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Statement from FCC Chairman Tom Wheeler Regarding DC Circuit Decision to Uphold FCC’s Open Internet Rules

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WASHINGTON, June 14, 2016 – Today, the DC Circuit upheld the FCC’s Open Internet rules. The following statement can be attributed to FCC Chairman Tom Wheeler.

 “Today’s ruling is a victory for consumers and innovators who deserve unfettered access to the entire web, and it ensures the internet remains a platform for unparalleled innovation, free expression and economic growth.  After a decade of debate and legal battles, today’s ruling affirms the Commission’s ability to enforce the strongest possible internet protections – both on fixed and mobile networks – that will ensure the internet remains open, now and in the future.”

 To learn more about the FCC’s Open Internet rules, visit www.fcc.gov/openinternet.

D.C. Circuit Court of Appeals Strikes Down FCC’s Net Neutrality Rules

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WASHINGTON, January 14, 2014 – The D.C. Circuit Court of Appeals, in a setback for the Federal Communications Commission, on Tuesday stuck down the agency’s Open Internet Order, issued in 2010.

The open internet rules built upon a prior policy statement issued by the FCC in 2005. In 2010, former agency chairman Julius Genachowski attempted to codify the 2005 principles into administrative law.

The court decision, Verizon v. FCC (pdf), represents a victory for the communications giant Verizon Communications, which sued the agency to block enforcement of the order.

In actual practice, though, cases where a company proposes or engages in actions in violation of the order are hard to come by.

As articulated in the 2005 policy statement, the agency put forward four principles for the open internet. They were that consumers should have or be able to:

  • Access the lawful internet content of their choice
  • Run applications and use services of their choice, subject to the needs of law enforcement
  • Connect their choice of legal devices that do not harm the network
  • Competition among network providers, application and service providers, and content providers

The Open Internet Order, as promoted by Genachowski and adopted by the agency, added two additional principles to these four.

The fifth principle stated that broadband providers may not discriminate against particular Internet applications by degrading or blocking lawful traffic.

The sixth principle would mandate broadband providers be transparent about their network management practices.

The decision, which struck down the 2010 order on a 2-1 vote of three Circuit Court judges, was not a complete loss for the commission.

A key passage concluded: “Even though the Commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates,” said the Court.

“Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such. Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order.”

Among the news organizations with the first stories on the decision include GigaOm, The Verge, and Deadline.com.

In a statement, current FCC Chairman Tom Wheeler said:

The D.C. Circuit has correctly held that ‘Section 706 . . . vests [the Commission] with affirmative authority to enact measures encouraging the deployment of broadband infrastructure’ and therefore may ‘promulgate rules governing broadband providers’ treatment of Internet traffic.’   I am committed to maintaining our networks as engines for economic growth, test beds for innovative services and products, and channels for all forms of speech protected by the First Amendment.  We will consider all available options, including those for appeal, to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans.

Senator Ed Markey, D-Mass., said:

As one of the primary authors of the Telecom Act of 1996, I know the Communications Act gives the FCC clear authority to oversee the operation of broadband networks, and has the power to intervene in its effort to preserve competition and safeguard consumers.

I plan to introduce legislation in the coming days that makes this crystal clear, and look forward to working with the Commission to ensure consumers are protected.

House Energy and Commerce Committee Ranking member Henry Waxman, D-Calif., said:

Today the D.C. Circuit affirmed what never should have been in question – the FCC can protect consumers, innovation, and competition online. Now the Commission must act expeditiously to exercise the authority the court has recognized. I look forward to working with the FCC to revise the rules on the books that protect the free and open Internet, so that it remains the robust platform that is driving our economy today and into the future.

Public Knowledge Senior Vice President Harold Feld said:

The Court has taken away important FCC flexibility, and its opinion could complicate FCC efforts to transition the phone network to IP [internet protocol] technology, promote broadband buildout, and other matters.

However, the Court did uphold broad Commission authority to regulate broadband. To exercise that authority, the FCC must craft open internet protection that are not full fledged common carrier rules. Alternatively, if the FCC needs broader authority it can classify broadband as a title 2 common carrier service.

Michael Beckerman, CEO of the Internet Association, said:

The continued success of this amazing platform should not be taken for granted. The Internet Association supports enforceable rules that ensure an open Internet, free from government control or discriminatory, anticompetitive actions by gatekeepers. We look forward to studying the D.C. Circuit’s opinion and working with the FCC and policymakers on the Hill to protect Internet freedom, foster innovation and economic growth, and empower users.

