychology
Wed, 10 Sep 2014 00:01
Filler Word Use as a Function of Age, Gender, and PersonalityAbstractFiller words (I mean, you know, like, uh, um) are commonly used in spoken conversation. The authors analyzed these five filler words from transcripts recorded by a device called the Electronically Activated Recorder (EAR), which sampled participants' language use in daily conversations over several days. By examining filler words from 263 transcriptions of natural language from five separate studies, the current research sought to clarify the psychometric properties of filler words. An exploratory factor analysis extracted two factors from the five filler words: filled pauses (uh, um) and discourse markers (I mean, you know, like). Overall, filled pauses were used at comparable rates across genders and ages. Discourse markers, however, were more common among women, younger participants, and more conscientious people. These findings suggest that filler word use can be considered a potential social and personality marker.
Article NotesDeclaration of Conflicting Interests The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: The research was supported in part by the Army Research Institute (W5J9CQ-12-C-0043) and the National Science Foundation (IIS-1344257; NSCC-0904913; BCS-1228693).
(C) 2014 SAGE Publications
Ministry of Truth
A Diversity Toolkit for factual programmes in public service television | European Union Agency for Fundamental Rights
Wed, 10 Sep 2014 16:02
Over the past years, a number of European public service broadcasting professionals working with and for cultural and ethnic minorities, have been meeting regularly as the EBU's Intercultural and Diversity Group, with the support of the European Social Fund Sweden.They have exchanged experiences and produced joint programmes. The Diversity Toolkit brings together the collective knowledge of these TV professionals. The Toolkit may be used for non-commercial purposes either by journalists and programme-makes in their daily work, or as a tool for training sessions and workshops.
What is the toolkit composed of?
The Toolkit contains a wealth of information on how to promote the principles of cultural diversity in broadcast organisations and TV programmes. It brings together practical elements (checklists, references) and good practice advice that can be used, applied and learned from. The Toolkit comes in the form of a handy ring binder and is available free-of-charge from FRA. It includes a DVD with examples from news and current affairs programmes from a dozen European countries illustrating some of the difficulties facing journalists when they report on minorities and its associated documentation.
How to recieve the Diversity Toolkit?
Should you be interested in receiving a copy in the future, please contact media@fra.europa.eu
Agenda 21
Cities Prep for Extreme Weather but They're Not Calling It Global Warming | TheBlaze.com
Wed, 10 Sep 2014 14:32
GRAND HAVEN, Mich. (AP) '-- With climate change still a political minefield across the nation despite the strong scientific consensus that it's happening, some community leaders have hit upon a way of preparing for the potentially severe local consequences without triggering explosions of partisan warfare: Just change the subject.
Grand Haven, Michigan, Mayor Geri McCaleb is skeptical that humans are causing the climate to heat up but says she's willing for her town to work with outside consultants on a plan to prepare for heavier storms and other consequences of a warmer planet. (AP/John Flesher)
Big cities and small towns are shoring up dams and dikes, using roof gardens to absorb rainwater or upgrading sewage treatment plans to prevent overflows. Others are planting urban forests, providing more shady relief from extreme heat. Extension agents are helping farmers deal with an onslaught of newly arrived crop pests.
But in many places, especially strongholds of conservative politics, they're planning for the volatile weather linked to rising temperatures by speaking of ''sustainability'' or ''resilience,'' while avoiding no-win arguments with skeptics over whether the planet is warming or that human activity is responsible.
The pattern illustrates a growing disconnect between the debate still raging in politics and the reality on the ground. In many city planning departments, it has become like Voldemort, the arch-villain of the Harry Potter stories: It's the issue that cannot be named.
''The messaging needs to be more on being prepared and knowing we're tending to have more extreme events,'' said Graham Brannin, planning director in Tulsa, Oklahoma, where Sen. James Inhofe '' a global warming denier and author of a book labeling it ''The Greatest Hoax'' '' once served as mayor. ''The reasoning behind it doesn't matter; let's just get ready.''
'); document.write('(function(e,t){if(t._ym===void 0){t._ym="";var m=e.createElement("script");m.type="text/javascript",m.async=!0,m.src="//static.yieldmo.com/ym.m4.js",(e.getElementsByTagName("head")[0]||e.getElementsByTagName("body")[0]).appendChild(m)}else t._ym instanceof String||void 0===t._ym.chkPls||t._ym.chkPls()})(document,window);' +'ipt>'); } else { document.write(''); try{TBZ.blzDFPAds.registerAdPos("ad-300x250-instory-1","In-Content_300x250_102");}catch(e){ jQuery.tbzWarning(e); } } //--> To be sure, flood control projects and other so-called resiliency measures were taking place long before anyone spoke of planetary warming. But the climate threat has added urgency and spurred creative new proposals, including ones to help people escape searing temperatures or to protect coastlines from surging tides, like artificial reefs. It's also generated new sources of government funding.
In Tulsa, the city has been buying out homeowners and limiting development near the Arkansas River to help prevent flooding from severe storms. Although two lakes provide ample drinking water, Brannin is beginning to push for conservation with future droughts in mind. A nonprofit, Tulsa Partners Inc., is advocating ''green infrastructure'' such as permeable pavement to soak up storm runoff.
They emphasize disaster preparedness, saying little or nothing about climate change.
Leaders in Grand Haven, a town of 10,600 in predominantly Republican western Michigan, will meet this fall with design consultants to explore such possibilities as ''cooling stations'' for low-income people during future heat waves, or development restrictions to prevent storm erosion of the Lake Michigan waterfront.
City Manager Pat McGinnis isn't calling it a climate change initiative.
