I've changed my mind about the repeal of Net Neutrality (The Open Internet Order)
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I. INTRODUCTION
1. The open Internet drives the American economy and serves, every day, as a critical tool
for America’s citizens to conduct commerce, communicate, educate, entertain, and engage in the world
around them. The benefits of an open Internet are undisputed. But it must remain open: open for
commerce, innovation, and speech; open for consumers and for the innovation created by applications
developers and content companies; and open for expansion and investment by America’s broadband
providers. For over a decade, the Commission has been committed to protecting and promoting an open
Internet. -
2. Four years ago, the Commission adopted open Internet rules to protect and promote the
“virtuous cycle” that drives innovation and investment on the Internet—both at the “edges” of the
network, as well as in the network itself. In the years that those rules were in place, significant
investment and groundbreaking innovation continued to define the broadband marketplace. For example,
according to US Telecom, broadband providers invested $212 billion in the three years following
adoption of the rules—from 2011 to 2013—more than in any three year period since 2002.Would come back and add notes on what those rules were with links, and some of the issues that emerged which led to NN.
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3. Likewise, innovation at the edge moves forward unabated. For example, 2010 was the
first year that the majority of Netflix customers received their video content via online streaming rather
than via DVDs in red envelopes. Today, Netflix sends the most peak downstream traffic in North
America of any company. Other innovative service providers have experienced extraordinary growth—
Etsy reports that it has grown from $314 million in merchandise sales in 2010 to $1.35 billion in
merchandise sales in 2013. And, just as importantly, new kinds of innovative businesses are busy being
born. In the video space alone, in just the last sixth months, CBS and HBO have announced new plans
for streaming their content free of cable subscriptions; DISH has launched a new package of channels that
includes ESPN, and Sony is not far behind; and Discovery Communications founder John Hendricks has
announced a new over-the-top service providing bandwidth-intensive programming. This year, Amazon
took home two Golden Globes for its new series “Transparent.”Just setting the stage here, mostly around the rise in Video and Online Stores
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4. The lesson of this period, and the overwhelming consensus on the record, is that
carefully-tailored rules to protect Internet openness will allow investment and innovation to continue to
flourish. Consistent with that experience and the record built in this proceeding, today we adopt
carefully-tailored rules that would prevent specific practices we know are harmful to Internet openness—
blocking, throttling, and paid prioritization—as well as a strong standard of conduct designed to prevent
the deployment of new practices that would harm Internet openness. We also enhance our transparency
rule to ensure that consumers are fully informed as to whether the services they purchase are delivering
what they expect. -
5. Carefully-tailored rules need a strong legal foundation to survive and thrive. Today, we
provide that foundation by grounding our open Internet rules in multiple sources of legal authority—
including both section 706 of the Telecommunications Act and Title II of the Communications Act.
Moreover, we concurrently exercise the Commission’s forbearance authority to forbear from application
of 27 provisions of Title II of the Communications Act, and over 700 Commission rules and regulations.
This is a Title II tailored for the 21st century, and consistent with the “light-touch” regulatory framework
that has facilitated the tremendous investment and innovation on the Internet. We expressly eschew the
future use of prescriptive, industry-wide rate regulation. Under this approach, consumers can continue to enjoy unfettered access to the Internet over their fixed and mobile broadband connections, innovators can
continue to enjoy the benefits of a platform that affords them unprecedented access to hundreds of
millions of consumers across the country and around the world, and network operators can continue to
reap the benefits of their investments. -
6. Informed by the views of nearly 4 million commenters, our staff-led roundtables,
numerous ex parte presentations, meetings with individual Commissioners and staff, and more, our
decision today—once and for all—puts into place strong, sustainable rules, grounded in multiple sources
of our legal authority, to ensure that Americans reap the economic, social, and civic benefits of an open
Internet today and into the future. -
II. EXECUTIVE SUMMARY
*7. The benefits of rules and policies protecting an open Internet date back over a decade
and must continue.1
Just over a year ago, the D.C. Circuit in Verizon v. FCC struck down the
Commission’s 2010 conduct rules against blocking and unreasonable discrimination.2
But the Verizon
court upheld the Commission’s finding that Internet openness drives a “virtuous cycle” in which
innovations at the edges of the network enhance consumer demand, leading to expanded investments in
broadband infrastructure that, in turn, spark new innovations at the edge.3
The Verizon court further
affirmed the Commission’s conclusion that “broadband providers represent a threat to Internet openness
and could act in ways that would ultimately inhibit the speed and extent of future broadband
deployment.” -
8. Threats to Internet openness remain today. The record reflects that broadband providers
hold all the tools necessary to deceive consumers, degrade content, or disfavor the content that they don’t
like.5
The 2010 rules helped to deter such conduct while they were in effect. But, as Verizon frankly told
the court at oral argument, but for the 2010 rules, it would be exploring agreements to charge certain