Verizon v. Federal Communications Commission Oral Argument Today on Net Neutrality

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September 9, 2013 – Monday marks the D.C. Circuit Court of Appeals’ long-awaited oral arguments in Verizon Communication’s challenge to Federal Communications Commission’s 2008 rules governing network neutrality, or rules requiring that internet companies not offer discounted services for web businesses that prioritize traffic over their particular internet networks.

On Friday, the New America Foundation’s Open Technology Institute hosted a discussion on the topic. And on Monday at noon, TechFreedom is hosting a debrief on the argument. The livestream starts at 12:15 ET, at http://netneutralitydebrief.eventbrite.com or http://techfreedom.org/post/58791178707/debrief-luncheon-after-net-neutrality-appellate

Congressional Members Discuss Net Neutrality, Privacy and Spectrum at CCIA Meeting

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WASHINGTON May 5, 2011- At the Washington Caucus meeting of the Computer and Communications Industry Association Wednesday, Congressional leaders presented their views on preserving the Open Internet, expanding patent reform, ensuring consumer privacy online and the need for spectrum reform.

“As the Internet becomes an increasing source of commerce and communication we cannot allow it to become a walled garden,” said Sen. Ron Wyden (D-OR), Chair of the Subcommittee on International Trade, Customs and Global Competitiveness. “While it is unknown how many jobs the open Internet creates, it is clear without an open Internet it will become very difficult for businesses to sell their goods and provide services.”

Wyden stated that the best way to protect consumers and ensure an open internet was through anti-trust laws, Rep. Bob Goodlatte (R-VA), Chair of the Subcommittee on Intellectual Property, Competition and the Internet, echoed this sentiment. Goodlatte expressed that he feels the Federal Communications Commission should not be regulating the issue.

Rep. Anna Eshoo (D-CA), ranking member of the Communications and Technology subcommittee, also supported the open internet and said that the FCC had the authority to act to protect consumers. She then called the debate of the joint resolution condemning the FCC on the floor of the House while the budget was not yet resolved “a royal waste of time.”

Rather than discuss the merits of the issue, the Republicans used the resolution to condemn the FCC, said Eshoo.

Wyden also implored the Obama administration to follow the lead set by Secretary of State Hillary Clinton and expand Internet freedom. While he noted the importance of consumer protection and the need to remove malicious websites, Wyden said he fears that the indiscriminant taking down of websites sends a bad message to other nations.

“Foreign nations will see our domain seizures as approval of limiting Internet communications,” Wyden said. “If we continue with this practice it won’t be long before other nations follow suit.”

“As Americans we deeply care about our privacy and do not want it invaded by business or government,” Eshoo said. “However we also do not want to kill off any innovation which can come from new devices and services. We need to educate the public about what information is being collected and who is collecting it.”

On the tail of several recent statements from Rep. Ed Markey (D-MD) expressing concerns about how Apple tracks its customers with the iPhone, Eshoo predicted that Congressional hearings will likely be held on the issue.

Goodlatte called upon industry to change their privacy settings from the current model that requires users to opt out of the collection of data to an opt in model in which users would choose to provide their data to companies.

“We must preserve the trust of users on the Internet,” said National Telecommunications and Information Administration  Deputy Administrator Anna Gomez. “Consumer groups and industry have both asked us to explore the issue and we plan to release an update to our green paper soon.”

The green paper advocates that Congress pass legislation that would provide a base set of consumer protections that the Federal Trade Commission would be able to enforce.

Wyden also called upon Congress to protect the rights of innovators through expanding patent reform and previewed the soon-to-be-introduced Digital Trade and Promotion Act, which will include digital goods in future trade agreements.

Goodlatte informed the group that there is currently patent reform legislation, which has bipartisan support, being brought to the floor of the House.

“Patent reform is an issue which has support from both sides and is key to expanding our economy,” Goodlatte said.

All of the Congressional speakers supported the idea of providing the FCC with the authority to conduct incentive auctions to obtain additional spectrum and Gomez called spectrum a key pillar in the nation’s digital infrastructure.

To expand the availability of spectrum for future use, Gomez said that spectrum owners need an incentive to release their holdings.

She went on to say that the federal government is looking at ways it can relocate its current spectrum holdings, but relocation will take time.

“We also need to seriously work on the development of a national public safety network,” Eschoo said. “It’s been 10 years since the attacks of 9/11 and we are nowhere near having a working network.”

Sen. Kerry Reaffirms Support for Network Neutrality

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WASHINGTON, September 2, 2010 – Massachusetts Democrat Sen. John Kerry has issued a statement strongly in support of network neutrality.