''I wouldn't use those words,''' McGinnis said he told the consultants. ''Those are a potential flash point.''
Grand Haven's mayor, Geri McCaleb, is among the skeptics who consider warming merely part of nature's historical cycle. Yet she's on board with ideas for dealing with storms.
''History will bear out who has the right answers'' about climate change, McCaleb said.
Joe Vandermeulin, whose organization runs the Grand Haven program and others, is accustomed to walking the language tightrope.
''The term `global warming' seems to be thoroughly misunderstood, so we don't use it much,'' Vandermeulin said, even though a primary goal is helping communities prepare for '... global warming.
During a climate conference this summer that drew about 175 community leaders, government officials and scientists, mostly from the Great Lakes area, organizers even distributed a pamphlet with tips for discussing the subject '' or sidestepping it. For example, avoid hyperbolic ''climageddon'' warnings about impending catastrophe, it advises.
''It's really unfortunate that the political climate has poisoned the way we have to talk about these things,'' said Don Scavia, a University of Michigan environmental scientist and an organizer of the Ann Arbor session.
In Fayetteville, Arkansas, Peter Nierengarten, the city's ''sustainability and resilience director,'' encounters a range of opinion about his efforts to make houses more energy and water efficient. A conspiracy theorist website headlined ''The `Sustainable' Vampire Attacks!'' accuses him of colluding with a supposed United Nations-inspired plot to revoke individual rights.
But Nierengarten and allies successfully lobbied the GOP-led state legislature to allow communities to issue tax-exempt bonds for efficiency projects.
''It was all about the economic health of businesses across the state and being more competitive,'' he said. ''Not global warming.''
The subject is especially touchy in coastal areas, where developers worry that projections of rising sea levels will boost insurance costs and scare off real estate buyers. In rural Hyde County, N.C., planning director Kris Noble just talks about flooding, which people understand.
''We can argue about climate change all day long, is it happening or is it not, but either way, we've always flooded and we're always going to flood,'' she said.
'--
Front page image via Shutterstock.
Florida Makes Off-Grid Living Illegal '' Mandates All Homes Must Be Connected To An Electricity Grid | Collective-Evolution
Tue, 09 Sep 2014 01:14
It's no secret that an opposition to sustainable living exists. Earlier this year, Texas state brought several SWAT teams to a sustainable community and threatened to shut it down. Each one of the community members were initially handcuffed at gunpoint. It was called ''The Garden of Eden Community,'' and was totally self sustainable. You can read more about that here.
This time, it's Robin Speronis that's come under fire. She lives off the grid in Florida, completely independent of the city's water and electric system. A few weeks ago, officials ruled her off-grid home illegal. Officials cited the International Property Maintenance Code, which mandates that homes be connected to an electricity grid and a running water source. That's just like saying our dependency on corporations isn't even a choice. The battle to live without most utilities has been ongoing for Robin, the self-sufficient woman has lived for more than a year and a half using solar energy, a propane camping stove and rain water.
In the end, she was found not guilty of not having a proper sewer or electrical system; but was guilty of not being hooked up to an approved water supply.
So what exactly is off grid living?
''It means living independently, mainly living independently of the utility companies. Providing your own power. It does not mean living in the stone age, it's not about bush craft. It's about generating your own power, your own water, dealing with your own waste. Probably as part of a community, not living on your own like a hermit. It's also about being more self-reliant and being less dependent on the system. Perhaps realizing that the system isn't really protecting us anymore and we have to look after ourselves.'' - George Noory
Our potential as a human race is quite extraordinary, we just don't realize it. Sustainable living is not about giving up a certain lifestyle, can still have all the modern amenities, design and beyond. Living off the grid wouldn't be a problem, we have technologies that can generate over-unity power, we have technologies that can provide unlimited amounts of clean energy. I'm talking about free energy, which goes far beyond solar energy. We can have neighborhoods exactly like we do today, even better. They would be totally green, off the grid and self-sufficient.
The only problem with off the grid living is that corporations lose their ability to control others. With a completely self-sustaining life style, no body would ever have to work. What would happen then? Think about that for a moment. We would be free to expand and create, to discover our full potential as a race and move forward into the world of exploration and discovery, all the while living in harmony with nature, not against it.
We've accepted the monetary system, and deem it necessary for the proper function of society. Money doesn't ever have to come in the way of necessity, we've just been made to believe that it does. It's time for the human race to move past the concepts of competition and greed into one that benefits the whole.
''One of the saddest lessons of history is this: If we've been bamboozled long enough, we tend to reject any evidence of the bamboozle. We're no longer interested in finding out the truth. The bamboozled has captured us. It's simply too painful to acknowledge, even to ourselves, that we've been taken. Once you give a charlatan power over you, you almost never get it back.'' - Carl Sagan
The human race does not need to be dependent on these corporations. While we continue to feed this dependency, the planet continues to suffer. In order to move forward, we must start cooperating with each other, and realize just how much potential we have to create something magical and amazing. Bottom line, anybody who has the desire to live off-grid should not be hassled for it, it should be a free choice.
Sources:
http://america.aljazeera.com/watch/shows/the-stream/the-stream-officialblog/2014/2/25/florida-court-challengesoffthegridliving.html
http://www.offthegridnews.com/2014/02/22/court-rules-off-the-grid-living-is-illegal/
IamA scientist who wrote the study finding 97% consensus on human-caused global warming. I'm also a former cartoonist and beginning on 9/7, for 97 hours I'm publishing 97 scientist's caricatures & quotes. AMA! : IAmA
Mon, 08 Sep 2014 23:17
I'm John Cook, and I'm here as part of my 97 Hours of Consensus project to make more people aware of the overwhelming scientific agreement on climate change. Every hour for 97 straight hours, I'm sending out a playful caricature of a climate scientist, along with a statement from them about climate change. You can watch the progress at our interactive 97 hours site,, on Twitter @skepticscience (where you'll also see my proof tweet) and the Skeptical Science Facebook page.