content providers for priority service.6
Indeed, the wireless industry had a well-established record of trying to keep applications within a carrier-controlled “walled garden” in the early days of mobile
applications. That specific practice ended when Internet Protocol (IP) created the opportunity to leap the
wall. But the Commission has continued to hear concerns about other broadband provider practices
involving blocking or degrading third-party applications. -
9. Emerging Internet trends since 2010 give us more, not less, cause for concern about such
threats. First, mobile broadband networks have massively expanded since 2010. They are faster, more
broadly deployed, more widely used, and more technologically advanced. At the end of 2010, there were
about 70,000 devices in the U.S. that had LTE wireless connections. Today, there are more than 127
million.7
We welcome this tremendous investment and innovation in the mobile marketplace. With
carefully-tailored rules in place, that investment can continue to flourish and consumers can continue to
enjoy unfettered access to the Internet over their mobile broadband connections. Indeed, mobile
broadband is becoming an increasingly important pathway to the Internet independent of any fixed
broadband connections consumers may have, given that mobile broadband is not a full substitute for fixed
broadband connections.8 And consumers must be protected, for example from mobile commercial
practices masquerading as “reasonable network management.” Second, and critically, the growth of
online streaming video services has spurred further evolution of the Internet.9
Currently, video is the dominant form of traffic on the Internet. These video services directly confront the video businesses of
the very companies that supply them broadband access to their customers. -
10. The Commission, in its May Notice of Proposed Rulemaking, asked a fundamental
question: “What is the right public policy to ensure that the Internet remains open?”11 It proposed to
enhance the transparency rule, and follow the Verizon court’s blueprint by relying on section 706 to adopt
a no-blocking rule and a requirement that broadband providers engage in “commercially reasonable”
practices. The Commission also asked about whether it should adopt other bright-line rules or different
standards using other sources of Commission authority, including Title II. And if Title II were to apply,
the Commission asked about how it should exercise its authority to forbear from Title II obligations. It
asked whether mobile services should also be classified under Title II. -
11. Three overarching objectives have guided us in answering these questions, based on the
vast record before the Commission: America needs more broadband, better broadband, and open
broadband networks. These goals are mutually reinforcing, not mutually exclusive. Without an open
Internet, there would be less broadband investment and deployment. And, as discussed further below, all
three are furthered through the open Internet rules and balanced regulatory framework we adopt today. -
12. In enacting the Administrative Procedure Act (APA), Congress instructed expert agencies
conducting rulemaking proceedings to “give interested persons an opportunity to participate in the rule
making through submission of written data, views, or arguments.”13 It is public comment that cements an
agency’s expertise. As was explained in the seminal report that led to the enactment of the APA:- list itemThe reason for [an administrative agency’s] existence is that it is expected to bring to its
task greater familiarity with the subject than legislators, dealing with many subjects, can
have. But its knowledge is rarely complete, and it must always learn the frequently
clashing viewpoints of those whom its regulations will affect.
- list itemThe reason for [an administrative agency’s] existence is that it is expected to bring to its
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13. Congress could not have imagined when it enacted the APA almost seventy years ago
that the day would come when nearly 4 million Americans would exercise their right to comment on a
proposed rulemaking. But that is what has happened in this proceeding and it is a good thing. The
Commission has listened and it has learned. Its expertise has been strengthened. Public input has
“improve[d] the quality of agency rulemaking by ensuring that agency regulations will be ‘tested by
exposure to diverse public comment.’”15 There is general consensus in the record on the need for the Commission to provide certainty with clear, enforceable rules. There is also general consensus on the
need to have such rules. Today the Commission, informed by all of those views, makes a decision
grounded in the record. The Commission has considered the arguments, data, and input provided by the
commenters, even if not in agreement with the particulars of this Order; that public input has created a
robust record, enabling the Commission to adopt new rules that are clear and sustainable.A. Strong Rules That Protect Consumers from Past and Future Tactics that Threaten
the Open Internet1. Clear, Bright-Line Rules
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14. Because the record overwhelmingly supports adopting rules and demonstrates that three
specific practices invariably harm the open Internet—Blocking, Throttling, and Paid Prioritization—this
Order bans each of them, applying the same rules to both fixed and mobile broadband Internet access
service.A person engaged in the provision of broadband Internet access service, insofar as such
person is so engaged, shall not block lawful content, applications, services, or nonharmful
devices, subject to reasonable network management. -
15. No Blocking. Consumers who subscribe to a retail broadband Internet access service
must get what they have paid for—access to all (lawful) destinations on the Internet. This essential and
well-accepted principle has long been a tenet of Commission policy, stretching back to its landmark
decision in Carterfone, which protected a customer’s right to connect a telephone to the monopoly
telephone network.