“Given my advocacy for net neutrality, I certainly understand why there are strong views on this issue. But rather than retreat to our predictable corners, this should be a time when everyone takes a deep breath and continues to engage in a constructive process,” he said.

He added that it is clear that preserving the open internet is within the scope of authority of the Federal Communications Commission.

“I remain open to and am actively working on a legislative solution to ensure that law reflects the growing consensus that the open internet must be preserved and promoted, but I also believe that the FCC has the authority, ability, and responsibility to use its regulatory authority under existing law to preserve internet freedom with or without a new law. In short, let’s stay at it, because this vigorous debate strengthens the ultimate outcome.”

While not explicitly mentioning an exception for mobile broadband he said: “The FCC is stating that it has a role to play in preserving open, ubiquitous, and accessible communications networks and that the wires and airwaves that constitute that network are and should be subject to oversight and regulation.”

Lawmakers Show Partisan Split on Open Internet Proposal

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WASHINGTON, September 2, 2010 – The request for comments by the Federal Communications Commission on the managed services and mobile broadband aspect on the open internet has received mixed reactions from members of Congress.

Republican Sen. John Ensign from Nevada would like to limit the power of the FCC. “Considering that net neutrality is the primary reason for the chairman’s misguided attempt to re-regulate the internet under heavy-handed monopoly rules, I hope he puts his reclassification plans on the shelf indefinitely. It would be a mistake for the FCC to go down the Title II rabbit hole when it doesn’t even fully understand where it wants to go on net neutrality,” he said. “Either way, the FCC should avoid taking a heavy-handed approach to the Internet that might stifle innovation and investment in broadband services.”

Democratic Rep. Edward Markey of Massachusetts responded with a statement in support of the chairman’s so-called “Third Way” proposal which would implement a mix of Title I and Title II regulation while maintaining a “light touch”. “If Congress fails to successfully legislate clarifications this month to the FCC’s authority. It is my hope that the FCC will move quickly to complete its “Third Way” proceeding in order to protect consumers, safeguard fair competition, and preserve the openness that has enabled the Internet to become the most successful communications and commercial medium in history.”

He also said any “fast lanes” would fundamentally be opposed to the open internet principles, adding that the digital divide would widen if mobile broadband would be excluded from the principles.

Former Googler in Obama Administration at Cross-Hairs of Net Neutrality Debate

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WASHINGTON, November 25, 2009 – The rhetoric surrounding whether the Federal Communications Commission should move forward with rules to regulate internet access to support the principle of network neutrality took on new legs this week when a government official – a former top policy official at Google – conflated net neutrality, free speech and anti-government censorship in the same discussion.

It comes at a time that the FCC has already moved away from the controversial term “network neutrality” to focus instead on the importance of ensuring that an “open internet” exists going forward.

Still, the term “network neutrality” or “Net neutrality” continues to used interchangeably with the phrase “open internet” by some administration officials.

President Obama highlighted “open internet” during his recent trip to China. Last week Obama’s Deputy Technology Officer Andrew McLaughlin and Tim Wu, a law professor at Columbia University, addressed during a conference last week “how an open Internet, or so-called net neutrality, underlies free speech on the Web” and how, “Without it, censorship can occur.”

McLaughlin was former head of global public policy for Google, which says that it supports Net neutrality.

In his campaign, Obama supported network neutrality. Generally, the term seems to rule out possibility that broadband providers may charge differential rates for preferred business customers.

While the FCC Chairman Julius Genachowski considers rules to support network neutrality, McLaughlin drove the nail in hard during the speech at a conference sponsored by the University of Nebraska at Lincoln law school.

“If it bothers you that the China government does it, it should bother you when your cable company does it,” McLaughlin said.

Following McLaughlin’s comments, AT&T went on the counter-charge.

Jim Cicconi, the top lobbyist with AT&T, a company that stands on the other side of the fence on the net neutrality issue, was not happy.

“It is deeply disturbing when someone in a position of authority, like Mr. McLaughlin, is so intent on advancing his argument for regulation that he equates the outright censorship decisions of a communist government to the network congestion decisions of an American [internet service provider],” AT&T lobbyist Jim Cicconi said in an e-mailed statement. “There is no valid comparison, and it’s frankly an affront to suggest otherwise.”

“Mr. McLaughlin’s statements are ill-considered and inflammatory,” Cicconi continued. “They describe a supposed threat to free speech by ISPs that simply does not exist, and seem designed to manufacture a ‘crisis’ in order to justify regulations that could damage investment and jobs,” he wrote.