Our quotes/caricatures will also be posters in the Science Stands climate march, featuring scientists who are taking part in the largest climate march in history!
To give you plenty of ammo for questions, here is some more background:
I'm the climate communication research fellow with the Global Change Institute at The University of Queensland. In 2007, I created Skeptical Science, a website debunking climate misinformation with peer-reviewed science. The website won the 2011 Australian Museum Eureka Prize for Advancement of Climate Change Knowledge.
I was lead-author of the paper Quantifying the Consensus on Anthropogenic Global Warming in the Scientific Literature, published in 2013 in the journal Environmental Research Letters. The paper was tweeted by President Obama, is the most downloaded paper in the 80 journals published by the Institute of Physics and was awarded the best paper in Environmental Research Letters in 2013.
I co-authored the online booklet The Debunking Handbook, a popular booklet translated into 7 languages that offers a practical guide to effectively refuting misinformation. I also co-authored the book Climate Change Denial: Heads in the Sand and the college textbook Climate Change Science: A Modern Synthesis.
I'm currently in England finishing my PhD in cognitive psychology, researching the psychology of climate change and how to neutralise the influence of misinformation. While in England, I'm also giving a talk at the University of Bristol about my consensus research on Friday 19 September.
Thanks to everyone who submitted questions. I ended up spending over 3 hours answering questions (I was thinking 1 or 2 max) and I think I've hit my limit. If you want to hear more and happen to be in the neighbourhood, I'll be talking at the University of Bristol on 19 September. And be sure to keep track of the 97 Hours of Consensus which is not even halfway through yet so plenty more quote and caricatures to come. Follow them via Twitter @skepticscience.
Ozone layer shows signs of recovery after 1987 ban on damaging gases | Environment | The Guardian
Wed, 10 Sep 2014 23:13
The ozone hole over Antartica, here pictured in 1999, is not yet reducing, but has stopped growing. 'We think in about 2025 or thereabouts we'll be able to say with certainty that the ozone hole is getting smaller,' said Geir Braathen, senior scientific officer of the World Meteorological Organisation. Photograph: AP
The ozone layer that shields life from the sun's cancer-causing ultraviolet rays is showing its first sign of thickening after years of dangerous depletion, a UN study said on Wednesday.
Experts said it showed the success of a 1987 ban on manmade gases that damage the fragile high-altitude screen, an achievement that would help prevent millions of cases of skin cancer and other conditions.
The ozone hole that appears annually over Antarctica has also stopped growing bigger every year, though it will be about a decade before it starts shrinking, said the report, coproduced by the World Meteorological Organisation and the UN Environment Programme.
"International action on the ozone layer is a major environmental success story ... This should encourage us to display the same level of urgency and unity to tackle the even greater challenge of tackling climate change," said WMO Secretary-General Michel Jarraud.
Past studies have suggested the ozone layer has stopped getting worse.
"Now for the first time in this report we say that we see indications of a small increase in total ozone. That means recovery of the ozone layer in terms of total ozone has just started," said WMO senior scientific officer Geir Braathen.
The 1987 Montreal Protocol that banned or phased out ozone-depleting chemicals, including chlorofluorocarbons once widely used in refrigerators and spray cans, would prevent 2 million cases of skin cancer annually by 2030, according to UNEP.
The agreement would also help avert damage to wildlife, agriculture, human eyes and immune systems, the agency added.
The ozone layer was expected to recover towards its 1980 level by mid-century, or slightly later for Antarctica, where it gets dangerously thin every year between mid-August and November or December.
"The development you saw during the 1990s that the ozone hole got bigger from year to year '' that development has stopped, so it has levelled off," said Braathen.
"We think in about 2025 or thereabouts we'll be able to say with certainty that the ozone hole is getting smaller," he added.
Progress could be sped up by as much as 11 years if existing stocks of ozone-depleting substances '' many of them stored up in old fridges and fire-extinguishers '' were destroyed.
The largest ozone hole on record was about 30 million square km in 2006. The hole now covers about 20 million square km '' big enough for the moon to pass through '' but may not have peaked this season.
The size of the hole varies from year to year, partly due to temperature in the upper atmosphere.
The reduction of ozone-damaging chemicals would also help the environment, the report said, as many of the substances were also greenhouses gases blamed for global warming.
But the rising levels of other greenhouses gases in the atmosphere had "the potential to undermine these gains," said the report.
One of the ozone-depleting substances that was supposed to have been phased out '' carbon tetrachloride, a solvent '' was still being released into the atmosphere, suggesting, the report said, illicit production and usage over the past decade.
Climate-Change Fiction Class To Be Taught At University Of Oregon
Mon, 08 Sep 2014 14:34
TweetSince it's been fruitless to convince Americans intellectually that a ''radical transformation of society'' is needed to prevent a speculative next-century climate disaster, as this month's Atlantic covers, the University of Oregon will use emotional appeals and adrenaline rushes instead: a climate-change fiction class, the San Diego Jewish World reports:
''Cli-fi'' (novels and movies about climate change and global warming) is growing in popularity and notoriety as a pop culture genre, and has become an important part of climate change education efforts, particularly at the college level.
Stephen Siperstein, a Ph.D. candidate in UO's English department, said he previously showed a documentary about disappearing glaciers to undergrads last year, ''leaving several of them in tears'':
This coming winter semester, starting in early January, Siperstein will be teaching a new class on cli fi literature for UO undergraduate students ''most of them majoring in subjects other than English.
When asked if he felt that cli fi can change minds, even at the national level of politics, he replied:
''Yes, climate change stories, no matter what form they take''novels, poetry, film''can change minds, but in the best cases, they can also change hearts by working on an emotional level.'' '...
And when I asked him what writers and movie directors should avoid if they want to reach audiences with cli fi messages, he said: ''I don't think there is anything to avoid, nor would I want to proscribe what kinds of stories authors and artists should tell.''
Here's a safe bet: Sharknado will be part of the class.
Read the full article here.
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Times Square Billboard Is Here '' Make This Historic Image Go Viral! '' ReThink911.org | Sign the Petition for a new 9/11 investigation
Thu, 11 Sep 2014 14:41
People have signed the ReThink911 Petition for a new 9/11 investigation.
ReThink911 Billboard Towers Over Times Square: Forward the Image Far and WideNYC's committed supporters came ready on September 3rd to hand out brochures and educate the public immediately upon the heralded installation of the gigantic billboard overlooking Times Square (47th Street and 7th Avenue). At least one million people will see this 54' x 46' billboard each day throughout the month of September, bringing unprecedented attention to the destruction of World Trade Center Building 7. We in the ReThink911 campaign would like to thank everyone who donated and worked so hard to bring this billboard to Times Square.
Please help us spread the impact of this powerful image far beyond Times Square by sharing the above photo in any or all of the following ways:
1. (Preferred) Post the image to a social network by:
Clicking this link to open the image:http://ReThink911.org/ReThink911-Times-Square.jpgSaving the image to your computer.Uploading it to Facebook, Twitter, Pinterest, Google+ or any of your favorite social media sites, and tag it with the http://ReThink911.org web address (and the #ReThink911 hashtag for Twitter.)2. Share the link to this article on Facebook and Twitter and with all of your email contacts.
3. Upload the image to your website and write about it.
Thank you for giving this critically important campaign your all. Together we can get the entire world talking about the third tower that fell on 9/11.
PedoBear
U.S. Nets Join British Authorities in Hushing Muslim Sex Abuse Scandal
Wed, 10 Sep 2014 22:01
Imagine a sex scandal centered on a small area, involving decades of abuse, with hundreds of children raped, assaulted and prostituted. Authorities suspected or knew of the crimes but did nothing, preferring to protect the abusers than aid their victims or see justice done.
If that city were in, say, Ireland, and the abusers Catholic priests, the U.S. networks would report it immediately and continuously. And rightly so. But move that city to northern England, and make the perpetrators Muslim men? Don't look to ABC, NBC or CBS for details.
In Rotherham, England, the widespread, systematic sexual abuse of young girls has finally been brought to light. A report published Aug.21, by Professor Alexis Jay, a former Chief Inspector of Social Work in Scotland, found that between 1997 and 2013, more than 1400 young English girls were raped, threatened, and tortured by men in a sex trafficking scandal which is making waves online and in British media but hasn't made a blip on American news shows.The report shows that Rotherham officials and Council members knew about the abuse for years but did nothing. You see, all but one of these men were Pakistani and Muslim; the girls were white. Britain is even more paralyzed by political correctness and fear of charges of ''Islamo-phobia'' than the U.S. is. One Rotherham official even admitted he didn't want to ''rock the multicultural boat.'' As reward for bringing to light such a heinous scandal, a researcher involved in the case was intimidated, harassed and punished for reporting her findings to the local Council.
U.S. networks face no such consequences. Yet in the two weeks since the story broke in the British media, ABC, NBC and CBS haven't uttered a word about it on their morning or evening broadcasts.
Could silence be because the networks, like the powers that be in Rotherham, don't want to touch a story in which the villains are Pakistani and Muslim? Would that be too politically incorrect?
After all, journalists love to cover sex scandals '' the more shocking the better. You would think ABC, NBC, and CBS would jump at the opportunity to discuss the horrible details, like they did with the Catholic clergy sex scandal of the last dozen years. According the liberal-leaning Pew Research Forum the U.S. media produced more than 1,500 Church abuse stories in 2010 alone.
So what was more important than this scandal? Well NBC had time to talk about Tom Hanks being an honoree at the upcoming Kennedy Center Awards in December. NBC Nightly News also talked about a dog who ate 43 ½ socks, and reiterated testosterone drugs don't work. Why any of these stories were considered ''news'' but Rotherham was not, is baffling. ABC similarly found time on World News Sep. 2 to discuss Angelina Jolie and Brad Pitt's wedding attire and the celebrity nude photo leak. On Good Morning America Aug.31, one of the more pressing questions posed, ''Does Matthew McConaughey really mow his own lawn?'' Yes, that's really considered ''news'' on ABC.
Catholic Comparison
And it isn't as though the networks don't think sex abuse scandals from across the pond aren't worth reporting on. When allegations broke in 2012 that the late BBC radio and TV personality Jimmy Savile had serially abused young girls during his career, both NBC and CBS found space in their newscasts. And the 2010 feeding frenzy on Church abuse centered mainly on Germany.
In fact, there was so much media attention paid to the Catholic clergy sex scandal, that the left-leaning Pew Research Center did a study on the media's fascination with it in 2010. The analysis, from 2010 alone, showed the following:
Pew also found that from Jan. to April 2010, 1559 stories were published in the media on the Catholic clergy sex scandal, just 4.7 percent less than there were in 2002 when the major scandal broke.
Obviously research has shown, the news media will give plenty of time to sex scandals, so why are they turning a blind eye to this one in Rotherham?