In turn, Cicconi’s comments irked the Computer & Communications Industry Association, which said that it supported “the President and his administration are right to proclaim the importance of an open, uncensored Internet and to resist efforts to allow countries or dominant companies to manage or censor the Internet.”

CCIA also tied net neutrality into the argument against government censorship.

“CCIA has a history of opposing government censorship whether it happens in China, Iran or anywhere else in the world and has long supported net neutrality to ensure that Internet Access Providers do not restrict the public’s access to all applications, services and content,” the tech association said.

“It’s no surprise that AT&T and China had a similar response to the call for freedom and openness on the Internet. Restricting access to content, information and speech, whether for government censorship purposes or to protect excessive revenue streams, is an affront to all those who value free speech,” said Ed Black, president of CCIA.

“The juxtaposition of these free speech issues – Internet censorship and net neutrality – pulls away the layer of confusion about net neutrality that opponents have hidden behind for years,” said Black.

“What probably further concerns AT&T about linking Net neutrality to internet censorship is it hits too close to home. There is a real danger ISPs will use the scarcity of connectivity options and long-term contracts locking in customers as a means of control to favor one speaker or competitor over another on the Internet,” said Black.

The White House’s Office of Science and Technology Policy also weighed into the controversy. “A key reason the Internet has been such a success is because it is the most open network in history,” the office said in a statement. “Mr. McLaughlin was simply reiterating the Administration’s consistent support for the importance of an open Internet – both at home and abroad.”

GoodBye Network Neutrality, Welcome Open Internet!

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WASHINGTON, October 26, 2009 – Absent from the notice of proposed rulemaking released by the Federal Communications Commission Thursday is the charged term of “network neutrality” that has been discussed over the years. Instead, the paper is focused on the need to preserve an “open internet” through government intervention.

The problem is that neither the principle of network neutrality – which deals with how broadband providers may charge differential rates for preferred business customers – or the need to preserve an “open internet” are precise words. Defining either for the purpose of government rules is not an easy task.

The focus on “open internet” versus “network neutrality” in the FCC’s proposed rules and the statement released by FCC Chairman Julius Genachowski makes sense given that it is easier to find supporters of the former than the latter. Still, President Obama used the term “network neutrality” during his campaign.

Regardless of the language used, the discussion of whether the government should become more involved to support network neutrality principles has gone on for years.

“Three years ago we were having a very different discussion; we didn’t have the kinds of applications on the Internet that we have today,” said Rob Atkinson, president of the Information Technology and Innovation Foundation. “Three years from now, we are going to have issues come up that we couldn’t predict today.”

Andy Schwartzman, president of the Media Access Project, said “I would say that the biggest change in the net neutrality debate has been the emergence of high speed wireless networks. This has made the issue more complex, and also more real, to people.”

A second factor is the effort of the large carriers to “make content providers subject to regulation,” he said. Schwartzman noted that the role of edge players such as Google, Skype and Amazon has become more and more important.

“Network neutrality – the concept that the Internet should remain free and open to all comers – has been a major public policy priority for Google over the last two years. But anyone who has followed the debate closely knows that one of the challenges raised by our opponents has been defining what exactly the term means. The fact is, net neutrality can mean different things to different people,” wrote Google’s Washington Telecom and Media Counsel Richard Whitt in a 2007 blog post.

At the time, Whitt clarified what Google meant by the term. He was also reacting to some statements by top Google executives suggesting a softening of the company’s hard-line views on the subject. Whitt noted “that lack of broadband competition gives providers the market incentive and ability to discriminate against Web-based applications and content providers.”

If the definition of either network neutrality or what it means to ensure an open internet were clear and confined, the FCC would not need 107 pages to address the issues at hand and to explain why establishing rules governing internet access makes sense even as technology continues to evolve.

Atkinson defined the issues at the heart of the debate as being “first whether ISPs have blocked or degraded Web sites and under what circumstances, if any should this be allowed.”

The problem of blocking legitimate web sites or applications has never been realized, Atkinson said, with the exception of the case of Madison River, a small internet service provider blocking Vonage’s voice-over-internet-protocol applications. “The second issue is whether commercial arrangements should be allowed that would enable content and application providers who paid higher premiums to get better delivery of their Web products,” he said. “The third issue is how ISP networks should be managed to enhance performance.”

Atkinson urged the FCC to establish a generalized principle for a fair and open internet and enforce that principle on a case-by-case basis.

Genachowski summed up the challenge last Thursday, when he said, “[D]o any of us think that the draft rules proposed today perfect? Are they set in stone? No—we are at the beginning of a rulemaking process, with draft rules offered in the context of a Notice that seeks to spot the issues, ask the hard questions, and seek broad public input.”

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