It's apparent that the liberal media has an apparent interest in protecting one class of people and doing everything in their power to demonize another. In this case, the media was only mirroring the politically correct cover-up that occurred at the hands of the Rotherham local government and law enforcement.
VIDEO-CLIPS-DOCS
VIDEO- CNN: ISIS PLANS FOR A BIOLOGICAL ATTACK! DUN! DUN! DUN! - YouTube
AUDIO-EXCELLENT-PRI's The World: 9/09/2014 | Public Radio International
Thu, 11 Sep 2014 03:10
Conflict & Justice
PRI's The World
September 09, 2014
There's such a thing as bad publicity after all: Toyota pickup trucks are a common sight on Libya's battlefield, and the company is trying to limit the kinds of trucks it sells in Libya to get its name out of the line of fire. But Libyan fighters still have plenty of ways to use their favorite pickups.
VIDEO-National Fuel Gas "Cookin' With Gas" - YouTube
VIDEO-Kerry Says Anti-ISIS Coalition Tasks Include 'Demolishing the Distortion of One of the World's Great Peaceful Religions' | MRCTV
Thu, 11 Sep 2014 00:08
patrick.goodenoughPatrick covered government and politics in South Africa and the Middle East before joining CNSNews.com in 1999. Since then he has launched foreign bureaus for CNSNews.com in Jerusalem, London and the Pacific Rim. From October 2006 to July 2007, Patrick served as Managing Editor at the organization's world headquarters in Alexandria, Va. Now back in the Pacific Rim, as International Editor he reports on politics, international relations, security, terrorism, ethics and religion, and oversees reporting by CNSNews.com's roster of international stringers.
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VIDEO-Kerry: Anti-ISIS Coalition Aims to Demolish 'The Distortion of One of the World's Great Peaceful Religions' | CNS News
Wed, 10 Sep 2014 16:42
Secretary of State John Kerry speaks at State Department in Washington, Monday, Sept. 8, 2014. (AP Photo/Susan Walsh)
(CNSNews.com) '' ''Almost every single country on earth has a role to play'' in tackling the Islamic State in Iraq and Syria (ISIS/ISIL), Secretary of State John Kerry said Monday, listing potential contributions ranging from military action to ''demolishing the distortion of one of the world's great peaceful religions.''
Speaking at the State Department ahead of a visit to region to continue efforts to build a ''global, coordinated'' anti-ISIS coalition, Kerry said there were various things countries could do in response to the threat posed by the Sunni jihadists who have captured territory across Syria and Iraq.
''As we build this coalition, I want to underscore that almost every single country on earth has a role to play in eliminating the ISIL threat and the evil that it represents,'' he said.
''For some that will mean military assistance, both direct and in the form of training, arming, and advising, equipping. For some it will mean contributing to the desperately needed humanitarian relief effort. For some it will mean helping to identify, track, and cut off ISIL's funding, and prevent the flow of foreign fighters,'' Kerry continued.
''For still others it will mean demolishing the distortion of one of the world's great peaceful religions and counteracting the propaganda ISIL uses to recruit new supporters,'' he said. ''And for all it will mean publicly supporting the new inclusive government in Iraq.''
Kerry outlined what several countries have already offered, including the provision of military assistance (Canada, Britain, France, Estonia, Albania, Australia) and humanitarian aid (Saudi Arabia, Kuwait, France, Britain, Japan, Australia).
''The UAE [United Arab Emirates] has agreed to take on ISIL's support networks and beat back against its militant ideological propaganda,'' he said.
Kerry welcomed Monday's developments in Baghdad, where parliament voted to approve most of incoming Prime Minister Haider al-Abadi's proposed cabinet, which includes Shi'ites as well as minority Sunnis and Kurds.
''Overcoming the obstacle of ethnic and sectarian divides, the Iraqi parliament approved a new and inclusive government, one that has the potential to unite all of Iraq's diverse communities for a strong Iraq, a united Iraq, and to give those communities the chance to build the future that all Iraqis desire and deserve,'' he said.
The administration has argued for months that a more inclusive government in Iraq is crucial if Sunnis, many of whom felt marginalized under former Prime Minister Nouri al-Maliki, are to throw their support behind efforts to defeat ISIS.
Kerry heads to Saudi Arabia and Jordan on Tuesday to continue discussions on confronting ISIS, and on Wednesday President Obama is due to address the American people on how his administration will address the crisis.
Kerry said the president ''will lay out in even greater detail our coordinated global strategy against ISIL,'' and expressed confidence that that the campaign '' which he said would be built to endure for months and perhaps even years to come '' would succeed.
''What we're working to accomplish will require hard work, sustained commitment, and unwavering focus from all of us,'' he said. ''But we are clear that President Obama and I and the entire team absolutely understand this is something we must achieve, and we will be successful.''
Islamic State in Iraq and the Levant fighters in eastern Syria. The ubiquitous ISIS banner features the Islamic declaration of faith, ''There is no god but Allah and Mohammed is his messenger.'' (Screenshot: ISIS propaganda video)
'Nothing to do with Islam'
Kerry's remarks about the ''distortion'' of Islam come as Muslim leaders in the region and beyond grapple with the rise of a brutally violent group that claims to be acting in the name of Islam, has declared an Islamic ''caliphate'' and invokes Mohammed and the Qur'an in its propaganda aimed at luring Muslims from around the world.
Its atrocities have prompted a growing number of mainstream religious leaders in the Middle East to condemn ISIS, saying its campaign has nothing to do with their religion.
The Obama administration, too, has taken pains to dissociate ISIS from Islam.
In his response to ISIS' murder of U.S. journalist James Foley last month Obama said that the group ''speaks for no religion.'' After the subsequent beheading of a second journalist, Kerry said that ''the face of Islam is not the butchers who killed Steven Sotloff '... The real face of Islam is a peaceful religion based on the dignity of all human beings.''
A similar sentiment was expressed last week by British Prime Minister David Cameron, who in a parliamentary speech on the ISIS threat said ''we should be clear that this is nothing to do with Islam, which is a religion peacefully observed and devoutly observed by over a billion people and one that inspires countless acts of kindness every day.''
VIDEO-Brussels museum shooting suspect 'beheaded baby' - Telegraph
Wed, 10 Sep 2014 16:28
Mr Haines, 44, who was captured in March 2013, is also said to have been tortured in the early months of his captivity and left needing medical attention.
Mr H(C)nin described Mr Nemmouche as a publicity-loving sadist who ''is awaiting trial with delight''. The magazine reporter said he was known as ''Abu Omar the hitter'' and had told him how he had enjoyed raping a woman before slitting her throat and killing her baby. ''It's such a pleasure to cut off a baby's head,'' Mr H(C)nin quoted him as saying.
Mr H(C)nin added that Mr Nemmouche had gone to Syria ''not to construct an ideal but out of a lack of recognition, to fulfil himself.''
French journalist and former hostage in Syria Nicolas Henin (AFP/Getty)
Another ex-hostage, Didier Fran§ois, said he was ''furious' at the revelations by Mr H(C)nin. ''It's irresponsible,'' Mr Fran§ois said. ''It's dangerous to put out this information. It poses a real problem for the investigation in progress, for witnesses and for the hostages who remain there.''
After Mr Nemmouche returned to Europe, he was accused of a terrorist attack on the Jewish Museum in Brussels in May. He allegedly opened fire indiscriminately, killing an Israeli couple, a French woman and a Jewish member of staff. He was arrested in Marseille in possession of guns and ammunition along with a tape in which he allegedly claimed responsibility for the attack.
The terrorist attack on the Jewish Museum
He has been extradited to Belgium, where he is in custody charged with ''murder in a terrorist context''. He denies the charges.
VIDEO-Police: man responsible for '$LAVE' graffiti arrested - abc27 WHTM
Wed, 10 Sep 2014 15:37
HARRISBURG, Pa. (WHTM) -Dauphin County detectives have arrested a Steelton man in connection to nearly a dozen incidents of vandalism in Harrisburg, Susquehanna Township and Swatara Township.
Joshua Bartels, 24, of Steelton was arraigned Tuesday evening on charges of criminal mischief and institutional vandalism for at least one case, CID Chief John Goshert said. Detectives are planning to file further charges in relation to 10-12 other cases on Wednesday.
Since Monday, graffiti has been spotted at several locations including the Dauphin County Courthouse, Dauphin County Adult Probation, Metro Bank and Susquehanna Township Middle School. In each incident, the suspect spray-painted the phrase "$LAVE."
Goshert said detectives took Bartels into custody Tuesday afternoon shortly after he showed up in the lobby of abc27, presenting a handwritten note to the receptionist that stated, in part:
"God is not pleased you are all $laves to $. $laves to $atan."
According to Goshert, Bartels was cooperative during the arrest.
"We want to thank abc27 for calling in the description (of Bartels) and providing us with the note," Goshert said. "That helped us determine his location so we could take him into custody."
He was also charged for a similar incident in Lemoyne Borough in August.
VIDEO- Hey White People: A Kinda Awkward Note to America by #Ferguson Kids - YouTube
VIDEO-Police Seek French Couple Believed to Have Taken Four Little Girls to the Middle East for Jihad | TheBlaze.com
Wed, 10 Sep 2014 14:17
A French couple whom acquaintances said recently turned to radical Islam are believed to have traveled to the Middle East with four young girls all under age 5, French prosecutors said.
Warrants have been issued for the couple's arrest after each of their former spouses raised alarm about the children's disappearances, Agence France-Presse reported.
Ilham Tarbouni said she has not seen her 3-year-old daughter, Jana, since she went to visit her father for the summer, and now believes he took her with him to join up with a radical Islamist group in Syria.
A view taken on September 8, 2014 in Villefontaine, central eastern France, shows the building where a couple was living and believed to have left for the Middle East with four children. French prosecutors said that two European arrest warrants had been issued for the couple. (Philippe Merle/AFP/Getty Images)
Tarbouni said that when she was unable to reach her former husband, whom France 24 identified as Eddy Leroux, she reported to police that her daughter had been kidnapped.
France 24 reported that Leroux, who is a Muslim convert, had disappeared from his apartment in central France, along with his new partner, Jihane.
AFP reported:
Police went to the home of the father, a Muslim convert, and found it empty. The 34-year-old had allegedly professed his intention to go to Saudi Arabia or Iraq.
His new companion, the mother of three young girls, was also missing. The father of two of the three, Abdel Hakim Labriak, filed a separate suit saying he feared his former wife and his daughters ''had left for Iraq or Syria.''
Hundreds of French nationals have answered the call of jihad and traveled to Syria as recruits of the Islamic State and other extremist groups.
The European country is considering legislation to thwart radicalized young people from traveling to Syria, with security officials fearing they could later return home to launch terrorist attacks.
One bill being considered would allow for the temporary confiscation of the passports of aspiring jihadists.
Last month, a 16-year-old French girl was arrested at an airport in Nice along with her suspected recruiter, following suspicions that she was headed to Syria to join a militant Islamist group.
AUDIO-Our Use Of Little Words Can, Uh, Reveal Hidden Interests : Shots - Health News : NPR
Wed, 10 Sep 2014 00:02
Katherine Streeter for NPROne Friday night, 30 men and 30 women gathered at a hotel restaurant in Washington, D.C. Their goal was love, or maybe sex, or maybe some combination of the two. They were there for speed dating.
The women sat at separate numbered tables while the men moved down the line, and for two solid hours they did a rotation, making small talk with people they did not know, one after another, in three-minute increments.
I had gone to record the night, which was put on by a company called Professionals in the City, and what struck me was the noise in the room. The sound of words, of people talking over people talking over people talking. It was a roar.
What were these people saying?
And what can we learn from what they are saying?
That is why I called James Pennebaker, a psychologist interested in the secret life of pronouns.
About 20 years ago Pennebaker, who's at the University of Texas, Austin, got interested in looking more closely at the words that we use. Or rather, he got interested in looking more closely at a certain subset of the words that we use: Pennebaker was interested in function words.
For those of you like me '-- the grammatically challenged '-- function words are the smallish words that tie our sentences together.
The. This. Though. I. And. An. There. That.
"Function words are essentially the filler words," Pennebaker says. "These are the words that we don't pay attention to, and they're the ones that are so interesting."
According to the way that Pennebaker organizes language, the words that we more often focus on in conversation are content words, words like "school," "family," "live," "friends" '-- words that conjure up a specific image and relay more of the substance of what is being discussed.
"I speak bad Spanish," Pennebaker explains, "and if I'm in a conversation where I'm listening to the other person speak, I am just trying to find out what they are talking about. I am listening to 'what, where, when' '-- those big content-heavy words. All those little words in between, I don't listen to those because they're too complex to listen to."
In fact, says Pennebaker, even in our native language, these function words are basically invisible to us.
"You can't hear them," Pennebaker says. "Humans just aren't able to do it."
But computers can, which is why two decades ago Pennebaker and his graduate students sat down to build themselves a computer program.
The Linguistic Inquiry and Word Count program that Pennebaker and his students built in the early 1990s has, like any computer program, an ability to peer into massive data sets and discern patterns that no human could ever hope to match.
And so after Pennebaker and his crew built the program, they used it to ask all kinds of questions that had previously been too complicated or difficult for humans to ask.
Some of those questions included:
Could you tell if someone was lying by carefully analyzing the way they used function words?Looking only at a transcript, could you tell from function words whether someone was male or female, rich or poor?What could you tell about relationships by looking at the way two people spoke to each other?Which brings us back to speed dating.
One of the things that Pennebaker did was record and transcribe conversations that took place between people on speed dates. He fed these conversations into his program along with information about how the people themselves were perceiving the dates. What he found surprised him.
"We can predict by analyzing their language, who will go on a date '-- who will match '-- at rates better than the people themselves," he says.
Specifically, what Pennebaker found was that when the language style of two people matched, when they used pronouns, prepositions, articles and so forth in similar ways at similar rates, they were much more likely to end up on a date.
"The more similar [they were] across all of these function words, the higher the probability that [they] would go on a date in a speed dating context," Pennebaker says. "And this is even cooler: We can even look at ... a young dating couple... [and] the more similar [they] are ... using this language style matching metric, the more likely [they] will still be dating three months from now."
This is not because similar people are attracted to each other, Pennebaker says; people can be very different. It's that when we are around people that we have a genuine interest in, our language subtly shifts.
"When two people are paying close attention, they use language in the same way," he says. "And it's one of these things that humans do automatically."
They aren't aware of it, but if you look closely at their language, count up their use of "I," and "the," and "and," you can see it. It's right there.
Pennebaker has counted words to better understand lots of things. He's looked at lying, at leadership, at who will recover from trauma.
But some of his most interesting work has to do with power dynamics. He says that by analyzing language you can easily tell who among two people has power in a relationship, and their relative social status.
"It's amazingly simple," Pennebaker says, "Listen to the relative use of the word "I."
What you find is completely different from what most people would think. The person with the higher status uses the word "I" less.
To demonstrate this, Pennebaker pointed to some of his own email, a batch written long before he began studying status.
First he shares an email written by one of his undergraduate students, a woman named Pam:
Dear Dr. Pennebaker:
I was part of your Introductory Psychology class last semester. I have enjoyed your lectures and I've learned so much. I received an email from you about doing some research with you. Would there be a time for me to come by and talk about this?
Pam
Now consider Pennebaker's response:
Dear Pam -
This would be great. This week isn't good because of a trip. How about next Tuesday between 9 and 10:30. It will be good to see you.
Jamie Pennebaker
Pam, the lowly undergraduate, used "I" many times, while Pennebaker didn't use it at all.
Now consider this email Pennebaker wrote to a famous professor.
Dear Famous Professor:
The reason I'm writing is that I'm helping to put together a conference on [a particular topic]. I have been contacting a large group of people and many have specifically asked if you were attending. I would absolutely love it if you could come... I really hope you can make it.
Jamie Pennebaker
And the return email from Famous Professor:
Dear Jamie -
Good to hear from you. Congratulations on the conference. The idea of a reunion is a nice one ... and the conference idea will provide us with a semiformal way of catching up with one another's current research.... Isn't there any way to get the university to dig up a few thousand dollars to defray travel expenses for the conference?
With all best regards,
Famous Professor
Pennebaker says that when he encountered these emails he was shocked to find that he himself obeyed this rule. He says he thought of himself as a very egalitarian person, and assumed he would never talk to people differently because of their status.
But in retrospect he says it makes sense. We use "I" more when we talk to someone with power because we're more self-conscious. We are focused on ourselves '-- how we're coming across '-- and our language reflects that.
So could we use these insights to change ourselves? Like Eliza Doolittle in My Fair Lady, could we bend our personalities by bending the words we use? Could we become stronger? More powerful? Healthier?
After 20 years of looking at this stuff, Pennebaker doubts it.
"The words reflect who we are more than [they] drive who we are," he says.
You can't, he believes, change who you are by changing your language; you can only change your language by changing who you are. He says that's what his research indicates.
Pennebaker has collected some of this research in a book called The Secret Life of Pronouns, but he says he feels the practice of using computers to count and categorize language is really just a beginning.
It's like we just invented the telescope, he tells me, and there are a million new places to look.
In fact, since this article first ran, Pennebaker has used his big data computer analysis to look at a wide range of new questions.
He's become a kind of literary detective, using the program to determine if a lost play was written by Shakespeare. (Results of that search should be published soon.)
He's also trying to figure out if function words can predict students' performance in college through an analysis of 25,000 admissions essays.
And he published an entire paper on the use of the filler words '-- um, like, uh, I mean and you know. One of the things that he found was that the use of these words '-- in addition to their function of annoying older people '-- was associated with conscientiousness.
Pennebaker has several other projects underway as well '-- using our simplest words as a window into our souls.
Anearlier versionof this story ran on NPR in 2012.
VIDEO-GeenStijl : NOS faalt en liegt met anti-Rusland propaganda
Tue, 09 Sep 2014 22:05
Kameraden! Wat u nu gaat zien, is een sterk staaltje anti-Russische propaganda van de Nederlandse Staatsomroep. De video hierboven is een montage van twee fragmenten. Allereerst een stuk uit het NPO NOS NPO Journaal van gisterenavond, 8 september. We zien het logo van de Russische agitpropzender Russia Today, en we horen de voice-over van de NOS vertellen dat Poetin een vraag van een Britse journalist over Russische betrokkenheid bij de situatie in de Oekra¯ne 'zo goed als negeert'. We horen John Sweeney van de BBC zijn vraag stellen, maar in de NOS-montage zien we Poetin weglopen, ogenschijnlijk zonder de vraag te beantwoorden. Dan het tweede fragment, van RT zelf. Dat stamt al van een week geleden, op 1 september, en daarin zien we hetzelfde tafereel: Sweeney die zijn vraag aan Poetin stelt. Alleen: in werkelijkheid blijkt dat Poetin maar liefst twee volle minuten de tijd nam om antwoord te geven. De NOS wst dat, want ze gebruiken zelf de beelden van RT, zoals het logo linksonder bewijst. Dat we in Nederland goeie redenen hebben om Poetin niet zo'n leuke vent te vinden, daar kunnen we het allemaal wel redelijk over eens zijn. Maar mogen we dan godverdomme wel de waarheid als basis om een eigen mening op te formuleren, en geen gore leugens? Misschien wil Esther van Waard van de afdeling Productie van 'de grootste onafhankelijke nieuwsgaarder van Nederland' (lol) even uitleggen hoe de NOS deze kwaadaardige hoax om haar kijkers mee te belazeren praktisch voor elkaar gekregen heeft. Van Rossem | 09-09-14 | 11:55 | Link |
VIDEO-Fox News Host Reveals the 'Dirty' Phone Call She Received From the White House | Video | TheBlaze.com
Tue, 09 Sep 2014 10:51
Fox News has been aggressive in pursuing the story behind the 2012 attack on the U.S. diplomatic mission in Benghazi, Libya, and that persistence has earned the network more than a few snubs from the government, as Greta Van Susteren noted Friday.
''The Obama administration's behavior post-Benghazi has been weird, like they're hiding something,'' Van Susteren said, outlining multiple government-sponsored news conferences from which Fox News was excluded as the network investigated Benghazi.
At one point, Van Susteren claimed, the White House tried to hush up information from the network.
''When reporter Jennifer Griffin said she was told that there was a stand-down order at Benghazi, I got a weird call from the Obama administration trying to pressure me to get Jennifer to back down from her report. I thought the call from the Obama administration was dirty.''
Read Griffin's report here.
'--
Follow Zach Noble (@thezachnoble) on Twitter
VIDEO-President Obama NATO News Conference | Video | C-SPAN.org
Mon, 08 Sep 2014 15:21
September 5, 2014President Obama spoke with reporters and responded to questions following the conclusion of the NATO Summit in Wales.'He said that'... read more
President Obama spoke with reporters and responded to questions following the conclusion of the NATO Summit in Wales.'He said that there was unanimous agreement in NATO that there must be immediate action addressing the threat posed by ISIL.* President Obama said the goal was to ''degrade and ultimately destroy ISIL'' because they posed a threat to the international alliance.'He also spoke about the ceasefire in Ukraine and the need to protect member nations from aggression.
*The Islamic State in Iraq and the Levant (ISIL), also known as the Islamic State of Iraq and Syria (ISIS), an extremist Sunni militant group that has called itself the Islamic State. close
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*The transcript for this program was compiled from uncorrected Closed Captioning.
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VIDEO-Ebola Outbreak | FRONTLINE | PBS
Wed, 10 Sep 2014 15:46
September 5, 2014, 10:22 am ET · by Patrice TaddonioFilming in Sierra Leone was ''like being in a war zone where the enemy is invisible,'' said FRONTLINE's Wael Dabbous, who spent two weeks on the ground as the outbreak spiraled out of control.
September 9, 2014, 9:05 pm ETIn 2009, FRONTLINE/World investigated how a novel idea in public health, called ''One Health,'' has emerged to help combat threats like Ebola, Marburg virus and TB.
